UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIS_840_2005 (19 October 2005)

CIS/840/2005

CIS/841/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeals.

REASONS

2. The claimant attained the age of 60 in December 2000. In or about November 2003, he discovered that, following a decision of the European Court of Justice in December 1999 (Case C-382/98 Regina v. Secretary of State for Social Security, ex parte Taylor [1999] E.C.R. I-8955), men aged between 60 and 65 had become entitled to winter fuel payments. Formerly, domestic law had conferred entitlement only on those over pensionable age or else entitled to particular benefits. He therefore made claims in respect of the years 2001-02, 2002-03 and 2003-04. Only the last of those claims was accepted. The claims in respect of 2001-02 and 2002-03, technically made in February 2004 when he completed the relevant forms, were disallowed on the ground that they had been made too late. The claimant appealed but his appeals were unsuccessful and he now appeals against the tribunal's decisions with my leave. He failed to obtain a statement of the tribunal's reasons but I waived that irregularity because it was clear enough what the issues were.
3. I held an oral hearing at the claimant's request. He appeared in person and the Secretary of State was represented by Mr Stephen Cooper of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.
4. Regulation 2 of the Social Fund Winter Fuel Payment Regulations 2000 (S.I. 2000 No. 729) provides for the making of winter fuel payments to most people over the age of 60. However, regulation 3 provides –

"(1) Regulation 2 shall not apply in respect of a person who –

(a) …

(b) subject to paragraph (2), has not 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.

"(2) Paragraph (1)(b) shall not apply where –

(a) 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; or

(b) regulation 4(2) applies."

Regulation 4(1) provides –

"Subject to paragraph (2), the Secretary of State may before the 31^st 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."

Regulation 4(2) has no bearing on this case.

