Got an appallingly written submission for a case where a client failed to attend a medical and failed a PCA. Their summary of facts does not mention a PCA actually being attended, and yet it goes on to talk about a PCA being failed with just 6 MH points. However, there are no papers from this mysterious PCA. What's the legal position? Isn't there some basic legal principle which presumes against thjose who have destroyed or lost documents?

There was an attempt many years ago to argue that there was based on a case about a warship / hospital ship called "The Ophelia". I think the outcome was that there could only be such an assumption if the was a motive involved. I think in the case concerned it had been "weeding" that had led to the papers being destroyed.

More directly relevant to your case is that the onus of the proof is on the party seeking to change a decision, in this case the DM.

Have a look at R (IS) 11/92 - Ophelia is left dead in the water...

Yes, poor Ophelia, that case slammed the door shut on us for cases where the DWP had lost or mislaid documents.

Back to your present case.

If there is no medical evidence on the papers then the DM will have difficulty in proving that a medical actually happened. From what you are saying the DM has given the wrong submission to the Tribunal because it appears that IB was withdrawn because of a failure to attend a medical. Write to the Department and ask them to clarify the position. I they don't or refuse, then ask the Tribunal to direct that they supply correct information/submission.
You will then be able to defend your client's position by asking the Tribunal the reasons for your client's failure to attend.

Thu 16-Mar-06 09:13 AM by ken

If it is the case the client did attend a PCA but there is no copy of the resulting EMP report it might be worth looking at the following commissioner decisions.

In CSIB/69/2003 Commissioner Parker holds that an EMP's medical report was insufficiently thorough, inconsistent and partly illegible and finds that the the Secretary of State had therefore not discharged the onus of proof in demonstrating that the conditions of entitlement were not met.

In CIB/4445/2004 Commissioner Howell holds that, although although a report following the form used by EMP's for the PCA is not needed to supercede a incapacity decision, any evidence must be 'sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue.'

Could you argue that, following CSIB/69/2003 and CIB/4445/2004, if the department has not provideed any negative medical evidence, the onus of proof on its part cannot be met?

Alternatively, if the client has been found capable of work due to a failure to attend a PCA, Commissioner Parker in CSIB/721/2004 holds that burden of proof is on the Secretary of State that PCA appointment letter has been addressed, stamped, and posted at least seven days beforehand.

Summaries of CSIB/69/2003, CIB/4445/2004 and CSIB/721/2004 are all available in the briefcase area of rightsnet that includes a link to the full decision available on the www.osscsc.gov.uk website.

eek...

I am not sure that R(IS)11/92 "slams the door shut on cases where DWP has lost evidence" etc.

There ARE STILL CASES where the failure of the DWP to retain information will leave them unable to reverse a decision awarding benefit. This point is clearly made in:

CG/3049/2002

and was clear in R(IS)11/92 as well.

Where the burden of proof is on the Sec of State (eg seeking to change an awarding decision) and no evidence exists then the tree has to lie where it has fallen - all R(IS)11/92 says that you have to try and reconstruct facts from the limited evidence available- but where there is no evidence on which to do this then that cannot be done.