UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Preliminary observation

1. In his most recent observations to me, the appellant expresses some frustration that the determination of his appeal is taking so long. He asks whether it is so necessary to employ such a bureaucratic approach to this seemingly straightforward situation. While I can understand his frustration when the dispute in his case concerns benefit in the sum of £400, I hope this decision will show that the issues raised are not without complexity. They involve the interaction of national law and European Community law in the context of the administration of a benefit where the British government appears to have been taken by surprise twice on the European dimension to the payment of winter fuel payments. It is not open to me to determine this appeal purely on the basis of expediency; I have to determine the appeal on basis of the proper application of the law.

My decision

2. The decision of the appeal tribunal of 26 November 2003 is erroneous in law and I set it aside. Exercising my power under s.14(8)(a)(ii) of the Social Security Act 1998, I consider it expedient to make fresh or further findings of fact, and to give the decision which I consider appropriate in the light of those fresh or further findings. My decision is that the claimant is entitled to a winter fuel payment in the sum of £200 in respect of the winter of 2000/01 and of £200 in respect of the winter of 2001/02.

Background and facts

3. The appellant, who was born on 8 October 1937, left the United Kingdom permanently on 10 September 1999 and now resides in France. I observe in passing that the appellant makes a point of saying that he has actual winter fuel costs and reports an oil bill for £400.
4. The appellant claimed a winter fuel payment for the years 2000/01 and 2001/02 on 6 November 2002. The claim form appears to have been sent to him by the Department in response to enquiries from him about his entitlement to winter fuel payments. The appellant tells me he had been prompted to make his claim as a result of an article he had read in a newspaper.
5. The appellant was awarded winter fuel payments for the winters of 1997/98, 1998/99, and 1999/2000 on 13 February 2003 following a separate claim for these years made on 31 December 2002 (recorded as 2003 in the papers but this must be an error). He has also been paid a winter fuel payment for 2002/03 and advised that all future winter fuel payments will be paid to him automatically.
6. The appellant was refused a winter fuel payment for 2000/01 and 2001/02 because he had not filed his claim for such payments before 31 March 2001 in respect of the winter of 2000/01 and before 31 March 2002 in respect of the winter of 2001/02.
7. The appellant appealed the refusal and the matter came before the tribunal for a paper hearing on 26 November 2003. The tribunal upheld the decision refusing the payments for the years in issue. Their reasons indicate that the appellant had not claimed the payments before 31 March in the relevant year.
8. The appellant appealed the tribunal's decision on the grounds that he had not been told about this benefit and had no knowledge of it. He had been paid part of his entitlement, but had not been paid for two years. The appeal now comes before me by leave of a Commissioner. It is not supported by the Secretary of State.

Did the tribunal err in law?

9. It is now well recognised that a tribunal will err in law if it fails to consider the European Community law dimensions to an appeal. This was precisely such a case. It was clear on the face of the record that the appellant is currently permanently resident in France. The submission to the tribunal referred to some of the background to what I call the winter fuel payments saga, though the submission did not go on to address any of the legal issues flowing from those matters. The tribunal in its decision has ignored the European dimension to this case. In doing so, they erred in law and I set their decision aside.
10. The Commissioner, in granting leave, made directions for submissions to be presented on the European dimension as follows:

7. In the submission to the tribunal it states that "People living in EEA countries are subject to the same time limits as those who have remained in the UK. Although the eligibility of people living outside the UK has only been decided since summer 2002, it has always been possible for a person to submit a claim." The Secretary of State is invited to make a submission on whether this statement is consistent with the European Law rights of the claimant, bearing in mind the decisions of the European Court of Justice in Case 208/90 Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269 and Case C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483. Should not people in the position of the claimant have been allowed a reasonable time to claim after publication of the details of the change of view of the United Kingdom government? Was the claimant's claim in this case within that time as he promptly sent back the form sent to him?

8. The Secretary of State is also directed to indicate whether the terms of the agreement of the United Kingdom government with the European Commission were published, and if so where. If they were not published, was any official announcement made apart from the Written Answers in the papers?

11. I also issued directions seeking clarification of some of the matters which were raised in the Secretary of State's initial submission to me.

