UK Social Security and Child Support Commissioners' Decisions

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[2004] UKSSCSC CG_1024_2003 (17 November 2004)

CG/1024/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the Claimant, brought with my permission, against a decision of the Newcastle-upon-Tyne Appeal Tribunal made on 17 December 2002. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal and set aside the Tribunal's decision. In exercise of the power in s.14(8)(a)(ii) of the Social Security Act, 1998 I find that the Claimant was at the date of the death on 18 August 2000 of Mr. Mohammed Aborak Ali (also known as Arjumond Ali)(to whom I shall refer as "the deceased") his only wife. I make the decision which is appropriate in the light of that finding, namely that, subject to satisfying the other conditions of entitlement, the Claimant is entitled to widows benefit. If there is any dispute as to whether the other conditions of entitlement are satisfied, or as to the nature and amount of such benefit, the matter should be referred to a differently constituted appeal tribunal for resolution of such dispute. If there is no such dispute, there will of course be no need for the matter to be referred back to a new tribunal.

The deceased was born in 1934 in what is now Bangladesh. He came to work in the UK in 1965, and between then and January 1983 lived here for a total of some 10 years. He was employed whilst here. For the remainder of the time between 1965 and 1983, and for all the time thereafter until his death, he lived in Bangladesh. The time between 1965 and 1983 was in fact divided fairly evenly between UK and Bangladesh, the deceased having returned to the UK 4 times during that period for periods of about 2 years on each occasion.

On 2 June 1985 the deceased was issued with a returning resident entry certificate. On 21 August 1985 the deceased sponsored an application for entry to the UK by the Claimant and 4 children, on the basis that they were his wife and children. The Claimant's date of birth was stated as 1954, and the date of marriage as 1970. The children's dates of birth were stated as 1975, 1979, 1982 and 1984.

On 29 November 1985 an impostor attempted to gain entry to the UK, using the deceased's passport with a substituted photograph. The impostor when questioned stated that he came from the same village as the deceased and had been given the passport by the deceased.

On 7 January 1987 and 16 July 1987 the deceased and the Claimant were interviewed by an entry clearance officer in connection with the application for entry. At the conclusion of the second interview the deceased signed another application for a returning resident visa. By a decision on that date the entry clearance officer refused that application. That meant that the application by the Claimant and the children in effect fell away. It was also refused, the decision stating that "I am not satisfied that you are related as claimed."

Those decisions were appealed. The entry clearance officer wrote a submission of some length, explaining the decisions and annexing relevant evidence, in connection with the appeals. The applications of the Claimant and the children were dealt with relatively briefly at the end of the submission. Based on evidence which I shall refer to later the entry clearance officer stated that "clearly there is something amiss in this application and it would appear very strongly that [the deceased] is attempting to facilitate the entry into the UK of bogus family members." The appeals were dismissed by a short written determination dated 9 August 1988, the adjudicator considered the appeals on the papers.

Following the deceased's death the Claimant claimed bereavement benefit by a claim form signed on 14 September 2001. On 10 January 2002 the Claimant was interviewed by the pensions liaison officer ("PLO") at the British High Commission in Dhaka. On 10 April 2002 a decision was made refusing widows benefit on the ground that the Claimant had not established that she was married to the deceased. By the decision now under appeal to me the Tribunal dismissed the Claimant's appeal.

Owing to an unfortunate history relating to the application to me for permission to appeal, I did not grant permission to appeal until 24 June 2004. The Secretary of State supports the appeal.

The main items of evidence in support of the Claimant's contention that she was married to the deceased are the following:

(1) The evidence of the deceased and the Claimant to that effect. The main such evidence is that of both the Claimant and the deceased in the interviews in 1987 and that of the Claimant in the interview on 10 January 2002. There is a very high degree of consistency between the answers given by the Claimant and the deceased (who were interviewed separately) in the 1987 interviews. Detailed questions were asked, plainly in order to check for consistency. There is also a high degree of consistency between the Claimant's answers in 2002 and the answers in 1987.

(2) The mere fact that it had been asserted back in 1987 that the Claimant was the deceased's wife, and the same 4 children were their children, and that the same assertion was made some 15 years later, seems to me to tell in the Claimant's favour.

(3) The 4 children were conceived on dates which all coincided with dates when the deceased was back in Bangladesh. That would seem to render it probable that they were all his children. If it be assumed, for a moment, that the deceased was at the time of the application in 1985 attempting to secure the entry into the UK of "bogus family members", it would have been remarkable, it seems to me, if the Claimant had been able to, as it were, assemble 4 children whose dates of birth all coincided with periods when he was back in Bangladesh.

(4) There are what purport to be birth certificates for the 4 children, stating the deceased as the father. They do not state who is the mother. They purport to be issued on behalf of the Department of Health and Population control and to be true copies of the entries on the birth register and to be signed and countersigned by designated officials. The certificates for the 3 elder younger were issued on 31 December 1986, and that for the oldest child in 1976.

(5) The Claimant was in possession after the deceased's death of personal documents such as his passport and P60s and P45s.

