[2004] UKSSCSC CIS_2337_2004 (11 November 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIS/2337/2004

APPLICATION FOR LEAVE TO APPEAL AGAINST A DECISION OF AN APPEAL TRIBUNAL

DETERMINATION OF MR COMMISSIONER JACOBS

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1.	I refuse the claimant leave to appeal against the decision of the Swansea appeal tribunal under reference U/03/204/2004/00403, held on 30 March 2004, because it is not erroneous in point of law. 
History and background
2.	The claimant was born on 29 June 1941 and was a teacher. He became ill and unable to work. As a result, he received statutory sick pay followed by incapacity benefit. During the time that he was receiving incapacity benefit, he received a winter fuel payment for 2001. He was restored to health and was able to return to work. However, he was then offered a choice of early retirement or redundancy. He opted for the former and was eventually paid his occupational pension. 
3.	He did not receive a winter fuel payment for 2002 and he did not pursue the matter until December 2003. His explanation for the delay is that: (a) he was occupied on retiring and sorting out his pension; (b) he was abroad in Australia; (c) he did not notice he had not been paid; and (d) he assumed that he would be paid. 
4.	The Secretary of State refused the claim. The claimant appealed against the decision, but his appeal was dismissed. He applied for leave to appeal to a Commissioner and asked for an oral hearing. His application came before Miss Commissioner Fellner, who directed an oral hearing. Before that hearing, the Secretary of State made a written submission opposing the application. This was sent to the claimant. I also arranged for him to have, at his request, a copy of the relevant legislation dealing with winter fuel payments. 
5.	The oral hearing was held before me in Cardiff on 18 October 2004. The claimant attended and presented his case. The Secretary of State was represented by Mr James. There were also two observers, Ms Nana Brewer and Ms Julie Arthur, from the Winter Fuel Department in Cardiff. I am grateful to both the claimant and Mr James for their clear submissions to me. 
6.	On previewing the papers, Mr James realised that there were arguments that might help the claimant which had not been made by the Secretary of State. He arranged for relevant documents to be faxed to him at the Civil Justice Centre where the hearing was taking place. The claimant was annoyed at the lateness. He pointed out, correctly, that the Secretary of State had had plenty of time to provide this material before the hearing. Mr James accepted the point. In view of the nature of the material, it was impossible for the claimant to read it and present an argument on it in the time available. I therefore allowed him a chance to make written submissions. He did so and I have taken his comments into account in my reasoning. Despite the lateness, I am grateful to Mr James for his concern to identify material that might have been to the claimant’s benefit. 
The legislation
7.	The legislation relevant to this Social Fund Winter Fuel Payment Regulations 2000. The relevant provisions are:
‘Citation, commencement and interpretation
1.- …
(2)	In these Regulations-
…
"qualifying week" means in respect of any year the week beginning on the third Monday in the September of that year …
Social fund winter fuel payments
2.	Subject to regulation 3, the Secretary of State shall pay to a person who-
(a)	in respect of any day falling within the qualifying week is ordinarily resident in Great Britain; and
(b)	has attained the age of 60 in or before the qualifying week,
a winter fuel payment …
Persons not entitled to a social fund winter fuel payment
3.-(1) Regulation 2 shall not apply in respect of a person who-
…
(b)	subject to paragraph (2), has not made a claim for a winter fuel payment before the 31st March following the qualifying week in respect of the winter following that week.
(2)	Paragraph (1)(b) shall not apply where-
(a)	a payment has been made by virtue of regulation 4(1) before the 31st March following the qualifying week in respect of the winter following that week; or
(b)	regulation 4(2) applies.
Making a winter fuel payment without a claim
4.-(1) Subject to paragraph (2), the Secretary of State may before the 31st March of the year following the year in which the qualifying week falls make a winter fuel payment under regulation 2 in respect of the preceding winter to a person who (disregarding regulation 3(b)) appears from official records held by the Secretary of State to be entitled to a payment under that regulation.
(2)	Where a person becomes entitled to income support in respect of the qualifying week by virtue of a decision made after that week that section 115 of the Immigration and Asylum Act 1999 (exclusions) ceases to apply to him the Secretary of State shall make a winter fuel payment to that person under regulation 2 in respect of the winter following the qualifying week.
(3) Subject to paragraph (4), for the purposes of paragraphs (1) and (2) official records held by the Secretary of State as to a person's circumstances shall be sufficient evidence thereof for the purpose of deciding his entitlement to a winter fuel payment and its amount.
(4) Paragraph (3) shall not apply so as to exclude the revision of a decision under section 9 of the Social Security Act 1998 (revision of decisions) or the supersession of a decision under section 10 of that Act (decisions superseding earlier decisions) or the consideration of fresh evidence in connection with the revision or supersession of a decision.’
