Walker-Fox v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Scott Baker,Sir Peter Gibson |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1441 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 November 2005 |
| Docket Number | Case No: C3/2005/0576 |
[2005] EWCA Civ 1441
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt. Hon. Lord Justice Ward
The Rt. Hon. Lord Justice Scott Baker and
The Rt. Hon. Sir Peter Gibson
Case No: C3/2005/0576
Mr Thomas de la Mare (instructed by Office of the Solicitor) for the Appellant
[The Respondent did not attend and was not represented]
Lord Justice Ward
Introduction.
The Deputy Social Security Commissioner Mr Robin White decided on 29 th October 2004 that the respondent, Mr Colin Walker-Fox, was entitled to winter fuel payments of £200 for each of the winters of 2000/01 and 2001/02. The Secretary of State for Work and Pensions appeals that decision with the permission of Clarke L.J. Mr Walker-Fox writes in some bewilderment that "this whole matter is now running out of control and has reached a point of incomprehensible proportions", saying, "Surely it is hardly necessary for so small a claim to be dealt with by the Royal Courts of Justice". It is difficult not to have some sympathy for that view but the Secretary of State has persuaded us that an important point of law is involved having wide-ranging consequences for the administration—and payment—of social security benefits.
What is the dispute? In essence the question is whether time limits for claiming benefits are lawful. The issue arises in this way. The Social Fund Winter Fuel Payment Regulations 1998 ("the 1998 Regulations") came into force with effect from 16 th January 1998 and provided that a winter fuel payment to meet expenses for heating be paid to various categories of persons, one of which was those who were ordinarily resident in Great Britain and who were men aged 65 or over or women aged 60 or over to whom retirement pension was being paid. No time limit was imposed for the making of these claims because payment was automatically linked to the receipt of the prescribed category of benefit.
Mr Walker-Fox was born on 8 th October 1937 and so he was only 60 years old when the 1998 Regulations came into force, and thus seemingly too young to claim the benefit. He was at the time ordinarily resident in Great Britain but he moved to France on 10 th September 1999 and he has been ordinarily resident there ever since.
On 19 th December 1999 the European Court of Justice held in R v Secretary of State for Social Security, ex Parte Taylor [1999] ECR I-8955 that winter fuel payments fell within the scope of Article 3(1) of Directive 79/7/EEC 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 conditions of entitlement to payments. That discrimination as to the age at which the benefit was payable could not be objectively justified.
The government responded by revoking the 1998 Regulations and introducing the Social Fund Winter Fuel Payment Regulations 2000 ("the 2000 Regulations") which came into force on 3 rd April 2000. Under regulation 2(1) a winter fuel payment is payable 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."
Regulation 3(1) is material to this appeal. It provides that:—
"(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."
The qualifying week is the week beginning on the third Monday in the September of that year: Regulation 1(2).
The effect of paragraph (2) read with Regulation 4(1) and (2) is to permit a winter fuel payment to be made without a claim once it appears from official records that the person is entitled to payment, that is to say, once an old-age pensioner has received the benefit he will continue to receive it automatically.
Since the judgment in Taylor principally affected men aged between 60 and 65 for the winters 1997/98, 1998/99 and 1999/2000, the Secretary of State permitted them to claim their winter fuel payments retrospectively, there being no time limit in the 1998 Regulations which would have barred those claims.
The next development in what the Deputy Commissioner described as "the winter fuel payments saga" concerned Council Regulation No. 1408/71 ("Regulation 1408/71") on the application of Social Security schemes to employed persons, self-employed persons and members of their families who are or were subject to the legislation of a Member State (Article 2). Among the several benefits covered are old-age benefits (Article 4(1) (c)). Article 10 is material for our purpose:—
"1. Save as otherwise provided in this Regulation … old age … benefits … acquired under the legislation of one or more member states shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a member state other than that in which the institution responsible for payment is situated."
Notwithstanding Regulation 1408/71 the Secretary of State steadfastly maintained that the residence condition in regulation 2(1)(a) of the 2000 regulations (the need to be ordinarily resident in Great Britain) barred any application for winter fuel payments by those who had not acquired their benefits before moving to that other state. Claims were also rejected from those who asserted that a winter fuel payment was a supplement to their state retirement pension and payable as such.
The European Commission rejected the government's stance and protracted discussion ensued. The government eventually capitulated, finally acknowledging that winter fuel payments constituted old-age benefits within Article 4 of Regulation 1408/71 and were accordingly "exportable" from the U.K. to other Member States under Article 10 of the Regulations in the case of individuals who had become entitled to winter fuel payments before ceasing to be ordinarily resident in the U.K.. That was announced to the House of Commons on 19 th July 2002 when the Minister gave a written answer to a question enquiring about the progress made in discussions with the European Commission. Mr McCartney said this:—
"We have now concluded our discussions with the European Commission with regard to the extent of the U.K. government's responsibilities under European law. As a result, generally EEA nationals who first qualify for a winter fuel payment in the U.K. 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."
Apparently there was some publicity in foreign embassies and in newspapers.
In response to a further question, a written answer given on 6 th November 2002 stated that:—
"Eligible people, generally EEA nationals (which includes U.K. 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."
On 2 nd July 2003 the agreement between the United Kingdom and the European Commission was reported in a written answer to the European Parliament relevant parts of which read as follows:—
"Following lengthy discussions between the British authorities and the Commission, the United Kingdom has agreed to pay winter fuel payments to people living in other Member States as long as they were in receipt of such a payment before they left the United Kingdom. It is important to recall that the Community legislation on social security, Regulation (EEC) No. 1408/71, only covers the "co-ordination" of social security schemes for people who move around the Union. In no way does it replace the national social security schemes, and it is entirely a matter for the Member States to organise and finance their social security schemes as they see fit. Regulation (EEC) No. 1408/71 aims to protect the social security rights of those who move, but in itself does not give rights to benefits under the national social security schemes. Entitlement to benefits is a matter for national law. In doing so the Member States must of course abide by the basic principles of Community law, such as non-discrimination on grounds of nationality, but there is no suggestion in this case that any such discrimination exists.
Now that the United Kingdom accepts that winter fuel payments do come within the scope of Regulation (EEC) No. 1408/71, for those who are entitled to it under British law, and those who themselves come within the personal scope of the Regulation, the payment will be "exportable" to another Member State. However, for those who were not entitled to it under national law, Regulation (EEC) No. 1408/71 cannot be used to retroactively create an entitlement in respect of people who left the United Kingdom before the scheme was set up in 1998. …"
Mr Walker-Fox read about these developments in a newspaper and on 6 th November 2002 claimed winter fuel payments for the winters of 2000/01 and 2001/02. On 31 st December 2002 he applied for payments for the preceding years, namely 1997/98, 1998/99 and 1999/2000.
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