UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CP_1516_2004 (11 May 2005)

CP/1516/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the tribunal's decision and substitute my own decision that there was no entitlement to revise or supersede decisions awarding widow's benefit from 23 June 1987 and retirement pension from 9 February 1988 and that, accordingly, there was also no entitlement to recover benefit paid under those awards as benefit which had been overpaid.
2. This appeal arises out of a decision made on 16 May 2003 which revised decisions awarding widow's benefit from 23 June 1987 and retirement pension from 9 February 1988, on the ground that there been no valid marriage between the appellant and the man whose national insurance contributions had been the basis of the awards. In consequence of that decision, a further decision was made that the total amount of benefits paid under the awards, totalling £20,809.23, was recoverable as an overpayment.
3. The appellant is a native of the Republic of Yemen. On 23 June 1987 the claimant (who in this appeal cannot be assumed to be the same person as the appellant) made a claim for widow's benefit. On 18 June 1988 she wrote to the Department stating that she was the widow of a man whom I shall call Mr N. Mr N had been a merchant seaman, and the letter gave the names of the first and last ships on which he had served, together with details of an employer for whom he had worked after leaving the Merchant Navy. Enclosed with the letter were copies of a certificate of identity issued in 1965 by the Home Office, two merchant marine certificates of discharge, a pay advice issued by Mr N's last employer, an affidavit sworn in the Yemen in 1969 giving the names of Mr N's dependants, and his National Health Service card.
4. The name of Mr N's wife shown in the 1969 affidavit was the same as the claimant's first given name and the affidavit listed as his dependants children with dates of birth in 1944, 1953, 1957, 1966 and 1968. The first certificate of discharge gave Mr N's year of birth as 1918. On a page in the second certificate headed with a ship's name, Mr N's next of kin was shown as his wife, again with a name which was the same as the claimant's first given name. It is possible to see from the photocopy documents that a page was stapled to that page in 1957, giving the names, ages and date of birth of children born in 1944, 1953 and 1957 respectively. The same details were later added in respect of a fourth child, born in 1966. The details of those children match those of four of the five children listed in the 1969 affidavit.
5. On 6 September 1988 the claimant wrote again to the Department in answer to a request for further information, giving the addresses in the United Kingdom where Mr N had lived, a photocopy of his death certificate, and a copy of his identity certificate showing the date on which he left the United Kingdom for the last time. On 10 December 1988 a claim form was submitted, giving the claimant's date of birth as 1927 and stating that Mr N had been born in 1918 and died in the Yemen on 15 March 1974. The claim form gave the names and dates of birth of two children, born in 1966 and 1968 respectively. The claimant also completed a Declaration of Marriage stating that she had married Mr N on 22 February 1942. Both documents were signed with the claimant's thumb print. An award of widow's benefit was made with effect from 21 July 1987, which was converted to an award of Category B retirement pension as from 9 February 1988.
6. The appellant was randomly selected for interview by an International Pension Service Officer. She attended for interview on 21 November 2001, but that interview had to be terminated and she attended again on 9 January 2002. On the first occasion the claimant produced a number of documents to verify her identity. The documents included a Yemeni identity card issued on 22 July 2000 bearing the appellant's photograph and giving her date of birth as 1927. The identity card contained the holder's full name, consisting of three given names and a family name. The full name was the same as that on the claim form and the declaration of marriage, and the first given name corresponded with the name of the person shown as Mr N's wife in his second discharge certificate and the 1969 affidavit. The claimant also produced an identity card for the son born in 1966, who accompanied her to the interview, a copy of the 1969 affidavit, a copy of a marriage certificate issued on 22 November 1988 giving a date of marriage of 22 February 1942 and naming as children of the marriage the children born in 1966 and 1968, a copy of Mr N's death certificate and the documents which had been enclosed with the letter of 18 June 1988.
7. The interviewing officer's note of the first interview is as follows:

"Mrs N explained that she was the one and true wife of (Mr N.). She states she married him when she when she was 11 or 12 years of age and hadn't reached puberty. She reached puberty 6 months after the marriage and also became pregnant. The DOM is given as 22/02/1942 if Mrs N. was 11/12 when she married her DOB is more likely to be 1931/30. She is registered as having a DOB of 1927.

