CIS 4088 2004
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 06 May 2005 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 4088 2004 |
| Subject Matter | Other current benefits |
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...
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