The winter fuel payments saga

12. Winter fuel payments were introduced in 1997 as annual payments for older people intended to assist them in meeting their fuel costs. Those in receipt of income support receiving as part of their benefit a premium payable only to those who have, or who live with a person who has, reached the age of at least 60 were entitled to a payment of £50, and those of State pensionable age (65 for a man and 60 for a woman) on other qualifying benefits were entitled to £20.
13. On 19 December 1999 in Case C-382/98 R v Secretary of State for Social Security, ex parte Taylor, [1999] ECR I-8955, the Court of Justice of the European Communities ruled that winter fuel payments fell within the scope of Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, and that the derogation in Article 7(1)(a) was not applicable to exempt the discrimination between men and women which existed in relation to the conditions of entitlement for the payments. As is well known, the date for implementation of the Directive was 23 December 1984.
14. In consequence of this ruling, the existing regulations were revoked and replaced by the Social Fund Winter Fuel Payments Regulations 2000, which equalised at 60 the age at which persons became eligible for the payments. In essence there are now two conditions of entitlement, namely (1) that a person is aged 60 or over in the week beginning on the third Monday in September (called 'the qualifying week' in the regulations); and (2) that the person is in respect of any day falling within the qualifying week ordinarily resident in Great Britain. There are certain exceptions in the regulations which do not apply to the appellant.
15. The effect of the changes was to bring men aged between 60 and 64 within the scope of the scheme. Steps were taken to permit retrospective claims for the winters of 1997/98, 1998/99, and 1999/2000. Claims for these years are not subject to any time limits at all.
16. It was, however, only on 19 July 2002 that the Government accepted, following lengthy discussions between the European Commission and the British authorities (and presumably in the face of a possible threat of infringement proceedings under Article 226 EC), that winter fuel payments constituted 'old-age benefits' within Article 4 of Regulation 1408/71 and were accordingly exportable from the United Kingdom to other Member States under Article 10 of that Regulation.
17. A written answer for 19 July 2002 in the House of Commons reads as follows:

Mr David: To ask the Secretary of State for Work and Pensions what progress has been made in discussions with the European Commission about winter fuel payments being available to people in EEA countries.

Mr McCartney: We have now concluded our discussions with the European Commission with regard to the extent of the UK Government's responsibilities under European law. As a result, generally EEA nationals who first qualify for a Winter Fuel Payment in the UK and currently reside in another EEA country may now be entitled to Winter Fuel Payments. We will publicise the change, and give details of the claims procedure.

18. In response to a subsequent question, a written answer for 6 November 2002 reads, in part:

Eligible people, generally EEA nationals (which includes UK nationals) who qualify for a payment in Great Britain before moving to another EEA country will be able to continue receiving Winter Fuel Payments whilst they are ordinarily resident in another EEA country or Switzerland, provided that they continue to satisfy the eligibility criteria.

19. On 2 July 2003 the agreement between the United Kingdom and the Commission was reported in a written answer in the European Parliament provided by Mrs Diamantopoulou on behalf of the Commission. This was published in the Official Journal of the European Communities in January 2004, [2004] OJ C11E/237; it is reproduced at pages 32-33 of the bundle before me.
20. The Secretary of State's submission to me contains the following paragraph:

The Department wrote to individuals who had contacted them about entitlement to winter fuel payments in other EEA countries (around 2000 people). It also wrote to other individuals whom it was able to identify from Departmental records as likely to be eligible; people on benefit who had received Winter Fuel Payments before leaving the United Kingdom for another EEA country fell into this category. There were, however, a substantial number of individuals living in EEA countries outside the United Kingdom whom it was not possible reliably to contact, principally men aged between 60 and 64 such as [the appellant]. A press release and information sent to embassies via the Foreign and Commonwealth Office aimed to target publicity at such people. Departmental websites were also updated to reflect the terms of the United Kingdom's agreement with the Commission.

21. It seems that there was some updating the Departmental websites, and I have received some clarification of what this constituted in response to my directions. It is not, however, germane to this decision.
22. Claim Form WFP2(EEA) makes provision for claims to be made for past winters from 1998/99 to 2002/03.
23. Claim Form WFP3(EEA) contains the following rubric in bold type on the first page:

Please note time limits apply to most Winter Fuel Payment claims and we must receive your claim form before 31 March following the qualifying week for the winter that you are claiming for.

But if we have asked you to complete the claim form outside this time limit, please do so and return immediately.

24. In response to the question in my directions inviting comment on the circumstances, if any, in which a claim for past years would result in the payment of the benefit for that year where the claim was not made before 31 March in the relevant year, the Secretary of State has observed:

If a person who had acquired entitlement to Winter Fuel Payment in the UK were to have changed their place of ordinary residence [to another EEA country], prior to the coming into effect of the agreement with the Commission, and, in consequence of it, sought to claim for a past year from 2000/2001 onwards, a claim in respect of that year would be allowed, notwithstanding that it was not made before 31^st March in the relevant year, so long as the person had been in receipt of the relevant benefit during the qualifying week preceding the winter in question.

