CIS/3685/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Wrexham appeal tribunal dated 2 June 2004.

REASONS

2.	The facts of this case are not in dispute.  The claimant attained the age of 60 in 1989.  He worked in Great Britain until 1993.  He had bought a holiday home in Spain in 1990 and in 1997 he bought another home in Spain and moved there for what was initially a trial period.  He has remained living there ever since.  In December 2002, he applied for winter fuel payments from 1998.  His claim was disallowed on the ground that he had ceased to be ordinarily resident in Great Britain before 5 January 1998, when the first winter fuel payments scheme came into force.  His appeal was dismissed and he now appeals against the tribunal’s decision with the leave of the chairman who constituted the tribunal.

3.	The claimant does not dispute that, under domestic law, his entitlement to winter fuel payments depends on him being ordinarily resident in Great Britain (see, now, regulation 2(a) of the Social Fund Winder Fuel Payments Regulations 2000 (S.I. 2000 No. 729 and, previously, regulation 2(5) of the similarly-named 1998 Regulations).  However, he argues that he remained ordinarily resident in Great Britain during 1998 because his move to Spain was only for a trial period and he had not applied for a resident’s permit (residencia).  Residence is a question of fact and it is beyond doubt that the claimant became ordinarily resident in Spain when he moved there or very shortly afterwards.  It is possible for a person to be ordinarily resident in more than one country and therefore, had the claimant retained a place of residence in Great Britain, it is possible that he might have remained ordinarily resident in Great Britain, even though he had become ordinarily resident in Spain (see CIS/1691/2004).  I would also not rule out the possibility that, in some circumstances, a person may remain ordinarily resident in a country during a short period of temporary absence between two periods of actual residence, even if he has not retained a home in that country.  However, in this case the claimant’s move to Spain was not temporary.  He had no definite intention of returning.  His move was for an indefinite period, with the mere possibility of returning.  In my judgment, the tribunal was right, in the circumstances of this case, to decide that the claimant ceased to be ordinarily resident in Great Britain when he ceased to have a home here and that he had therefore ceased to be ordinarily resident before 5 January 1998.

4.	In CIS/1491/2004, I decided that, while Article 10 of Council Regulation (EEC) 1408/71 requires the United Kingdom to continue paying winter fuel payments to people who move to other countries within the European Economic Area (which includes Spain) after they become entitled to such payments, it does not enable people to acquire entitlement to winter fuel payments for the first time if they have moved to another country before becoming entitled to such payments.  In the present case, the claimant can therefore derive no assistance from Council Regulation (EEC) 1408/71.

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