CIS/3555/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Wrexham appeal tribunal dated 11 June 2004.

REASONS

2.	This case arises out of a claim made by the claimant in December 2003 for winter fuel payments in respect of the past winters from 1998-99 to 2002-03.  The first winter fuel payment scheme, which was in force during the first two of the winters covered by the claim (see Social Fund Winter Fuel Payment Regulations 1998 (S.I. 1998 No. 19)), provided for winter fuel payments to be paid to people over 60 entitled to income support or income-based jobseeker’s allowance and to people over pensionable age who were in receipt of certain specified benefits.  On 16 December 1999, the European Court of Justice held, in Regina v. Secretary of State for Social Security, ex parte Taylor (Case C-382/98) [1999] E.C.R. I-8955, that the winter fuel payments scheme under the 1998 Regulations was inconsistent with Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security, insofar as the qualifying ages for men and women were different because pensionable age is 65 for a man and 60 for a woman.  As a result of Taylor, the Social Fund Winter Fuel Payment Regulations 2000 (S.I. 2000 No. 729) were made to replace the 1998 Regulations.  With immaterial exceptions, they provide that a winter fuel payment is payable to anyone who is ordinarily resident in Great Britain and has attained the age of sixty in the week beginning on the third Monday of September.  In July 2002, it was recognised by the United Kingdom government that certain people who had ceased to be ordinarily resident in Great Britain but were resident elsewhere in the European Union could retain entitlement to winter fuel payments by virtue of Council Regulation (EEC) 1408/71 (for reasons I have explained in CIS/1491/2004 and need not repeat here).

3.	The claimant in the present case reached the age of 60 on 3 September 1998.  He was then ordinarily resident in Great Britain.  He moved to Italy in July 2003 and there became aware of the possibility of claiming winter fuel payments.  He made his claim in December 2003 on a special form devised following the realisation that many people living in the European Union had, until July 2002, been wrongly regarded as ineligible for winter fuel payments.  The claim was allowed in respect of the first two winters but not in respect of the winters 2000-01, 2001-02 and 2002-03.  Apparently the claimant also claimed in respect of the winter 2003-04 and has been awarded payments from 2003-04 onwards.  The claimant appealed against the decision in respect of the winters 2000-01, 2001-02 and 2002-03 but his appeal was dismissed by the tribunal.  He now appeals against tribunal’s decision with my leave.  The payments in respect of the winters 1998-99 and 1999-2000 and from 2003-04 onwards are not in issue before me.  

4.	Under the first winter fuel payment scheme, there had been no time limits for claims because entitlement followed automatically from entitlement to another benefit and it was intended that payments would be made without a specific claim for the winter fuel payment being necessary.  However, under the 2000 Regulations there are a considerable number of men aged between 60 and 65 who are entitled to a winter fuel payment but are not entitled to any other benefit and to whom it might not be practical to make a payment without a specific claim for a winter fuel payment being made.  Accordingly, it is provided in regulations 3(1)(b) and (2) and 4(2) that a person is not entitled to a winter fuel payment unless by 31 March of the winter in question either the Secretary of State has made a payment without a claim or the claimant has made a claim.   

5.	The claimant accepts that he had not made a claim by 31 March of any of the three winters in question.  In those circumstances, it appears clear that the Regulations preclude entitlement to winter fuel payments for the three years in question.  However, I granted leave to appeal because it then seemed to me that this case raised issues similar to those considered in CIS/488/2004.  That case concerned a claimant who had cased to be ordinarily resident in Great Britain in September 1999 upon moving to France.  He claimed winter fuel payments in November 2002.  Like the present claimant, he was awarded payments for the winters up to 1999-2000 and was awarded payments from the winter in which he had made his claim but he was refused payments for the intervening winters.  The Deputy Commissioner decided that, as a matter of European Union law, the claimant could not be refused payments for the two winters in question in that case (2000-01 and 2001-02) because the dates by which the claims had to be made under the 2000 Regulations for those two winters fell before it had been accepted by the United Kingdom government in July 2002 that a person who had ceased to be ordinarily resident in Great Britain was entitled to winter fuel payments by virtue of European Union legislation.

6.	However, as I have previously indicated, this case is, upon reflection, distinguishable from CIS/488/2004.  I accept that, if there had been time limits under the 1998 Regulations in respect of the winters 1998-99 and 1999-2000, the claimant in the present case might have had a good case for having them disapplied because he had to rely on European Union law to establish entitlement in those years and the United Kingdom did not accept that European Union law gave him a right to the payments until Taylor was decided.  However, under the 2000 Regulations, the claimant was entitled to winter fuel payments under domestic law, without any reliance upon European Union law at all, because he remained ordinarily resident in Great Britain throughout the three winters in question.  CIS/488/2004 was different because there the claimant continued to have to rely on European Union law (albeit Council Regulation (EEC) 1408/71 rather than the equal treatment directive considered in Taylor) following his move to France in 1999.  My grant of leave to appeal was therefore based on a misapprehension as to the relevance of CIS/488/2004.

7.	In his grounds of appeal, the claimant claims unlawful discrimination because he says he has been treated less favourably than an acquaintance of his who happens to be a woman.  I agree with the Secretary of State that, properly applied, the 2000 Regulations are not discriminatory on grounds of sex.  If, as the claimant says, his acquaintance’s circumstances are identical to his, there should have been no difference in their treatment.  As I am satisfied that the law has been correctly applied in the claimant’s case, it must follow that, if the claimant’s acquaintance has received payments in respect of the three winters in question and her circumstances are identical to his, she must have been overpaid.  However, it is quite possible that her circumstances do differ from the claimant’s in some relevant respect of which I am unaware and that she has been properly paid.  I am not in a position to investigate her case and will say no more about it.

8.	It may be thought somewhat anomalous that the claimant should be paid in respect of two winters that are earlier than those in question but that arises because, as a matter of domestic law, winter fuel payments under the 1998 Regulations were not necessarily periodic payments for men who were aged between 60 and 65 and no attempt was made to impose any time limit for claims under that scheme when the 1998 Regulation were replaced by the 1999 Regulations which did include a time limit.  I do not consider that domestic law permits the time limits in the 2000 Regulations to be disapplied just because the claimant has been paid benefit under the 1998 Regulations.

9.	It is unfortunate that the claimant did not notice any of the publicity put out by the Department for Work and Pensions about winter fuel payments during the relevant winters, although I quite understand why he missed it and why he did not expect to be entitled to any benefit until he reached the age of 65.  I have delayed determination of this case because I have recently had a hearing in another case where publicity had been overlooked (CIS/840/2005) and it was possible that the submissions made in that case might affect my view of the present case.  However, I have now dismissed the appeal in that case too.  The decision in CIS/488/2004 is under appeal to the Court of Appeal but I cannot see how that appeal could conceivably have any implications for the present case so as to assist the claimant.  In those circumstances, I see no reason further to delay giving a decision in this case.  This appeal must be dismissed.

	(signed on the original)	MARK ROWLAND
		Commissioner
		4 November 2005