[2005] UKSSCSC CIS_4088_2004 (06 May 2005)

DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I hold that the tribunal erred in law. I allow the appeal. I hold that the tribunal erred by not considering the revision/supersession issues arising from regulation 4(4). 

2.	I substitute my decision for that of the tribunal, which is that the Secretary of State had power in the circumstances pertaining in this case to consider whether or not he held official records at the time that might have established the claimant’s entitlement to winter fuel payment in 2003/2004. If he did have those records, whether or not the earlier decision not to include the claimant within the 2002/2003 automatic payments under regulation 4(1) should be revised and a retrospective payment authorised.

Background

3.	The claimant, who is over 60, was in receipt of incapacity benefit and in consequence was paid Winter Fuel Payment [WFP] for 2001/2002 automatically. When he ceases to be entitled to incapacity benefit, the department ceased to pay him the WFP automatically. It was accepted that he was not told that he would have to claim the WFP for the winter 2002/3. A claim for the WFP for the 2002/2003 year should have been made by 31st March 2003. The claimant eventually submitted a claim for the WFP for 2002/2003 on 14 February 2004 contending that his WFP had been stopped. The department treated this as a claim for WFP for 2003/2004 and refused to make a payment for the year 2002/2003.

Appeal to tribunal

4.	The claimant appealed to the tribunal. On 8 September 2004 the tribunal refused the appeal. The essential decision of the tribunal was:

“The tribunal noted that the appellant’s representative submitted a copy of the appropriate Winter Fuel Regulations for the benefit of the tribunal.  Regulation 4(1) of those Regulations states as follows:-

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 on official records held by the Secretary of State to be entitled to a payment under that Regulation.

The appellant claims that the automatic payment to him of a Winter Fuel Payment should have continued by virtue of this Regulation.  However, it is beyond peradventure that this Regulation gives the Secretary of State a discretionary power and does not impose an obligation.  Consequently, [the appellant] is not entitled, on a strict interpretation of this Regulation to assume that automatic payment of his Winter Fuel Benefit must continue.

The finding of the tribunal was that having ceased to be entitled to Incapacity Benefit, the appellant also ceased to be entitled to have his Winter Fuel Payment made automatically with that benefit.  It is incumbent upon the claimant in those circumstances to make application of his Winter Fuel Payment in every year.  The appellant is not entitled by law to automatic payment when he is not in receipt of a qualifying Social Security Benefit.  His appeal therefore failed.”

Appeal to the Commissioner

5.	The claimant sought leave to appeal on the following grounds:

“I believe that once an award of the payments was made, that was for an indefinite period, which can only be changed by a valid supersession or revision.  The Tribunal has stated that a supersession or revision did not take place, merely that my benefit circumstances changed.  However, being in receipt of benefits is not a pre-requisite for Payments – It is simply convenient for the DWP to make the payments with my Incapacity Benefit.”

6.	The claimant was granted leave to appeal to the Commissioner. The Chairman in granting leave to appeal noted on the appeal form:

“(A)	Should the tribunal have made a finding of fact as to what information appeared on official records held by the Secretary of State?
(B)	If, as may have been common ground, that information indicated entitlement to a payment, were the tribunal correct in construing Reg.4(1) as a mere power untrammelled by any obligation?
	See the cases cited in R(S)1/79
(C)	Put another way, on what lawful or rational grounds could the Secretary of State distinguish between persons coming within Reg.4?”

7.	The Secretary of State did not support the appeal. Essentially the Secretary of State submitted that regulation 4(1) of the Social Fund Winter Fuel Payment Regulations 2000 gave a discretionary power to the Secretary of State to make a WFP payment, provided it was made before 31st March, if the departmental records disclosed an entitlement. “The Secretary of State is permitted by the regulation but not obliged” to make the payment. It was submitted that as the claimant was not in receipt of a social security benefit at the qualifying week, that there was no evidence in the department’s records showing an entitlement.

8.	In response the claimant’s agent submitted that the tribunal had made no finding as to what information was in the department’s records and that “may” in Regulation 4(1) was the equivalent of “must” – R(S) 1/79.

Reasons for my decision

The Regulations

9.	Regulation 2 provides:

“2. Subject to regulation 3, the Secretary of State shall pay to a person who … [qualifies as a resident in Great Britain during the qualifying week and is aged 60] … a winter fuel payment …”

So far as relevant Regulation 3 provides:

“3(1) Regulation 2 shall not apply in respect of a person who –
(a)	[not relevant to this appeal]
(b)	subject to paragraph (2) has not made a claim for winter fuel payment before 31s5 March following the qualifying week in respect of the winter following that week.

Paragraph (2), so far as relevant provides that paragraph 1(b) does not apply if a payment has been made under Regulation 4(1).

Paragraph 4(1) provides:

“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.”

Whether “may” means “must” in regulation 4(1)

10.	The issue in this case appears to focus on whether regulation 4(1) is mandatory on the Secretary of State if there are official records confirming an entitlement, or whether the “may” is discretionary. It is clear from R(S) 1/79 and the authorities there cited that “may” can mean “must”. “Whether the enabling words conferring a power ought to be construed as imposing a duty, so that it must be exercised, has to be solved from "the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power"” – R(S) 1/79 at paragraph 18.

