UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CPC_891_2008 (09 July 2008)

 


CP/891/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Social Security Commissioner

1. This appeal to the Social Security Commissioner succeeds. But this does not mean that the appellant's claim for benefit necessarily succeeds. The position is as follows. I find that the decision of the Birmingham appeal tribunal dated 2 November 2007 and heard under file reference 024/07/03998 is erroneous in point of law and so must be set aside. However, I am not in a position to make a substantive decision on the appellant's claim for retirement pension. I express no views either way on that matter. I have no option but to send the matter back for rehearing before a new tribunal, which will have the responsibility for making that decision. I refer further to my directions at paragraph 45 below.

The history and background to the claim for retirement pension

2. This appeal concerns a claim for a UK retirement pension by a lady I shall refer to as MMA. She is resident in Yemen and has always been resident there. She based her claim on the contributions of a man she said was her husband, who I shall refer to as MRSD. He has lived in the UK since 1959 but has regularly travelled back to Yemen and is acting as the appointee of MMA. MMA's claim for benefit was, of course, made from Yemen.
3. It seems that a claim by MMA for a retirement pension was first made in 1997 but was unsuccessful. In 2001 MRSD himself made a successful claim for a retirement pension in his own name. At that time his date of birth was accepted as being 1 January 1936.
4. In October 2001 MMA (or someone on her behalf) wrote from Yemen asking for an application form for a retirement pension. She completed two application forms BR1 – or rather, as will become evident, two BR1s were completed on her behalf in October 2003 and in June 2004.
5. On the 2003 form she stated that her date of birth was 20 May 1930 and that she had married MRSD on 1 January 1950, when she was 19 and her husband 14 (doc 11). She also stated that she was not present and that her father had represented her. On the same form MRSD confirmed that he was MMA's husband and that he had also married TAH on 30 January 1965 in Yemen but that she had died on 6 May 1994 (doc 13).
6. On the 2004 form MMA repeated that her date of birth was 20 May 1930 and that she had married MRSD on 1 January 1950 (doc 35), although she stated that she had been 20 and her husband 15 years old. MRSD again countersigned the form and again disclosed his marriage to TAH, which had terminated on her death in 1994. Copies of various Yemeni documents with translations were provided with both BR1s (docs 51-76). The Secretary of State does not appear to dispute the marriage between MRSD and TAH.
7. A pensions liaison officer interviewed MMA in Yemen on 15 June 2004 (docs 81-94). The interview, which was conducted through an interpreter, lasted for 55 minutes and comprised a total of some 70 questions, most but not all of which were pre-printed.
8. In December 2004 MRSD submitted further evidence about his marriage to a third lady, MMJ, a British national. He produced a certified copy of their marriage certificate from the Birmingham Registry Office dated 17 November 1962 (doc 97), which described him as a bachelor aged 25 years (in which case he would have been born in 1936 or 1937). MRSD explained that MMJ had run away just two days after they had been married, and had gone to live in the USA, but that she had died in 2002 and her body returned for burial in a Birmingham cemetery in December 2002. The Secretary of State does not appear to dispute the account of the marriage to MMJ.
9. In March 2005 MRSD made a formal statement to a Pension Service official (docs 98-101). He said that he had three children in Yemen with his first wife. He also explained that he had several children with TAH but that they had all died in the conflict in Yemen. He also confirmed that he had first arrived in the UK in 1959, that he had returned to Yemen regularly over the years and that he had become a UK citizen by naturalisation in 2000. His Home Office certificate of naturalisation recorded his date of birth as simply "1936" (doc 104) with no month or day specified.
10. The decision maker also obtained a copy of MMJ's pre-1975 national insurance contributions record card RF1. This confirmed that she had married MRSD on 17 November 1962. It contained no record of any contributions or credits after 1962, which would appear on the face of it to be consistent with MRSD's account that she had left the country.
11. A copy of MRSD's own pre-1975 RF1 card was also obtained (doc 131), although it is unclear from the pagination in the bundle whether this document was actually before the decision maker in the current appeal. This showed MRSD's date of birth as 23 March 1936, although this had been modified at some point to 1927 – although no verification had been noted. There had been some discussion of this discrepancy at the 1997 interview (see doc 2). The RF1 confirmed that MRSD had entered the UK in 1959 and also contemporaneously confirmed several and extensive visits to Aden/Yemen in the 1960s and 1970s. It also noted claims for benefits, including several for a benefit simply referred to as "MB" in 1965 and 1966.