How to obtain a payment
8.	The claimant became 60 in 2001. From then on he was potentially entitled to a winter fuel payment. He could obtain a payment in one of two ways. He could make a claim or he could rely on the Secretary of State’s power in regulation 4 to make a payment without a claim. 
Payment on a claim
9.	Section 1 of the Social Security Administration Act 1992 makes it a condition of entitlement for most benefits that there be a claim. However, that provision does not apply to winter fuel payments, because they are not a ‘benefit’ as defined by section 1(4). On this, I respectfully disagree with the view of Miss Commissioner Fellner in CIS/0306/2003 (paragraph 6).
10.	Instead, regulation 3(1)(b) excludes from entitlement anyone who has not made a claim. This is subject to the operation of regulation 4, which I discuss below. 
11.	In this case, the claimant did make a claim. However, it was made late. Regulation 3(1)(b) provides that the claim must be made before the end of March following the qualifying week. The qualifying week is, roughly, the third week in September. In this case, the claimant made a claim, but only after the end of March. 
Absolute time limit
12.	The claimant put a number of arguments relating to the time limit within which a claim may be made. 
13.	The claimant argued that the Secretary of State and the tribunal were wrong to say that there was an ‘absolute’ time limit on making a payment for a particular winter. He is correct. However, this does not help his case, for this reason. The legislation does not use the word ‘absolute’. It was used to try to summarise complex legislation and explain its effect in clear and simple language. 
14.	There is a distinction between making a claim and making a payment. If a claimant claims a winter fuel payment and an award is made, the Secretary of State makes a payment. The payment is made because an award has been made as a result of a claim. But the Secretary of State may make a payment without a claim. Sometimes, this is done in order to remedy or compensate for a mistake made by the Department. In the case of a winter fuel payment, the legislation itself (regulation 4(1)) confers a power on the Secretary of State to make a payment without the need for a claim. 
15.	This explanation allows me to explain why the term ‘absolute’ time limit is misleading. It refers only to the making of a claim. It does not refer to making a payment. A claim can only be made within a specified time. But payment can be made at any time, because the Secretary of State is able to make a payment without the need for a claim.
16.	This is the explanation of the statement that the claimant has quoted from the Department’s leaflet:
‘Although your claim should have been received by 31 March following the winter for which you are claiming you can submit a claim form and your case will be investigated.’
Notice that it does not say that ‘you can submit a claim’. It says that ‘you can submit a claim form’. The form will contain the information needed to investigate ‘your case’. That investigation may show that the person was registered and should have been paid under the normal ‘payment without a claim’ arrangements. Or it may show that for some reason, it is appropriate to make a discretionary payment. What this quotation does not say is that a claimant is entitled to have a payment made regardless of the circumstances and of when the claim is made. 
17.	The claimant presented an argument that was based on a misunderstanding of the claim and appeal system. His argument was this. The fact that he was allowed to claim and to appeal showed that the time limit was not ‘absolute’. An appeal presupposed that a different decision could be given on appeal. This argument is not correct. If a claimant insists on making a claim, the Secretary of State will allow this and will give a decision. That decision allows the claimant to take the case on appeal so that the correctness of the Secretary of State’s decision on the claim may be investigated and decided. The tribunal has power to substitute a different decision, but only if the Secretary of State’s decision was wrong. If the claim was made after the end of March, the tribunal would have no alternative in law but to confirm the Secretary of State’s refusal of the claim. 
18.	On the claimant’s argument, an appeal would only be permitted if it was going to succeed. That is not how the appeal system works. There is a procedure that would have allowed the Secretary of State to ask the tribunal to reject the claimant’s appeal summarily on the ground that it had no prospect of success (regulation 46(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999). But that procedure was not invoked. If it had been, the claimant would (I am sure) have had a sense of grievance that he had had no chance to have his case considered by an independent body. 
19.	The claimant also argued that the time for making a claim could be extended under regulation 19 of the Social Security (Claims and Payments) Regulations 1987. There are two answers to this argument. First, regulation 19 does not apply to claims for winter fuel payments. (I think, with respect, that Miss Commissioner Fellner may have overlooked this in CIS/0306/2003 at paragraph 7.) Second, even if it did, the circumstances of the claimant’s case do not fall within any of the limited circumstances in which time could be extended. 
Payment without a claim
20.	This is authorised by regulation 4(1). This confers on the Secretary of State a power, but not a duty, to make a payment. Regulation 3(2) makes clear that this power operates without the need for a claimant to make a claim. 
21.	The claimant has no right of appeal against the Secretary of State’s failure to make a payment under regulation 4(1). The reason is this. The right of appeal to an appeal tribunal is conferred by section 12 of the Social Security Act 1998. An appeal lies against ‘any decision of the Secretary of State’ (section 12(1)). In this case, the Secretary of State did not make a decision. The Secretary of State simply does not make a payment; there was no decision not to make a payment. 