5. The claimant's principal argument has always been based on his belief that records held by the Secretary of State did show that he was entitled to a winter fuel payment and that a payment ought therefore to have been made under regulation 4(1). In the absence of any reason to suppose that he had ceased to be ordinarily resident in Great Britain, all the records had to show was that he was aged over 60. It is not entirely clear what the records held by the Secretary of State for Work and Pensions did show but I assume for the purposes of this appeal that, by reference to his name and National Insurance number, they included the claimant's date of birth and his last current address. As the claimant argues, that would be sufficient to show that he "appears … to be entitled to a payment under that regulation".
6. However, in a submission made to Mr Commissioner Mesher in CIS/2497/2002 and recorded by him in paragraph 5 of that decision, the Secretary of State explained that, before making a payment to a person who appeared from records to be entitled, checks were carried out with a view to confirming that the person concerned still lived at the address held on the records, unless there was no reason to do so because the person concerned had been in recent contact with the Department for Work and Pensions. Again, it is unclear what checks were carried out in the present case and what the results were. As is revealed in the submission cited in CIS/2497/2002, there were some problems because one check used the electoral roll which did not always include the full postal address. It appears that the Department did not simply write to all the addresses held on the records for a number of reasons, not the least of which was a fear of fraud. The claimant criticised the checks as inadequate. For reasons I shall explain, it does not appear to me to matter whether or not they were adequate or, indeed, whether the checks in fact did confirm that the claimant still lived at his recorded address but there was then a clerical error and no decision was made to make a payment.
7. Mr Cooper explained, and I accept, that where the checks indicated that a person still lived at the recorded address, a computer would generate a list of the people concerned and a decision-maker would sign it, thereby awarding a payment to each person on the list. No similar operation was undertaken in respect of those whose current whereabouts was not established by the checks.
8. In CIS/4088/2004, the Deputy Commissioner considered the significance of the word "may" in regulation 4(1) and accepted the Secretary of State's submission that it conferred a discretionary power so that the Secretary of State was not obliged to make a payment to every person who appeared from official records to be entitled to one. I respectfully agree, although it may be that the stronger the evidence in the official records the greater will be the expectation that the Secretary of State will take some action, even if it is only to invite a claim. It seems eminently sensible that the Secretary of State should not be obliged to make a payment to a person of whose whereabouts he is unsure even if the person appears to be entitled to the payment, provided that the person concerned has the right to make a claim on his own initiative, as is the case under this legislation.
9. More importantly, I do not consider that, where the Secretary of State does not decide to make a payment under regulation 4(1), he is obliged to issue a decision not to make a payment. Indeed, it seems to me that he is not entitled, before 31 March of the relevant year, to issue a decision not to make a payment to a person who may be entitled to one, because that person may still make a claim within the time allowed by regulation 3(1)(b) and might establish his entitlement on the claim. He can make a decision under regulation 4 to make a payment but otherwise it seems to me that he must leave matters open and await a possible claim.
10. Accordingly, I understand Mr Cooper's scepticism as to the correctness of the finding by the Deputy Commissioner in CIS/4088/2004 that there had been a decision by the Secretary of State not to make a payment in that case, although it is unnecessary for me to consider whether the inference made by the Deputy Commissioner was one he was entitled to draw on the facts before him. Equally, I have some doubt about the Deputy Commissioner's suggestion in paragraph 16 that the Secretary of State might make a decision that a person was not entitled to a payment (if that appeared to be the case based on official records) in a case where no claim had been made. Although I respectfully agree with the Deputy Commissioner's observation in paragraph 16 that, if there was a decision under regulation 4 before 31 March of the relevant year, it could be revised or superseded after that date, I suggest that it is doubtful whether there are in fact ever any decisions under regulation 4 that are adverse to a "claimant", save perhaps as to the amount of the payment.
11. Mr Cooper also suggested that CIS/4088/2004 was wholly inconsistent with CIS/2497/2002 and R(IS) 12/05. The decision in CIS/4088/2004 did, of course, proceed from the basis that the Secretary of State had made a decision of some sort before 31 March in the relevant year and it may therefore be distinguishable from those other decisions. Nonetheless, I share Mr Cooper's doubts about the correctness of the decision. It seems to me to be internally inconsistent insofar as the Deputy Commissioner found the tribunal in the case to have erred in failing to deal with the question whether a decision of the Secretary of State might be revised or superseded but he then neither dealt with the issue himself (save that he found that there was a decision by the Secretary of State that could be revised or superseded) nor referred the question to another tribunal.
12. The significance of all this is that, if there was no decision by the Secretary of State under regulation 4, there was nothing against which to appeal to the tribunal so far as regulation 4 was concerned and, moreover, there would be no decision that the Secretary of State could revise or supersede.
13. The claimant has naturally placed much emphasis on what the Deputy Commissioner said in paragraph 2 of his decision, which reflected what he said in paragraph 16 about the possibility of a retrospective award of benefit following a revision or supersession of a decision made before 31 March of the relevant year. For the reasons I have already given, I have some doubt as to whether there are ever any decisions adverse to "claimants" that could be revised or superseded but, whether or not there may be such decisions in other cases, as there is no evidence of either a claim by the claimant or any decision by the Secretary of State before 31 March 2003 in the present case, I am satisfied that neither the tribunal nor the Secretary of State had any power to award winter fuel payments in respect of the two years in question.
14. As was said in CIS/2497/2002, if a failure to make a payment under regulation 4 is due to maladministration, a person may seek compensation. However, neither a tribunal nor a Commissioner has the power to consider any claim for compensation. I express no opinion as to whether there was any maladministration in this case.
15. For completeness, I will mention the claimant's other grounds of appeal, although they have no substance and the claimant did not pursue them at the hearing before me. He had originally suggested that benefit could be awarded under regulation 2 on his claims made in February 2004 notwithstanding that they were made after 31 March of the two relevant years. In the light of regulation 3(1)(b), that argument is clearly unsustainable. The claimant argued that regulation 3(1)(b) did not specifically state that late claims could not be considered but, in my judgment, that is the clear implication of the opening words which provide that "[r]egulation 2 shall not apply" where a claim has not been made by 31 March. He had also suggested there were irregularities in the proceedings before the tribunal and in the tribunal's constitution. Because the tribunal reached the only decision open to it, nothing turns on these points. It would be inappropriate of me to comment on the allegation that the claimant was not allowed to put his case to the tribunal because I have not given the tribunal the opportunity to comment on the allegation. As to the tribunal's constitution, Mr Cooper correctly submitted that the law required that the tribunal consist only of one person in the circumstances of this case (see regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 S.I. 1999 No. 991).
16. I have some sympathy for the claimant because his former ignorance of his right to winter fuel payments is understandable. However, the idea behind the legislation is clearly that a winter fuel payment should be payable only if a claim is made before 31 March of the relevant year or the Secretary of State makes a decision before that date on his own initiative. Neither event occurred in this case.

(signed on the original) MARK ROWLAND

Commissioner

19 October 2005