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Query on ‘a general principle of law’

 

KateSL
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I found the following in a recent submission from the DWP relating to the completion of an ESA50 ‘It is 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.’
Having scoured all the venerable legal texts and minds at my disposable i can find no reference to this general principle, and it appears to me to be contradictory to the examination of facts & examinations of witnesses, not to mention that there is no requirements for claimants to send supporting evidence with an ESA50.
I would be interested to hear other people’s interpretation of this mystery ‘general principle’ and any hints and tips for a response would be most welcome.

     
stevenmcavoy
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KateSL - 23 September 2013 10:37 AM

I found the following in a recent submission from the DWP relating to the completion of an ESA50 ‘It is 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.’
Having scoured all the venerable legal texts and minds at my disposable i can find no reference to this general principle, and it appears to me to be contradictory to the examination of facts & examinations of witnesses, not to mention that there is no requirements for claimants to send supporting evidence with an ESA50.
I would be interested to hear other people’s interpretation of this mystery ‘general principle’ and any hints and tips for a response would be most welcome.

is that not what the police say when they arrest you on tv programmes?

anyway, in the context of esa it wouldn’t even be a principle worth the dwp stating as often the basis of your clients case is they either weren’t asked about an aspect of their health at all or that their answer was either ignored or twisted.

     
KateSL
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Thanks stevenmcavoy,
i think you’re referring to a police caution which in any case would only relate to criminal matters where the burden of proof is as we know ‘beyond reasonable doubt’.
My initial reaction was that someone at the DWP had been misreading either case law or legislation but they failed to reference their assertion so i cannot pin it down.

     
Pete C
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I think the use of the word ‘statement’ is quite interesting- I wonder if they are referring to something covering criminal law where someone later rebuts something they said in a written statement or in an IUC.

If the Sec of State wants to put this forward as an argument on legal principle then they might want to say where this priciple is written down - (if its an old one it probably has a latin name and as all welfs are staggeringly literate and erudite we would all know what it means straight away) Although it is probably a relatively small point you might want to submit that the Sec of State has not given any credible legal authority for his assertion.

     
1964
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It seems to be the latest ‘cut & paste’ stock phrase in appeal responses doesn’t it? I’ve seen it in at least 5 appeal bundles in the past few weeks and I, too, can find no obvious basis for it. It keeps making me think of the opening lines of Pride & Prejudice- ‘it is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife’.

     
Pete C
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1964 - 23 September 2013 11:32 AM

It seems to be the latest ‘cut & paste’ stock phrase in appeal responses doesn’t it? I’ve seen it in at least 5 appeal bundles in the past few weeks and I, too, can find no obvious basis for it. It keeps making me think of the opening lines of Pride & Prejudice- ‘it is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife’.

See—I told you that welfs are staggeringly erudite and literate

     
KateSL
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Thanks guys, your comments actually made me lol.
I have highlighted this in my submission but what concerns me is the quality of the submissions.
I am toying with the idea of quoting Alexander Pope;
Part II of An Essay on Criticism :

  A little learning is a dangerous thing;
  Drink deep, or taste not the Pierian spring.

     
1964
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Go on- I dare you! It would be worth it just to see if the DM comments on it when they produce the usual cut & paste supplementary decision after your sub is circulated.

     
KateSL
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I would 1964 but too scared that the tribunal will see it as not paying due deference !!

     
Gareth Morgan
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His animum succinge bonis: sic flumine largo plenus Pierio defundes pectore verba.

Putting the muses to one side, what success rate would the oracles have in forecasting appeal results?  Ferret once had a subsidiary called Dodona but it never went in for divination.

     
KateSL
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I bet some clever mathematician could work out an equation for successful appeals:
Pi+dismissal of facts x random legal interpretations / elevation of evidence of HCP + one dedicated welfare benefits adviser with good training/resources and a keen eye = appeal upheld

     
nevip
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It’s to do with the rules of evidence, as you know, and will probably be greeted with a raised eyebrow or a sigh from a tribunal judge.  For example, where a person contradicts himself at a later stage, more weight might be given to his earlier statement if it can be successfully argued that the later statement was made with the benefit of hindsight.  Where evidence, either written or oral, is deliberately withheld by a party then an adverse inference might be drawn against him.  There might be many reasons for the conduct of a party and nothing can just be assumed. This is nothing earth shatteringly new.  These are practical matters to be tested within the context of each individual case and are not maxims of law as such.

     
Mairi
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It struck me that the first ‘statement’ from a claimant is usually the ESA50.  Where many claimants score themselves more than 15 points.

The next ‘statement’ is generally their response to questioning by the HCP.  Where apparently many people score themselves zero points.

So is the first or second ‘statement’ to be taken as the most accurate?

The tribunal will decide…...

     
nevip
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In the matter of information on claim forms, see attachmemts.  However, on the other side, there is also a decision whose citation I can’t remember that cautions tribunals to be wary where a representative puts a substantially more advantageous case to it than the appellant made out on the IB50.

     

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Tom H
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This is worrying because I can see the DWP amending that submission slightly following the introduction of mandatory reconsideration next month.  So the submission might be to the effect:

“the appellant was given the opportunity to raise objections as part of the mandatory reconsideration process but declined.  They have raised the present matter for the first time at the tribunal”.

If nothing else that kind of submission is attempting to portray the appellant as unco-operative.  It also asks the tribunal to imply that the reason there is a change in his evidence is that he’s taken advice and the rep, has effectively, told him what to say.

      [ Edited: 23 Sep 2013 at 08:42 pm by Tom H ]
Andrew Hansard
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I’ve never heard of this general principle of law, my guess would be that it is a uneducated guess and therefore a mistake.

There is however a clear principle in PACE 1984 that early evidence can be understood as unfair under section 78 and excluded as evidence trial, because and citing R v Williams (Violet), [1989] Crim. L.R. 66 people have not being offered legal advice and under section 55 of the PACE 1984 having a request for legal advice ignored, denied or delayed for an unfairly long time.

Therefore I would argue that the general principle of law is that all evidence from a claimant prior to advice from a welfare rights worker can be understood as being obtained unfairly and excluded at tribunal.

Most judges would agree with this and I have never had any problems at tribunal explaining that the client did not complete the ESA50 correctly, forgot things and made mistakes…