22.	There is a right to appeal if the Secretary of State did make a decision. A decision made under regulation 4 is not made on a claim. An appeal against a decision that is not made on a claim is only possible if the decision comes within section 12(1)(b) of, and Schedule 3 to, the 1998 Act. Paragraph 1 of that Schedule authorises an appeal in respect of a relevant benefit. A winter fuel payment is a relevant benefit (see the definition in section 8(3)(f)). But the right of appeal only arises in the cases and circumstances prescribed. The only prescribed cases and circumstances are set out in regulation 26 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Paragraph (b) of that regulation covers ‘a decision … whether a payment be made out of the social fund to a person to meet expenses for heating’.  Notice, again, the word ‘decision’. To repeat, the Secretary of State in this case did not make a decision. What happened was that the Secretary of State did not make a payment. The Secretary of State did not give a decision not to make one. 
23.	The claimant cannot rely on regulation 4, because the Secretary of State, through the decision-makers who act in his name, simply had no cognisance of the claimant. It would have been different if the Secretary of State had considered the matter and decided not to make a payment on the ground, say, that the claimant was not ordinarily resident in Great Britain. Then, there would have been a decision that carried a right of appeal. 
24.	The power under regulation 4 only applies if it is clear from ‘official records’ that the claimant is entitled. These records are not defined. But it is possible to infer from regulation 4(3) that they must be sufficient to show that the claimant is entitled. The claimant’s argument assumes that any record that is official will do. But that is not how the Department understands the legislation. At least, that is not how it operates it. The rights and wrong of that matter are not for me to decide, because (as I have already explained) there is no appeal against the exercise of the Secretary of State’s power to make a payment without a claim. 
The revision argument
25.	The claimant relied on regulation 4(4) and put an argument based on a revision of the decision to refuse the claim. That argument is misconceived. The revision has no application to an appeal to a tribunal. The tribunal is not revising the Secretary of State’s decision. The tribunal is reconsidering it afresh to decide if it was correct. Regulation 4(4) does not allow the claimant to bypass the time limit set by regulation 3(1)(b).
The human rights argument
26.	The claimant argued that he had been deprived of his right to a winter fuel payment. I will analyse this argument first in terms of domestic law, because that analysis shows why he has no case in human rights law. 
27.	As the claimant saw it, he had received a winter fuel payment once and was entitled to it for life thereafter. As it had not been paid, he had been deprived of what was his by right. I can understand why he sees it like that, but it is not a correct analysis in law. My analysis of the legislation is that the claimant does not have an ongoing right to a payment. Each year is considered separately. What happens is that, for administrative convenience, the Secretary of State is authorised to make payment each year without a claim. If the Secretary of State acts, there is no need for a claim. If the Secretary of State does not act, a payment can only be made if a claim is made. The basic requirement is that there must be a claim. This is subject to a concessionary power for the Secretary of State to pay without a claim. 
28.	Looked at in that way, the claimant did not have a right to have the payment made to him without action on his part. What he had was a right to make a claim. That right was not taken away from him. What happened was that he failed to exercise that right. He made an assumption that was wrong (that he would be paid) and failed to notice that he had not been paid. His right was not taken away. 
29.	The claimant’s human rights argument was based on the Convention right in Article 1, Protocol 1. That protects peaceful enjoyment of possessions and prohibits, subject to exceptions, deprivation of possessions. In this case, the claimant has simply failed to exercise a right that he had in the time allowed. The time limit ending in March allows ample time. It does not amount to an impediment to the right to claim. It defines the scope of his right in a reasonable way. 
30.	The claimant says that a winter fuel payment is not a non-contributory benefit. That is wrong. It is not contributory. It is a payment from the social fund, which is payable regardless of a person’s contribution record. He cannot, therefore, rely on this argument to show that he has lost a benefit which he had purchased through his contributions an absolute right.  As I have explained, on analysis what he had was a right to make a claim, no more. 
Conclusion 
31.	I refuse the claimant leave to appeal, because the tribunal did not go wrong in law. 
32.	I must admit to some sympathy with the point that underlay all of the claimant’s detailed arguments. The Secretary of State knew that the claimant was 60 and had already made a winter fuel payment to him. All the claimant had to do to secure payments in future years was to register with the relevant office. He did not do that and as a result lost his payment for 2002. But why could not the Secretary of State have so organised the computer system that a payment for any year automatically lead to registration for future years? I can think of no reason why this could not have been done. However, this is not a matter for me. The operation of the ‘payment without a claim’ system is a discretionary matter that lies outside my jurisdiction. 

Signed on original
on 11 November 2004	Edward Jacobs
Commissioner