CIS/1691/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Wrexham appeal tribunal dated 9 March 2004 and I substitute my own decision, which is that the claimant is entitled to winter fuel payments from the winter of 2003-04 onwards.

REASONS

2.	The claimant attained the age of 60 on 28 September 2002.  He therefore just failed to qualify for a winter fuel payment in respect of the forthcoming winter but he claimed a winter fuel payment for the following winter for which the “qualifying week” was the week commencing 15 September 2003.  It was refused on the ground that he was not ordinarily resident in Great Britain.  He appealed to the Wrexham appeal tribunal who dismissed the appeal on 9 March 2004.  The claimant now appeals against the tribunal’s decision with my leave.

3.	The claimant first submitted a winter fuel payment claim form on 20 August 2003.  It appears that he was then asked to fill in a special claim form, WFP(EEA) 04/03, which he signed on 24 September 2003.  It was upon information contained in that form that the Secretary of State’s initial decision was based.  In answer to the question “when did you permanently leave the UK?”, he said “20/03/2003”, in answer to the question “Which EEA country do you ordinarily reside in?”, the claimant said “France – presently living in our French secondary home – have yet to apply for /receive resident’s permit i.e. ‘carte de séjour’” and, in answer to the question “From what date did you take up residence there?”, he said “20/03/2003”.  When the claimant appealed, he said –

“Whilst my wife and I came to live in France on 20-3-2003, at the time of the qualifying week in September 2003 our residential status was still technically that of UK Residents as we had not been granted French Residents’ permits.  Furthermore I was then (and still am) paying tax on my income to the UK Inland Revenue; we have also retained our house in the UK.”

4.	The tribunal rightly held that regulation 2(a) of the Social Fund Winter Fuel Payment Regulations 2000 (S.I. 2000 No. 729) had the effect that it was necessary for the claimant to show that he was ordinarily resident in Great Britain in the qualifying week and said –

“‘Ordinary residence’ means that a person must be normally resident apart from temporary or occasional absences of short or long duration.  It is described as residence according o the way in which a person’s life is usually ordered.  The fact that the carte de séjour will give a later date is neither here nor there as invariably it takes time to deal with the detail of this bureaucracy which is only taken on once one has settled in.  The facts that the appellant and his wife retain a UK property and continue to pay UK taxes on income received do not contradict the conclusion that his country of ordinary residence is France because this is where he accepts he is normally resident.

“The appellant ceased to be ordinarily resident in the UK when he left in March 2003.”

The tribunal went on to find that the claimant could derive no assistance from Regulation (EEC) 1408/71.

5.	In his grounds of appeal, the claimant has enlarged upon the facts, saying –

“Our French property was purchased in 1997 as a holiday home for family and friends.  (My wife and I still had three elderly parents and two daughters also living in the UK.)  Sadly between July 2000 and April 2001 our three parents died.  Harder still, our younger daughter Sarah died in the Royal Marsden Hospital, Chelsea on 10 May 2002 from skin cancer; she was just 29.  Eventually, after these events, my wife and I took stock and wondered if a change of scene would help ease our grief.

“It was thus at the end of March 2003 we came to our holiday home to spend a longer time than usual.  However, it was very much a trial period which is why we have retained our UK property; in the ensuing months we made returns to the UK but it was only at the end of 2003 we finally decided to stay in France full time and submitted applications for cartes de séjour and for our tax obligations to be transferred to the French authorities.”

6.	In her helpful written submission, the Secretary of State’s representative draws my attention to the combined decision in CP/3035/1999 and CP/3717/1999, concerning claims for retirement pension made by a husband and wife, where the Commissioner said –

“The logic of the tribunal decision was that, because it found the claimants were ordinarily resident in New Zealand, they must have ceased to be ordinarily resident in Great Britain.  That is wrong.  It is not an either/or question.  They could be ordinarily resident in both.  The fact that the claimants, or either of them, may have become resident or ordinarily resident in new Zealand is one part of the factual picture to be taken into account in assessing if either or both had given up their ordinary residence in Great Britain.”

It seems to me that the same criticism can be made here.  The reasoning of the tribunal was that that, because the claimant was ordinarily resident in France, he was not ordinarily resident in Great Britain.  

