Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/1015/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 15 February 2011 is erroneous in law. I set it aside. I remake the decisions of the tribunal.

My substituted decisions:

(1)  Even if the respondent could show a genuine and sufficient connection with Great Britain on the date of his claims, he is not entitled to winter fuel payments for the years 2000-01 to 2007-08 because his claims for those years are out of time.

(2)  The respondent is not entitled to winter fuel payments for the years 1998-99, 1999‑2000 and 2008-09 because he has not shown a genuine and sufficient connection with Great Britain in relation to his claims for those years.

 

REASONS FOR DECISION

A.   Preliminaries

1.       I will refer, for ease of comprehension, in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant”.

2.       I will refer throughout this decision to European Union law, even though some of the circumstances of this claim predate the entry into force on 1 December 2009 of the Treaty of Lisbon.[1]

3.       This is one of two appeals by the Secretary of State in respect of the claimant. The other appeal is CP/1014/2011 which concerns his claim for a Category D retirement pension.

4.       The issue in this appeal is whether the claimant is entitled to winter fuel payments for a number of years. There was a line of correspondence with the Department which constituted his claims for the years in issue. A decision was issued on 5 November 2010 refusing the claims, and it is against this decision that the claimant appealed.

5.       The appeal was heard by a tribunal on 15 February 2011. All parties are now agreed that the decision of the tribunal cannot stand, since it asked itself the wrong question, namely whether Gibraltar was part of the United Kingdom, and then compounded the error by giving the wrong answer to that question. I agree that this was quite the wrong question, and this constitutes an error of law. I set the tribunal’s decision aside.

6.       The appeal comes before me with the permission of a judge of the First-tier Tribunal.

7.       I am urged by the Secretary of State to remake the decision of the tribunal. I consider this an appropriate course of action. The remainder of this decision addresses my assessment of the claimant’s entitlement to the winter fuel payments he had claimed.

B.   The factual background

8.       I have constructed this factual background from a number of documents in the bundle before me.

9.       The claimant is a British national. He was born in Dublin on 30 May 1928 and lived in Ireland until December 1948.

10.   The claimant lived in the United Kingdom between December 1948 and 31 July 1950. He was employed between January 1949 and 31 July 1950 and paid Class I national insurance contributions.

11.   The claimant moved to Kenya on 1 August 1950. He was employed in the Kenyan police force. He remained in Kenya until 1963. He had periods of three months leave in the United Kingdom in 1954, and 1957, and a shorter period of leave in 1961.

12.   The claimant returned to the United Kingdom on 7 October 1963 and remained until 28 November 1964.

13.   From 28 November 1964 until 8 December 1968, the claimant lived and worked in Australia.

14.   From 1969 to 1971, the claimant worked in the Sultan of Oman’s army.

15.   From 1972 to 1983, the claimant worked in Africa and Saudi Arabia.

16.   In 1983 the claimant moved to Ireland and lived there until 31 July 1994.

17.   In 1994 the claimant moved to the Isle of Man, and lived there until 2 June 2003. In 1995, the claimant was awarded a 30 per cent. Isle of Man retirement pension from 3 December 1993 at the weekly rate of £17.46.

18.   From 2 June 2003 to date, the claimant has lived in Gibraltar.

19.   It would appear that the claimant was awarded an Irish pro-rata pre-1953 contributory old age pension from 5 May 2000 based on 80 Irish contributions up to December 1948 taken together with 262 Australian contributions which were taken into account under the bilateral agreement between Ireland and Australia. The initial rate of this pension was €21.60, which was raised in 2008 to €36.60.

20.   The claimant has paid Class 3 voluntary national insurance contributions in the United Kingdom in respect of the contribution years 1984/85 to 1992/93 (when he was living in Ireland). On 2 April 2009, he was awarded a Category A retirement pension of £16.76 per week from 2 November 1993, representing a 28 per cent. pro rata pension.

C.   The history of winter fuel payments

21.   Regulation 2(1) of the Social Fund Winter Fuel Payments Regulations 2000 provides (so far as relevant to this appeal):

… 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) in or before the qualifying week has attained the qualifying age for state pension credit.

22.   The qualifying week in each year is the week beginning on the third Monday in September. The time limit for claiming winter fuel payments is on or before 31 March following the qualifying week in any year.

23.   There was no time limit for claiming for the years 1998/99 and 1999/2000 under the Social Fund Winter Fuel Payment Regulations 1998 (SI 1998 No 19).

