UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CIS_751_2005 (05 May 2005)

CIS/751/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Claimant, brought with the permission of the chairman, against a decision of the Liverpool Appeal Tribunal. For the reasons set out below I dismiss the appeal.
2. The Claimant attained the age of 60 on 20 July 2000 and, had he claimed in time, would have been entitled to winter fuel payments in respect of the winters 2000 onwards. The time limit for each winter was 31 March in the following year. (For example, for the winter 2000 the time limit was 31 March 2001). However, the Claimant did not make any claim until 26 July 2004.
3. On 3 November 2004 a decision was made that the Claimant was not entitled to a winter fuel payment in respect of the winters 2000, 2001, 2003 or 2004, on the ground that his claim was too late.
4. The Claimant appealed, stating that he had not received the claim form for the winter 2000 which the Secretary of State's records indicated had automatically been sent to him on 7 May 2000, and that he had been too busy to read the general publicity (e.g. in newspapers) alerting the public to winter fuel payments, and so had not been aware of their existence. He said that he had claimed as soon as he had become aware of them.
5. The Tribunal dismissed the appeal, holding that there was no discretion to waive the time limit by which a claim had to be made.
6. The Claimant's grounds for this appeal are essentially the same as those on which he appealed to the Tribunal. He asks for an exception to be made in what he says are the special circumstances of his case. The Chairman of the Tribunal gave permission to appeal, saying:

"Was the Tribunal required to make findings of fact as to what information the Secretary of State held? If the Secretary of State knew of the appellant's name, age and address were there lawful grounds for refusing payment?"

7. The relevant provisions of the Social Fund Winter Fuel Payment Regulations 2000 are as follows:

'Citation, commencement and interpretation

1.- …

(2) In these Regulations-

…

"qualifying week" means in respect of any year the week beginning on the third Monday in the September of that year …

Social fund winter fuel payments

2. Subject to regulation 3, the Secretary of State shall pay 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,

a winter fuel payment …

Persons not entitled to a social fund winter fuel payment

3.-(1) Regulation 2 shall not apply in respect of a person who-

…

(b) subject to paragraph (2), has not made a claim for a winter fuel payment before the 31st March following the qualifying week in respect of the winter following that week.

(2) Paragraph (1)(b) shall not apply where-

(a) a payment has been made by virtue of regulation 4(1) before the 31st March following the qualifying week in respect of the winter following that week; or

(b) regulation 4(2) applies.

Making a winter fuel payment without a claim

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.

(2) Where a person becomes entitled to income support in respect of the qualifying week by virtue of a decision made after that week that section 115 of the Immigration and Asylum Act 1999 (exclusions) ceases to apply to him the Secretary of State shall make a winter fuel payment to that person under regulation 2 in respect of the winter following the qualifying week.

(3) Subject to paragraph (4), for the purposes of paragraphs (1) and (2) official records held by the Secretary of State as to a person's circumstances shall be sufficient evidence thereof for the purpose of deciding his entitlement to a winter fuel payment and its amount.

(4) Paragraph (3) shall not apply so as to exclude the revision of a decision under section 9 of the Social Security Act 1998 (revision of decisions) or the supersession of a decision under section 10 of that Act (decisions superseding earlier decisions) or the consideration of fresh evidence in connection with the revision or supersession of a decision.'

8. The structure of the Regulations is therefore that reg. 3(1)(b) provides that reg. 2 (which provides that a winter fuel payment shall be made to a person who satisfies the qualifying conditions there specified) shall not apply in respect of a person who "subject to paragraph (2), has not made a claim [in time]". Reg 3(2) provides that reg. 3(1)(b) shall not apply where "a payment has been made by virtue of regulation 4(1) before the 31^st March following the qualifying week in respect of the winter following that week." Reg. 4(1) provides for a power to make a payment before 31 March following the relevant winter to a person who appears from official records to be entitled to a payment.
9. The Tribunal was plainly right to hold that there is no form of discretion under which the Secretary of State (or an appeal tribunal on appeal) can waive or ignore the time limit for claiming owing to special circumstances. The fact that the Claimant did not receive the 2000 claim form (which the Secretary of State was under no obligation to send to him) and was unaware of the existence of winter fuel payments is therefore not a ground on which the Tribunal could possibly have allowed his appeal.
10. The point which the Chairman appears to have had in mind when granting permission to appeal is that he considered that it might be arguable that, if the Secretary of State in fact had information showing that the Claimant qualified, a payment should have been made under regulation 4(1) without a claim having been made.
11. In my judgment, however, the Tribunal had no jurisdiction to adjudicate on whether the Secretary of State should have made a payment under regulation 4(1) before 31 March in each of the relevant years. The reason is that under s.12(1) of the Social Security Act 1998 an appeal tribunal only has jurisdiction to hear an appeal against certain "decisions" of the Secretary of State. In the present case there was no decision, before 31 March in each year, not to make a payment under reg. 4(1); the Secretary of State simply did not make a payment. An appeal tribunal does not have jurisdiction to hear an appeal against a simple failure to make a payment before 31 March under reg. 4(1). The Secretary of State did not make a decision at all until the decision of 11 November 2004, refusing the claims on the ground that they were out of time. But by then the power under reg. 4(1) to make payment without a claim had expired. In this respect I adopt the reasoning of Mr. Commissioner Jacobs at paras. 21 and 22 of his refusal of permission to appeal in CIS/2337/2004:

"21. The claimant has no right of appeal against the Secretary of State's failure to make a payment under regulation 4(1). The reason is this. The right of appeal to an appeal tribunal is conferred by section 12 of the Social Security Act 1998. An appeal lies against 'any decision of the Secretary of State' (section 12(1)). In this case, the Secretary of State did not make a decision. The Secretary of State simply does not make a payment; there was no decision not to make a payment.

22. There is a right to appeal if the Secretary of State did make a decision. A decision made under regulation 4 is not made on a claim. An appeal against a decision that is not made on a claim is only possible if the decision comes within section 12(1)(b) of, and Schedule 3 to, the 1998 Act. Paragraph 1 of that Schedule authorises an appeal in respect of a relevant benefit. A winter fuel payment is a relevant benefit (see the definition in section 8(3)(f)). But the right of appeal only arises in the cases and circumstances prescribed. The only prescribed cases and circumstances are set out in regulation 26 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Paragraph (b) of that regulation covers 'a decision … whether a payment be made out of the social fund to a person to meet expenses for heating'. Notice, again, the word 'decision'. To repeat, the Secretary of State in this case did not make a decision. What happened was that the Secretary of State did not make a payment. The Secretary of State did not give a decision not to make one."

12. This also appears to have been the reasoning of Mr. Commissioner Mesher in the earlier case of CIS/2497/2002 (at para. 6 and the first sentence of para. 9). In CIS/5486/2002 (a copy of which is attached to the Secretary of State's submission in this appeal) Mr. Deputy Commissioner Concannon also held that reg. 4(1) could not help the claimant there, on the ground, which I think comes to the same thing, that once time limit of 31 March had passed (without a claim having been made), the Secretary of State ceased to have any power to make a payment under reg. 4(1).
13. In my judgment, therefore, the Tribunal's decision was right.

(signed on the original) Charles Turnbull

Commissioner

5 May 2005