7.	The Secretary of State’s representative nonetheless distinguishes CP/3035/1999 and CP/3717/1999 because in the present case the claimant said on his form WFP(EEA) 04/03 that he had permanently left the United Kingdom on 20 March 2003.  She is right to make the implied submission that a person cannot remain ordinarily resident in a country that he has permanently left and that, if the only country where the claimant could conceivably have been resident was France, the tribunal’s decision could not be criticised.  However, this appears to me to overlook the context of the claimant’s statement that he had permanently left Great Britain.  First, form WFP(EEA) 04/03 does not admit of the possibility that the claimant might not have permanently left Great Britain.  Because the claim form completed the previous month is not in the papers before me, it is not entirely clear whether the claimant was asked to fill in WFP(EEA) 04/03 merely because he had given an address in France or because he had positively stated that he was not ordinarily resident in Great Britain.  Secondly, the claimant had told the tribunal that he had retained a home in Great Britain, which tended to suggest that he had not left Great Britain permanently, which would in any event have been surprising given his relative youth, the ease with which one may travel across the English Channel these days and the facts that he was a British citizen and still had a daughter living in Great Britain.  It seems to me that the proper inference to be drawn from the claimant’s answers on the form was that he had transferred his principal place of residence to France. 

8.	However, although the evidence before the tribunal was not absolutely conclusive as to the claimant having ceased to be ordinarily resident in Great Britain, rather than merely intending to visit it as he might previously have visited his holiday home in France, I find myself driven to the conclusion that it was not capable of being the basis of a finding that the claimant was still ordinarily resident in Great Britain.  I also do not consider that the tribunal was obliged to adjourn in order to seek further details from the claimant because the claimant had been given an adequate, albeit not perfect, opportunity to explain his position.

9.	I have delayed giving a decision in this case while I have been considering in another case (CIS/1491/2004) the extent to which a person can take advantage of European Union law to found a claim for winter fuel payments.  For reasons I have given in that case, I am satisfied that the tribunal was right in its interpretation of the effect of Regulation (EEC) 1408/71.  I therefore accept what is implicit in the Secretary of State’s representative’s submission which is that the tribunal could not have reached any other conclusion on the evidence before it than the one it did.  

10.	However, that is not the end of this appeal.  I am satisfied that the tribunal applied the wrong test and I therefore set aside the tribunal’s decision.  I am entitled either to give the decision that I consider the tribunal should have given on the evidence before it or to make my own findings on the evidence now before me.  The claimant has now provided further evidence to the effect that he and his wife had not made up their minds to move to France “full-time” until the end of 2003, which is why they did not apply for their cartes de séjour until then.  They also spent three weeks in Great Britain in the summer of that year.  The Secretary of State’s representative has not commented upon the new evidence, save correctly to submit that the tribunal cannot be criticised for not having regard to evidence that had not been provided to it.  Ordinarily, I would be inclined to give the decision the tribunal should have given but, in this particular case, I will consider the new evidence.  I do so largely because I do not consider that form WFP(EEA) 04/03 is altogether satisfactory so that the case was not investigated quite as it might have been.  The form assumes, as the tribunal did, that a person who has become ordinarily resident in one country must have ceased to be ordinarily resident in any other country.

11.	It is very rare for a person to be ordinarily resident in more than one country.  Even where a person has two homes, he is usually ordinarily resident in one and only occasionally resident in the other.  But there are people who divide their time more evenly between their homes.  Also, it seems to me to be quite likely that, when a person changes his place of ordinary residence from one home to another, there may be a period when he is ordinarily resident in both of them.

12.	The present case is near the borderline.  I see no reason to doubt the claimant’s word when he says that he and his wife viewed the first several months in France as something of a trial period and it was for that reason that they retained their existing home in Great Britain and delayed applying for cartes de séjour in France.  It seems likely that they expected from the outset that they would decide to stay in France and they undoubtedly became ordinarily resident in France during that period merely by virtue of their being there for so long.  By comparison, they spent only three weeks in Great Britain.  But that was, as far as I can tell, against the background of a life-time in Great Britain.  A person who lives in Great Britain and goes on a leisurely cruise round the world for several months upon retirement, while retaining a home in Great Britain, does not cease to be ordinarily resident in Great Britain.  In my judgment, the present case should be viewed in the same light.  If the claimant and his wife had not been contemplating settling in France, I do not think anyone would have suggested that spending six months there meant that they had ceased to be ordinarily resident in Great Britain.  My judgment in this particular case is that the claimant remained ordinarily resident in Great Britain until some time after the relevant qualifying week, even though he also became ordinarily resident in France.

	(signed on the original)	MARK ROWLAND
		Commissioner
		11 March 2005