[2005] UKSSCSC CIS_3197_2004 (15 March 2005)

CIS/3197/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	The claimant’s most recent letter to the Commissioners’ office suggests that he has given up hope of winning this case.  If he wished to withdraw this appeal, I refuse to give him leave to do so.  Instead, I allow the claimant’s appeal.  I set aside the decision of the Wrexham appeal tribunal dated 2 June 2004 and I substitute my own decision:  the claimant is entitled to winter fuel payment in respect of the winter 1997/98 and subsequent winters.

REASONS

2.	The claimant was refused winter fuel payments by the Secretary of State and, on appeal, by the appeal tribunal on the ground that he was not ordinarily resident in the United Kingdom.  This was because the only home he owns, which is his principal address for correspondence, has been in France since 1991, which is before the first winter fuel payments scheme came into force in January 1998.  The claimant now appeals with the leave of Mr Commissioner Bano and the support of the Secretary of State.

3.	The reason that the Secretary of State now supports the appeal is that it is apparent from evidence that was before the tribunal that the claimant had spent about half of the years 1992 to 1996 working in Great Britain – 7 months in 1992, 9 months in 1993, 7 months in 1994, 3 months in 1995 and 7 months in 1996 – and then all but a month or so from January 1997 to May 1998, when, at the age of 70, he finally retired to France.  The tribunal was entitled to find that the claimant was ordinarily resident in France from 1991 to 1998, but it erred in not considering whether the claimant was also ordinarily resident in Great Britain during that period in the light of the evidence.  The tribunal appears to have considered that the claimant could be ordinarily resident in either France or Great Britain but not both and that he was not ordinarily resident in Great Britain because he was only in this country on work assignments for French clients.  I agree with the Secretary of State that it is possible, albeit rare, for a person to be ordinarily resident in more than one country at a time.  I also agree with the Secretary of State that, on the evidence in this case, the claimant was plainly ordinarily resident in Great Britain during the qualifying week beginning 5 January 1998 so that he qualified for a winter fuel payment in respect of the winter 1997/98.  It seems to me that more weight than it deserved was given by the original decision-maker – and, possibly, by the tribunal – to the fact that the claimant, who was a single person, lived as a boarder or in hotels when in Great Britain, rather than owning or renting his own property in this country.  Also, the form the claimant had to complete assumed that a person could be resident in only one country.  (I note that the form provided only for claims from the winter 1998/99, although a decision was made in respect of the previous winter.)

4.	Because the claimant qualified under domestic law in respect of the winter 1997/98, he is entitled to winter fuel payments in respect of subsequent winters by virtue of Council Regulation (EEC) 1408/71, notwithstanding that he ceased to be ordinarily resident in Great Britain during the course of 1998 (see CIS/1491/2004).

	(signed on the original)	MARK ROWLAND
		Commissioner
		15 March 2005