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Evidence

Bryan R
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Folkestone Welfare Union

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At Pg 377 of the Tribunal Practice and Procedure [4th Edition]

10.4 states the following

‘Evidence may be given directly by facts in issue’ - This equates to direct evidence.

At Pg 420 at 11.23 [15]

A person’s mental state can rarely be found by direct evidence McGreevy v DPP [1973] 1 WLR 276 at 285

So how are the facts derived from a WCA able to be used, in a report given to the decision maker, as they have been gathered as Direct Evidence - especially with regards to those with Mental Health Issues? Or am I overcomplicating things?

iut044
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Welfare Benefits Adviser, West Lancs Disability Helpline, Skelmersdale

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Bryan R - 18 December 2014 12:13 PM

At Pg 377 of the Tribunal Practice and Procedure [4th Edition]

10.4 states the following

‘Evidence may be given directly by facts in issue’ - This equates to direct evidence.

At Pg 420 at 11.23 [15]

A person’s mental state can rarely be found by direct evidence McGreevy v DPP [1973] 1 WLR 276 at 285

So how are the facts derived from a WCA able to be used, in a report given to the decision maker, as they have been gathered as Direct Evidence - especially with regards to those with Mental Health Issues? Or am I overcomplicating things?

For social security all evidence is admissible.  However, how much weight should be given to each piece of evidence is subjective. An ESA85 report (although they are often flawed) are made up of just not what the client has said but the observations of the health care professional.

Bryan R
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Thanks.

Observation is direct evidence.  So back to the same point. How are the facts derived from a WCA able to be used, in a report given to the decision maker, as they have been gathered as Direct Evidence - especially with regards to those with Mental Health Issues?

Not all evidence is admissible as it clearly points out at Pg 403, 10.158 - 10.164

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Some tribunals are more formal than others and there are variations in the procedures and rules.  For example, in immigration tribunals the appellant is well served by a solicitor or immigration specialist who must be a qualified person under s84 of the Immigration and Asylum Act 1999 and the home office will also be legally represented.  They can control the admissibility of evidence but are not bound by the stricter rules of the courts.  Rule 54 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 allows “oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal or an application for bail, even if that evidence would be inadmissible in a court of law”.

Social Security tribunals are markedly less formal with open representation and all evidence being admissible, at the tribunal’s discretion.  However, considering the requirement to act fairly, to avoid unnecessary formality and to maintain flexibility, and, of the right to a fair hearing under the HRA 1998 tribunals should tread warily when considering whether to exclude evidence.  The word “fact” doesn’t appear in the equivalent rule in the Social Entitlement Rules.  Thus, distinctions between direct and indirect evidence are less formal.  Medical reports are opinions based on largely uncontested facts.  The tribunal simply confirms the underlying facts then goes on to weigh the various opinions derived from those facts, including its own observations of the appellant.