She named her husband's father as S___H___N____ and was unable to explain why her husband's name did not follow after the name of his father. She also confirmed he had never changed his name at any time.

She initially said she had 3 children then when asked how many pregnancies she'd had she said 4. There were no twins. She then said her husband had stayed 1 or 2 years after the marriage and she's had 3 children. When it was pointed out that wasn't possible she became agitated. She was asked again to clarify how many children were born before her husband first left and she then said only the oldest Khalid. This was the son that attended with her and he presented his ID card confirming his name as Khalid Abdulah Hassan N____ and DOB 1966. This woman was asked to confirm that Khalid was the oldest and she said yes. She also confirmed all her children were alive. When we asked her to name the children (in age order) she came out with Khalid as oldest, Fatima, Nabilah and Saleh. This again confirmed Khalid as the oldest child.

The affidavit issued 23/12/1969 names Kolasa as the wife and listed 5 children. The names and dates of birth of his children: Ahmed DOB 02/01/1944, Fatima 05/09/1953, Mohamed 05/07/1957, Khalid 25/07/1966 and Rubieyah 15/07/68. Only two of the names Mrs N gave also appeared on the affidavit. I asked her who Ahmed was and she terminated the interview as she said she was too nervous to continue. She says all her children are alive.

On her MC issued in 1988, after the death of her husband, the only children given are Khalid and Nabilah. This girl has the same DOB as the girl Rubeiyah listed on the Affidavit. Mrs N. says none of her children have had name changes and there are no twins.

There are clearly some problems to be addressed but Mrs N was not able to continue and she has had her appointment rearranged to the 9^th of January 2002."

8. The note of the second interview is as follows:

"Mrs N. returned to complete her interview on 09/01/2002. At this time she proceeded to state that due to ill health she had forgotten to mention she's had a son called Ahmed. She explained that her husband had married her stayed two years and then he left her for the UK. When he returned she then had a son called Ahmed. This contradicts her earlier statement that she'd had three children before he ever left in the same two year period, though none of the children were twins. She then amended her statement again and said she had Ahmed before he left for the UK.

She was asked to name the three children again on this occasion she gave different name, which did not agree with either her earlier list or with the affidavit issued in 1969. She named Ahmed, Mohamed Fatima and Khalid and Nabilah. She now says that only two survive Khalid and Nabilah where earlier she said all of her children were alive. She was asked who Saleh was (this was a son she named in her first interview) and Rubeiyah who appeared on the list in the 1969 affidavit, she denied knowledge of either of these names.

Mrs N. confirmed today she never at any time changed her childrens' names.

This second interview has not clarified the problems between her account of her family and the written evidence provided. The son Ahmed is now reported to be dead but he was listed as a dependent in 1969 at the time of the affidavit.

I cannot confirm her ID."

9. On 3 February 2003 a document headed "Advice on the Validity of Marriage" was issued by the Validity of Marriage Unit, advising that the marriage between Mr N and Mrs N on 22 February 1942 could not be accepted as valid for social security purposes. The notification was followed by a letter dated 16 May 2003 advising the appellant that she was "no longer entitled to a widow's benefit and retirement pension" and that she was liable to repay a total of £20,809.23 because: "you misrepresented the material fact that you were the wife of Mr N." The reason for the decision removing benefit was given as:

"…when you were interviewed by our Pensions Liaison Officer on 21/11/01 and 09/01/02 you could not provide sufficient evidence to confirm your identity. Subsequently it cannot be proven that you are not the wife of Mr N. and as a consequence we could not confirm that a valid marriage exists."

The second sentence appears to have had the word "not" inserted in error, but even allowing for that error the terms of the notification suggest that the revision decision was taken on the erroneous basis that the burden of proof was on the appellant to establish her marriage to Mr N.

