UK Social Security and Child Support Commissioners' Decisions

 


PLH Commissioner's File: CG 2611/03

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Widow's Benefit

Appeal Tribunal: Milton Keynes

Tribunal Case Ref: U/42/043/2002/00458

Tribunal date: 14 February 2003

Reasons issued: 7 May 2003

1. The decision of the Milton Keynes appeal tribunal chairman sitting alone on 14 February 2003 on this appeal relating to a claim for widow's benefit in respect of a man who married three times was in my judgment erroneous in law, because the chairman misdirected himself about the relevance of the deceased's domicile at and after the date of his marriage to the claimant. I set that decision aside and although conscious of the practical difficulties a rehearing will involve for all concerned, I have concluded the only just course is to remit the case for redetermination by another tribunal at which further evidence can be given. The deceased's domicile and the validity of his second and third marriages do need to be gone into further, and if I were to substitute a decision based only on the existing evidence and findings it would have to be against the claimant.
2. This case concerns an application made by the claimant on 9 August 2000 for widow's benefit in respect of her late husband, who died in Bangladesh on 2 July 2000. She was his second wife. Their marriage took place in accordance with Muslim law in Bangladesh on 22 April 1968, when he was about 40 and she was 16. Her husband, who was born in what was then Pakistan on 25 June 1927, spent periods of his life living and working in the United Kingdom as well as periods when he lived in or returned to Bangladesh for family or other reasons.
3. As is not uncommon in these cases, the exact details of his life are not fully documented and the complete history is difficult to piece together. According to the findings of the tribunal, based on the material before it and the oral evidence of the claimant which was accepted as truthful as to matters within her own knowledge, her late husband Mr A had lived in the UK for about eight years before their marriage in April 1968. Before that, as she did not then know but later discovered, he had entered into his first marriage in Bangladesh with Mrs AB, probably in the early 1960's. After his marriage to the claimant Mrs FB in early 1968 the deceased lived in Bangladesh until October 1969 when he went to the UK again. The month after that, on 18 November 1969, the first wife Mrs AB and her three children were admitted to the United Kingdom as his wife and dependants. He returned to Bangladesh again in 1971 and lived there for another two years until 1973, after which he spent another four years in the United Kingdom, returning to Bangladesh for the following four years from 1977 to 1981 which he spent living with the claimant Mrs FB. While in Bangladesh in the 1970's he married his third wife Mrs JB, in either 1971 or 1977. (The tribunal accepted the claimant's oral evidence that this was in 1971: the Secretary of State's understanding, agreed by the claimant's present representative, was that it took place on 3 May 1977).
4. The claimant Mrs FB remained married to her husband and had at least three children by him. She was aware that he also remained married to Mrs JB, with whom he had a further seven children. The deceased lived in the United Kingdom again from 1981. On 4 April 1989 the claimant Mrs FB came to the United Kingdom and lived with him here until 1992 when he attained 65 and qualified for retirement pension. Soon after that he returned to Bangladesh because of his health, and apart from a stay of some nine months in the UK from mid-1998 to early 1999, lived in Bangladesh until he died there on 2 July 2000. At that date there is no doubt that both the claimant Mrs FB and the third wife Mrs JB were still alive and neither had been divorced. The evidence about the first wife Mrs AB was uncertain. Mrs FB contended she had been told the first marriage had already ended in divorce before her own marriage in April 1968, but was not able to produce any evidence to support this. The Secretary of State's information was that the first marriage to Mrs AB had come to an end with her death in Bangladesh at some date after 1969, but there was no detailed evidence to support this either.
5. On those findings the tribunal chairman confirmed the rejection of Mrs FB's claim for widow's benefit in respect of her late husband, on the basis that at the material date, the date of his death on 2 July 2000, her marriage to him had been polygamous. The principal grounds for this conclusion as set out in the statements of reasons issued on 7 May 2003 (pages 66-67) were that:

"There was no satisfactory evidence available that Mr A and Mrs AB were divorced before Mr A married Mrs FB. The evidence that Mrs AB had joined Mr A in the UK in 1969 contradicted any suggestion of a prior divorce. The tribunal therefore found that Mr A was already married to Mrs AB when he married Mrs FB in Bangladesh in 1968, and therefore that Mrs FB's marriage was polygamous at the date it was contracted.

