Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 02 June 2011 under file reference SC229/11/00020 involves an error on a point of law. The First-tier Tribunal’s decision is set aside. The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:

 

The appellant’s appeal against the Secretary of State’s decision dated 17 June 2009 is allowed.  That decision is accordingly revised.

 

The correct decision is that the appellant remains entitled to a state retirement pension based on the contributions of her late husband, Mr R. Her benefit should not have been stopped on 22 April 2008. The pension should now be reinstated and arrears paid.

 

This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

REASONS FOR DECISION

 

A summary of this decision

1. The appeal succeeds. The appellant’s category B state retirement pension should not have been stopped.  It is now reinstated.

 

A summary of what this appeal is about

2. Mr R was born in 1928 in Yemen. There he married the appellant, Mrs AAR, who was born in or about 1930, at some time in the 1950s. He came to the UK in about 1955 and spent 33 years working for the same Birmingham engineering firm, paying his National Insurance (NI) contributions, and returning occasionally to Yemen. In 1994 the Secretary of State awarded Mrs AAR a category BL state retirement pension, based on her husband’s NI contributions. Mr R died in Yemen in January 2005, and after that the Secretary of State started paying Mrs AAR the higher category B state retirement pension.

 

3. In January 2007 another woman, Mrs ATR, made a claim for a state retirement pension, also claiming to be the widow of the late Mr R. Officials in Yemen made various enquiries and interviewed both women. The Secretary of State subsequently concluded that Mrs ATR was Mr R’s first wife, and Mrs AAR (the appellant) was his second wife, that Mr R was still married to both wives when he died, and that neither marriage could be accepted as valid for social security purposes as they were polygamous. A decision was therefore made stopping Mrs AAR’s state pension. She appealed to the First-tier Tribunal. She did not dispute that Mr R had married Mrs ATR, but she argued that he had divorced Mrs ATR before he had married her.

 

An outline of the proceedings

4. The First-tier Tribunal, which heard the appeal in the appellant’s absence in Newcastle-upon-Tyne, dismissed Mrs AAR’s appeal and confirmed both the decision and reasoning of the Secretary of State. She appealed to the Upper Tribunal and I gave permission to appeal.

 

5. The appeal is now supported by the Secretary of State’s representative, Mr Kevin McClure. I agree with his analysis and find the First-tier Tribunal’s decision to involve an error of law. I therefore set the decision aside. I also re-make the decision, as recommended by Mr McClure. The effect is that Mrs AAR’s previous award of a Category B state retirement pension is to be reinstated.

 

6. Although this is a supported appeal, I am giving more detailed reasons because decision makers and tribunals continue to have difficulties in dealing with appeals such as this.

 

The guidance in Social Security Commissioner’s decision CP/4062/2004

7. In Social Security Commissioner’s decision CP/4062/2004, Mr Commissioner (now Judge) Jacobs gave some valuable guidance on the assessment of evidence in cases involving foreign marriages and divorces, and in particular information obtained at interviews overseas. That guidance included the following important observations on the availability (or otherwise) of contemporaneous documentary evidence of births or marriages (or, it might be said, divorces):

 

“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.”

 

8. Mr Commissioner Jacobs also noted that 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.”

 

9. Mr McClure for the Secretary of State comments that in his experience, over several years, “it is unfortunate that … the majority of tribunals dealing with these often complex cases, where the claimant can seldom be present or represented, seem to be unaware that it [the decision in CP/4062/2004] exists.” I agree.

 

The First-tier Tribunal’s decision in Mrs AAR’s case

10. The First-tier Tribunal’s combined decision notice and statement of reasons comprised just three paragraphs. In the first paragraph the tribunal explained why it had decided to go ahead in the appellant’s absence. That was inevitable. The tribunal’s substantive reasoning then read as follows:

 

“2. The  tribunal adopted the facts and law as referred to in the response from the Secretary of State. The tribunal finds that the marriage was polygamous and the appellant was his second wife. The evidence for this is contained within the Secretary of State’s response and that information is found to be correct.