24.   Entitlement to winter fuel payments is based on a simple age and residence test. But the saga of winter fuel payments and their status in European Union law is somewhat labyrinthine. That history is neatly summarised in paragraphs 3 to 8 of R(IS) 8/06, and does not need to be repeated here.

25.   R(IS) 8/06 also established that winter fuel payments are not a supplement to a retirement pension, but are a free-standing old-age benefit. This is so even in the case of a person entitled to a retirement pension, because there is no structural link: paras 41-52. They are, however, old-age benefits for the purposes of Regulation 1408/71.

26.   Even if the claimant can establish a genuine and sufficient connection with Great Britain to be able to claim,[2] his claims for winter fuel payments for the years 2000‑01 to 2007-08 are plainly out of time, and the claimant cannot show good cause for his delay in claiming: see Secretary of State v Walker-Fox, [2005] EWCA Civ 1441, reported as R(IS) 3/06. I accept for the reasons set out in the Secretary of State’s submission that the claims in respect of the years 2000-01 to 2007-08 are out of time.

27.   That leaves for consideration the claims for the two years in respect of which there was no time limit for claiming, and for 2008-09 in respect of which it is accepted that the claim was in time.

28.   The interaction of the national rules and European Union law in relation to winter fuel payments for those outside the United Kingdom has surfaced once more following the decision of the Court of Justice in Case C-503/09 Lucy Stewart, Judgment of 21 July 2011 (“the Stewart case”).

29.   The Secretary of State now acknowledges that the requirement of ordinary residence in Great Britain as a condition of entitlement must be revisited in the light of the principles enunciated in the Stewart case.

30.   The Secretary of State has helpfully summarised his position in this appeal following the Stewart case as follows:

a. The Secretary of State accepts that, following the decision of the CJEU in Stewart, claimant cannot be denied entitlement (either through acquisition or retention of a benefit) of WFP solely on the basis that they are not resident in Great Britain.

b.  However, that position does not relieve a claimant from establishing a genuine and sufficient connection with the competent state to establish his entitlement to the payment of a non-contributory benefit. Regulation 2(1)(a) of the WFP Regulations must be read down to the extent that the words “ … or in the case of a person falling within the scope of Article 2 of Council Regulation (EEC) 1408/71 [or Article 2 of Regulation (EC) 883/2004] who is ordinarily resident in another Member State, is able to demonstrate a genuine and sufficient connection to the United Kingdom”  should be added to it.

c.  [The claimant’s] claim for WFP is time barred insofar as it relates to WFP for the years 2000‑01 or 2007-08.

d.  [The claimant] cannot qualify for WFP even for the remaining years of 1998-1999 and 1999‑2000 and 2008-09 because he cannot fulfil even the expanded test under regulation 2(1)(a).

31.   If the claimant can show a genuine and sufficient connection with Great Britain to be able to make his claim, a further barrier to entitlement for the remaining years is the residence requirement for any day in each of the three qualifying weeks: the weeks beginning on the third Monday in September in 1998, 1999, and 2008. In respect of the qualifying weeks in 1998 and 1999, the claimant was living in the Isle of Man. In respect of the qualifying week in 2008, the claimant was living in Gibraltar.

D. The questions that need to be explored

32.   The following questions would appear to arise in determining the claimant’s entitlement to a winter fuel payment for the remaining years:

(a)  Is the claimant a beneficiary of European Union law?

(b)  If so, how should the residence requirement be interpreted in the light of the judgment of the Court of Justice in the Stewart case?

(c)  What is the status of the Isle of Man, and what is its relationship to European Union law?

(d)  What is the status of Gibraltar, and what is its relationship to European Union law?

(e)  If the claimant can establish standing to claim by showing a genuine and sufficient connection with Great Britain when he claimed, can he show residence, or deemed residence, in Great Britain on any day falling within the relevant qualifying weeks?

E. The status of Isle of Man

33.   The Isle of Man is a Crown Dependency. As such the Isle of Man is self‑governing. The Isle of Man is not part of the United Kingdom but is a territory for whose international relations the United Kingdom is responsible in international law. The United Kingdom is responsible for the defence of the Isle of Man and for providing consular services. The Island makes an annual contribution to the United Kingdom in recognition of defence and other common services provided on its behalf.

34.   The Isle of Man is not part of the European Union but it has a special, limited, relationship with the European Union set out in Protocol 3 to the United Kingdom's Treaty of Accession. In essence, the Isle of Man is part of the customs union allowing free movement of goods between the Isle of Man and the Member States of the European Union, but, apart from Article 4 of the Protocol, other provisions of European Union law do not apply to the Isle of Man.