The decision on the claim for retirement pension

12. MMA's claim for retirement pension was refused on 7 July 2005 on the ground that it was not accepted that she was party to a valid marriage to MRSD (doc 109-110). The letter to MMA notifying the decision unfortunately referred to "the late" MRSD (doc 111). The Pension Service later apologised for this error but confirmed the substance of the decision (docs 120-121).
13. The same decision maker subsequently looked at the refusal again but declined to change her decision (docs 123-124). The letter of explanation stated that the Pension Service was not satisfied that MMA had proved her "age, identity and relationship" with MRSD (doc 125). The letter further stated:

"When [MMA] was interviewed she was unable to name her husband's father although she lived in the same house as him. She was also unable to answer questions regarding her children and her husband's visits to the UK. It was also noted that she did not have the appearance of a woman in her seventies.

She also answered some questions and contradicted herself in later questions. All documents produced at the interview were recently obtained and not contemporaneous. It was therefore impossible to confirm her identity and marriage from the information she provided."

The appeal against the Secretary of State's decision

14. MMA then lodged an appeal against this decision via MRSD. A written submission to the tribunal was made on behalf of MMA (docs 138-142), including copies of further evidence in the form of MRSD's old Aden passport and a new British passport. The written submission made a number of points. These included the following: (i) judging a person's age by their appearance is unreliable; (ii) the reference on the first BR1 to MMA not being present at the wedding was simply an error; (iii) MMA's failure to attend earlier interviews was due to the poor postal service in Yemen; (iv) insufficient regard had been paid to MMA's illiteracy and the fact that the interview was conducted via an interpreter; (iv) MRSD had claimed a special child's tax allowance, which had later been abolished; (v) the decision maker appears to have accepted evidence of MRSD's marriage to TAH which is of the same quality as the evidence of his marriage to MMA; (vi) the decision maker had not applied the correct standard of proof, being the balance of probabilities; (vii) the passport entries confirmed repeated and extensive visits to Yemen..
15. The Pension Service prepared an initial submission (docs 1D-1M) and an additional submission for the tribunal (docs 159-160). The former set out the grounds on which the decision maker had not been satisfied of the existence of a valid marriage (docs 1K-1L, para 8) and took issue with the submissions made on behalf of MMA (docs 159-160).
16. On the TAS1 form, completed in July 2007, MRSD indicated that he wanted to have an oral hearing. However, he stated that his wife was ill in Yemen and he was considering visiting her, and asked for the appeal to be kept in abeyance. Following correspondence with MRSD's representative, the appeal was later listed for hearing on 2 November 2007. An Arabic interpreter was arranged but later cancelled as the appellant (presumably a reference to MRSD) "no longer attending hearing" – although the reason was unclear.

The tribunal hearing and its decision

17. The tribunal held a hearing of the appeal on 2 November 2007 in the absence of both MRSD and a presenting officer. The tribunal therefore had the difficult task of determining the appeal on the basis of the papers alone and in the absence of any first-hand oral evidence. The tribunal's decision was to confirm the decision of the Secretary of State (doc 162). The tribunal concluded that on the balance of probabilities it was not satisfied that a valid marriage existed between MMA and MRSD: "There is insufficient unequivocal and persuasive evidence to prove otherwise to the necessary standard of proof".
18. The tribunal later produced a full Statement of Reasons for its decision (docs 165-165C). This document rehearsed the sequence of events, reviewed the evidence and made certain findings of fact. The tribunal made two key findings of fact.
19. The first finding was that the tribunal was not satisfied on the balance of probabilities as to MMA's identity. The reason given for this was that little weight was attached to the identity cards as they were based on evidence provided by MMA and were not subject to independent corroboration.
20. The second finding was that the tribunal was not satisfied that a valid marriage had taken place between the appellant and MRSD because of "numerous contradictions" in the evidence provided. The following instances were given: (a) the discrepancy between the two BR1s as to whether MMA had herself in fact been present at the alleged ceremony; (b) the absence of any contemporaneous evidence of a marriage, "as unfortunately is the usual situation under Yemeni law"; (c) the apparent discrepancy between MMA's two statements at the interview that she had waited a long time to have her first child and that she had waited two years for her first child (and the fact that if the second statement were true she would have married in 1962, not 1950, as her first son was born in 1964); (d) MRSD's statement in 1997 that the marriage took place in Yemen in 1950 when both he and his wife were aged 30. However, if MMA had been born in 1930 and married at 30 then the marriage must have been in 1960. Moreover, this conflicted with the statements in the BR1s that there was a five-year age gap between MMA and MRSD when they married (being 19/14 or 20/15, depending on which BR1 was accurate).
21. The tribunal also relied on two Commissioners' reported decisions, R(I) 86/53 and R(I) 32/61, which had been cited in the decision maker's initial submission. Those authorities make it clear that a claimant is not entitled to "the benefit of the doubt". However, they also show that the claimant does not have to prove her case "beyond reasonable doubt". Rather, the standard of proof is the ordinary civil balance of probabilities test (see R(I) 86/53 at paragraph 4 and R(I) 32/61 at paragraph 12).