 

3. The tribunal did not accept the first marriage was dissolved. The evidence for that is not convincing and is unofficial and is not corroborated. The uncertainty as to the evidence from [Mrs AAR] for the divorce means that it has to be officially corroborated.”

 

11. Mr McClure’s opening observation is that “there is nothing in this Statement of Reasons to suggest that the tribunal adopted its careful approach to the weighing of evidence and the finding of facts, and the approach to be taken where evidence is presented in unconventional forms, and through the filter of a culture where there has long been only a rudimentary system for the recording of life events.” I agree.

 

The errors of law in the First-tier Tribunal’s decision in Mrs AAR’s case

12. Mr McClure’s submission is that the First-tier Tribunal erred in law in two respects.

 

13. First, Mr McClure argues that the tribunal in effect wrongly placed the burden of proof on Mrs AAR.  She was not a new claimant without a current pension award (unlike Mrs ATR). This was a case where Mrs AAR had an existing award of a Category B retirement pension (at least until payment was stopped). The burden of proof was on the Secretary of State to show, on the balance of probabilities, that the marriage was polygamous. It was not for Mrs AAR to show that her late husband’s earlier marriage to Mrs ATR had been terminated by divorce. The tribunal’s reasoning in paragraph 3 of its statement of reasons indicated that the tribunal had misapplied the burden of proof.

 

14. Second, Mr McClure argues that the tribunal failed to exercise its inquisitorial function properly. Given the clear guidance by Mr Commissioner Jacobs in CP/4062/2004 at paragraph 13 (see paragraph 7 above), it was both unrealistic and unreasonable to demand “official corroboration” for the husband’s divorce from his first wife, Mrs ATR. The tribunal had done no more than endorse the Secretary of State’s submissions and decision without considering the burden of proof or examining the evidence properly.

 

15. I agree with that analysis on both points. I therefore find the tribunal’s decision involves an error of law and should be set aside. I could send the case back to the First-tier Tribunal for re-hearing. However, it is highly unlikely either that the appellant would be able to attend any hearing in the UK or that any new evidence will emerge. I therefore re-make the decision that the tribunal should have made, as very fairly urged by Mr McClure.

 

The Upper Tribunal’s decision on the substantive appeal

The factual background to the appeal in more detail

16. The factual background to this case is summarised at paragraphs 2 and 3 above. From the evidence on file, the following further facts emerge. Mrs ATR, who has challenged Mrs AAR’s right to the pension, was born in 1927 and married Mr R in or about 1945. They had three children, A1, H and G. Mr R married Mrs AAR about 10 years later. They also had three children, B (now deceased), H and M; Mrs AAR had been married before, had one son from that marriage (A2), but her first husband had died before she married Mr R.

 

17. In December 2000 an International Pension Service Officer (IPSO) interviewed Mr R in Yemen (Mrs AAR was present with him, but was too unwell to be interviewed herself, although her identity was confirmed). Mr R said that they had no marriage certificate, but thought that they had been married when he was aged 27 (in about 1954). He said he had 6 children and that he had never been married to anyone else.

 

18. In September 2006, after Mr R’s death, an IPSO interviewed Mrs AAR, having received a letter from Mrs ATR who claimed to be Mr R’s first wife. Mrs AAR denied knowing Mrs ATR and stated that she had been Mr R’s only wife. Mrs ATR was called for interview at around the same time but failed to attend. At that stage the IPSO concluded that she was satisfied with both Mrs AAR’s identity and with her continued eligibility for benefit.

 

19. Mrs ATR then made a pension claim in January 2007. In that claim she stated that she had married Mr R in 1945 and that he had subsequently married AAR “15 years ago” (i.e. around 2002). An IPSO interviewed Mrs ATR, who was accompanied by her son A1. She stated that she had three children with Mr R – A1, H and G – that she had only been married once and that Mrs AAR had no children with Mr R. She said that she did not know where he lived in the UK or what work he did there. She stated that on his return from the UK she had lived with Mr R until he died in 2005. She admitted, however, that at the date of his death Mr R was at the home of Mrs AAR. The IPSO commented in her report on this interview that there were some discrepancies between Mr R’s 2000 interview and Mrs ATR’s 2007 interview, but that “she has given me enough information to make it a possibility that she is who she claims to be, and that her husband Mr R deliberately tried to pass off his second wife, AAR, as his first”.

