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Neutral Citation Number:
Reported Number:	R(IS)3/06
File Number:	CIS 488 2004
Appellant:	Secretary of State for Work and Pensions v Walker-Fox [2005] EWCA Civ 1441
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	29/10/2004
Date Added:	09/11/2004
Main Category:	European Union law
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	European Union law – effective enjoyment of Community rights – time limits for claiming winter fuel payments following UK Commission agreement concerning application of Council Regulation (EEC) 1408/71 The claimant reached the age of 60 in 1997. In 1998 the Social Fund Winter Fuel Payment Regulations 1998 (the 1998 Regulations) came into force, providing for payments to, inter alia, men over 65 and women over 60, who were in receipt of retirement pension and ordinarily resident in Great Britain. The claimant was resident in Great Britain at that time, but was not eligible for a payment as he was only 60. From 1999 he was ordinarily resident in France. On 19 December 1999 the European Court of Justice held in R v Secretary of State for Social Security ex parte Taylor (Case C-382/98) [1999] ECR I-8955 that winter fuel payments fell within the scope of Article 3(1) of Directive 79/7/EEC and that the discrimination between men and women which existed as to the age at which the winter fuel payments were payable could not be objectively justified. The 1998 Regulations were accordingly revoked and replaced by the Social Fund Winter Fuel Payment Regulations 2000 (the 2000 Regulations), which gave entitlement to men and women who had attained the age of 60 in the qualifying week. The condition of ordinary residence in Great Britain was retained. In July 2002, after protracted discussion with the European Commission, the British Government acknowledged that winter fuel payments constituted old-age benefits within Article 4 of Council Regulation (EEC) 1408/71 and were accordingly “exportable” to other Member States under Article 10 of that Regulation in the case of individuals who had become entitled to winter fuel payments before ceasing to be ordinarily resident in the UK. The claimant claimed winter fuel payments for the years 2000/2001 and 2001/2002 in November 2002, and applied for payments for 1997/1998, 1998/1999 and 1999/2000 in December 2002. His claims for the winters of 1997/1998 to 1999/2000 were met because there was no time bar prescribed in the 1998 Regulations. His claims for 2000/2001 and 2001/2002 were refused on the ground that the claims were not made within the time prescribed by the 2000 Regulations, namely before 31 March 2001 and 31 March 2002 respectively. The claimant appealed and an appeal tribunal upheld the decision. The claimant appealed to the Commissioner. The Deputy Commissioner allowed his appeal, holding (following Fantask A/S v Industriministeriet (Case C-188/95) [1997] ECR I-6783 and other authorities) that Community law on the effective enjoyment of Community rights required the UK Government to allow a reasonable time following the agreement of July 2002 in which claims for the two years in question could be made, since it was virtually impossible or excessively difficult to make a claim before the date of that agreement. The Secretary of State appealed to the Court of Appeal. Held, allowing the appeal, that: 1. the Deputy Commissioner was correct in holding that the jurisprudence requires that the procedural rules for the implementation of European law must comply with the principle of equivalence, ie the national time limit must apply equally to national claims as to Community-based claims; and with the principle of effectiveness, ie it must not make reliance on Community law virtually impossible or excessively difficult (paragraph 25; 2. the imposition of a reasonable time limit will not fall foul of those principles and is an application of the principle of legal certainty which protects both the individual and the administration (paragraph 25; 3. the application of Emmott v Minister of Social Welfare (Case C-208/90) [1991] ECR I-4269, which held that a Member States was precluded from relying on national procedural rules relating to time limits for bringing proceedings so long as it had not properly transposed a Directive into its domestic legal system, should be confined to very exceptional circumstances, where in some unconscionable way the State had obstructed the exercise of the individual’s judicial remedy or contributed to his failure to exercise it, thus breaching the principle of effectiveness which underpins this jurisprudence ((paragraph 50; 4. a potential claimant is presumed to know the law and (agreeing with the Advocate General’s opinion in Fantask) cannot be considered not to have notice of a requirement of European law merely because it has not been implemented; and the claimant’s position is all the weaker when his rights flow from a Regulation which is directly applicable, rather than a Directive (as in Fantask) which needs transposition into national law (paragraphs 46 to 47; 5. hence it was not virtually impossible or excessively difficult for the claimant to make a claim before the date of the agreement and the time limits for the claim were lawful (paragraph 48.
Decision(s) to Download:	R(IS) 3_06 ws.doc