10. The appellant appealed on 12 June 2003, asserting that the decision was "totally mistaken" and that she could prove she was the wife of Mr N by "hundreds of means", and on 22 June she wrote asking for the decision to be reconsidered. On 4 October 2003 the appellant sent the Appeals Service further copies of earlier documents, together with a document described as a "new marriage contract", which appears to be a legal document declaring the two children born in 1966 and 1968 to be the only lawful heirs of Mr N.. The documents also include a record of court proceedings held on 30 June 2003, confirming the validity of the appellant's marriage to Mr N, the claimant's birth certificate, and the birth certificates of the two children born in 1966 and 1968.
11. On 7 October 2003 the revision and overpayment decisions were reconsidered, but not revised, and the appeal therefore proceeded to hearing. The appeal was adjourned on 9 December 2003 to enable the appellant to be notified of the reconsideration decision and on 6 January 2004 a further letter was received from her, enclosing further copies of earlier documents. In response to a letter notifying her of the hearing date, the appellant stated that she had been harassed during the interviews by the International Pensions Officer, who may have misunderstood her replies during the interview because of nervousness.
12. At the adjourned hearing of the appeal, the tribunal, consisting of a legally qualified chairman sitting alone, found that the appellant had never been married to Mr N, but that entitlement to retirement pension had ceased only with effect from the date of the revision decision on 16 May 2003. On that basis, the tribunal held that there was no entitlement to recover overpaid benefit. The statement of reasons, after setting out the inconsistencies in the account given by the appellant in the course of her interviews, set out the reasons for the tribunal's conclusions as follows:

"Given the contradictions and anomalies in the appellant's evidence when interviewed on two occasions the Tribunal accepts that it has been clearly shown on a balance of probabilities that the appellant has never been married to (Mr N.) and is an impostor. She is not therefore entitled to Retirement Pension on the contributions of (Mr N.). It is however entirely possible that the original claim was a genuine one made by A's widow. The Tribunal therefore is unable to uphold the decision that the Widow's Benefit award be superseded from 21 July 1987 and Retirement Pension with effect from 9 February 1988. It follows that the appropriate decision is that there is no entitlement to Category B Retirement Pension from the date of the relevant decision ie 16 May 2003. It further follows that there can be no recovery of overpaid benefit although that question is in reality an academic one."

