Please could someone advise on the following:

Client was in receipt of Income Support for a number of years. It is alleged that he failed to declare that he had an occupational pension and therefore an overpayment has occurred.

We have now received the appeal papers. However, the schedule of evidence does not include the claim form which the client completed when he applied for the benefit, as it has been destroyed.

Therefore, there is no actual evidence that he did fail to disclose or misrepresent a material fact.

From his point of view, the client genuinely can't remember whether he told the Benefits Agency about the occupational pension. The forms were completed such a long time ago.

Does anyone know of any caselaw which may be helpful in this situation?

I think the burden of proof is on the DWP to establish the facts of the overpayment. Have you had a look at the commentary in Bonner on overpayments? I found it really helpful when I had a similar case.

Apparently there's an English common law principle that the burden of proof lies with the person who initiates a legal action. For benefit appeals, this is the DWP decision-maker. If you look in the tax credits discussion section some months back (last spring?) you'll find some postings on this subject. However, in my experience, you need to do somewhat more than say "the DWP have failed to meet the burden of proof" to win an appeal!
Is there anything that will jog your client's memory? How likely is it that he'd fail to put something on a form that he should? Does he get help filling in forms, or check through them before he posts them?

"Burden of proof" - tax credits forum 2nd March 2004.

Mon 16-Aug-04 03:54 PM by ken

I think it might be helpful if you have look at CIS/1459/2003,with regards to issue of burden of proof. The decision takes relies also on few other decisions on the same subject including Kerr v Dept for social development. Clearly when a person does take a legal action, then that person needs to discharge the burden, but, the decision states that the role of the tribunal is to consider all evidence before it, if it intends to go on with the appeal, or adjourn and give directions (here to DWP ) to produce evidence etc.

A summary of CIS/1459/2003, together with a link to the full decision is available in the briefcase area of rightsnet.

Masoud, I have to say my view of your case is more positive than Carol's. If the papers are as straightforward as you suggest, i.e. there's actually no claim form, then the DWP simply cannot discharge the burden of proof and the tribunal should allow the appeal. Even if the tribunal exercises its inquisitorial role, what are they going to find?

The DWP might contend that, if the income was not taken into account, then it is likely it was not disclosed. This would be like saying "if our assessment was incorrect, it's unlikely to have been our mistake, it must have been the claimant's fault." Such a presumption would be neither logical nor fair.

Also, your client has no obligation to give evidence if there's no case to answer. "I can't remember what I wrote back then," seems an entirely reasonable position, if anything has to be said.