Hi all,

Can anyone point in the direction of a CD criticising the DWP for alleging that documents were sent or given to the claimant, but without being able to prove that they were actually sent, and that a decision relying on the alleged sending of documents can't be upheld.

I know there have been some and I could find but I'm very fast running out of time!! A reported CD would be fab!

Thanks,

You could try to get hold of CJSA/0473/2003 - a Commissioner Jacobs decision which quotes the House of Lords decision of Anufrijeva and R(I)14/74.

Anufrijeva v Sec of State for Home Dept is on Bailii, I'll try and have a look in the office for the others. You will want to read Lord Steyn's opinion.

David

Thanks David, but these don't seem to help; let me clarify.

My client's case conncerns an overpayment of IB on the grounds of undeclared work.

The decision maker states that "the claimant WOULD have been sent" information with the first entitlement decision advising what changes would need to be disclosed.

I intend to argue that is not sufficient for the DM to say that the claimant WOULD have been sent this information. They should show, in the facts of this case, that the client WAS ACTUALLY sent the information. If they cannot do so then, on balance, the information was not actually sent.

This is a little different from being sent or given an actual decision notice, which the decisions you have kindly found seem to deal with.

My colleagues and I are racking our brains as we feel sure that this situtation has been firmly dealt with by commissioners, and quite recently too.

Hi Tony,

Although I can't recall the case ref, there has been a relatively recent HB/CTB CD that BROADLY echoes the view set out.

HOWEVER, that was in the context of the facts of that specific case. Playing devil's advocate, I suspect the usual situation will be that it IS in fact sufficient for the DWP (or LA) to state that an item of post was sent on the balance of probability. By "usual", I mean a situation where some form of standard process takes place (e.g. the enclosure of appeal rights / booklets with certain types of correspondence).

If the DWP can show from computer records that a piece of correspondence was in fact generated and can further show, on the balance of probability, that it would have been sent AND included any "usual" enclosure, the DWP position is potentially strong.

In CH/2349/2002 (paras 6-9 & 12), Cmmr Jacobs made it clear that common sense must prevail when considering evidence as to whether a decision had been made. I think a similar argument can be made in relation to other processes.

Sorry it isn't quite what you are looking for...

Tony

Here is an extract from a submission I use in overpayment cases, quoting relevant case law.

'Second, the burden of proof here is on the Department. Its evidence has to meet a high standard. It is not enough for the Department to produce a sample letter. If the Department alleges that Ms …. was sent a notification detailing specific information which she was under a duty to disclose then the Department should produce evidence that the notification was issued in this case and not point to its general practice for evidence that it did in fact send the notification. In other words it is incumbent on the Department to produce a copy of the notification that was actually sent to Ms …. If the Department did not keep a copy then that should rebound on it and not Ms ….

In CDLA/1823/2004 the commissioner states, at Para 9, that in “the present case, there is no evidence in the papers before me as to what, if any, instructions were given to the claimant. Not only is such information required when considering whether an overpayment is recoverable under section 71(1) of the 1992 Act, it is also required for the purpose of determining whether a supersession decision is to be made retrospective under regulation 7(2)(c)(ii) of the 1999 regulations. And in setting the tribunal’s decision aside the commissioner directs the Secretary of State “to provide the tribunal with copies of the instructions given the claimant as to his duty to report facts to those responsible for administering disability living allowance”.

We submit that the construction should be that the Secretary of State should produce copies of instructions given to that particular claimant and not claimants in general. Otherwise the commissioner would have used the plural instead of the singular. This is because it is not sufficient for the Department to say that this is what we usually do or what we should do. The Department has to show that this is actually what was done in this particular case'.

Hope this is of use.

Regards
Paul

Thanks very much all to you all - much appreciated!!

Tony