Report for the Hearing in Case C-243/90

I — Facts and written procedure

1. In the United Kingdom, section 20 of the Social Security Act 1986 introduced a statutory housing benefit scheme, the detailed rules for the application of which are set out in the Housing Benefit (General) Regulations 1987. The benefit is calculated on the basis of the relation between the beneficiary's income and an applicable amount. The applicable amount may be increased inter alia by including the higher pensioner premium provided for in paragraph 10 of Part III of Schedule 2 of the 1987 Regulations; the premium is applicable inter alia to single persons aged less than 80 but not less than 60 who satisfy the additional condition specified in paragraph 12 which provides, inter alia, that such persons must be in receipt of an invalidity pension.

2. Section 15 of the Social Security Act 1975 provides that an invalidity pension is payable to a person up to pensionable age, which is fixed by section 27 at 65 years for men and 60 for women; it remains payable thereafter for a maximum period of five years to any person over that age who remains in regular employment.

3. Florence Rose Smithson was in receipt of an invalidity pension for the five years prior to her 60th birthday. From then on, for reasons not explained, she drew a retirement pension. She was refused application of the higher pensioner premium on the ground that she did not fulfil the additional condition of being in receipt of an invalidity pension. Since her age at the time of the facts relevant to the main proceedings was 67, she was unable to elect to de-retire and opt for an invalidity pension.

4. Miss Smithson made an application for judicial review based on the argument that the national legislation was incompatible with the prohibition of discrimination in Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1978 L 6, p. 24), inasmuch as she was refused application of the higher pensioner premium for housing benefit whereas a man in the same situation could claim it.

5. By an order of 26 June 1990 the High Court of Justice, Queen's Bench Division, ruled that because the case depended on an interpretation of Directive 79/7 the proceedings should be stayed pending a preliminary ruling from the Court of Justice of the European Communities pursuant to Article 177 of the EEC Treaty on the following questions:

6. The order made by the High Court of Justice, Queen's Bench Division, was lodged at the Court Registry on 9 August 1990.

7. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged on 26 November 1990 by Horence Rose Smithson, represented by Nicholas Warren, Solicitor, of Birkenhead, Merseyside; on 4 December 1990 by the United Kingdom, represented by J. E. Collins of the Treasury Solicitor's Department, acting as Agent, assisted by Richard Plender QC and David Pannick, Barrister; and on 19 November 1990 by the Commission of the European Communities, represented by Nicholas Khan, a member of the Commission's Legal Service, acting as Agent.

8. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

9. Pursuant to Article 95(1) and (2) of the Rules of Procedure the Court decided on 15 May 1991 to refer the case to the Sixth Chamber.

II — Written observations submitted to the Court

1. For Miss Smithson, it is stated that the first question concerns the discriminatory linking of entitlement to the higher pensioner premium to entitlement to an invalidity pension, that pension not being payable to a woman who is over the age of 65. It seeks to know whether housing benefit, or at least the higher pensioner premium, falls within Article 3 of the directive and whether such discrimination is covered by Article 7(l)(a).

2. The United Kingdom observes that the first question seeks to know whether a statutory scheme providing for the payment of housing benefit is to be regarded as a statutory scheme which provides protection against the risk of old age or invalidity, within the meaning of Article 3(1) of Directive 79/7.

3. The Commission points out that only the first question falls to be answered by the Court within the jurisdiction conferred on it by Article 177 of the Treaty; the second concerns only the means by which the applicant in the main proceedings may be able to assert her rights if the first question is answered in the affirmative.

1 Language of the case: English.