The parties' submissions on the appeal to the Commissioner

22. MRSD, acting on behalf of MMA, applied for permission to appeal against the tribunal's decision, arguing that the reasons given were inadequate. He added that his wife was illiterate and had no sense of time or dates. A District Chairman refused MMA permission to appeal.
23. Mr Commissioner Powell, however, granted leave to appeal. The Commissioner acknowledged that it was not an easy case, but considered it arguable that the tribunal had not weighed all the evidence appropriately in reaching its decision. The Secretary of State's representative, in a very short submission, does not support MMA's appeal. His view is simply that the tribunal explained its reasoning adequately.
24. MRSD, in his further observations, states that he has witnesses from his village who can confirm MMA is his wife and asks for an oral hearing. I am satisfied that this appeal to the Commissioner can be properly determined without having an oral hearing at this stage (Social Security Commissioners (Procedure) Regulations 1999 (SI 1999/1495), regulation 23). The case must go back to a new tribunal for rehearing in any event. That will be the appropriate time and place for an oral hearing and for all the evidence, oral and documentary, to be weighed.

Why the tribunal erred in law

25. On balance, I am satisfied that this tribunal erred in law in reaching its decision. The reason for this is that it failed to apply the proper balance of probabilities test. Essentially the tribunal's approach was to list several of the matters relied on by the original decision maker as undermining MMA's case that she had been validly married to MRSD (see docs 1K-1L at paragraph 8). There is, furthermore, no apparent discussion or consideration of any evidence that might support her case that she and MRSD was validly married. For example, MRSD's written submission referred to his repeated visits and extended stays in Yemen, which it is said were consistent with his account of his marriage to MMA.
26. In reaching this decision I have been much assisted by the decision of Mr Commissioner Jacobs in CP/4062/2004. This was also a case concerning a claim to retirement pension by a lady resident in Yemen. I direct that the new tribunal, which rehears the present appeal, should be provided with a copy of that decision.
27. In the following section I explain some of the difficulties with the tribunal's reasoning which have led me to conclude that it erred as a matter of law. The first reason that the tribunal gave for disallowing the appeal was that it not satisfied on the balance of probabilities about MMA's identity. The reason given for this by the tribunal was that little weight was attached to the identity cards as they were based on evidence provided by MMA and were not subject to any independent corroboration.

The issue of MMA's identity

28. In this context I note that the original decision to disallow the claim in July 2005 was on the basis that no valid marriage had been established (docs 109-110). There was no suggestion at that stage that MMA was not who she claimed to be. The subsequent reconsideration decision of March 2006 was also expressed in terms of there being no valid marriage (docs 123-124). It was only in the letter of explanation (doc 125) that it was said that MMA's age and identity were not proven (as well as her relationship with MRSD). The only reasons given for these doubts (as opposed to doubts over the alleged marriage) related to the "little evidential value" which could be attached to the Yemeni ID cards.
29. When considering this evidence it is important to bear in mind the observations of Mr Commissioner Jacobs in CP/4062/2004 at paragraph 13, where the Commissioner noted:

" 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."

30. The tribunal appeared to have had no regard to the various written statements that MMA was born in 1930. Instead, the tribunal relied on apparent discrepancies in the oral evidence, but it is questionable whether these discrepancies were weighed properly in the light of CP/4062/2004. However, even if the tribunal had been satisfied that MMA was who she said she was, it could only allow her appeal if it were satisfied that she had indeed been validly married to MRSD.

The issue of the claimed marriage between MMA and MRSD

31. As noted above, the tribunal relied on four discrepancies which it identified in the evidence about the claimed marriage. The first of these was the discrepancy between the two BR1s as to whether MMA had been present at the alleged ceremony. This was, the tribunal said, "particularly noteworthy" and "creates considerable doubts as to whether it [the ceremony] took place at all". The tribunal did not address the written submission's claim that this was an "obvious error", nor did it appear to have regard to the fact that both MMA and MRSD appear to be illiterate in both Arabic and English. The omission to address these points is arguably an error of law, although I do not need to determine that issue for the reasons that follow.

