Chief Adjudication Officer v Kirpal Kaur Bath
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS |
| Judgment Date | 22 October 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1022-5 |
| Docket Number | Case No: SSRTF 98/1175 |
| Date | 22 October 1999 |
| Court | Court of Appeal (Civil Division) |
[1999] EWCA Civ J1022-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Evans
Lord Justice Schiemann
and
Lord Justice Robert Walker
Case No: SSRTF 98/1175
Mr J McManus QC, London WC2A 2LS (Instructed by the Department of Social Security for the Appellant) The Respondent did not appear and was not represented.
AS APPROVED BY THE COURTAS APPROVED BY THE COURT
Friday 22 October 1999
The Respondent to this appeal, Kirpal Kaur Bath, did not appear before us. She had succeeded in her appeal to the Social Security Commissioner, where she was assisted by counsel, and we were not told why she was not also represented in this Court.
The reason may well be lack of funds. She is a lady now aged 59 who in 1956 at the age of 16 went through a Sikh marriage ceremony with Zora Singh Bath, who was then aged 19 and was also a Sikh. They lived together as man and wife for 37 years until he died on 23 January 1994. They had two sons, born in 1963 and 1965. He built up a successful cash and carry business and in later years, as her sons grew up, she helped him in the business. He paid income tax and social security contributions on the basis, which was never queried, that he was a married man. When he died, she applied for the pension payable to a widow under section 38 of the Social Security Contributions and Benefits Act 1992. That was on 3 February 1994.
Her application was refused and the refusal was belatedly justified on the ground that she was not a widow, because there was "no evidence of a valid [marriage] ceremony in accordance with the Marriage Act 1949" (D.S.S. legal advice 5 August 1994). She appealed to the S.S.A.T. where the Adjudication officer said that he had been advised that the ceremony could not be accepted as a valid marriage. He continued "It has been established that the ceremony did not take place in a registered building, and it was also established that the ceremony had not been registered in a Registry Office". The Appeal Tribunal found that: —
"The appellant went through a Sikh marriage ceremony at a Sikh temple which was not registered at the material time. The marriage was not registered in a Registry Office".
Its decision was: -Its decision was: —
"Appeal disallowed. It has not been established, and cannot be presumed that there is a valid marriage between Kirpal Kaur Bath and Zora Singh Bath. This is because there is no evidence of a valid ceremony in accordance with the Marriage Act 1949, and therefore it is not valid for Social Security purposes. As a result, Widow's Pension is not payable on the contributions of Zorah Singh Bath because it has not been proved that she is his widow".
The reasons given were -The reasons given were —
"The Tribunal had enormous sympathy with the appellant's predicament. Unfortunately, at the time of her marriage ceremony the Sikh temple was not registered for performing marriages, nor had the marriage been registered in a Registry Office. As a result there had not been a valid ceremony in accordance with the Marriage act 1949, and this meant that the appellant is not entitled to Widow's Pension"
That decision was dated 24 May 1995. On 1 November 1995 she applied for leave to appeal out of time to a Social Security Commissioner. Her application was considered sympathetically and she was given leave on 15 December 1995. The Commissioner's decision is dated 7 May 1998. Part of the delay was caused by the department's failure to comply with its obligation to submit observations to the Commissioner. They were due by 14 March 1996 but not received until August or September (though bearing the date 19 March) because of "the need to seek legal advice from the department's solicitors" (letter seeking an extension of time dated 14.3.96). The reasons given for asking the Commissioner to dismiss the appeal were that the marriage ceremony had taken place in England but in a form not known to English law. Even between persons domiciled in India, and even if the Sikh temple had been registered as a place where marriage ceremonies could take place, the marriage could not be valid.
The Commissioner himself asked whether there was any room for the operation in this case of the presumption of marriage from cohabitation after the ceremony, referring both parties to Halsbury's Laws of England (4 th ed.) Vol. 22 para. 993. That was on 23 May 1997. The Adjudication officer responded on 18 July 1997 referring, for the first time, to Commissioner's Decision R(G) 270 a case decided by Sir Rawden Temple on 6 February 1970. This decision, it was suggested, "stands against the operation of the principles" stated in Halsbury.