 

20. In November 2007 the same IPSO interviewed Mrs AAR (in practice, given she was unwell, much of the interview was conducted with her son A2). She said that she had married Mr R after he had divorced Mrs ATR, bringing up A1, H and G as her own children along with the three children she had with Mr R, who, she claimed, had made her change her name to the same name as his first wife. She said that after the divorce Mrs ATR had two further marriages and more children. She stated that she had lived with Mr R until he died. Mrs AAR and her son also produced a sworn statement by the village elder, witnessed by two other residents, stating that Mr R had divorced Mrs ATR and that she had then married Mr QAJD, and subsequently divorced again and married Mr SAA. No dates were cited in this affidavit.

 

21. The IPSO commented in her report on this interview that “this is a very difficult case to judge”, with two women claiming to be the legal wife of Mr R. She noted that Mrs AAR had attended the 2000 interview with Mr R and had “assumed the identity of the first wife”. She added “Why Mr R did this is unknown, but it may be because he thought that he would only be able to claim a pension for his first wife.” The IPSO accepted that Mrs AAR had been married to Mr R, that she had his documents, and that he had been living with her when he died. However, the IPSO said that she could not confirm the date of their marriage, nor was there proof that Mr R had divorced Mrs ATR before he had married Mrs AAR; the village elder’s statement was described (accurately) as “not an official court document”. The IPSO also conceded that Mrs ATR might not be who she claimed to be – her ID card being issued only a month before the interview – and that A1, who had accompanied Mrs ATR to the earlier interview, was possibly “trying to pass this woman off as his mother in order to get the pension for himself” (the claim made by A2, Mrs AAR’s son).

 

The decision by the Secretary of State’s decision-maker

22. The Secretary of State’s decision-maker concluded that both Mrs AAR and Mrs ATR had shown that they were married to Mr R. He also argued that the fact that Mr R had changed the name of his second wife to that of his first wife, and had used that name when making his claim for benefit, “supports the decision maker’s contention that he was married to both women and as such the marriage was polygamous in fact at the time of his death.” The village elder’s affidavit, produced by Mrs AAR, described by the IPSO as “not an official court document” (and, of course, it did not pretend to be a court document) was now dismissed as an “unofficial document”.

 

The arguments put by Mrs AAR

23. Mrs AAR – or, in practice, presumably her son A2 – wrote a letter in support of her appeal which was put before the First-tier Tribunal. She repeated the points that she had made earlier, which were contained in the village elder’s statement. She argued “So now when she [Mrs ATR] feel that she is alone after the death of her 3 husbands, she want to destroy my pension by claiming that she is the legal wife of my husband… If she is the legal wife, why my husband not apply pension for when she reached 60 years like ME, as you knows she did not apply to you until she reach 80 years, although she knows that I am receiving the pension.”

 

The Upper Tribunal’s analysis and findings

24. Mrs AAR had been in receipt of state retirement pension since 1994. Her identity and continued entitlement had been checked as recently as 2006. The burden of proof was on the Secretary of State to show that the earlier award(s) had been incorrectly made and so had now been properly revised. The Secretary of State’s argument before the First-tier Tribunal was that Mrs ATR’s marriage to Mr R had never been ended by divorce, that accordingly the marriage to Mrs AAR was polygamous and so there was no valid marriage for the purposes of UK social security law.

 

25. There is at least one fundamental difficulty with this approach to the evidence, which the First-tier Tribunal had endorsed. The Secretary of State’s decision maker and the tribunal were both quite willing to accept that Mrs ATR and Mrs AAR had both been married to Mr R in the absence of any documentation at all. Yet both the decision maker and the tribunal refused to attach any weight to the village elder’s sworn statement about Mrs ATR’s divorce from Mr R on the basis that it was “unofficial”. However, the guidance in CP/4062/2004 demonstrates the importance of taking a more rounded and realistic view of the evidence.

