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Failure to Disclose
this is good
http://www.bailii.org/uk/cases/UKUT/AAC/2017/249.pdf
one can’t fail to disclose something of which the relevant office is already aware (in this case, that a man’s wife now has her own state pension, and that it is uprated annually .....
this case is about pensions but the principles will be of general application in such cases, and a reasonably good review of relevant caselaw on disclosure/what is meant by disclosure/the like….
I know this is about the appellant’s duty to disclose, Claire, but does anyone know if there is legislation or CPR’s that compel the Secretary of State to discover and disclose?
I know this is about the appellant’s duty to disclose, Claire, but does anyone know if there is legislation or CPR’s that compel the Secretary of State to discover and disclose?
my recollection, from my original post, is that the case gives a really good overview of everything relevant, so i’d dig into that case and the cases referenced/linked in it…... fairly comprehensive.
I know this is about the appellant’s duty to disclose, Claire, but does anyone know if there is legislation or CPR’s that compel the Secretary of State to discover and disclose?
Baroness Hale in Kerr is often quoted on here:
61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
“A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action.”
62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
The Tribunal Procedure Rules lay down a duty concerning already evidence in the SoS’s possession:
24(4)
The decision maker must provide with the response
[...]
(b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise;
The 3-judge panel in CSE/19/2014 gave consideration to what “relevant” means here.
Many thanks, Claire, Jon.
Some very useful links :-)