11.	In context regulation 2 provides that the Secretary of State “shall pay” a WFP to a qualified person, subject to regulation 3. Regulation 3(1)(b) provides that right to a WFP does not apply unless a claim is made for WFP before 31 March, unless the Secretary of State has already made a payment under regulation 4(1). In R(S) 1/79 the Commissioner having identified that there was a power [ie “may”], said that “The question that I have to decide is whether the statutory authorities have a duty to exercise this power in cases where a claimant satisfies the conditions to which I have already referred.” In the present case that resolves into a question of whether the Secretary of State has to exercise the power to make a WFP “where it appears from official records held by the Secretary of State” that a person has an entitlement.

12.	Generally speaking the use of the word “may” in a statute is held to grant a discretion  or be permissive, so the presumption is in favour of discretion. “It is true that there are certain situations where a discretionary power is conferred for the purpose of enforcing a right and is coupled with an obligation or duty to exercise a power, when required to do so, for the benefit of the person who has the right: see Julius v. Bishop of Oxford (1880) 5 App Cas 214 at 223 and 241.” – Pelling and Families Need Fathers Ltd [2001] EWCA Civ 1280 at [23].

13.	In my opinion Regulation 4(1) is not a regulation that imposes a duty on the Secretary of State to make payments to a person who appears from official records to be entitled to a WFP. It is an enabling power to allow the Secretary of State to make such payments without a claim and thus to simplify administrative proceedings. I reach this conclusion, particularly from the fact that regulation 2 and 3 use “shall” in contrast to “may” in regulation 4(1) and the contrast between “may” in regulation 4(1) and “shall make a winter fuel payment” in regulation 4(2). The drafter of the regulations therefore knew and uses the difference between “may” and “shall” in these regulations. Further it is clear that the entitlement to WFP is primarily based on a requirement to make a claim [Regulation 2 & 3(1)(b)] unless the Secretary of State has exercised his power under regulation 4(1) to make payment. I do not consider that “the object for which the power is conferred is for the purposes of enforcing a right” [per Lord Blackburn in Julius v Bishop of Oxford at 241]. The right can be enforced by the claimant making a claim as is required by regulation 3(1)(b), so there is no need for the power in regulation 4(1) to be used to enforce any right, because there is another way in which the claimant may enforce his right.

14.	I therefore accept the submissions made for the Secretary of State that this is a discretionary power and that regulation 4(1) does not oblige the Secretary of State to make a payment.

Revision or supersession – can a retrospective payment be made

15.	Where I consider the decision maker has gone wrong, and this may be the reason why the claimant was not included under the discretionary powers in regulation 4(1), is in holding that WFP is paid automatically with particular benefits, but when those benefits cease a claim must be made – see page 1b at paragraphs 4 & 5. Regulation 4(1) refers to “official records held by the Secretary of State” so the regulation is not dealing only with benefit records, but must be referring to the whole records of the Department of Work and Pensions, which surely should include records of the fact that WFPs were made in preceding years and probably includes pension information relating to the claimant, which might well have revealed his age and address and therefore entitlement. It therefore appears to me that a potential claimant for WFP might reasonably expect a payment under regulation 4(1) unless he had reason to believe that he was not in the department’s official records.  If the Secretary of State has been exercising the power in regulation 4(1) on the basis that “official records” only means official records of the benefits department or particular benefits, then I consider that to be an error, which might be susceptible to judicial review.

16.	In so far as the Secretary of State’s submission might be taken to submit that as a payment was not made under regulation 4(1) before 31 March 2003, a payment cannot be made now, I consider that to be wrong. Regulation 4(3) provides that the official records shall be sufficient evidence of entitlement. Regulation 4(4) then provides that paragraph (3) does not exclude the revision or supersession of a decision or the consideration of fresh evidence in connection with the revision or supersession of a decision. I consider it clear that a decision that there was no entitlement [eg: living with a partner, when that was inaccurate] from the official records so no regulation 4(1) payment was made before 31 March would not preclude a revision or supersession of that decision so that a payment could be made after the 31 March on the revised decision. If that is right then a retrospective payment can also be made in other circumstances.

17.	In the present circumstances, while it is not in the papers, I consider there must have been a decision taken within the department that the claimant was no longer entitled to automatic payment under regulation 4(1). The payment of WFP along with incapacity benefit can only have been made under the power given by regulation 4(1). I consider that regulation 4(4) give the Secretary of State power to revise that decision, if he is now satisfied that there were official records held by him at the time showing that the claimant was in fact entitled to WFP and therefore would have been included as a regulation 4(1) payee. It would therefore be open to the Secretary of State to revise such an earlier decision and authorise a retrospective payment. A decision not to include the claimant in future regulation 4(1) payments, which is what must have happened here [if only by default], appears to me to be a decision under section 8(1)(c) of the Social Security Act 1998 as “any decision that falls to be made under or by virtue of a relevant enactment;” and therefore it can be revised or superseded.

18.	In these circumstances, I hold that the tribunal erred by not considering the revision/supersession issues arising from regulation 4(4). I substitute my decision for that of the tribunal, which is that the Secretary of State had power in these circumstances to consider whether or not he held official records at the time that might have established the claimant’s entitlement. If he did have those records, he should consider whether or not the earlier decision not to include the claimant within the 2002/2003 automatic payments under regulation 4(1) should be revised and a retrospective payment authorised.

Sir Crispin Agnew of Lochnaw Bt QC
Deputy Commissioner
Date:  6 May 2005