13. The claimant applied for leave to appeal, stating for the first time in these proceedings that the only children of her marriage to Mr N. had been the children born in 1966 and 1968, and that the older children had been the children of Mr N's brother. In granting leave to appeal, I raised the question of whether it had been fair to uphold the decision terminating benefit in the claimant's absence on a basis which was different from the basis of the original decision without warning the claimant of their intention of doing so. The Secretary of State's representative has supported the appeal in an extremely comprehensive and detailed submission dated 23 July 2004.
14. The original decision revising the decision awarding widow's benefit and retirement pension on the ground of mistake of fact was taken on the basis that the appellant was not validly married to Mr N. Even on the basis that the decision related to the fact, and not the validity, of the appellant's marriage to Mr N, in my judgment that finding was insufficient by itself to support the revision and overpayment decisions. If the person who made the claim in 1987 was not Mr N's first wife, there was no entitlement to widow's benefit or retirement pension and, if that was the case, the Secretary of State was entitled to revise the awards of benefit under regulation 3(5)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations, as applied to pre-1999 decisions by paragraph 4(1) of Schedule 14 of the Social Security Act 1998 (Commencement No. 9 and Savings and Consequential and Transitional Provisions) Order 1999. It would almost certainly follow from such a finding that the Secretary of State was entitled to recover as overpaid benefit all benefit paid since the date of the awarding decisions.
15. However, as the tribunal recognised, another possibility was that the original claimant had been validly married to Mr N at the date of the claim, but that the appellant had stepped into her shoes, perhaps after the claimant's own death. In that case, there would have been no mistake of fact at the date when the awards were made, and therefore no entitlement to revise the awarding decisions, although the Secretary of State would be entitled to supersede the decisions awarding benefit if it could be shown that some event terminating entitlement to benefit had occurred subsequently. Strictly speaking, the fact that a person receiving benefit is an impostor does not by itself justify the termination of benefit, since the person entitled to benefit might still be alive and entitled to benefit, but it would raise an issue as to whether the conditions of entitlement continued to be fulfilled. In those circumstances the Secretary of State would be entitled to suspend payment of benefit under regulation 16(3)(i) of the Social Security (Decisions and Appeals) Regulations 1999.
16. The contributions record of Mr N records him as being married and there is nothing in the evidence to suggest that that was not in fact the case. On that basis, a person who was not Mr N's widow could only have made the claim for benefit in 1987 if his true widow was not in a position to claim benefit (perhaps because of her own death) and if the claimant had come into possession of the documents and the other information which was used to support the claim. However, even assuming that the claimant was able to acquire Mr N's documents, her letter of 18 June 1988 named the first and last ships on which he had served, which are not mentioned in any of the other documents. The claimant must have had a very detailed knowledge of Mr N.'s circumstances over a long period to supply that information, and I entirely agree with the tribunal that it is perfectly possible that the original claim was a genuine claim made by Mr N's widow. Even if the appellant was not in fact the claimant's widow, I consider that the evidence came nowhere near showing that a mistake of fact had occurred when the original decisions awarding benefit were made.
17. However, I do not agree that the tribunal was entitled to supersede the decisions awarding benefit on the ground of a change of circumstances, on the alternative basis that the appellant was not the person who had made the original claim. That allegation had not been put to the claimant at any previous stage in the proceedings and, although the appeal was adjourned to give the claimant an opportunity of dealing with the reconsideration decision, the appellant was not given an opportunity of providing evidence to rebut the tribunal's conclusion that she had assumed the identity of the original claimant. The claimant might have been able to do so, for example, by showing that her thumb print was the same as that of the claimant on the claim form and declaration of marriage. I therefore consider that the failure of the tribunal to give the claimant an opportunity of dealing with the factual basis of the supersession decision which the tribunal ultimately made was unfair.
18. I also agree with the submission of the Secretary of State's representative that the tribunal's decision was in error in failing to deal with the documentary and other evidence supporting the appellant's case that she was not an impostor. The representative has submitted:

"…if the tribunal's decision that the claimant was an impostor, and therefore not entitled to benefit on the insurance record of the deceased, were to be correct in law, it was necessary for the tribunal to establish that fact on the balance of probabilities. I submit that the tribunal's failure to give proper weight to the documentary and interview evidence (where demonstrably correct answers were given) before it meant that its proof fell fare short of the necessary standard. The tribunal erred in accepting that all documentary evidence from the Yemen could be disregarded, and that an alleged unresolved inconsistency in evidence could constitute a material fact."

