UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's File No: CG/3657/2001

1. This is an application to set aside my refusal of 20.12.01 to grant leave to appeal from the decision of an appeal tribunal dated 19.4.01. For reasons which appear below, I set my refusal aside and grant leave to appeal.
2. The claimant was awarded a Widow's Pension from 13.3.90 to 31.12.90 and a Retirement Pension from 1.1.91 on the basis that she had been born in 1930. However, in an interview at the British Embassy in Sana'a on 13.3.96, the claimant supplied information that she was under the age of 40 at the date of her claim in 1990. The alleged marriage to her husband, on the fact of which her claim depended, took place in 1948. If the claimant were 40 in 1990, she was unborn in 1948 and the marriage ex-hypothesi could not have taken place. The AO decided to revoke the award, and made a claim for the recovery of the sum of £10,454.38 on the basis that the claim had misrepresented her age.
3. A first appeal on 14.6.99 was set aside under the summary procedure, and the relevant appeal came on for hearing on 19.4.01. The tribunal noted:

"11 The appellant's representative requested a report relating to an age test carried out on the appellant. The test was conducted on 7 January 2001. This was an X--ray test carried out by Dr Abdul Karim Zabedi who was a radiologist. The conclusion of this report was that the appellant had bone age between 55 and 60 at the date of the test, namely 7 January 2001. I have also considered the other documents in the bundle, but I consider that the best evidence of the appellant's age is the radiological examination."

Dr Zabedi's report can be found at P41 and clearly is limited to his interpretation of the X- ray.

4. The tribunal continued:

"12. At the hearing today the appellant's representative accepted that if the medical evidence was correct, then the appellant could not have been 60 in 1991. The appellant' representative repealed the appellant denied saying she was under 40 at the interview and the documents produced by the appellant's representative supported the views that the marriage was in 1948.

"13. According to the radiological evidence the appellant would have been aged 2- 6 in 1948."

The tribunal came to their conclusion in the following terms:

"16. I am satisfied on the balance of probabilities that the appellant was aged 55-60 in January 2001 and this is based on the evidence of the radiologist. I have mentioned previously that I consider this to be the best evidence before me today as to her age. My view is supported by the fact that at the interview the appellant said she was under 40 when she had claimed Retirement Pension and that she made no comment to her that if this was the case she would have been unable to have been married in 1948."

"17. I am satisfied that the appellant was not married to [the alleged husband] in 1948 as claimed, as she would have been too young."

5. On the basis of these conclusions I refused leave to appeal.
6. The claimant's solicitors in letter of 23.5.2001 have asked me to set aside my refusal to grant leave to appeal. They enclose reports from two consultant radiologists in the UK and one in the Yemen. They commented:

"We consider that our client and ourselves have been misled by the Benefits Agency. The British Embassy in Sana have paid Dr Zabedi Abdul Karim the sum of 20 dollar each time he has x-rayed a client and provided a 'medical report' on their instructions. We are astonished and outraged to discover that there appears to be no medical evidence whatsoever to confirm Dr Zabedi's opinions."

7. (i) The first report dated 8.5.02 is that of Dr A.P. Wolinski, a consultant radiologist at the Dudley Group of Hospitals NHS Trust, in which he states:

"I have read with considerable interest the reports produced by Dr Abdul Karim Zabedi. It appears that he is predicting mature skeletal age from a lateral skull radiograph.

"I am not aware of any mechanism whereby bone age can be reliably assessed in a mature skeleton from a lateral skull radiograph.

"Within the UK there are obviously means of assessing bone age, but this is in an immature skeleton and is based on the assessment of the developing wrists and hands."

He then stated that he has made enquiries of colleagues and those involved with archaeology and continues:

"I have discussed the notion of lateral skull bone age assessment in adults with several of my colleagues and have also sought the opinion of Professor lain McCall. No-one that I have spoken to is aware of such a facility.

"In conclusion, I believe, that there are no published or recognised data within the UK that would allow accurate bone age assessment of the adult to be derived from a lateral skul1 radiograph. I think Dr Abdul Karim Zabedi must be challenged in this respect and must produce validated data from population studies. Failure to disclose ful1 validated information must make his reports completely meaningless."