35.    Article 4 of Protocol 3 provides:

The authorities of [the Isle of Man] shall apply the same treatment to all natural and legal persons of the Community.

36.   The Social Security (Isle of Man) Order 1977 (SI 1977 No 2150) (as amended) (“the Isle of Man Order”) made under s.143 of the Social Security Act 1975 makes provision for modification and adaptation of the social security legislation to co-ordinate social security provision between the Isle of Man and the United Kingdom.

37.   Paragraph 2(1) of the Schedule to the Order provides:

Subject to paragraph (5) of this Article, for the purposes of all or any of the provisions of the system of social security established by the Acts–

(a) acts, omissions and events and in particular residence, presence, employment (including employment as a mariner or airman), the occurrence of an industrial accident or the development of any prescribed disease, the payment, crediting or treating as paid of contributions (including graduated contributions and payments in lieu of graduated contribution), the refund of contributions paid in excess of the annual maximum amounts payable and the claiming or repayment of benefit; and

(b) the operation of any provisions as to exception from liability to pay contributions,

having effect for all or any of those purposes in one territory shall have corresponding effect for all or any of those purposes in the other territory.

38.   Paragraph (5) concerns mobility allowance and has no relevance to the issues before me in this appeal.

F. The status of Gibraltar

39.   Gibraltar was ceded in perpetuity by Spain to Great Britain under the Treaty of Utrecht 1713. It is a British Crown Colony. It is not part of the United Kingdom. This separate status is recognized under national law, international law and European Union law.

40.   In Case C-145/04 Spain v United Kingdom [2006] ECR I-7917, the Court of Justice described the status of Gibraltar as follows:

19. In Community law, Gibraltar is a European territory for whose external relations a Member State is responsible within the meaning of Article 299(4) EC and to which the provisions of the EC Treaty apply. The Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties (OJ 1972 L 73, p. 14) provides, however, that certain parts of the Treaty are not to apply to Gibraltar. 

41.   European Union law on citizenship of the Union and the free movement of persons applies to Gibraltar.

42.   The Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974 No 555) (“the Gibraltar Order”) provides:

1 Any reference in the following paragraphs to a territory shall be construed as a reference to the territory of the United Kingdom or Gibraltar or both as the case may be and any reference to a child shall be construed as a reference to any person for whom family allowances are payable under the legislation in question.

2(a) Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.

(b) For the purpose of giving effect to paragraph (a) above the same procedures shall so far as is practicable be adopted in relation to the person and benefit concerned as would have been applicable had the United Kingdom and Gibraltar been such separate Member States.

3 For the purpose of the right to receive payment of a pension for old age, widow’s benefit, guardian’s allowance, child’s special allowance or dependency benefits in respect of any such pension, benefit or allowance, under the legislation applicable to either the United Kingdom, or Gibraltar, any period during which a person, not subject to paragraph 2, was present or ordinarily resident in the other territory shall be treated as a period during which he was present or ordinarily resident, as the case may be, in the territory to which the legislation applies.

G.  Is the claimant a beneficiary of European Union law?

43.   The claimant is a national of the United Kingdom. As such, he is by virtue of Article 20 TFEU and its predecessor, Article 17 EC, a citizen of the European Union entitled to the constitutional rights which flow from Article 18 to 22 TFEU.

44.   However, citizenship of the Union does not, of itself, obviate the need for a claimant to meet conditions which may be imposed by national legislation. What it does enable him to do is to use European Union law to challenge national requirements which are incompatible with European Union law.

 H. How should the residence requirement be interpreted in the light of the judgment of the Court of Justice in the Stewart case?

45.   One consequence of the judgment of the Court of Justice in the Stewart case, Judgment of 21 July 2011, is that a claimant cannot be denied entitlement to winter fuel payments solely on the grounds that the claimant was not resident in Great Britain on the date of his claim.

46.   However, as the Secretary of State rightly points out, that does not relieve a claimant who is resident in another Member State from showing that he or she has a genuine and sufficient connection with the Member State in which the claim is made.

47.   But was the claimant here resident in another Member State when he made his claims for winter fuel payments?

48.   Answering this question requires an analysis of paragraphs 2 and 3 of the Gibraltar Order. I have not found these paragraphs at all easy to unravel. I am assisted by the observations of the Commissioner in R(IS) 8/06 who said:

17. … . There is no general provision to the effect that residence on a British registered boat is to be treated as residence in Great Britain when the boat is not in British waters and, in particular, there is nothing in the Merchant Shipping Act 1995 to that effect. The Social Security (Mariners Benefits) Regulations 1975 (SI 1975/529) have no application to the present case. Nor is there any provision to the effect that residence in a British colony is to be treated as residence in Great Britain. Even residence in Northern Ireland is treated as residence in Great Britain for social security purposes only because there is specific provision to that effect in paragraph 2(1) of Schedule 1 to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 (SI 1976/1003).

