UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CP_4062_2004 (05 July 2005)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998 and regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. It is:

I SET ASIDE the decision of the Birmingham appeal tribunal, held on 11 August 2004 under reference U/04/024/2004/04435, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, with the consent of the parties.

My DECISION is that the claimant is entitled to a retirement pension on her claim for a pension made on 20 March 2000.

The consent of the parties

2. As my decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. However, in view of the issues covered in the submissions by the representatives of the Secretary of State and the claimant, I have decided that it is appropriate to comment on the approach to this type of case in general.

History and background

3. This appeal concerns a claim for a retirement pension by a lady I shall refer to as MK. She based her claim on the contributions of a man she said was her husband, whom I shall refer to as FDS. MK lives in the Yemen and her claim was made from there.
4. The claim for a retirement pension was made on 20 March 2003. MK stated that she believed that she had been born in 1929 and married in 1948. She was interviewed by a pension liaison officer on 19 November 2001. Her claim was refused on 20 November 2002 on the ground she had not proved that she was married to FDS.
5. MK exercised her right of appeal to an appeal tribunal. In accordance with the usual procedure, the Secretary of State provided a written submission for MK and the tribunal explaining why the decision had been made. I do not know whether it was written by the decision-maker who refused the claim or someone else. Nor do I know to what extent the submission reflects the actual thought processes of the decision-maker. As often in cases involving widows claiming from abroad, the submission emphasised the inadequacies and discrepancies in the claimant's evidence.
6. The appeal tribunal was presented with further documentary evidence and the record of a further interview with MK arranged by her representative before witnesses. The tribunal's chairman recorded that she could not rule on the validity of these documents, but that MK had not proved that she was the widow of FDS. She came to this conclusion on the basis of the discrepancies in her interview with the pension liaison officer. However, as the representative of the Secretary of State points out, the later interview dealt with those discrepancies. At the very last, the tribunal should have assessed the evidence of that interview along with the interview of the pension liaison officer. For that reason alone, the decision must be set aside.

Procedure on claims by widows living abroad

7. The representative of the Secretary of State has in this case, as in previous cases, severely criticised the approach taken by the pension liaison officers based abroad, by the decision-makers in Great Britain who decide the claims, by the officers who write the submissions to the appeal tribunals and by the tribunals on appeal.
8. My jurisdiction is limited to deciding appeals that come before me. I have no power to tell the Secretary of State how to process the claims. Even if I had the power, I lack the necessary knowledge of the administrative procedures involved and resources available to be able to make specific proposals for reform of the system. However, in view of the submissions before me, it is appropriate to record that in this case, as in others, it appears that there is a considerable lack of co-ordination within the Department for Work and Pensions. I have in mind the following:

•    Decision-makers do not follow central guidance on the assessment of evidence.

•    The officers who write the submissions to the tribunals follow the decision-makers rather than the guidance.

•    Pension liaison officers do not routinely ask all the standard questions, especially those regarding the claimant's satisfaction with the interview.

•    In some locations, a claimant is denied the chance to be accompanied or represented at an interview.

It is unfortunate that these matters only come to light when cases happen to come before Commissioners.

9. I deal below in more detail with the assessment of evidence, particularly evidence obtained by interview with pension liaison officers. However, I understand that these interviews are not being undertaken at present, in view of security concerns. For the time being, therefore, my comments are only relevant to cases in which interviews have already been carried out. I also deal with a human rights argument based on Article 1 of Protocol 1 (deprivation of possessions) and article 14 (discrimination).
10. I am sure that the representative of the Secretary of State will make such use of my comments as he considers likely to be productive of an improvement in the decision-making procedures.

Assessment of evidence involving claims by widows in Pakistan, Bangladesh, the Yemen, India and Jamaica.

11. These are the countries in respect of which, according to the Secretary of State's representative, decision-makers take a different approach to the assessment of evidence from that set out in their guidance.
12. I hope that the following comments will be of use to decision-makers and tribunals who deal with this type of case.

There was no contemporaneous documentary evidence of births or marriages.

13. This is an inevitable feature of cases involving countries in which there is no reliable system of registration of important life events like birth, marriage and death. It is a neutral factor in the assessment of the evidence. It hampers the genuine claimant in making her case, while providing an opportunity for deceit by the dishonest claimant. The decision-maker and the tribunal have to decide whether the claimant is genuine or dishonest. It is wrong to approach that task by taking the lack of contemporaneous evidence as a factor that is against the claimant. To do so would be to assume what has to be decided.

The evidence was given years after the events in question.

14. This follows inevitably from the lack of contemporaneous documentary evidence. It is not unusual for decision-makers and tribunals to have to assess evidence that is unsupported by documentary evidence. One factor that may be relevant in some cases is whether documentary evidence could have been produced. For example, if a claimant gives evidence of income, it is right to take into account that the claimant could have, but has not, produced documentary evidence that could confirm it (like a wage slip). However, that approach is not permissible if documentary evidence is not available.

If a case depends in whole or part of the claimant's own word, it is appropriate to treat as more reliable evidence that is given under direct questioning.

