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burden of proof
i have an appeal to the upper tribunal concerning the burden of proof in an ib case. statement of reasons states that the secretary of state did enough to discharge its burden of proof (as it was removing the clients award of benefit) and thereafter the burden of proof passed to the client to show he satisfied the descriptors.
i have been granted leave to appeal and the secretary of state has responded with reference to some case law which does seem to go against our case by basically saying that the burden of proof should only really matter if the case is so finely balanced its impossible to decide it on the balance of probabilities.
has anyone had any similar cases?
also i have posted this on another thread but does anyone have a copy of CDLA/1934/04 as i think a part of this may be helpful to me. i can find part of it referenced in another decision but not the original.
the burden of proof should only really matter if the case is so finely balanced its impossible to decide it on the balance of probabilities.
This phrase, or similar, appears in a number of CDs/UTDs and is well established as legal principle. So much so, I haven’t even “keyworded” it in order to find such authorities. In my view, the position cited by the SoS in that context is correct.
The question is whether or not the SoS did in fact succeed in showing there were grounds to revise / supersede the original awarding decision. That’s where my focus would be.
what i have argued is that what the tribunal should have done is to establish if the procedure etc for the decision was correct and then evaluate all of the evidence before deciding if the sos had discharged their burden of proof.
i am arguing that by moving the burden of proof onto the client there must be doubt as to the weighing exercise that followed as his evidence was evaluated against a burden of proof that should not have been there.
I would be careful here as ICB is not like other benefits in that receipt of a report from an EMP is itself a ground for supersession, reg’6(2)(g) of the D&A Regs, (with the caveat, of course, that the report must contain evidence that does not support an award). Where the focus should lie, is that tribunals have a duty, if the claimant puts it in issue, to look at previous PCA’s and explain why, if it takes such a view, the effects of the claimant’s condition have changed. If the tribunal concludes that there has been no such change it must allow the appeal.
I would be careful here as ICB is not like other benefits in that receipt of a report from an EMP is itself a ground for supersession, reg’6(2)(g) of the D&A Regs, (with the caveat, of course, that the report must contain evidence that does not support an award). Where the focus should lie, is that tribunals have a duty, if the claimant puts it in issue, to look at previous PCA’s and explain why, if it takes such a view, the effects of the claimant’s condition have changed. If the tribunal concludes that there has been no such change it must allow the appeal.
unfortunately its the only grounds i have for challenging the decision so i have no option but to make as best a case for it as i can.
essentially its a weighing of evidence point i am trying to push in that to my mind the tribunal should first of all ensure all the procedural stuff has been done i.e. that a proper medical has been carried out etc and then look at what the medical has recorded, listen to the clients evidence and then decide if the sos has discharged its burden of proof and had grounds to take the clients benefit away.
given that in the vast majority of cases the nature of an ib appeal will be that the client disagrees with the medical i think its unfair simply to find the sos has dischagred its burden of proof then to look to the client and essentially say “you now have to prove your entitled”.
other than basically quoting the old unbiased and informed standard line from the dwp decision makers there is no examination of the pca medical at all.
I agree its not the strongest case and i am probably clutching at straws but the fact i have leave to appeal at least gives me some hope.