(6) At the time of both the 1985 application and the 2002 interview there was produced what purported to be a land deed dated 30 May 1970, in Bengali. A photocopy is in the papers, together with what appears to be a summary made on behalf of the Pensions and Overseas Directorate on 24 July 2002. The summary is: "the groom was unable to pay a sum of Taka 500, which the bride demanded in cash at the time of the marriage. A plot of land belonging to groom's father was given to the bride, in lieu of the dower money. Full details of the land stated." It would appear from p.18 that the original of this document was produced to the PLO on 10 January 2002, and I assume that the original was also produced in 1987. If the entry clearance officer's decision in 1987, and the Tribunal's decision now under appeal to me, were correct, the supposition must presumably be either (i) that that document had been forged in or shortly before 1985 or (ii) that it was genuine but that the Claimant was impersonating the person whom the 1970 Deed showed the deceased to have married in 1970. As regards the question of genuineness, I see from the photocopy of the 1970 Deed that it appears to have been stamped – there is some typed stamped writing stating in English that it is duly stamped under the Stamp Amendment Act 1950 and a purported signature of the sub-registrar. Whether it was possible, in about 1985, convincingly to forge a document purporting to have been executed in 1970, and to have been stamped (presumably contemporaneously), and possibly registered under some form of land registration, I know not. The decision maker's written submission to the Tribunal stated: "The PLO in Dhaka has been requested to check this [i.e. the land deed] against the original entry in the registry however to date we are still awaiting verification of this." No further evidence had become available in this respect by the time of the Tribunal hearing (or has yet been produced). In the absence of evidence that the land deed had been forged – and there was no such evidence - the Tribunal in my judgment erred in law in not expressly regarding the land deed as establishing that the deceased was in 1970 married to someone having the name which the Claimant purports, and has purported since at least 1984 (see the Claimant's passport), to have. On that footing, as I have said, the only possible basis on which the Claimant could fail was that she has since 1984 been impersonating that person for these purposes. The Tribunal should have recognised that that was the only possible issue.

(7) There is a birth certificate for the Claimant, showing her to have been born in 1954, and the date of the registration of the birth to have been on 26 June 1954, and purporting to have been signed and counter-signed by officials, on 14 February 2000. There is a passport issued to the Claimant on 8 November 1984, and stating the names and dates of birth of the 4 children correctly.

The evidence which has been relied on, by the decision maker/and or the Tribunal, against the Claimant is the following:

(1) There is an estimate by a doctor on behalf of the British High Commission in 1987 that the Claimant's then age was about 25. If she was born in 1954 as claimed, her then age would have been about 33. If she was only about 25 in 1987, she would have been only about 8 at the date of the marriage – clearly an impossibility (as opposed to just short of 16 on the dates of birth and marriage put forward by her). The Secretary of State's representative has in his submission in this appeal referred to a passage at para. 10103 of the DWP Decision Makers Guide, setting out a statement from the Principal Medical Officer, which says that "there is no medical test or group of medical tests which will enable the age of an adult to be accurately determined, particularly in the higher age groups ………there are, however, certain clinical features which when observed and considered by an experienced medical practitioner may enable him to say whether on balance of probability the results of medical examination support an individual's contention that he has reached a stated age, or, alternatively, to say within what age group of about 10 years he probably belongs." It does not appear that the doctor in this case was asked whether the Claimant could at the time of the examination in 1987 have been about 33, as opposed to the age of 25 which he estimated. In any event, it seems from the statement from the Principal Medical Officer that the estimate of an age of 25 was of little or no assistance in determining whether the Claimant was then rather older – i.e. 33. The Tribunal stated, with regard to this estimate of age, that "whilst the Tribunal appreciate that such evidence is not conclusive, it is evidence which must be taken into account." In my judgment the Tribunal should have been referred by the decision maker to the above passage from the decision maker's guide, and the fact that it was not led to the Tribunal erring in law in apparently attributing substantially greater weight to the estimate than was reasonably permissible.

(2) When interviewed in 2002 the Claimant said, if the purported record of the interview is correct, that she had one brother named Abdus Miah (also known as Kasa Miah), living in England, and one sister, living in Bangladesh, and no other siblings alive or dead. Annexed to the 1987 ECO's submission to the immigration adjudicator is a "family tree", apparently compiled at the time of the interviews on 7 January 1987, which lists the Claimant as having two real brothers, Aynah Miah and Abdus Miah, also known as Kasa Miah, and one real sister and two stepsisters. Those answers were apparently checked in the interview with the deceased, the checking being evidenced by the presence of a tick opposite each name. The Tribunal in its statement of reasons noted the apparent discrepancy in the Claimant's answers in this respect, but did not state what significance it attached to this particular discrepancy. The letter from the PLO to the decision maker of 10 January 2002 commented that "I asked her the question twice to make sure that she understood what I had said." The evidence of the 2002 interview is in the form of typed questions and answers. The contemporaneous record of the interview would presumably have been kept in handwriting, but that is not in evidence. The Secretary of State's written submission in this appeal states, with reference to the evidence of that interview, that the Secretary of State "acknowledges that its presentation falls short of the usual standards for evidence which the Secretary of State would put before the tribunal or the Commissioners. There is no contemporaneous record of the interview, it is not signed by the claimant or the Deputy PLO, and it is not apparent that it was read back to the claimant to enable her to correct any error arising from misunderstanding, interpretation or incorrect recording. There is also no contemporaneous or signed record of the ECO interview." It may be that (as the Secretary of State's representative submits) the Tribunal erred in law in apparently relying on the discrepancy between the two interviews without (a) noting the deficiencies in the evidencing of the interviews in 1987 and 2002 which I have referred to and (b) noting that the PLO in 2002 had not expressly put to the Claimant the apparent discrepancy in this respect with what she had said in 1987, and giving her the opportunity to comment on it. I do not, however, find it necessary to decide that, in view of the other errors of law which I have identified.