25. I would simply observe that this appears to be precisely the position in which the appellant finds himself, although his entitlement in respect of the previous winter was determined retrospectively under the new arrangements put in place after the ruling of the Court of Justice in the ex parte Taylor case.
26. The Secretary of State nevertheless maintains that the provisions of the Winter Fuel Payments Regulations 2000 imposing time limits for claiming are compatible with the authorities of the Court of Justice on the effective enjoyment of Community rights. This appeal accordingly turns on the impact of those authorities on national law.

Community law authorities on the effective enjoyment of Community rights

27. Much of the authority in this area relates to the consequences of the failure of a Member State to implement, or to implement fully, the requirements of directives. In this case the Community entitlement flows from Articles 4 and 10 of Regulation 1408/71. The United Kingdom Government somewhat belatedly accepted that winter fuel payments constitute old-age benefits under the Regulation which are exportable from the United Kingdom once acquired here. The relevant provisions of the Regulation have been binding on the United Kingdom for many years.
28. In Case 208/90 Emmott v Minister for Social Welfare and Attorney General, [1991] ECR I-4269, the Court of Justice ruled as incompatible with Community law a limitation period operative under national law which had the effect of completely defeating the claimant's reliance on Community law entitlements. The case arose in the context of failures by the Irish Government to implement the requirements of Directive 79/7 on equal treatment of men and women in matters pertaining to social security.
29. The scope of that decision has been clarified in later case law. In Case C-338/91 Steenhorst Neerings, [1993] ECR I-5475, the Court of Justice ruled that national provisions which simply limit the period prior to the date of claim for which benefit entitlement may be claimed were not inconsistent with Community law.
30. In Steenhorst Neerings, the Court of Justice said:

21. It should be noted first that, unlike the rule of domestic law fixing time-limits for bringing actions, the rule described in the question referred for a preliminary ruling in this case does not affect the right of individuals to rely on Directive 79/7 in proceedings before the national courts against a defaulting Member State. It merely limits the retroactive effect of claims made for the purpose of obtaining the relevant benefits.

22. The time-bar resulting from the expiry of the time-limit for bringing proceedings serves to ensure that the legality of administrative decisions cannot be challenged indefinitely. The judgment in Emmott indicates that that requirement cannot prevail over the need to protect the rights conferred on individuals by the direct effect of provisions in a directive so long as the defaulting Member State responsible for those decisions has not properly transposed the provisions into national law.

23. On the other hand, the aim of the rule restricting the retroactive effect of claims for benefits for incapacity for work is quite different from that of a rule imposing mandatory time-limits for bringing proceedings. As the Government of the Netherlands and the defendant in the main proceedings explained in their written observations, the first type of rule, of which examples can be found in other social security laws in the Netherlands, serves to ensure sound administration, most importantly so that it may be ascertained whether the claimant satisfied the conditions for eligibility and so that the degree of incapacity, which may well vary over time, may be fixed. It also reflects the need to preserve financial balance in a scheme in which claims submitted by insured persons in the course of a year must in principle be covered by the contributions collected during that same year.

24. The reply to the first question must therefore be that Community law does not preclude the application of a national rule of law whereby benefits for incapacity for work are payable not earlier than one year before the date of claim, in the case where an individual seeks to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet properly transposed that provision into national law.

31. The ruling in Steenhorst Neerings was following in Case C-410/92 Johnson v Chief Adjudication Officer, [1994] ECR I-5483, where the Court said:

26. However, it is clear from the judgment in Steenhorst-Neerings that the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive.

27. The Court pointed out in Steenhorst-Neerings (paragraph 20) that in Emmott the applicant in the main proceedings had relied on the judgment of the Court in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453 in order to claim entitlement by virtue of Article 4(1) of Directive 79/7, with effect from 23 December 1984, to invalidity benefits under the same conditions as those applicable to men in the same situation. The administrative authorities had then declined to adjudicate on her claim since Directive 79/7 was the subject of proceedings pending before a national court. Finally, even though Directive 79/7 had still not been correctly transposed into national law, it was claimed that the proceedings she had brought to obtain a ruling that her claim should have been accepted were out of time.

28. In contrast, the rule at issue in Steenhorst-Neerings did not affect the right of individuals to rely on Directive 79/7 in proceedings before the national courts against a defaulting Member State but merely limited to one year the retroactive effect of claims for benefits for incapacity for work.

