UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CG_3719_2003 (19 February 2004)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(a)(ii) of the Social Security Act 1998.
2. 1. The decision of the Watford appeal tribunal under reference U/04/052/2003/00279, held on 2 May 2003, is erroneous in point of law.
3. 2. I set it aside, make findings of fact and give the decision appropriate in the light of them.
4. 3. I find as fact that the marriage between Raja and Rehmat was valid in British law and that she was his only wife at the date of his death.
5. 4. My decision is that there are no grounds to supersede the decision awarding a widow's benefit to Rehmat on and from 25 November 1993. The award remains effective. The peirodical payments of that benefit will be reinstated and arrears owing to her will be paid by the Secretary of State.

The appeal to the Commissioner

6. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State supports the appeal.

The claimant

7. The claimant is called Rehmat. She went through a ceremony of marriage with Raja in Watford on 19 March 1979. There is a marriage certificate to prove that. The issue is whether she was validly and monogamously married to him at the time of his death.
8. Raja died on 25 November 1993. There is no dispute that.
9. The claimant claimed widow's benefit on 26 January 1994 and this was awarded with effect from Raja's death.
10. The payment of the award was suspended on 9 April 2002, as a result of another claim being made by a person claiming to be Raja's widow. The award was terminated from its original effective date on 17 October 2002. The claimant exercised her right of appeal against that decision to an appeal tribunal, but the tribunal dismissed her appeal.

The burden of proof

11. As the claimant was awarded a widow's benefit, the legal burden of proving that she was not properly entitled is on the Secretary of State. The evidence must be considered in that light.

How the tribunal went wrong in law

12. The tribunal went wrong in law in two ways. First, it overlooked, or did not properly apply, the burden of proof in that it imposed evidential burdens on Rehmat that properly lay on the Secretary of State. Second, it made findings of fact that were not supported by the evidence.

A rehearing?

13. A rehearing is not necessary. I am able to substitute my own decision on the evidence before me and with the benefit of the Secretary of State's submission, on which I have more to say later.

Asghar

14. The other claim was made by someone claiming to be Asghar. Asghar and Raja were married in 1953 or 1954. However, there is evidence that the real Asghar died on 15 April 1969:

•    A marriage certificate in Urdu and in translation (pages 23 and 24). The Validity of Marriage Unit advised that this was bogus (page 38). This was based on the advice of the Pension Liaison Officer, who interviewed the claimant Asghar (pages 16 and 17). As the Secretary of State's representative points out, the Unit did not refer the certificate to the Document Examination Unit, as it could have done. The representative is also critical of the evidence provided by the Liaison Officer. Generally, I agree with his comments. I do not though make too much of the fact that references to Rehmat use variant spellings. It may be that these are no more than variant attempts to render the same word into the western alphabet. I suspect that this may be the explanation for many of the supposed inconsistencies in claimants' evidence identified by the Liaison Officers.

•    A letter in November 1969 from Raja's solicitor to the Home Office saying that she had died on that date (page 36).

•    The Home Office evidence giving Asghar's date of death as '15/4/69' (page 18). The Secretary of State's representative on this appeal suggests that the Home Office would only record a date of marriage if evidence was produced (page 142). The same reasoning applies to dates of death.

15. On the evidence before me, there is only one proper conclusion that I can reach about Asghar. This is that she died in 1969.
16. Rehmat has made an allegation that a relative of the real Asghar in the employ of the Department obtained information about her to allow someone to impersonate her. That is not a matter for me. But the allegation is serious and has been made about a named person. I would expect that the Department has already investigated the allegation or will now do so.

Farjaan

17. The Home Office evidence records Farjaan as Raja's fourth wife (page 20D). But it reports that nothing is known of her dates of birth, marriage, divorce or death, nor whether she had any children. The source of this person's name is not disclosed. The lack of any dates suggests that the Home Office did not see any corroborating documents.
18. On the evidence before me, there is only one proper conclusion that I can reach about Farjaan. This is that the evidence is not sufficient to prove a marriage to Raja.