32. The second point that the tribunal relied upon related to the absence of any contemporaneous evidence of the marriage "as unfortunately is the usual situation under Yemeni law". The Statement of Reasons had made the same point earlier in relation to the birth certificates produced for MMA. In my view this is a clear error of law. As Mr Commissioner Jacobs noted in CP/4062/2004: "It is wrong to approach that task [of assessing the evidence] 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" (para. 13).

32. The third point related to the apparent discrepancy between MMA's two statements at the interview that she had waited a long time to have her first child and that she had waited two years for her first child (and the fact that if the second statement were true she would have married in 1962, not 1950). MRSD's submission to the tribunal specifically made the point that MMA is "illiterate. Her educational and social background is nill [sic]. The interview was conducted through an interpreter and most likely the appellant misunderstood the questions and discrepancies are inevitable. There is a big question mark on its accuracy and reliability". The tribunal has not addressed that argument, which was a fundamental challenge to the evidence relied on by the Secretary of State. This amounts to an error of law on the tribunal's part.
33. Again, the decision of Mr Commissioner Jacobs in CP/4062/2004 is instructive in this regard. In particular at paragraph 19 of his decision he said:

"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. [The appellant] 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."

34. It seems to me that this tribunal was too ready to seize on this discrepancy and did not pay sufficient regard to MMA's understanding of time, especially in the light of Mr Commissioner Jacobs's comments about the interviewing style used for these interviews and the risks of nuances being lost in translation. It is possible, for example, that "two years" is simply a term used to express the notion of a long time, rather than a specific and defined period of time. That said, if the parties were married in 1950, and their first child not born until 1964, that might appear somewhat unusual and require some further explanation.
35. Lastly, the tribunal also relied on MRSD's statement in 1997 that the marriage took place in Yemen in 1950 when he and his wife were both aged 30. If this was right, and MMA was born in 1930, then the marriage must have been in 1960. Moreover, this statement conflicted with the statements in the BR1s that there was a five-year age gap between MMA and MRSD when they married (being 19/14 or 20/15, depending on which BR1 was accurate). Again, the tribunal has arguably not paid sufficient heed to different understandings of time. Certainly, given the cultural background, the discrepancy between the ages as stated on the two BR1 forms does not appear to be significant – not least as they are referring to events some 50 years previously.
36. However, the difference in ages between the BR1 statements and that in the 1997 interview is clearly more to the point. Yet, the 1997 report is a summary account of an interview, not a transcript of an interview. There is no suggestion that the answers were read back to and confirmed by the interviewee, which is a factor to be considered in attaching weight to its contents. It is also noteworthy that the 1997 report is adamant, on the basis of his appearance, that MRSD was aged about 50, when it would seem from the more recent Home Office naturalisation certificate that the authorities would now accept that he must have been aged about 60 at the time of the interview – and, of course, that would fit with his claim at that time that his wife was aged 66, given the age difference stated in the more recent BR1s. It is also questionable how much weight should be attached to a 1997 report in which the interviewer and interpreter both confirmed that their "cursory examination" of a photograph satisfied them that the woman concerned was "a much younger woman". There are, however, two other matters relating to the evidence in this case which I should mention.

MRSD's other marriages

37. The first matter concerns MRSD's other marriages. MRSD's case is that he married MMA in Yemen in 1950, MMJ in the UK in 1962 and TAH in Yemen in 1965. It should be clear that on that basis neither of these latter two marriages is directly relevant, as both MMJ and TAH were deceased at the date of claim. Therefore, at least on the face of it, the new tribunal does not need to concern itself unduly with the validity of either of the latter two marriages or with questions of polygamy. The new tribunal, however, may wish to ask MRSD questions about his marriage with MMJ in Birmingham in 1962 given that his status was declared as "bachelor" at that time.
38. Moreover, as Mr Commissioner Jacobs noted in CP/4062/2004, the absence of contemporaneous records in cases such as this "hampers the genuine claimant in making her case, while providing an opportunity for deceit by the dishonest claimant" (para.13). The tribunal will doubtless bear in mind that there are at least three possibilities about MRSD's marital status in this case. One possibility is that the truth is indeed that MRSD married the three ladies in the order set out in the previous paragraph. If so, MMA's appeal should presumably be allowed. A second possibility is that MRSD married all three ladies, but in a different order to that claimed and that MMA was not the first wife. If so, further findings as to the validity of MMA's marriage will need to be made. In particular, there may then be questions about MRSD's domicile at particular dates that need to be addressed (see Commissioner's decision R(G) 1/95). A third possibility is that MRSD has only ever been married to MMJ and TAH, or at least has never been married to MMA. The tribunal must decide on the balance of probabilities which it believes to be the case.