29. The Court concluded (paragraph 24) that Community law did not preclude the application of a national rule of law whereby benefits for incapacity for work were payable not earlier than one year before the date of claim, in the case where an individual sought to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet properly transposed that provision into national law.

30. In the light of the foregoing, the national rule which adversely affects Mrs Johnson' s action before the Court of Appeal is similar to that at issue in Steenhorst-Neerings. Neither rule constitutes a bar to proceedings; they merely limit the period prior to the bringing of the claim in respect of which arrears of benefit are payable.

32. My attention has been drawn to Case C-188/95 Fantask, [1997] ECR I-6723. The case concerned national procedure for seeking the recovery of charges or levies which had been raised in breach of Community law. The Court of Justice affirms the principle of national procedural autonomy, but notes that this is subject to limits:

39. Accordingly, while the recovery of such charges may, in the absence of Community rules governing the matter, be sought only under the substantive and procedural conditions laid down by the national law of the Member States, those conditions must nevertheless be no less favourable than those governing similar domestic claims nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, for example, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12).

40. A general principle of national law under which the courts of a Member State should dismiss claims for the recovery of charges levied over a long period in breach of Community law without either the authorities of that State or the persons liable to pay the charges having been aware that they were unlawful, does not satisfy the above conditions. Application of such a principle in the circumstances described would make it excessively difficult to obtain recovery of charges which are contrary to Community law. It would, moreover, have the effect of encouraging infringements of Community law which have been committed over a long period.

33. In the Peterbroeck case cited in the extract set out above, the Court of Justice said:

12. … the Court has consistently held that, under the principle of cooperation laid down in Article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, the judgments in Case 33/76 Rewe v Landwirtschaftskammer fuer das Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Hans Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 25, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes des Droits Indirects [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, and Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 43).

13. The Court has also held that a rule of national law preventing the procedure laid down in Article 177 of the Treaty from being followed must be set aside (see the judgment in Case 166/73 Rheinmuehlen v Einfuhr-und Vorratsstelle fuer Getreide und Futtermittel [1974] ECR 33, paragraphs 2 and 3).

14. For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.

34. My understanding of the requirements of Community law, in relation to remedies and time limits for claiming, is that there is a requirement of equivalence and a requirement of effectiveness. The principle of equivalence requires that the conditions laid down by national law for the pursuit of Community rights are not discriminatory by comparison with those relating to domestic claims. The principle of effectiveness requires that any restrictions imposed must not be such as to render the reliance on Community rights virtually impossible or excessively difficult. The Secretary of State would appear to agree since paragraph 18 of the submission dated 2 June 2004 summarises the requirements of Community law in similar terms.
35. Though much of the case law relates to the consequences of the failure by a Member State to implement, or to implement fully, the requirements of directives, the principles of equivalence and effectiveness apply regardless of the character of the Community provision which gives the Community right. Here it is a Regulation.
36. I would also observe that the national rules in issue in this appeal are not ones which limit the ability of the appellant to bring matters before a court or tribunal, but rather a time limit for making a claim for benefit. There is no provision permitting any back-dating. The effect of failing to claim in time extinguishes the entitlement to a winter fuel payment. The benefit in question is a lump sum benefit paid annually. The conditions of entitlement are a simple age and residence requirement. I consider the time limit for claiming in this case to be a national procedural rule which comes within the ambit of the case law on the effective enjoyment of Community rights discussed in the preceding paragraphs.

The application of the principles to the circumstances of this case

37. Regulation 2 of the Winter Fuel Payments Regulations 2000 (so far as relevant to the appellant and in force at the material time) provides that the Secretary of State shall make a winter fuel payment 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.

'Qualifying week' is defined as the week beginning on the third Monday in September in the relevant year.

As noted above, it is now accepted that residence in an EEA country other than the United Kingdom meets the requirement of condition (a) above provided that the claimant first became entitled to the benefit before leaving the United Kingdom. No amendment has been made to the wording of Regulation 2 to reflect this.