Nasreen

19. The Home Office evidence also records Nasreen as one of Raja's wives (page 20B). Her date of birth is given as '8/5/50', but no other dates are given and no children are recorded.
20. The 1969 letter from Raja's solicitor refers to a marriage to Nasreen in Pakistan on 13 November 1967 (page 36). The date given is precise, but it is clear from the letter that the solicitor had not seen documentary evidence of this marriage. The Secretary of State submits that the lack of a date of marriage in the Home Office evidence suggests that it did not see any documentary evidence (page 142).
21. The state of the evidence with respect to Nasreen is not sufficient to allow me to find one way or the other with complete confidence. But on the balance of probabilities, I am satisfied that Raja did go through a ceremony of marriage as reported in his solicitor's letter.
22. This finding raises the issue of where Raja was domiciled at that time.

Domicile

23. Raja was still married to Asghar when he went through a ceremony of marriage with Nasreen. If he was domiciled in Pakistan at that time, the marriage was valid. If he was domiciled in Great Britain, it was not.
24. Everyone has a domicile. It is not possible to have more than one domicile at a particular time. It is possible to change domicile. At birth, a person acquires a domicile of origin. Usually, that is the place of birth. The person may then change domicile and acquire a domicile of choice. The domicile of choice may be changed from time to time. It may also be abandoned without acquiring a new domicile of choice. If that happens, the domicile of origin revives.
25. There are two elements that must be shown in order to prove that a domicile of choice has been acquired.
26. First, the person must have taken up residence in the country concerned. In this case, Raja first came to this country in 1961. He stayed until 1967, when he went to Pakistan. He returned in 1968 and stayed until 1974, when he went to Pakistan again. He returned here in 1975 and stayed until 1981, when he visited Pakistan for a third time, returning in 1982.
27. Second, the person must have the necessary intention. It is not necessary that the person should form an intention about domicile. Most people live their whole lives without even knowing that such a thing exists. The intention that has to be shown relates to the permanence of the person's residence in the country concerned. There may be statements made by the person about this. For the most part, however, the intention has to be inferred from the person's actions and the circumstances of the case.
28. Did Raja establish a domicile of choice in this country by the time of his marriage with Nasreen in 1967? As usual in these cases, there is limited evidence. I have to answer the question on the limited information available. There mere fact that Raja was in this country from 1961 to 1967 is not sufficient to show that he had established a domicile of choice here. It is, though, not inconsistent with that possibility. However, I am not limited to that evidence. I am entitled to consider the later events as evidence of the position in 1967. Taking that evidence into account for that limited purpose, I am sure that he had a domicile of choice here and that this had been established by the time he went to Pakistan in 1967.
29. It follows that the marriage with Nasreen was not valid under the law of his domicile of choice, because it was polygamous. So, when Asghar died, Raja was free to marry Rehmat under British law. On the evidence before me, that was the only valid marriage and Rehmat was properly entitled to widow's benefit.

Conclusion

30. The tribunal went wrong in law. I set aside its decision and substitute the one that the tribunal should have given. It will probably never be possible to know for certain the truth about Raja's marriages. But on the evidence before me, I am satisfied that the decision proposed by the Secretary of State's representative is the correct one. That is the decision I have given.
31. I am grateful to the Secretary of State's representative for his detailed and constructive submission on this case. I have been concerned for some years about the standard of adjudication in cases like this. So have other Commissioners. As the claimants are seldom available to attend the hearing and to be questioned, the tribunal has to rely heavily on the evidence obtained by the Secretary of State. The Secretary of State's representative has, in this as in other cases that I have seen, taken a critical approach to the evidence obtained in these cases. I consider that his criticisms are justified. In this case, the representative has extended his criticisms to the Validity of Marriage Unit. I also consider that those criticisms are justified. I do not know what evidence was before the officer who wrote the advice in this case, but I find it surprising given the evidence available. The analysis in the representative's submission on this appeal is much more perceptive and persuasive.
32. Tribunals usually deal with these appeals on the evidence before them. The Secretary of State's representative has, in this and other cases, suggested that 'the Secretary of State would be happy to be directed' as to the further evidence that should be obtained. I hope that tribunals will, in suitable cases, contribute to the Secretary of State's happiness by making appropriate directions that allow them better to discharge their inquisitorial duties in appeals by claimants from overseas who are disadvantaged by both their inability to attend and the state of the evidence. I also hope that tribunals will follow the lead of the representative in taking a more critical approach to the evidence produced by the Secretary of State.
33. Finally, the Secretary of State's representative points out that the Secretary of State's submission to the tribunal is in a form that has been used for some years and is out-of-date and misleading. It would be helpful to tribunals if this were to be updated.

Signed on original

Edward Jacobs Commissioner 19 February 2004