UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CIS_11304_1995 (01 January 1996)


 


DGR/SH/smt/4

Commissioner's File:CIS/11304/95

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]

1. My decision is that the decision of the social security appeal tribunal given on 14 August 1995 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.
2. This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 14 August 1995. In view of the complexity of the case, I directed an oral hearing. At that hearing the claimant was present, and represented by Mr W Sadler from the Malden and Coombe Citizens Advice Bureau, whilst the adjudication officer appeared by Mr L Scoon, of the Solicitor's Office, of the Department of Social Security.
3. On 24 January 1995 the adjudication officer decided that the claimant was not entitled to income support from 3 January 1995, because her partner was engaged in remunerative work. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.
4. The tribunal based their decision on the following facts, namely:-

(a) that the claimant was married to a Mr Karinshah

(b) that Mr Karinshah was engaged in remunerative work, and

(c) that they were both members of the same household.

Critical to their decision was the premise that the claimant was in fact married to Mr Karinshah. If she was not, then it had to be established that she and Mr Karinshah were living together as an unmarried couple. Equally critical to the tribunal's decision was the premise that Mr Karinshah was engaged in remunerative employment. However, the tribunal failed to explain why they were satisfied that the claimant was married to Mr Karinshah and why the latter was engaged in remunerative work.

5. As regards the marriage, the tribunal had before them a statement signed by the claimant stating that she had been married on 10 December 1993 to Mr Karinshah in Zimbabwe, seemingly in accordance with Islamic Law. However, for such a marriage to be valid, the claimant had to have a domicile in a country where Islamic Law applied. (As to the concept of domicile see CG/11/91 (to be reported as R(G)1/95), R(G)1/93, paragraphs 11-12, and R(S)2/92, paragraph 9). The claimant, who came from Pakistan, might well have had a domicile of this kind, and not a domicile of choice in this country, but this was not necessarily the case, and, in my judgment, it was incumbent upon the tribunal to investigate the matter to satisfy themselves that the claimant had not acquired a domicile in England. Accordingly, in failing to make the appropriate enquiries, the tribunal erred in point of law.
6. As regards whether or not Mr Karinshah was engaged in remunerative work, the tribunal appear to have made no investigation whatsoever. The fact that he had a business in Zimbabwe did not necessarily mean that he was working in England when he was staying in the home of the claimant. He might simply have been here on holiday. Accordingly, on this count also the tribunal erred in point of law.
7. It follows from what has been said above that I must set aside the tribunal's decision, and direct that the appeal be reheard by a differently constituted tribunal. I have had the benefit of hearing further evidence in this matter, and this will be available to the new tribunal. The claimant has produced a marriage certificate, which, though lacking in particulars as to where the marriage was celebrated, is consistent with the claimant and Mr Karinshah having gone through a marriage ceremony in accordance with Islamic rites in this country. Certainly, she has told me that the marriage was celebrated here, and not, as she had originally declared, in Zimbabwe, and that there was no civil marriage. If that was the case, then the marriage was clearly void and of no effect (see R v Bham [1966] IQ.B.159 [1966]3 All E R 124).
8. But irrespective of the above consideration, as there is evidence that the claimant had at an earlier stage legally married a Mr Omarshah and was still married to him at the time she went through a marriage ceremony in this country with Mr Karinshar in accordance with Islamic rites, then if the later "marriage" to Mr Karinshar had otherwise been valid, she would have entered into marriage with two different men, and as is clear from a legal opinion shown to me, an opinion of Mr. I. Chowdham of 9 Kings Bench Walk, Temple London, an expert in Islamic law, polyandry is prohibited under Islamic Law.
9. In the light of the foregoing, I consider that the new tribunal will have no option but to proceed on the basis that there was no valid marriage contracted between the claimant and Mr Karinshah.
10. The tribunal will then have to go on to consider whether or not at the relevant date the claimant and Mr Karinshah were an unmarried couple. Provided they were living in the same household, I do not think, having regard to the concession made to me by Mr Sadler, that the claimant will contend that she was not living with Mr Karinshah as his wife. But were they living in the same household? This will be a matter for the tribunal to determine in the light of the evidence then before them. However, it may be of assistance if I say that it seems to me, on the evidence presented to me, that Mr Karinshah had two homes, and consequently two households, one in Zimbabwe where he lived with a wife and family for some six months of the year, and another with the claimant in England where he lived the other half of the year. This was not the case of a person who had one home in one country and went abroad for business or other purposes and resided (say) in a hotel, where it could be said that his home/household was constant and his absence therefrom, being temporary, did nothing to disturb the existence of such home/household. It would seem to me that in the special circumstances of this case the claimant had two separate households, and although he could not occupy two households at one and the same time (R(SB)8/85), he was on the facts occupying one of them for half the year, and the other for the other half of the year. However, it will be for the new tribunal to decide this issue, in the light of the evidence then presented to them.
11. If the tribunal decide that the claimant and Mr Karinshah were, as at the relevant date, living in the same household as husband and wife, the tribunal will then have to determine whether or not Mr Karinshah was in remunerative employment. This will clearly need some investigation, and doubtless a new tribunal will require evidence on the point from the presenting officer. But if the tribunal are satisfied that Mr Karinshah was not, at the relevant date, in remunerative work, this does not necessarily mean that the claimant was entitled to claim income support. Her partner may have been caught by regulation 50 of the Income Support (General) Regulations 1987 [S.I. 1987 No 1967]. For that provision reads as follows:-

" 50. Capital which a claimant possesses in a country outside the United Kingdom shall be calculated -

(a) in a case in which there is no prohibition in that country against a transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;

(b) in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,

less, where there would be expenses attributable to sale, 10 per cent and the amount of any incumbrance secured on it."

I understand that the claimant owns a business in Zimbabwe, and possibly other assets. If at the relevant time Mr Karinshah owned property in excess of £8,000, then the claimant as his partner, was unable to claim income support.

12. I allow this appeal.

(Signed) D G RICE

Commissioner

(Date)