38. Regulation 3 provides, again so far as relevant to the appellant, that Regulation 2 does not apply to a claimant unless he or she has made a claim for a winter fuel payment before the 31^st March following the qualifying week in respect of the winter following that week. This provision can, however, be displaced where the Secretary of State has exercised his discretion under Regulation 4, before the relevant 31^st March, to make a payment without a claim having been made.
39. Regulation 4 gives the Secretary of State a discretion to make a payment before 31^st March following the qualifying week in respect of the winter following that week to a person who appears from official records (as defined in that Regulation) held by the Secretary of State to be entitled to a payment under that regulation. This would appear to be the basis upon which claimants are advised that their entitlement in future years will be automatic.
40. Since the United Kingdom Government did not come to any agreement with the Commission acknowledging that winter fuel payments were old-age benefits within the material scope of Regulation 1408/71, and were exportable under Article 10 of that Regulation, until 19 July 2002, claimants in the appellant's circumstances were not in a position to make a claim in time for the years 2000/01 and 2001/02 since the deadline for making such claims had expired on 30 March 2001 and 30 March 2002. Any such claim made in time would have been rejected on the grounds that the claimant was not resident in Great Britain as required by Regulation 2 of the Winter Fuel Payments Regulations.
41. The benefit in question is an annual lump sum benefit which must be claimed each year unless the Secretary of State exercises his discretion, prior to the deadline for claiming the benefit in any particular year, to pay the benefit without a claim for it having been made. This seems to me to be an important aspect of the nature of the benefit in this case. The effect of the time limits under the national provisions is to extinguish entitlement altogether if no claim is made by the set deadline for each year. In the circumstances of this case, the United Kingdom did not accept that there was any entitlement to the benefit under Community law by reason of the application of Regulation 1408/71 until 19 July 2002. This is respectively over three and fifteen months after the cut-off date for claims for the benefit for the winters of 2000/01 and 2001/02.
42. There is the purely theoretical possibility that a claimant might have made a claim in time and asserted his or her rights under Articles 4 and 10 of Regulation 1408/71 before 31 March 2001 and 31 March 2002. The question is whether the position for which the United Kingdom Government had been arguing (namely that winter fuel payments were not within the material scope of Regulation 1408/71) and which was not resolved until July 2002 renders the possibility of a claim in time for the two years in issue in this appeal 'virtually impossible or excessively difficult'. I think it does, particularly in the context of this issue following the need to make provision to deal with the effect of the Taylor case relating to the application of Directive 79/7 to the benefit.
43. As far as I can discern from the material put before me, no special steps were taken to enable back-dated claims to be made by those in the position of the appellant following the agreement with the Commission on 19 July 2002 relating to payments for the winters of 2000/01 and 2001/02.^[1] This was in marked contrast to the response to the Taylor case where such provision was made in relation to the years 1997/98, 1998/99 and 1999/2000 for which no time limits on claiming apply.
44. It is certainly the case that there is nothing in the statutory provisions operating in the national legal order which would permit a claim made for a winter fuel payment after 30 March in the relevant year to be successful. There is no provision for back-dating in the regulations. The claims would be dealt with under national law precisely in the manner in which the decision-maker and tribunal dealt with the appellant's claims for the two years in issue. Pursuing a claim for the years 2000/01 and 2001/02 is rendered virtually impossible by the time limit for claiming set down in the regulations.
45. I remain puzzled by the terminology used in certain current claims forms and by the observations made by the Secretary of State recorded in paragraph 24 above, as well as information available on the Department's website which suggest that payments for past years can be made to someone in the appellant's circumstances. Yet the Secretary of State continues to argue that the appellant has no entitlement. I can certainly find nothing in the statutory provisions which would permit awards to be made where the deadline for claiming was not met. Perhaps it is an extra-statutory concession, but it has not been applied to the appellant's claims.
46. Accordingly, I conclude that Community law on the effective enjoyment of Community rights means that the time limit in the Winter Fuel Payments Regulations 2000 cannot be applied to the appellant in relation to his claim for the years 2000/01 and 2001/02. The United Kingdom Government was required to permit a reasonable time for claims to be made for those years following its agreement with the Commission on the application of Articles 4 and 10 of Regulation 1408/71 to winter fuel payments. I have no difficulty in regarding the time within which the appellant made his claim for the years in question as reasonable.
47. There is no dispute that the appellant meets the conditions of entitlement for a winter fuel payment other than the requirement to make a claim before 31 March in the relevant year. He had acquired an entitlement prior to leaving the United Kingdom, and he has been permanently resident in France since 1999. It follows that the appellant is entitled to a winter fuel payment of £200 for the year 2000/01 and a further winter fuel payment of £200 for the year 2001/02.
48. The appeal accordingly succeeds. My formal decision in substitution for that of the tribunal is set out in paragraph 2 above.

Robin C A White

Deputy Commissioner

29 October 2004

[Signed on the original on the date shown]

Note 1    Though information on the Department for Work and Pensions website would suggest otherwise.    [Back]