(ii) There is then the report of Dr M S Evans, a consultant radiologist with the Royal Orthopaedic Hospital Birmingham, dated 12.4.02, in which he states:

"It is quite impossible to estimate bone age in adult patients with this degree of accuracy. There are no recognised procedures to assess bone age adults. Estimation of bone age in children with a growing skeleton is a different matter. Relatively accurate estimation of bone age in possible is children.

"It is my opinion that it is quite impossible to accurately assess chronological age from x-ray studies of the chest, skull and mandible in adult patients. There is no described method to estimate chronological age from x-rays of the adult skeleton. These estimates are entirely subjective. It is not possible to produce even vaguely accurate subjective assessments of chronological age from adult x-rays."

(iii) There is then the report of Dr Mohammed Abdul Rabinan, a consultant radiologist of the Jordanian Board. He says:

"Age determination can not be estimated radiologically in the older age group. Normal bone density is seen."

8. It seems to me that, in view of this very impressive body of authoritative learning, Dr Abdul Karim Zabedi's evidence can only be treated as totally unreliable. This is a matter which causes me considerable concern, since there may be a number of others whose age has been determined in this way. That being so, the tribunal reached its conclusion on what I can only call as 'what appears to be fatally flawed' evidence. The difficulty I have is to find grounds for setting my refusal aside. My jurisdiction is now contained in Regulation 32 of the CPR 1999 (formerly the 1987 Regs), except for the fact that the present para (c) has been substituted for the earlier one which applied if 'the interests of justice so required'. However, in our R(U)3/89, the commissioner held that that phrase was confined to cases where they had been obvious mistakes or procedural mishaps, ie broadly similar to (c) of Regulation 31 of the 1999 Regulations.
9. However, in my view the scope of the jurisdiction is not so limited. It is true that whether a commissioner or not has any inherent jurisdiction may be open to controversy. In CIS/595/97, the commissioner took the view that he had no inherent power, but he did have implied power and referred to the opinion of Lord Bridge in Lloyd -v- McMahon 1987 AC 625 at p782/3:

"In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

In CCS/910/99 the Commissioner went rather further and concluded that refusals of leave to appeal might more readily be set aside where a Commissioner recognised that he or she had over-looked a statutory provision, or had based a decision on a misunderstanding of the evidence, or where the applicant produced further evidence after the decision had been given, which he or she could not have reasonably been expected to produce earlier.

This is clearly a case where injustice would be done if my refusal were not set aside and it is pointless and a very great waste of time and money for the claimant now to have to proceed by way of judicial review. Dr Abdul Karim Zabedi's evidence is totally unreliable and I do not see how it could have been shown to be unreliable by the time of the tribunal hearing. Accordingly, I am prepared to accept that this is a case in which (a) I had implied jurisdiction to set aside my refusal to grant leave to appeal 10.12.01; and (b) it is a proper case in which I should. I accordingly set aside my refusal of that date and grant leave to appeal.

The respondent is directed to make observations on the appeal within one month of this direction being issued. If the appeal is supported, the observations should-

(a) inform the Commissioner whether there is any objection to the case being dealt with under section 14(7) of the Social Security Act 1998 or by way of a decision without reasons;

(b) include the terms of tile decision it is suggested the Commissioner should give, if it is suggested the Commissioner should substitute his or her own decision for that of the tribunal.

The appellant will be given an opportunity of commenting on the respondent's observations.

When making their observations, both parties should inform the Commissioner whether they want an oral hearing.

It seems to me that since the tribunal's decision was based almost entirely on Dr Abdul Karim Zabedi's report, this may well be a case for a summary order under Section 14(7) of the 1998 Act, subject to anything which the Secretary of State might which to say on the matter. Depending on the view which he takes, the Secretary of State might also wish to communicate with the appropriate British authority in Sana'a.

(Signed) J M Henty

Commissioner

(Date) 28 June 2002