December 22, 2021
By Dr. Cathérine Van de Graaf and Yannick Schoog
On the 26th of October 2021, the European Court of Human Rights (ECtHR; the Court) answered the question of whether or not a fixed age limit to qualify for a housing subsidy for ‘young families’ was discriminatory in the negative. The case of Šaltinytė v. Lithuania raises some questions on what would qualify as ‘a reasonable basis’ for such a difference in treatment and what suffices as evidence to prove such a basis. While a wide margin of appreciation for ‘measures of economic or social strategy’ is relatively unremarkable and we have to praise the Lithuanian government for doing its research into a possible consensus on eligible criteria for housing assistance, the argument that ‘an average’ is not based on ‘prevailing social attitudes’ reveals the Court’s easy resort to majoritarian thinking.
In 2015, the Lithuanian Housing Assistance Act, that envisaged a system of different types of housing subsidies, entered into force. Beneficiaries could make use of a housing subsidy to partially cover a mortgage to buy a home, to get access to social housing from the state or a partial rebate of rent payments. To receive the benefit to buy a home, several requirements need to be fulfilled: a person’s or family’s monthly income must not exceed a specified limit, it must be their first home in Lithuania and they must be a ‘young family’. To be a ‘young family’ entails that the age of each spouse or the single parent must not exceed 35 years. In 2019, this limit was raised to 36 years.
The applicant, a single mother with a daughter born in 2012, applied for the housing subsidy to buy her own home. The competent authorities rejected her claim because she exceeded the age limit by one year – she was 37 years old at the time. Ms. Šaltinytė resorted to the Lithuanian administrative courts up to the Supreme Administrative Court alleging age-based discrimination. They dismissed her complaints as well as her request to refer the matter to the Lithuanian Constitutional Court. Finally, Ms. Šaltinytė took her case to Strasbourg, alleging a violation of Article 14 ECHR read in conjunction with Article 1 Protocol No. 1 as well as a violation of Article 6 § 1 ECHR.
The Court first asked whether prohibition of discrimination enshrined in Article 14 ECHR was applicable to the case; this requires that the complaint falls within the scope of ‘the rights and freedoms enshrined in the Convention’. In line with its settled case law, it considered the housing subsidy to be within the scope of property protection (Article 1 Protocol No. 1). Hence, Article 14 ECHR was applicable. Further, ‘age’ constituted ‘other status’ for the purposes of prohibition of discrimination. However, the Court underscored that differential treatment on the grounds of age does not require the same strong and convincing justification as, for example, differential treatment on the grounds of ethnic origin, gender or sexual orientation. Further, it stressed the state’s wide margin of appreciation in economic and social policy. The Court accepted the applicant’s contention that she was treated differently than other persons in an analogous or relevantly similar situation and subsequently turned to the question of justification. This in turn requires a legitimate aim as well as a reasonable relation of proportionality between the means and the objective sought. The Chamber (Second Section) accepted the aim to encourage ‘young families’ to have more children and to correct the negative demographic trend in Lithuania. Attaching great importance to its subsidiary role and judicial self-restraint in the field of economic and social policy, the Court held that the state did not exceed its margin of appreciation when assessing proportionality. It thus concluded that there was no violation of Article 14 ECHR read in conjunction with Article 1 Protocol No. 1.
Regarding the alleged violation of Article 6 § 1, the Court found that there was no individual constitutional complaint mechanism in Lithuania. The only ground for referring a matter to the Constitutional Court was a doubt faced by the court examining the case about the constitutionality of the relevant legal provision; parties’ requests for referral did not bind the courts. While the Convention does not include a right to have a case referred to another (inter)national court for a preliminary ruling, a refusal to grant a request for referral may infringe fairness of proceedings when it has not been duly reasoned. Yet, in the present case, the Court concluded that the reasoning of the Supreme Administrative Court was sufficient to demonstrate to the applicant that her arguments had been heard and to understand the grounds on which the refusal was based.
Firstly, the applicant argued that ‘all parents raising small children may have similar needs, regardless of the parents’ age’ (§ 65). Here, the Court indeed accepts that the applicant found herself in a similar situation to a younger single mother and would have probably been granted the housing subsidy had she been younger. When assessing the legitimate aim, the Court found that the government did not sufficiently demonstrate the aspiration to consider the needs of ‘socially vulnerable groups’ and correct factual inequalities between different types of families when it referred to statistical data of Lithuanian national averages.