15. This is a valid point. Tribunals often, and rightly, take account of the fact that the claimant has not been available for questioning. However, the value of questioning a claimant obviously depends on the nature and quality of the questioning.

The record of the interview in this case is in the papers. It was conducted through an interpreter and contains the claimant's verbal answers to questions that were mostly pre-printed on the form.

16. This style of interview has the advantage of ensuring consistency between, and compliance with instructions given to, the pension liaison officers. It ensures that relevant information is not overlooked. However, it has the disadvantage of being perhaps too structured. There is scope for the officer to interpolate follow-up questions and the record of this interview shows that that was done. But the overall structure militates against a more free-flowing interview style.

The cases that come before tribunals inevitably involve discrepancies in the evidence. In this case, the dates of the birth and, sadly in two cases the death, of MK's children given at the interview do not tally with their ages, the date of the marriage and FDS's absences in Great Britain. There is evidence of these absences in FDS's British national insurance records. There was also a discrepancy over the date of FDS's death; the correct date is proved by the British death certificate.

17. This brings me back to the quality of the questioning. I do not go so far as to suggest that the pension liaison officers try to trick the claimants into giving inconsistent answers and then allow them no opportunity to explain. I am sure that the officers are going the best they can. However, as I have noted, a more flexible, free-form style of interview would allow more opportunity to put inconsistencies to the claimant. The officer in this case did that to some extent, but the issues were not pursued to the extent that they would be in an interview of someone who was suspected of working while receiving benefit or at a tribunal hearing.

It is difficult to recall precise dates many years later.

18. This is surely everyone's experience. It can be difficult to remember the precise sequence of events over recent weeks, let alone years. In this case, MK was being asked about events that took place between 53 and 28 years earlier and to recall their precise interrelation. Uncertainty is not surprising, especially when a claimant has no advance warning of the questions or even the general nature of the questions that will be asked. In such circumstances, discrepancies do not necessarily indicate dishonesty. Their proper significance is that they indicate the need for further inquiry. This feeds back to my point about the style of questioning at the interview. If the claimant is not given a fair chance to deal with discrepancies at the time, they have to be dealt with later and this leads to the answers being discounted for not being given in answer to direct questioning. There is a risk, despite the best intentions of the officers concerned (decision-makers and pension liaison officers), that the procedure followed has an in-built unfairness to claimants. Tribunals must ensure that any such unfairness does not affect their assessment of the evidence.
19. There is a further problem for claimants who may not operate by Western frames of references. In Great Britain we all know the sequence of years. We can place our key life events in their proper sequence and context. But that is not so everywhere in the world. MK has no certain knowledge of dates. She has been told when she was born and sets other events in context by referring to, say, the first Yemeni revolution. That inevitably puts her at a disadvantage when she is being asked to put her life history into a sequence by reference to our calendar and reference framework. Again, tribunals must ensure that these difficulties do not affect their assessment of the evidence.

The age of the claimant and the duration of the interview

20. This is relevant in two respects: (a) to the power of recall; and (b) to the ability to function effectively during an intense interview. As to (a), there is nothing here to show that MK's age (70 or 71 at the time) was taken into account in assessing the significance of the discrepancies in her interview. As to (b), the interview took just 50 minutes to cover 65 questions in the interview and supplementary interview for widows. They were put and the answers given through an interpreter. Time did not allow for the answers to be read back. There is nothing to show that the claimant was ever asked how she was and whether she needed a break. That may be part of the standard introduction, but if it is, it is not recorded. As far as I can tell, she was alone while being interviewed and appears to have had no one to advise her or even to accompany her in a strange environment.

British records

21. British records are reliable for what they record. However, it is a mistake to assume that everything in them is necessarily comprehensive. In this case, the submission writer used FDS's national insurance records to show his address and to refute evidence from one of MK's witnesses that FDS was elsewhere in Great Britain. However, as the Secretary of State's representative now points out, the paper national insurance record did not contain a complete history of addresses. A change of address was only noted when a claim for benefit was made. So there is no necessary incompatibility between the evidence of MK's witness and the national insurance record in this respect.

The human rights argument

22. The Secretary of State's representative submits that there may be discrimination in handling claims such as the one involved in this case. The claimant's representative has invited me to deal with this point.
23. I consider that this argument is misplaced. There is no legislative provision that discriminates against widows claiming from countries abroad. If there is any discrimination, it is in the way that the claims are processed. It arises from the way that the evidence is gathered and assessed. I sit as a Social Security Commissioner and as such I am part of the statutory procedure for adjudicating on claims for benefit. In any case that comes before me or before an appeal tribunal, it is possible to remedy any discrimination that has occurred by assessing the evidence by reference to appropriate criteria without the need to decide any issue of human rights law. There will, of course, be cases that do not come before an appeal tribunal or a Commissioner. In those cases, there may have been discrimination. But by definition I have no jurisdiction over them. The only remedy available in those cases is judicial review.

Disposal

24. I allow the appeal and, with the consent of the parties, substitute the decision that the tribunal should have given.

Signed on original on 30 June 2005

Edward Jacobs Commissioner