The Commissioner allowed the appeal. He held -The Commissioner allowed the appeal. He held —
"In my view that 'marriage' is validated by the common law presumption from long cohabitation, in pursuance of the policy of the law that, in the absence of the clearest possible reason why there should not be such a presumption, a ceremony of 'marriage' bona fide entered by parties who thereafter who live monogamously and bring up children of the union should be respected and accorded the proper legal status of marriage".
Notwithstanding this decision in her favour, dated 7 May 1998, Mrs Bath has not been paid the pension to which the Commissioner held she is entitled, because, we were told, the department, now the Benefits Agency, exercised its power to withhold payment pending the present appeal. Nearly six years after her claim was first made, she has not received a penny.
The appellant was represented by Mr J.R. McManus Q.C. for whose assistance we are grateful. Rarely can it have been necessary for counsel, even one as skilled and experienced as Mr McManus is, to seek to justify such an unattractive case. For 37 years two departments of government, the Inland Revenue and the Department of Social Security, treated Mr Bath as a married man and claimed taxes and contributions accordingly. When Mrs Bath after his death claimed the pension to which his widow is entitled, for the first time, the Agency said that he was never married and that their children are illegitimate. Mr McManus submits that it is bound to refuse payment, even if the clearest possible estoppel would arise, were the defendant a private citizen, because as a public authority it has no power to make any payment which is not permitted by the statute.
We were also told that the Agency is placed in a situation of real difficulty by the Commissioner's decision, conflicting as it does or seems to do with the decision in R(G)270 nearly thirty years ago. Adjudication officers therefore need guidance from the Court, we were told, and other appeals are pending. Nevertheless, no attempt was made to have those other appeals heard at the same time as this one, even when it became known that the respondent would not be represented. This appeal could have been adjourned, perhaps so that an amicus could be instructed, but that would have overlooked the urgent need for the respondent to know where she stands and not to be any longer deprived of the pension to which she is entitled, if the Commissioner's decision is correct.
Even if Adjudication officers are now aware of a conflict between the two Commissioners' Decisions and they have need of the Court's guidance accordingly, it does not appear from the documents before us that these doubts played any part in the decision to refuse Mrs Bath's application. Initially, the department confused Mr Bath with his cousin, who had emigrated to Canada, and the internal memorandum begins "Although Kirpal's marriage to Zora Singh Bath on 27.6.56 appears acceptable …." (p.41). The Adjudication's Officer's submission to the SSAT includes —
"3. Reported decisions of the Commissioner considered by the Adjudication officer to be relevant.
None"
The deponent's submission to the Commissioner, as noted above, was based on a different ground, and it was not until the Commissioner raised the issue of a presumption from cohabitation that any reference was made to the earlier (1970) Decision.
Before us, Mr McManus confined himself to a single submission. This was that the presumption of marriage arising from cohabitation was rebutted in the present case by the S.S.A.T.'s finding that the Sikh temple in which the marriage ceremony took place in 1956 was not registered for such a purpose at that date under the Marriage Act 1949. The ceremony relied upon, therefore, was shown not to be a valid marriage ceremony, and no other ceremony could be presumed to have taken place at any other time.
The Commissioner's Decision The Commissioner's Decision
The Commissioner identified the issue as follows: -12. The Commissioner identified the issue as follows: —
"The real issue is whether or not what was undoubtedly according to Sikh religious rites a marriage ceremony was invalidated by its taking place in a building, the Temple, which was not registered for marriages at the time, though it became registered subsequently. I have dealt with the case on that basis" (paragraph 10)."
After setting out paragraphs 992 and 993 of Halsbury's Laws (4th ed. Vol 22), he referred to Re Shephard [1904] 1 Ch.456, a decision of Kekewich, J. and to R(G) 2/70 "a decision of Sir Rawden Temple, a former Chief Commissioner and an expert in matrimonial law". Then he said: —
"16. I naturally pay the greatest of respect to those statements by the learned Commissioner and I bear...
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