(3) There was before the Tribunal, attached to the 1987 ECO's submission to the adjudicator, a "family tree", said by the ECO to have been completed in 1977 on information possibly given by the wife of one Ayna Miah, who was the "sponsor", and who was possibly one of the brothers of the Claimant which she had mentioned in 1987. That family tree indicates that the sponsor had one real sister, namely "Ruptera Bibi", who is stated to be single and to live in the village of Haidarpur. There was also, attached to the same submission, a second family tree, said to have been completed in 1985 on information possibly given by Ambia Begum, the wife of Kasa Miah (the sponsor and the brother which the Claimant mentioned in both 1987 and 2002). It stated that the sponsor had one real sister, namely Fultera or Ruftera, married to Arjond Ali of the village of Joti, and with two sons, namely Abul Hasnath and Abul Hassan, and one unnamed daughter. That family tree evidence would of course tend to suggest that neither of the Claimant's purported brothers had a sister of the Claimant's name. In my judgment, however, that evidence was worthless by way of contradiction of the Claimant's case. First, the two family trees do not agree as to the name of the sister – one stating it to be Ruptera and the other as Fultera or Ruftera. Secondly, the second family tree states the sister to be married to someone called Arjond Ali. There is no evidence that that was intended to be a reference to the same person as the deceased, one of whose names is Arjumond. Thirdly, even if the 1985 family tree were regarded as establishing that the deceased was in 1985 married to someone called Fultera or Ruftera, it would conflict with the fact, in my judgment established by the land deed, that in 1970 the deceased married someone with the Claimant's name (unless of course the deceased had more than one wife). Fourthly, it is wholly uncertain whether the sponsors of the two applicants in 1977 and 1985 are the same people as the Claimant stated in 1987 to have been her brothers (one of whom she repeated in 2002 to have been her brother). Finally, it is not clear from the family trees who gave the information stated in them, and what the ticks (where present) represent. In my judgment, therefore, these two family trees were themselves self-contradictory and further, even if the 1985 one referred to the deceased, appeared to conflict with the established fact that the deceased did in 1970 marry someone with the Claimant's name and that he did have 4 children. The Tribunal stated that (inter alia) "the differences in names given by her alleged brothers … made the Tribunal conclude that the anomalies and discrepancies far outweigh the evidential value of the documentary evidence on which the appellant relies". In so stating the Tribunal in my judgment attributed a significance to the 1977 and 1985 "family trees" which they were not on the evidence capable of bearing.

(4) The Tribunal stated that "in interview the appellant was only able to give vague answers to the interviewer's questions concerning [the deceased's] time in the UK." I agree with what the Secretary of State's representative has to say about this in paras. 26 and 27 of his written submission in this appeal. Only one of the three relevant answers was vague, and as to that it is perhaps not surprising that the Claimant should not have remembered, 19 years after he had last been to the UK, what work he did there.

I accept the Secretary of State's submission that on the evidence I should make the finding of fact set out in paragraph 1 above.

The Secretary of State submits that "this case raises, perhaps more clearly than any other to date, questions with regard to the difference in the tests adopted in respect of benefit claimants living in Bangladesh, Pakistan and the Yemen, as compared to claimants living in the UK and the great majority of other countries." He submits that it is an appropriate case for general guidance to be given as to, in particular, the extent to which a tribunal can properly rely (as was done in this case) (i) on the untested evidence of other persons recorded at previous interviews by a different government department and for a different purpose (i.e. immigration) and (ii) interviews with the Claimant of which the actual contemporaneous record is not produced and which is not signed or recorded as having been read back to the Claimant. I incline to the view, however, that it would be difficult, and very possibly unwise, to attempt to state any such general principles. It seems to me that these cases are so highly fact specific that the position is probably that the weight which can permissibly be attached to any such items of evidence must vary with the precise circumstances of the case.

I nevertheless express, once again in this type of case, my gratitude for the able and thorough submission of Mr. Kevin McClure on behalf of the Secretary of State. Had the Tribunal had the very considerable assistance from him which I have done, it would no doubt have reached a different conclusion.

(signed on the original) Charles Turnbull

Commissioner

17 November 2004