Walker-Fox v Secretary of State for Work and Pensions

National procedural time limits governing claims based on directly applicable Community rights must satisfy equivalence and effectiveness. A time limit is lawful if it is no less favourable than the rule for comparable domestic claims and does not make exercise of the Community right virtually impossible or excessively difficult. The relevant question is whether a claimant, presumed to know the law, could have made a timely claim, not whether the administration would have rejected it. The exceptional approach in Emmott is confined to cases involving unconscionable obstruction or conduct causing the claimant’s delay. A genuine, later-abandoned governmental stance does not meet that threshold.

Mr Colin Walker-Fox lived in France and claimed winter fuel payments for 2000/01 and 2001/02 after the Government accepted that, subject to domestic entitlement, the benefit was exportable under Regulation (EEC) No. 1408/71. The Secretary of State relied on regulation 3(1)(b) of the Social Fund Winter Fuel Payment Regulations 2000, because the claims were made after the annual deadlines.

The Deputy Social Security Commissioner held that the time bar made exercise of the Community right virtually impossible or excessively difficult and allowed the claims. The Secretary of State appealed. The central issue was whether the time limit had to be disapplied because timely claims would have been rejected under the Government’s then position on residence and exportability.

Appeal allowed. Lord Justice Ward gave the judgment, with Lord Justice Scott Baker and Sir Peter Gibson agreeing. The Commissioner had applied the effectiveness test to the wrong question. He had confused making a claim with the likely outcome of that claim.

1. The orthodox rule, reflected in Rewe-Zentralfinanz [1976] ECR 1989, San Giorgio [1983] ECR 3595 and Fantask [1997] ECR I-6783, is that national procedural rules must be no less favourable for Community claims than for similar domestic claims and must not make reliance on Community rights virtually impossible or excessively difficult. Reasonable time limits are compatible with legal certainty.
2. The proper question was whether a claimant, presumed to know the law, could have applied in time. The fact that the Secretary of State would probably have rejected the claim did not make the act of claiming virtually impossible or excessively difficult. Regulation (EEC) No. 1408/71 was directly applicable and required no transposition. The claim could therefore have been made within the prescribed period.
3. The annual character of the benefit was material. Each year required a separate claim. A time limit extinguishing entitlement to a particular year’s lump-sum payment was a bar to proceedings, not merely a restriction on the period for which arrears could be recovered. The distinction drawn in Steenhorst-Neerings [1993] ECR I-5475 and Johnson [1994] ECR I 5483 was therefore of little assistance.
4. Although not necessary to the result, Emmott [1991] ECR I-5475 should be confined to very exceptional cases in which the state unconscionably obstructed the judicial remedy or contributed to the claimant’s delay. The Government’s genuine but unsuccessful legal stance did not amount to active misleading or lulling. The Directive-based approach in Emmott was also distinguishable from a claim founded on a directly applicable Regulation. The Commissioner’s decision was accordingly displaced and the appeal allowed.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1441, allowed the Secretary of State’s appeal.
• Social Security Commissioner: Deputy Commissioner Robin White, on 29 October 2004, held that the time limit made timely claims virtually impossible or excessively difficult and allowed Mr Walker-Fox’s claims.