Yet, then, in its proportionality test, the Court declares that Lithuania did not overstep its margin because the impugned age limit is based on ‘statistical data provided by the Government, showing that, on average, Lithuanians get married, have their first child and obtain a housing loan between the ages of twenty-eight and thirty-five.’ It is surprising that the Court argues that this average is not based on ‘prevailing social attitudes’. It is exactly the predominant social choices that make up an average like the one the Lithuanian government used to justify its age limit. This brings to mind what K. Anthony Appiah refers to as ‘statistical stereotypes’. Alexandra Timmer describes these as ‘the kind of stereotype[s] that reflect a statistical truth about the group as a whole, but which [do] not accurately reflect the situation of the individual’. She found an example of such a stereotype in Runkee and White v. United Kingdom. Here, the government excluded widowers from widow’s benefits based on the assumption that older widows in particular face financial hardship, an assumption that coincides with British statistics. In casu, while the ‘objective data’ accepted by the Court as a basis indeed reflect a statistical truth for the majority of people, they do not reflect that of Ms. Šaltinytė.
Additionally, while the Lithuanian government argued ‘that it sought to take into account the needs of ‘socially vulnerable groups’ and to correct factual inequalities between different types of families’ (§ 72), the average that serves as a justification for its upper age limit appears to be based on a traditional idea of the family, one which includes two parents. The government based its argument on average marriage of Lithuanians. In this regard, the applicant pointed out that when she was under thirty-five years old, her income had not been sufficiently high for her to (possibly) receive a loan from the bank (§ 46). So either, the applicant was within the appropriate age bracket, but could not rely on sufficient funds for a loan, or she found herself in a stronger financial position, but had passed the state-imposed age threshold for the benefit. Arguably, the state’s fixed age limit independent of family status disregards factual financial inequalities single parents face.
Nevertheless, the outcome in Šaltinytė does not come as a surprise against the backdrop of the wide margin of appreciation the Court grants to member states in its settled case law when it comes to socio-economic policy (cf. Koufaki and ADEDY v. Greece, 57665/12 and 57657/12, § 31; Béláné Nagy v. Hungary, 53080/13, § 113; Fábián v. Hungary, 78117/13, § 65). It generally accepts that the national authorities are better placed than the ECtHR to assess measures of social and economic policy. This has, however, not stopped the Court to intervene in ‘hard’ cases and limit the state’s margin of appreciation when applicants find themselves in a state of utter destitution (cf. Béláné Nagy v. Hungary, 53080/13, § 126). Béláne Nagy concerned a disabled woman who had received her state disability pension for over ten years and lost it in the aftermath of legislative amendments of the applicable legal regime. At the time of her application, she received only a monthly housing allowance amounting to less than EUR 20 and did not qualify for so-called basic subsistence allowance. Despite the wide of margin of appreciation that states usually enjoy, the Court found that the applicant belonged to a vulnerable group and that Hungary had violated her right to property. This suggests that the Court is more willing to grant protection when presented with a hard case (cf. dissenting opinion of judges Nußberger, Hirvelä, Bianku, Yudkivska, Møse, Lemmens and O’Leary in Béláné Nagy v. Hungary, 53080/13, § 45 underscoring that ‘hard cases do not make good law’).
Returning to the present case, this raises the question whether the outcome would have been different had the applicant tried to apply, not for the subsidy to a housing loan, but for the right to rent social housing from the state instead. In that regard, the Court explicitly noted that the benefit in question does not belong to the category of housing benefits extended to persons with very low income independently of age and other personal circumstances but to the category of benefits for persons with – comparatively – higher income and in view of their family situation (§ 69). Further, it underlined that the applicant was not barred from applying for other benefits aimed at the very poor members of society (§ 70) and focused on the fact that the application merely concerned one single benefit (§ 71). To put it bluntly: if the applicant had been worse off, would the ECtHR have stepped in? Inevitably, this leads to the question whether protection in socio-economic matters hinges on legal arguments or the level of destitution the applicants are able to show.
Finally, one may ask whether the Court fulfilled its task properly by focusing only on the applicant’s age and disregarding further dimensions of discrimination relevant to the case, such as sex or family status. As a single mother, the applicant might have faced difficulties, not in the least financial, other parents would not have to face. In its prior case law, the ECtHR has been more open towards exploring intersectional discrimination and has referred to both sex and family status as warranting very weighty reasons to justify a difference in treatment (Yocheva and Ganeva v. Bulgaria, 18592/15 and 43863/15, § 125). It could have easily done the same in Šaltinytė.
The Chamber judgment of Šaltinytė v. Lithuania can hardly be called surprising. The Court operates along the lines of its established case law on questions of socio-economic policy. While differential treatment based on other grounds would warrant a very-weighty-reasons test, such is not the case for the criterion ‘age’. We can only hypothesise how the various legitimate aims cited by the Lithuanian government could warrant discrimination based on various other characteristics of (single) parents as well. We are convinced however, that an inflexible age limit for parents is not the most suitable proxy for improving a state’s demographic situation. Yet, we do accept that the Strasbourg Court might not be best placed to rectify such a situation.