IN THE UPPER TRIBUNAL	Case No.  CIS/4325/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Robin C A White 

Decision: The decision of the tribunal of 3 July 2013 is not erroneous in law. I dismiss this appeal.

REASONS FOR DECISION
Background and context  
1.	The appellant, who was born on 19 August 1942 and is a national of the United Kingdom, moved to France on a permanent basis on 1 April 1999.
2.	The appellant reached State pensionable age on 19 August 2007 and State pension was awarded from the relevant pay day following his attaining the age of 65.
3.	On 19 September 2012 the appellant claimed a winter fuel payment for every year since he had attained the qualifying age (in 2002) for a winter fuel payment.
4.	On 29 January 2013 the Secretary of State awarded the appellant a winter fuel payment for the winter of 2012, but refused the claims for payments in respect of all the earlier years since the claim for the payment had not been made in time.
5.	The appellant has appealed against that decision on the grounds that the time limits should be disregarded since the United Kingdom government was acting in breach of European Union law.
6.	The appeal came before a tribunal on 3 July 2013. The appeal was heard for perfectly understandable reasons in the absence of the appellant. The outcome was that the decision of 29 January 2013 was confirmed. A statement of reasons was subsequently provided.
7.	The appeal now comes before me with the permission of a judge of the Upper Tribunal.
The grounds of appeal 
8.	The essence of the appellant’s case is that the Secretary of State is seeking to hide behind national provisions in order to deprive him of rights which the Court of Justice of the European Union says that he has.
Did the tribunal err in law? 
9.	The appellant made his claim because he discovered that the United Kingdom had changed its position on eligibility to claim winter fuel payments following the decision of the Court of Justice of the European Union in Case C-503/09 Lucy Stewart, Judgment of 21 July 2011 [2011] ECR I-6497. The Lucy Stewart case was not about winter fuel payments, but about a different benefit. However, the Secretary of State had concluded that the implications of the judgment meant that he should consider claims for a winter fuel payment from a person who could show a genuine and sufficient connection with the United Kingdom.
10.	The Secretary of State has accepted that the appellant does have a genuine and sufficient connection with the United Kingdom. It was on this basis that the award for the winter of 2012 was made.
11.	However, national rules in the Winter Fuel Payment Regulations in relation to all the other years for which the appellant had claimed required a claim to be made by 31 March following the winter for which the claim was made. Plainly, the appellant did not make his claim within the time limits set down in national law. He can only succeed if he can show that European Union law requires the time limits to be disregarded in the particular circumstances of his case.
12.	Precisely this issue has been the subject of a judgment of the Court of Appeal in Secretary of State for Work and Pensions v Walker-Fox [2005] EWCA Civ 1441 (also reported as R(IS) 3/06). In a nutshell, the Court of Appeal ruled that the national rules did not make it practically impossible to make a claim in time, and that European Union law did not require the national time limits for claiming to be disregarded.
13.	The appellant’s circumstances are plainly analogous to those of the appellant in Walker-Fox. The only possible ground of distinction would seem to be that the position in relation to the exportability of winter fuel payments was not as settled at the time of the Walker-Fox litigation as at the time when the appellant discovered the implications for winter fuel payments of the judgment in the Lucy Stewart case having regard to the decision in R(IS) 8/06. Such a distinction would only apply for some of the years for which the appellant has claimed.
14.	My view is that this distinction does not affect the applicability to the circumstances of this case of the principle established in the Walker-Fox judgment. I accept what the Secretary of State says to me in this regard:
6. …  there was nothing that actually prevented [the appellant] from making a claim and pursuing a judicial remedy against the inevitable disallowance [if he had put in a claim earlier]. Admittedly it may have been difficult to obtain a remedy below the higher court level in light of R(IS) 8/06, but it would have been open to him to argue before the Commissioner/Upper Tribunal that that decision was wrongly decided. He could also have requested, in the lower tribunal or upwards, a referral to the European Court of Justice. In any event the difficulty presented by R(IS) 8/06 was not an obstruction of the Secretary of State’s making.
15.	My view is that the judgment in Walker-Fox means that European Union law does not require the national time limits to be over-ridden under the new regime for eligibility to apply for winter fuel payments in the light of the judgment in the Lucy Stewart case.
16.	The tribunal in this case has come to this conclusion, though it does not analyse the Walker-Fox judgment in its reasoning. This might arguably constitute an error of law, but, even if it does, it is in my view immaterial since there was no other decision which the tribunal could properly have reached on this appeal.
17.	Since the tribunal’s decision is not erroneous in law, I dismiss this appeal.

Signed on the original 	Robin C A White
on 9 June 2014 	Judge of the Upper Tribunal