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Early evidence most accurate

 

 

Bram@Ladywood
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Included in DWP response in tribunal papers ‘‘may i respectfully remind the tribunal that as a general principle of law that the earliest statement made by a person is the one that is likely to be most accurate and that evidence provided at a later date, which could have been provided earlier, does not have the same force as it would if it had been given in the first instance’’ Goes on to quote R(U) 13/52 para 9
Any comments?
Does any one have copy R(U) 13/52?

     
past caring
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Context? What is the appeal about?

Don’t have a copy and it doesn’t seem to be in the Rightsnet archive, but the case is discussed at heads 1.225 & 1.229 of Vol II of the current Social Security Legislation - it’s apparent it’s an old Unemployment Benefit good cause for leaving employment case.

As a general proposition of law (i.e. a starting point) I think it’s fairly uncontroversial - it doesn’t say that a person cannot change their story or that they should inevitably be disbelieved if they do. There can be all sorts of good reasons why a claimant may not offer a complete or true account of events initially - however, there does need to be some coherent explanation for this when it happens, otherwise their credibility is inevitably put in issue.

     
John Birks
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I suggest the submission writer is at the bottom of the barrel, enthusiastically scraping away.

If they wish to rely on it they should have the decency to provide a copy so the tribunal may give it proper consideration - otherwise we could all just copy and paste the bits we like and omit those which we don’t.

     
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For a more recent and nuanced approach to credibility issues, AB v SSWP [2014] UKUT 212 (AAC) is worth a look (also a damn entertaining read).

     
Daphne
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Mr Finch
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While it’s uncontroversial that changing a story without explanation may affect credibility, we’ve been laughing for years at this phrase in virtually every context it’s used.

The concept of what is the ‘earliest statement’, in particular seems ripe for new heights of cherry picking by the DWP. In one case the claimant had said in his ESA50 he could walk a few metres out to his porch. After an assessment, the report claimed he went for a short walk every day- this was then asserted without evidence in the decision to inevitably mean for a couple of miles.

On appeal, it was again put into contention that he could not walk 50 metres without stopping. The response, as you’ve guessed by now, was that as a general principle of law the tribunal was bound to accept his ‘earliest statement’  that he could walk a couple of miles every day. This did not go down too well.

     
Jon (CHDCA)
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Gareth Morgan
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Bram@Ladywood - 05 January 2017 02:13 PM

Does any one have copy R(U) 13/52?

I don’t have the full decision at home and I’m not in the office today but Nelligan summarises it as:

“R(U) 13/52 The claimant left his employment voluntarily because he considered it to be beyond his ability although his employer was not dissatisfied with his work. He also produced some evidence of physical disability, but it was held that he did not have just cause for voluntarily leaving his employment. See, in particular, paragraph 9 as to considerations for relating to physical disabilities to be taken into account.”

Paragraph 9 seems to be interesting if it contains two separate important issues.

Forgive the advert but, using the extremely useful ability to search in our Electronic Social Security Law, I found other reference to that decision:

The AOG and DMG use it as the basis for an example:

“Example
Bob, a book-keeper, leaves his job because it was causing him stress and he was worried about his ability to do the job. He does not provide any evidence about this, and his employer has never complained about his work. He later produces a medical certificate that says he should not walk much because of an old hip injury. But his job does not involve a lot of walking. He has not found another job to go to when he leaves. Bob does not have just cause for leaving, but the fact that he is genuinely worried about whether he can do the job may be reflected in the period of the sanction”

CJSA/63/2007 ( later R(JSA)1/08) says

“12. Regulation 74(1) and (4) is a re-enactment of provisions first enacted in a slightly different form in 1989. Section 19(6)(b) has a rather longer history, its origin lying in the National Insurance Act 1911. In R(U) 14/52, it was held that, in order to avoid a sanction under the forerunners in section 19(6)(b), a person ought generally to be reasonably sure of getting fresh employment without the need of claiming unemployment benefit before leaving employment voluntarily. Nonetheless, a lenient approach was taken where a claimant had tried out a new type of work. In R(U) 13/52, where the claimant was concerned about his ability to perform the duties in his new employment but there was no evidence that the employer was dissatisfied with the his work and where the Commissioner was not satisfied that the claimant was physically incapable of making the journey to work despite some disability, the claimant was found not to have had just cause for leaving the employment he had been in for four weeks but the period of disqualification was reduced to one week (at a time when the maximum period was six weeks and the minimum period was one day). In R(U) 3/73, the claimant escaped any sanction at all because it was held that he had had just cause for leaving employment voluntarily when it became apparent during a probationary period that he was not suited to the work. It appears that the Commissioner accepted that he was out of his depth.