18. In respect of Gibraltar there is limited provision to a similar effect in paragraph 3 of the Schedule to the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974/555) but that applies only where the person is “not subject to paragraph 2”. Paragraph 2(a) provides:

“Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.”

The words “not subject to paragraph 2” in paragraph 3 must therefore be taken to mean “not within the scope of legislation of the European Economic Community relating to social security”, so that paragraph 3 applies only to persons outside the scope of Regulation (EEC) 1408/71, just as, say, the Family Allowances, National Insurance and Industrial Injuries (Spain) Order 1975 (SI 1975/415) does by virtue of Article 6 of Regulation (EEC) 1408/71 which provides that the Regulation replaces any social security convention between Member States. The claimant is within the scope of Regulation (EEC) 1408/71 because he is a citizen of the United Kingdom and is a retired worker. Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71 would have that effect. I shall consider those provisions below.

49.   I would add one rider to the proposition in the penultimate sentence of paragraph 18 cited above, which I would amend to read:

Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71, or some other binding rule of European Union law, would have that effect

50.   The proposition expressed in R(IS) 8/06 now needs to be qualified by the effect of the principles set out by the Court of Justice in the Stewart case. In that case, the Court of Justice ruled that Article 21(1) TFEU precludes a Member State from making the award of a benefit subject to a condition of past presence to the exclusion of any other element enabling the existence of a genuine connection between the claimant and the Member State in which the claim is made to be determined, or to a condition of presence of the claimant on the date on which the claim is made.

51.   I conclude that paragraph 2 of the Gibraltar Order applies at this stage. I accept, following R(IS) 8/06, that the words "not subject to paragraph 2" mean not being within the scope of European Union law on social security. The claimant is plainly within the personal scope of Regulation 1408/71, and winter fuel payments are within the material scope of the Regulation as old-age benefits. That brings the claimant within the scope of paragraph 2. The effect is that the claimant is then entitled to have Gibraltar treated as if it were in another Member State.

52.   That still does not obviate the need for the claimant to show a genuine and sufficient connection with Great Britain in order for his claim to be accepted by the United Kingdom authorities.

Can the claimant show a genuine and sufficient connection with Great Britain  as at the date of his claims?

53.   The claimant describes his connections with Great Britain as follows:

My father, uncle, two cousins volunteered for military service. Two cousins were killed and my uncle seriously wounded and as a result of a minor accident died of his war wounds—at an early age.

My father served till after the war ended and was honourably discharged in December 1918.

WORLD WAR II 1939-1945

Several of my first cousins and some distant cousins volunteered for military service (from Eire). Two lost their lives and one was awarded the Victoria Cross. My father worked in UK for a short period on war work.

MY CONNECTION WITH THE UNITED KINGDOM

1. Born in Ireland 1928 a UK national.

2. Lived and worked in UK 1948 – 31^st July 1950

3. Appointed to HM Colonial Service later renamed HM Overseas Civil Service. These services were under control of the Colonial Secretary who was responsible for our appointment, terms of service, promotion, discipline.

4.  As UK Crown Servants working in Kenya we were required to sign the Official Secrets Act conditions on a life long basis (a normal condition) giving me a life long connection with the United Kingdom.

5. During my Kenya service I spent three years in the Mau Mau conflict zone—like other front line fighters I was awarded the Africa General Service medal bearing HM the Queen’s image thus another link with the United Kingdom.

6. My work in Kenya was recognised by HM the Queen in her Birthday Honours Awards another UK connection or link.

7. I have been a UK National for 84 years another link with the United Kingdom.

8. I have had a UK passport for 62 years which gives me a right of residence in the UK—another link.

9. I receive a contributory Old Age Pension of £31.95 per week giving me a link (as in the case of Ms Stewart) with the Social Security System.

10. I receive the annual Christmas bonus of £10—another UK link.

54.   I am content to accept as correct the factual basis of all the connections to which the claimant makes reference for the purposes of determining whether he can show a genuine and sufficient connection with Great Britain in order to ground his claim for winter fuel payments.

55.   Determining whether there is a genuine and sufficient connection with Great Britain as at the date of the claim is a question of fact to be determined in the light of all the circumstances. In this case, this involves a weighing of the relevant factors which show some connection against those which show no connection.

