Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CPC 2423 2013 

ADMINISTRATIVE APPEALS CHAMBER

LS v Secretary of State for Work and Pensions (SPC)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the directions set out at the end of this decision.

REASONS FOR DECISION

1 This appeal raises a short but important point for the appellant. On what day in 1951 was she born? On 15 07 2012 she claimed state pension credit. If she was born on 1 01 1951, as she stated, then she was entitled to the credit. If she was born on 31 12 1951, as the decision maker acting for the Secretary of State decided, then she was not. If, on the balance of probabilities, she was born on or before 5 06 1951 then she could claim (the date identified by reference to the equalisation tables in the papers). If not, then she cannot claim at that date but can claim later. 

2 The matter came before the First-tier Tribunal for consideration on the papers as the appellant did not ask for an oral hearing. Instead, the appellant wrote in submitting copies of relevant pages of her Nepalese passport to provide evidence of her date of birth being 1 01 1951.

3 The First-tier Tribunal saw no reason to adjourn the case for an oral hearing or further evidence and confirmed the decision of the decision maker acting for the Secretary of State.

4 The appellant and representative asked for an oral hearing before the Upper Tribunal and for permission to appeal. I granted permission to appeal without a hearing as I considered that the matter was one where it was arguable that the tribunal had assumed, rather than decided, that the Secretary of State was correct and where the wrong standard of proof may have been applied.  

5 As the Decision Maker’s Guide comments on issues of dates, the starting point is the evidence of the appellant whether or not it is corroborated: R(I)2/51. Of course, an individual cannot give direct evidence of the date of his or her birth though indirect evidence can be given in several ways. So the question will usually be: what evidence is there? As the Secretary of State rightly points out in the submission to the Upper Tribunal in this case, it is as a general rule for a claimant to show evidence of any point put forward. At the same time, as I pointed out when granting leave, the matter is to be determined on the balance of probabilities not by any higher standard.

6 What evidence was before the First-tier Tribunal? The papers show that an officer of the Department visited the appellant on 28 09 2012. The officer recorded that she stated her date of birth as being 1 01 1951 at that visit. She made her claim from the date of the entry by her and her husband into the United Kingdom. They both had a right of abode here given her husband’s right to come here with her as he had been in the Brigade of Ghurkhas.

7 The decision maker acting for the Secretary of State decided the following month that “under pension credit guidance, if the customer is unable to verify their date of birth in the form of a birth certificate or another acceptable form of ID then for benefit purposes we will assume a date of no earlier than the 31st December of that year.” That guidance was said to be in the Decision Maker’s Guide vol 3 chapter 10 paragraph 10074.The relevant part of that paragraph states:

“Evidence indicates year of birth only

10074 Sometimes the available evidence may establish the year of birth, but not the day or month. Where

1. a claim for benefit is made and

2. entitlement depends upon the claimant reaching a certain age or the rate of

benefit payable varies according to the claimant’s age the onus of proving that the age condition is satisfied rests with the claimant. No presumptions can be made in the claimant’s favour.”

There is nothing about assumptions against a claimant in that guidance.

8 The appellant’s reaction to this was to go to her Embassy the following week. As a result, an Attaché at the Embassy endorsed her passport with her date of birth as 01 01 1951. This was promptly submitted to the Secretary of State. This evidence was rejected on reconsideration. The decision maker acting for the Secretary of State rejected it because “on the balance of probabilities the last day of the year is the only day on which we can say with certainty that the customer has been born” (emboldening mine). Absurdly this is supported by the plainly erroneous statement that “no documentary evidence has been provided to us” by the appellant. This is patently absurd because it follows express acknowledgement that the appellant had sent them a certified copy of the relevant entry in her passport.

9 Aside from that absurdity, the decision contains a contradiction which the First-tier Tribunal did not notice, and I granted permission to appeal because of it. If the standard of proof is the balance of probabilities, then certainty is neither appropriate nor relevant.