19. I accept that submission. In relation to the standard of proof, I would only add that the very seriousness of an allegation that an appellant is an impostor, and which also concerns the fact or validity of a marriage, will mean that more cogent evidence is needed to prove the allegation on a balance of probabilities than would be needed in the case of a less serious allegation-see per Denning L.J. in Bater v Bater [1951] P. 35 and Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1981] 1 All ER 1077.
20. I also agree that the fact that much documentary evidence emanating from the Yemen is of limited evidential value does not mean that all such evidence can be disregarded. For example, the photographic identity card produced by the claimant at her first interview, which was translated for the purposes of the appeal, gave the claimant's full name, place and date of birth, personal identity number, place of residence, blood group, the seal of the issuing authority and date of issue, and bore the claimant's thumb print. The name given on the identity card corresponded precisely (except for a hyphen) with the name of the claimant given on the original benefit claim form and declaration of marriage. As the submission to the tribunal pointed out, the identity card was issued after benefit was awarded, but there is no indication that the claimant knew when the card was issued that her identity would be investigated in connection with the award. The identity card it therefore constituted very strong evidence that the appellant was in fact the person who had made the claim. The tribunal did not refer to that or any of the documentary evidence produced by the appellant in support of her case and, accordingly, their decision is in error of law for that reason also.
21. I therefore allow this appeal and set aside the tribunal's decision. I must therefore consider whether I can make the findings of fact which are necessary to dispose of this appeal.
22. The Secretary of State's representative has made powerful criticisms in this case, as in others, of the conduct of PLO interviews in the Yemen. I am grateful for his very thorough submission and accept the force of much of what he says. However, I have come to the conclusion that I need not consider the general comments in the submission in detail because I consider that there are particular reasons in this case why little reliance can be placed on the inconsistencies in the answers given by the appellant at her interviews.
23. The inconsistencies which were relied on to support the revision and overpayment decisions related almost entirely to the children stated by Mr N. to be children of his marriage to the claimant. However, prior to the interview the claimant only ever stated that she was the mother of the children born in 1966 and 1968. The claim form completed in 1988 asked for the names of children under the age of 19. The claimant nevertheless gave the names and dates of birth of the children born in 1966 and 1968, but no other children. At some point the claimant obtained a legal document dated 4 December 1988 confirming her marriage to Mr N., but that document also stated that the only children of the marriage were the children born in 1966 and 1968. The court proceedings described by the claimant as a "new marriage contract" declared that the children born in 1966 and 1968 were the only children of the appellant and Mr N, and it was only the birth certificates of those children which the appellant submitted in support of the appeal.
24. Although the 1969 affidavit listed three older children, that document was prepared while Mr N. was still alive. It is apparent from the second discharge certificate that Mr N. claimed to be the father of those children, perhaps to benefit the children of one of his brothers, but there is no indication that the appellant ever claimed to be the mother of any children other than those born in 1966 and 1968.
25. The claimant stated at the first interview that she had been pregnant four times and had had three children, but also stated that the child born in 1966 (who was present at the interview) was the oldest. At the second interview she stated that she had forgotten to mention two of her children during her first interview and that she actually had five children, but now she only had two. She later produced a second list of five children, but said that only the two youngest children were 'left'.
26. I consider that the discrepancies in the answers given by the appellant at the interviews were most probably the result of a clumsy and entirely unconvincing attempt by the appellant to explain why there were five children listed in the 1969 affidavit. If that is the case, it is not surprising that she became confused and distressed, particularly in the light of her age and the very stressful circumstances of the interview.
27. As the Secretary of State's representative has pointed out, the appellant also gave answers at the interview which supported her case that she was Mr N's widow. In the submission to the tribunal it was pointed out that the appellant had stated during her interview that her husband had lived in Sheffield, even though his discharge certificates show Mr N. as living at addresses in Barry. (That answer is recorded in the record of the interview, but is not referred to in the interviewer's note). However, the contributions record does show Mr N as having lived in Sheffield during two periods, including his last period of residence in the United Kingdom. The contributions record would not have been available to the claimant at the date of the claim and the information that Mr N had lived in Sheffield is not contained in any of the other documents. I therefore agree with the representative that, far from damaging her case, the appellant's statement that her husband had lived in Sheffield actually assisted her.
28. Taken as a whole, the evidence in this case does seem to me to support the conclusion that the appellant was the widow of Mr N. For the reasons given in paragraph 15, I consider that the person who made the claim for widow's benefit probably was Mr N's widow. The evidence of the identity card, in particular, leads me to conclude that the appellant is probably the person who made the claim for benefit. Having regard to what I consider to be the most likely explanation for the appellant's unsatisfactory answers at the interviews, I do not consider that those answers provide an adequate basis for concluding that the appellant falsely represented herself to be Mr N's widow, either when the claim was made or at some later time.
29. Having reached that conclusion, I consider that there is no need for me to refer this case for rehearing to a new tribunal, which would in any case be in no better position than me to determine the factual issues. My decision is therefore as set out in paragraph 1.

(signed on the original) E A L BANO

Commissioner

11 May 2005