There was no evidence that Mrs AB died between coming to the UK in November 1969 and Mr A's marriage to Mrs JB in 1971. Mrs JB is believed to be still alive. There was no satisfactory evidence that Mr A divorced any of his three wives. Accordingly, the tribunal found that throughout her marriage to Mr A, Mrs FB's marriage had been polygamous and was polygamous at the date of Mr A's death. It was not therefore capable of being recognised as valid for the purpose of entitlement to Social Security benefits."

6. A person seeking to claim widow's benefit under the Social Security Contributions and Benefits Act 1992 has to be either the surviving member of a monogamous marriage recognised as valid under United Kingdom law or the surviving member of a valid marriage under a law which permits polygamy but in fact the only spouse of the deceased at the date of his death: section 121(1)(b), and regulation 2 of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975 SI No 561. Consequently on the footing that the deceased had, as the Secretary of State had consistently accepted and argued, retained his domicile of origin in Bangladesh until he died there in July 2000, and there being no doubt or dispute as to the validity under Bangladeshi law of his two subsisting marriages to Mrs FB and Mrs JB who both survived him, the claim for widow's benefit by Mrs FB had to be rejected as she was not the deceased's only wife at the date he died.
7. However doubt is cast on the tribunal's apparent acceptance of this result by the express finding recorded in the summary decision notice issued on the day of the hearing that: "Mr A was domiciled in UK at the date of his marriage to Mrs B". That the "Mrs B" referred to here was the claimant Mrs FB, so that the date is that of the deceased's marriage to her on 22 April 1968 in Bangladesh, is confirmed in the further passage from the chairman's statement of reasons quoted below.
8. If the finding of an acquired UK domicile of choice by that date was indeed correct and (as the tribunal also found) the first marriage to Mrs AB who came into the country as Mr A's wife the following year was then still subsisting, then it would have to follow that the second marriage to Mrs FB was void by the law of Mr A's domicile, and the appeal should have been rejected on that ground. However the stated reasons for the tribunal's decision proceed on the (necessarily inconsistent) basis that the marriage was a valid one, albeit polygamous. That cannot be correct if the finding as to domicile stands. The final paragraph of the statement of reasons at page 67 addresses this apparent inconsistency of reasoning only to the extent of saying

"The Tribunal, in its summary of reasons given on the decision notice, recorded the finding that Mr A was domiciled in the UK at the date of his marriage to Mrs FB. That finding of domicile is not necessary for, nor directly relevant to, the reasons for the tribunal's decision given above and is not relied upon for the purposes of its decision."

9. It seems to me that both the claimant's present representative and the Secretary of State must be right in submitting that the chairman thereby misdirected himself. Contrary to what he says, the question of Mr A's domicile at the dates of each of his second and third marriages was of fundamental importance to the case. As already noted if he had acquired UK domicile by the date of the second and the first was then still subsisting as the tribunal found, the second marriage could not be valid at all; conversely if he acquired UK domicile after that but before the date of his third marriage (now agreed to be 3 May 1977), then it is the third marriage to Mrs JB that must be treated as void for all purposes and the claimant Mrs FB must be entitled to succeed as the only surviving wife who had a valid marriage still subsisting at her husband's death.
10. I am bound to say I have considerable reservations whether the tribunal's apparent acceptance and finding of a domicile of choice in the United Kingdom at the date of the marriage to Mrs FB was correct. On the material before me I would for my part agree with the Secretary of State's contention that there was insufficient evidence to support a finding that at any point in his life the deceased acquired a UK domicile of choice to displace his domicile of origin in Bangladesh. That was his home country where he repeatedly returned for extended periods throughout his life, where he obviously retained and throughout his life renewed deep cultural and family associations including his three marriages, and where he spent his retirement until his death at the age of 73. I see no real ground at all for saying that at the time he was back in Bangladesh in early 1968 at the age of 40, getting married to the claimant in accordance with local law, he had abandoned all that and acquired a permanent domicile in the UK instead.
11. However it does not seem to me right to decide that finally on the material before me alone. Its relevance has of course now been brought into much sharper focus than was the case at the tribunal, and the claimant and those acting for her must I think have the opportunity of putting forward any further relevant evidence and arguments that may assist her case, at a full rehearing. As the points are difficult it will be desirable if not essential for the Secretary of State to be properly represented so as to assist the tribunal on the domicile issues, and make submissions on any further evidence provided and on the factual points raised in the detailed grounds of appeal at pages 79-82.
12. The appeal is allowed and the case remitted for rehearing accordingly.

(Signed)

P L Howell

Commissioner

29 October 2003