MRSD's claims in respect of his children

39. The second matter relates to MRSD's past claims in respect of his children. In his interview (doc 101) MRSD stated that maternity benefit was paid for children living abroad in the 1960s but it was stopped in the 1970s. He also stated that he did not know in respect of which of his children the benefit had been paid. MRSD's RF1 (doc 131), presumably a contemporaneous official record, also includes references to claims for "MB" in 1965 and 1966, but it is unclear if these claims resulted in awards. National insurance benefits are certainly normally subject to residence requirements.
40. MMA's case in part rests on her claim that her children with MRSD were born in January 1964, February 1996 and July 1968. If the references on the RF1 to "MB" are to claims for a maternity benefit, the dates would appear to be broadly consistent – unless, of course, they were claims in respect of children MRSD had with TAH rather than with MMA. The children's dates of birth are also, on the face of it, consistent with the dates of MRSD's extended visits to Yemen (see doc 141 and the passport entries) – but again, they may also be consistent with a marriage to TAH alone.
41. MRSD's written submission now argues that what he had actually been claiming was a child tax allowance for the children rather than a maternity benefit as such. I take judicial note of the fact that old-style child tax allowances were then available to taxpayers (see Income Tax Act 1950, s.212). It appears that the residence test applied only to the taxpayer, not to the child (Income Tax Act 1950, s.227). Tax records, of course, are not automatically linked to social security records. However, these are matters which it is far easier for the Secretary of State to establish than either MMA or MRSD. This accounts for part of my directions below.

The Social Security Commissioner's decision

42. My conclusion is that the tribunal erred in law in its reasoning. In particular, its reliance on the absence of contemporaneous evidence of the claimed marriage as a factor adverse to MMA was wrong (see CP/4062/2004). The tribunal also failed adequately to address the points made in the written submission on behalf of MRSD about the reliability of the interview with MMA, again in the light of the decision in CP/4062/2004.
43. It follows that I must set aside the decision of the tribunal (Social Security Act 1998, s.14(8)). I am not in a position myself to decide MMA's appeal against the refusal of her claim for retirement pension based on MRSD's contributions. That appeal must therefore be reheard by a fresh tribunal. It is to be hoped that MRSD will be able to attend that hearing to answer the tribunal's questions and deal with the various issues which have arisen. I therefore refer the case to a new tribunal with the following directions (Social Security Act 1998, s.14(8)(b)).

The Social Security Commissioner's directions

44. My directions are as follows.

Directions to the appellant

(1) MRSD, acting on behalf of MMA, should provide details of the full names and dates of birth of all the children which he had with TAH. This information should be sent to the Birmingham regional office of the Tribunals Service within one month of the date of this decision.

Directions to the Secretary of State

(2) The Secretary of State should prepare a supplementary submission for the new tribunal addressing the following issues:

(a) Why are the papers relating to MMA's earlier application for retirement pension not available?

(b) What was the 1997 claim referred to in doc 2 (dated 17 February 1997) and what other documentation is available in relation to that claim and the associated investigation?

(c) What papers are available relating to MRSD's own claim for a state retirement pension in 2001? If the application form is available it should be included as further evidence in the case papers for this appeal.

(d) Is "MB" on the RF1 (doc 131) a reference to a maternity grant claim? And is the RF1 evidence of just a claim, or is it also evidence of an award? Did the rules then in force permit payment in respect of a child living overseas?

(e) MRSD's interview and written submission refers to awards of child tax allowance. The Secretary of State should enquire of HMRC whether they still hold any records in this regard in relation to MRSD. The Secretary of State should also ask HMRC to confirm whether in the 1960s a child tax allowance could be claimed by a taxpayer resident in the UK but who had children resident in Yemen.

This supplementary submission should be sent to the Birmingham regional office of the Tribunals Service within one month of the date of this decision.

Directions to the Tribunal Service

(3) A copy of the decision of Mr Commissioner Jacobs in CP/4062/2004 should be added to the bundle of appeal papers.

(4) Before re-listing for a new hearing, the case file should be placed before District Chairman for any further directions as are considered appropriate.

Directions to the new tribunal

(5) The new tribunal should conduct a fresh re-hearing of the appeal. It should bear in mind that the onus is on MMA to establish her case on the balance of probabilities, not beyond reasonable doubt. This involves weighing all the evidence, both consistent and inconsistent, and making appropriate findings of fact as to whether it is more likely than not that MMA is who she says she is and that she was validly married to MRSD. The tribunal should have regard to the guidance of Mr Commissioner Jacobs in CP/4062/2004 when evaluating the evidence.

(signed on the original) N J Wikeley

Deputy Commissioner

9 July 2008