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[2005] UKSSCSC CIS_1427_2004 (03 February 2005)

CIS/1427/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the Wrexham appeal tribunal dated 15 December 2003.

REASONS

2. I heard this appeal at the same time as the appeal in CIS/1491/2004. The claimant did not attend the hearing and was not represented but she did have the advantage of written submissions made by Mr Stewart Wright, legal officer of the Child Poverty Action Group and, of course, also the submissions made by the claimant in CIS/1491/2004. The Secretary of State was represented by Mr Thomas de la Mare of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.
3. The claimant appeals with my leave against a decision that she was not entitled to winter fuel payments under the Social Fund Winter Fuel Payment Regulations 1998 and the Social Fund Winter Fuel Payment Regulations 2000. The facts are straightforward. The claimant was born on 4 December 1941. She moved to Spain on 2 October 1992 and has not lived in Great Britain since then. She is severely disabled and is entitled to disability living allowance. She made a claim for winter fuel payments on a form designed for retrospective claims in respect of the winters 1998/99, 1999/2000, 2000/01 and 2001/02. Her claim was received on 25 March 2003 and was accepted despite its lateness because of known postal difficulties. It is not clear to me why the form did not include a claim in respect of 1997/98, the first winter in respect of which the 1998 Regulations had effect and for which the qualifying week began on 5 January 1998, but nothing turns on that. Also, it is arguable that, as winter fuel payments are in effect annual periodical payments, the form falls to be treated as including a claim in respect of the winter 2002/03, the qualifying week for which fell in September 2002 and therefore before the form was completed and, more importantly, before the Secretary of State made his decision. However, nothing turns on that either.
4. Under both the 1998 Regulations and the 2000 Regulations, the conditions for entitlement to winter fuel payments included the claimant being, during the qualifying week, both aged 60 or over and ordinarily resident in Great Britain. In respect of the four winters for which the claimant expressly made a claim and also the winter 1997/98, she did not satisfy either of those conditions as a matter of domestic law. In respect of the winter 2002/03, she satisfied the first of those conditions but did not satisfy the second.
5. There is no conceivable basis upon which the claimant can argue that she might be entitled to winter fuel payments before she reached the age of 60. She has stated that she had previously received such payments but, as the Secretary of State submits, she must be referring to cold weather payments, which might have been paid to her before she moved to Spain but which are not the same as winter fuel payments.
6. However, it is submitted that from 2002/03, she is entitled to winter fuel payments by virtue of Article 10 of Regulation (EEC) 1408/71. For reasons I set out in my decision in CIS/1491/2004 and which I need not repeat here, I reject that submission.
7. Accordingly, the claimant's appeal must be dismissed. I direct that a copy of my decision in CIS/1491/2004 be sent to the claimant.

(signed on the original) MR MARK ROWLAND

Commissioner

3 February 2005