10 In the submissions on the appeal the Secretary of State supported the First-tier Tribunal decision by reference to a decision of a Social Security Commissioner made under file number CP 43/77. In that case a claimant maintained his date of birth was 2 02 1910. Different strands of evidence showed a variety of inconsistent possible dates between that date and 1914. The Commissioner at that time decided the issue on the facts and it was not reported, so the decision is a “facts and reasons” decision not one of clear precedent status. On those facts the Commissioner decided that the most reliable individual strand of evidence was a formal merchant navy document stating that the appellant was born “c. 1913”. This was then assumed by the local officer to be 30 06 1913.  But the Commissioner agreed with submissions made to him at the hearing that “since there is no evidence to support any earlier date, he cannot be presumed to have attained 65 years of age on any day earlier than 31 December 1978”. Accordingly, the Commissioner accepted that date. Indeed, strictly, “c.1913” shows that the year 1913 was itself a matter only of probability.

11 It is not clear to me how the Commissioner, in that case, went from the standard of probabilities reaffirmed in paragraph 3 of his decision to the presumption quoted above (in paragraph 6 of the decision) save for the particular facts of that case. These were that the appellant stated that he was born in an entirely different year, and this evidence was rejected. As to the year accepted, there was no evidence before the Commissioner of any specific date and only evidence that the appellant was probably born in 1913.

12 What is the evidence here? It is that the Nepalese Embassy had accepted that the appellant was born on 1 01 1951 and had endorsed her passport accordingly. Until then, in accordance I am told with normal Nepalese practice, it showed only her year of birth. It is also that the appellant maintained that she was in fact born on that date. Further, when she was given entry clearance to the United Kingdom in June 2010 in New Delhi, her date of birth of 01 01 1951 was accepted by the UK immigration authorities. This is, as the representative stated, shown on the endorsement to the relevant page in her passport, which was in the papers before the First-tier Tribunal. Since then, evidence has also been produced that the local general practitioner and the NHS have accepted her date of birth as 1 01 1951, though in fairness that was only produced after the tribunal decision.   

12 In the decision notice, the tribunal stated that 01 01 1951 was “an assumed date of birth”.  Given the evidence that was before the tribunal I can see no basis for the assumption by the tribunal that this was an assumption by the Nepalese authorities. Nor do the reasons given by the tribunal explain the assumption about the assumption (if that is what it was). There was no evidence that this was an assumption by the Nepalese authorities. The endorsement to the passport is properly made by an Attaché at the Embassy, so should in my view, if any assumption is to be made, be assumed to be correct rather than incorrect as made by the properly appointed official of the relevant national authority.

13 Evidence is always to be preferred to assumptions unless the law clearly dictates otherwise. Behind the assumptions here is an unanswered question: on what evidence did the Attaché endorse the passport and the UK authorities accept her date of birth? In my view this is a case where the First-tier Tribunal should have considered using its investigative powers to direct an oral hearing or ask for further evidence, given that there was clear evidence that the Nepalese authorities and the UK authorities in India had accepted the appellant’s evidence but the Department for Work and Pensions, inconsistently, had not.

Is this a case where the appellant’s evidence is treated with suspicion because she states her date of birth was 1 01 1951 rather than, say, 13 01 1951 and for no other reason?

14 I conclude that the tribunal did not deal with this case adequately. As the appellant and representative asked for an oral hearing, I am directing an oral rehearing by the First-tier Tribunal. That tribunal should look at the totality of the evidence and decide the case on the balance of probabilities, not by reference to presumptions or assumptions or any need for certainty.

15 The appellant and representative are put on notice by this decision to produce any further evidence they have, for example of the date of the appellant’s marriage and her age at that time, or of her age at any other recorded event such as a census, or evidence from any member of the family including memories of any family birthday celebrations, together with details of evidence presented to the Nepalese and UK authorities. 

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

David Williams

Upper Tribunal Judge

29 05 2014

[Signed on the original on the date stated]