Morning all,
My client is appealing against a decision not to award him a backdated Winter Fuel Payment for 2007/8, having been awarded one for 2008/9. The reason he did not apply for 2007/8 is that he had cataracts and could not see to complete the application form; at the time he was not getting any support with his affairs. I did not become involved until 2009, and helped him apply for the backdate in April 2009. The appeal has gone to the tribunal stage, we are awaiting hearing date.

The DWP are maintaining that as he made the claim 'outside the prescribed time limits' that he is not entitled, and have used some caselaw that, on reading, does seem to support that argument quite effectively. I know that there is not a lot of discretion involved in WFP but has anyone got any experience of successfully getting a backdate at this stage, or can you suggest any caselaw I might use?

Many Thanks

Such case-law as I can find is not encouraging: in CIS 2337/2004 Commissioner Jacobs held that the time limit does not infringe Art 1 of Protocol 1 of ECHR. Also, though payments can be made without a claim, there is no obligation on DWP to do so or to issue a claim form - CIS 840/2005. This case decides that the failure to make such a payment is not to be treated as a decision not to pay and is thus in itself not appealable. There is also the argument that the secretary of state has no power to make payments out of time even if she wanted to!

I've never come across a successful appeal.

Oh dear, these are the cases that the DWP has used in their defence! And, to be fair, I can see their point. However my client wants to go ahead...

Could it be argued that my client was discriminated against due to his medical condition? The DWP maintain that they make 'reasonable efforts' to inform customers of their entitlement, most of which seem to be visually orientated. At the time that he would have been sent the application form, he could not physically see to complete it, nor would he have been able to see any promotional material advising him that he should claim. He also says he had difficulty seeing well enough to make telephone calls.

I've not much experience at this; so far i've only done DLA appeals where it's easier to appeal to the sympathy of the tribunal...