13. It seems to me that the forerunners of regulation 74(1) and (4) were enacted to bring greater clarity and precision to the law and, in particular, to establish clear circumstances in which a person may voluntarily leave employment taken on a trail basis without attracting a sanction. The implication is that in other circumstances a sanction may be appropriate although, applying R(U) 13/52, the period for which the sanction is imposed may be relatively short, depending on the circumstances. However, it is to be observed that the legislation is drafted in such a way that it applies where a person leaves employment during the relevant period, even if the reason for leaving the employment has nothing to do with the employment having been taken on trial or, indeed, even if it was not in fact taken on trial. Presumably, this is to avoid the need for investigation of the circumstances of the case in any detail. Moreover, the introduction of legislation specifically dealing with trial periods cannot have the effect that a person may never have just cause for voluntarily leaving employment taken on a trial basis even when he or she does not fall within the scope of what is now regulation 74(1) and (4).”

R(U)4/87 has:

“9. An examination of the decisions on the topic leads me to think that in general it is only where circumstances are such that a person has virtually no alternative to leaving voluntarily that he will be found to have had just cause for doing so, rather as a person who throws his baggage overboard to make room in the lifeboat can claim on his baggage insurance. Instances are

(1) ...

(3) cases of failing health making the work unsuitable as in R(U) 13/52;
...”

Nowhere is it referenced as a source for the kind of use being made of it in this submission.

     
Peter Turville
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Commissioner’s decisions were so short in the ‘old days’!

Not sure para. 9 supports a DWP argument about initial statements!

      [ Edited: 6 Jan 2017 at 12:19 pm by Peter Turville ]

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Bram@Ladywood
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Thanks Peter and to others for responses/info

     
ClairemHodgson
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i think the idea that an early statement is the most accurate comes from situations where the witness is focusing on a specific event

if, for instance, someone has had an accident, then (absent head injury) what is said in the immediate aftermath of the accident as to how it happened is likely to be (or is thought likely to be) reasonably accurate since it is not coloured by later thinking/what other people have said/stuff like that.

if, on the other hand, one is looking back at a situation that has developed over a long time, particularly where no diary/contemporaneous record is kept, its a whole other ball game

there’s some good stuff about this (witness evidence/credibility/memory/etc) in civil litigation brief - https://civillitigationbrief.wordpress.com/ - written by Gordon Exall of Counsel.

whilst, true, that is usually about civil litigation (he’s a personal injury barrister) it has a lot to say relevant to witnesses/evidence etc generally.  including some stuff about how judges assess credibility.

     
Mike Hughes
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So what they mean really is contemporaneous. However, someone has picked up Rogets and gone for earliest!

     
Neil
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Also point out that the individuals statement my have changed after having the law properly explained to them.

e.g . In many Co-Habiting cases the LA/DWP tell the HB Claimant, if your partner stops 3 or more nights per week you are living together, claimants believe this urban myth( I know advisors who believed it) and accept their fate and admit in those circumstances they are obviously living together, they then see a good advisor who explains this is not the law and never has been. Then show them the Co-hab criteria, same household, relationship etc. Too right they change their statements.

Alternatively they tell Atos they have walked 200m from the car park, but fail to mention the stops or the pain, as the examiner doesn’t ask anything more then where have you parked your car ?, and when we engage for the review/appeal they tell you the examiner never once asked me how far can you walk let alone how far can walk without support severe pain and discomfort etc.

So the bottom line is that every case is on it individual circumstances. In particular what they had been led to believe at the point under scrutiny.

     
stevenmcavoy
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ClairemHodgson - 10 January 2017 09:44 AM

i think the idea that an early statement is the most accurate comes from situations where the witness is focusing on a specific event

if, for instance, someone has had an accident, then (absent head injury) what is said in the immediate aftermath of the accident as to how it happened is likely to be (or is thought likely to be) reasonably accurate since it is not coloured by later thinking/what other people have said/stuff like that.

if, on the other hand, one is looking back at a situation that has developed over a long time, particularly where no diary/contemporaneous record is kept, its a whole other ball game

there’s some good stuff about this (witness evidence/credibility/memory/etc) in civil litigation brief - https://civillitigationbrief.wordpress.com/ - written by Gordon Exall of Counsel.

whilst, true, that is usually about civil litigation (he’s a personal injury barrister) it has a lot to say relevant to witnesses/evidence etc generally.  including some stuff about how judges assess credibility.

i was at an interesting event by an org called sold (scottish offenders with learning disabilities) up here where they discussed the ways our adversarial court system disadvantages those with learning disabilities due to the way questions are framed.

not being legally qualified i found it really interesting.

     
ClairemHodgson
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questions framed by barristers are hardly ever designed to be comprehensible (with all respect to those i know/work with/have a lot of time for).  because a barrister is trying to get the answer s/he wants to support client’s case, whoever that client is.  and the level of language used is usually very erudite, even if not designed to confuse, so thus people even without learning difficulties don’t follow.

     
ClairemHodgson
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ClairemHodgson - 11 January 2017 04:32 PM

questions framed by barristers are hardly ever designed to be comprehensible (with all respect to those i know/work with/have a lot of time for).  because a barrister is trying to get the answer s/he wants to support client’s case, whoever that client is.  and the level of language used is usually very erudite, even if not designed to confuse, so thus people even without learning difficulties don’t follow.

having said that, party’s own barrister is not allowed to ask leading questions.

also, interruptions to the flow of an answer can be confusing for the lay person…