 

26. It may be that the First-tier Tribunal took the view that the village elder’s statement was of dubious value, both on the basis that it was unspecific as to dates and had been produced, late in the day, by a party to the dispute. If so, the tribunal did not articulate those concerns in its decision. It is not unknown for such documents sometimes to be created in order to support false claims. But it is equally if not more plausible that Mrs AAR and her son knew that her right to a pension was being challenged (again) and doubtless reasonably considered that they needed to produce a statement from a local dignitary to authenticate and confirm their own evidence about events which had happened five decades previously.

 

27. The IPSO had accurately described the affidavit as “not an official court document”, but it did not purport to be. The decision maker and tribunal simply attached no weight to it, being an “unofficial document”. However, the issue was not the authenticity of the statement as such, but rather its accuracy and reliability, which could only be assessed in the light of the evidence as a whole. As Mr McClure argues, there are a number of factors which indicate that the statement that Mr R had divorced Mrs ATR was true.

 

28. First, Mrs ATR did not attend when first called for interview by the IPSO. It may be, of course, that the letter to her never arrived or the situation in Yemen at the time meant that it was unsafe to travel to Sana’a. There was, however, no explanation on file for her failure to attend. Moreover, the following further matters suggested that Mrs ATR’s claims were not well-founded.

 

29. Second, Mrs ATR’s identity card was issued only a month before the claim for benefit and 2007 interview, well after the interview that she failed to attend.

 

30. Third, in the interview that he attended with his mother, A2 gave a comprehensive and coherent account of Mrs ATR’s circumstances and claim for benefit, setting out a plausible explanation of the motives involved.

 

31. Fourth, the village elder’s sworn statement confirmed the essential details of Mrs AAR’s argument.

 

32. Fifth, no claim for retirement pension had been made by Mrs ATR, or on her behalf, when she had reached 60. Furthermore, the eventual claim was not made until two years after Mr R died.

 

33. These factors have to be weighed in the balance against evidence pointing the other way. There were undoubtedly some inconsistencies in Mrs AAR’s evidence. However, the same was true of Mrs ATR’s evidence, and none of this is surprising given the considerations identified in CP/4062/2004. The strongest point in favour of the approach taken by the decision maker and First-tier Tribunal was perhaps Mr R’s (false) statement in 2000 that he had only been married once.

 

34. However, there is an entirely credible reason for Mr R’s misleading statement. He was unlikely to have been familiar with the finer points of UK social security law and how it treats polygamous marriages. On the other hand, it is very likely that by 2000 he knew from his peers that admitting to having had two wives at any time might pose problems in terms of claiming benefit. It might therefore have seemed entirely sensible to him to assert that he had one wife and indeed had only ever had one wife. Furthermore, the argument that at the 2000 interview Mr R was in some way “passing off” Mrs AAR as his first wife and in a claim for benefit is difficult to sustain on the evidence. The clear evidence of Mrs AAR and her son was that Mr R had insisted on the change of name in the original marriage contract some 50 years previously. Mr R would have to have been remarkably far-sighted to do this in the 1950s with a view to supporting a claim for benefit based on deception or impersonation five decades later.

 

35. In the light of all these considerations, I am more than satisfied that the Secretary of State has not shown that Mr R was still married to both Mrs ATR and Mrs AAR at the time of his death. Indeed, on the balance of probabilities I find that Mr R divorced Mrs ATR before he married Mrs AAR.

 

36. The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows:

 

The appellant’s appeal against the Secretary of State’s decision dated 17 June 2009 is allowed.  That decision is accordingly revised.

 

The correct decision is that the appellant remains entitled to a state retirement pension based on the contributions of her late husband, Mr R. Her benefit should not have been stopped on 22 April 2008. The pension should now be reinstated and arrears paid.

 

Conclusion

 

37. The decision of the First-tier Tribunal involved an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the tribunal’s decision (section 12(2)(b)(ii)) in the terms set out above. 

 

 

 

 

Signed on the original Nicholas Wikeley

on 07 December 2012 Judge of the Upper Tribunal