56.   The following are factors which show a connection with Great Britain as at the date of claim:

• The claimant is a British national who holds a British passport.
• The claimant has lived in the United Kingdom between (a) December 1948 and July 1950, and (b) November 1963 and October 1964. He made a number of three month visits to the United Kingdom when on leave from the Kenyan Police Force.
• Much of his employment history has a connection with the United Kingdom, through the colonial service or the overseas civil service, in connection with which he was required to sign the Official Secrets Act.
• The claimant is in receipt of a United Kingdom contributory pension (based upon Class I contributions during his employment in 1949 and 1950 and Class 3 contributions paid on the basis of his employment in Ireland between 1984 and 1994) and of the annual Christmas bonus.

57.   The following are factors which show no connection with Great Britain as at the date of claim:

·       The claimant has actually lived in Great Britain only for two relatively short periods. He last lived in the Great Britain in 1964.

·       The claimant appears to have no current family connections in the United Kingdom. In his comprehensive list of connections with Great Britain, he certainly mentions none.

·       The claimant has lived in Gibraltar since 2 June 2003, having previously lived in the Isle of Man between May 1998 and June 2003.

58.   Balancing the positive and negative factors, I conclude that the claimant did not show a genuine and sufficient connection with Great Britain when he made his claims for winter fuel payments.

59.   The claimant has only relatively short periods of actual residence in Great Britain, the more recent of which was as long ago as 1964. There are plainly some genuine connections with Great Britain, but I do not consider them sufficient for the purposes of a claim for winter fuel payments, which are a free standing old-age benefit designed to provide pensioners with an annual one-off payment towards their fuel bills.

60.   I need to add (in the light of my decision in the linked appeal relating to a Category D retirement pension: CP/1014/2011) that I consider that the genuine and sufficient connection test following the judgment in the Stewart case must be applied taking account of the particular benefit being claimed. The test is one of a genuine and sufficient connection with Great Britain for the purposes of the benefit being claimed. So it is possible to show a genuine and sufficient connection for one benefit but not for another in the light of the same background.

61.   It was the link between the Category A retirement pension the claimant was receiving and the Category D retirement pension the claimant was claiming which was the decisive factor in my concluding in CP/1014/2011 that there was the necessary genuine and sufficient connection with Great Britain in that case for the claimant to have standing to make his claim. I find that there is no sufficient connection in relation to winter fuel payments, with the consequence that the claimant lacks standing to make his claim for winter fuel payments.

62.   The final point I need to address is whether, for the purposes of his claims for winter fuel payments, his residence in Gibraltar can be considered to be residence in Great Britain as at the date of his claims having regard to the terms of the Gibraltar Order.

63.   I am again assisted here by the decision in R(IS) 8/06 which considered what effect the rules in Regulation 1408/71 had on the claim for winter fuel payments by a claimant resident in Spain. The difference in this case is that there is a claim by a person resident in Gibraltar for winter fuel payments. Paragraph 2 of the Gibraltar Order requires me to treat the United Kingdom and Gibraltar as separate Member States.

64.   It follows that the principles espoused in R(IS) 8/06 in relation to a claim by a person resident in Spain for winter fuel payments in the United Kingdom are equally applicable to the circumstances of the appeal before me.

65.   For the reasons stated in paragraphs 33 to 40 of R(IS) 8/06, I conclude that the claimant is not entitled to have his ordinary residence in Gibraltar on the date or dates of his claims treated as ordinary residence in Great Britain.

66.   The current position on the authorities is that, where a claimant has qualified for a winter fuel payment by being ordinarily resident in Great Britain for a relevant qualifying week, Regulation 1408/71 permits the claimant to retain that entitlement in subsequent years on moving to another Member State. The Regulation does not, however, permit a claimant who has never been entitled to a winter fuel payment to acquire such an entitlement by ordinary residence in another Member State. The appellant’s circumstances place him in the latter category.

67.   In this case, the claimant is not assisted by provisions of the Isle of Man Order in relation to his claim for winter fuel payments, since he does not get over the initial hurdle of showing a genuine and sufficient connection with Great Britain on the day or days he made his claims for winter fuel payments in order to have standing to make his claim or claims.

68.   Accordingly the claimant is not entitled to winter fuel payments. My formal decisions in substitution for that made by the tribunal are set out at the head of this decision.

 

 

 

 

Signed on the original Robin C A White

on 26 June 2013 Judge of the Upper Tribunal