I'm writing an appeal sub for a pension credit capital and deprivation appeal with a deadline for completion of today. In support of our client's case we asked for telephone records that our client says will prove that he was given authorisation by the PS helpline for the expenditure that lead to the deprivation decision.

Whilst not refusing outright, the DP officer has told us that we must ask the appeals officer for the information we require. In our request we told the DP officer that the appeal was listed for 17 June, so his reply effectively means that we will not get this evidence for the appeal.

There is a history to this case of maladministration, judgementalism and obstructiveness by the pension service and this latest development is the icing on the cake, so I intend to ask the tribunal to draw appropriate 'adverse inferences'. I need something good from the courts/commissioners to back this up.

Any ideas most gratefully received.

Thanks,

It's not too late - I can take it on the day...

R(IS)11/92 gives guidance on appeals concerning missing documents. Its discussed in Rowland and White, annotated Social security Legislation 2008/9 volume III par 1.89, page 77. But I think it only helps if you can show some reprehensible deliberate act or ommission where documents have been destroyed.

Hi Tony

In CSIS/345/04 at paragraph 17 the claimant’s representative argued that “it was necessary for the adjudication officer to lodge details of the administrative arrangements whereby information from claimants was recorded and attached to their case files and later retrieved; secondly, the officer concerned with the claimant’s case should confirm that such instructions had been carried out yet there was no record of the relevant disclosure”.

At paragraph 18 the commissioner states, “I agree with the above comments. However, they specifically relate to a recoverable overpayment based on failure to disclose where the DM bears the burden of proof to establish that there has been no relevant disclosure. It is not enough for a DM to regard it as conclusive that there is no record of the same. It will be necessary for the DM to produce some evidence that the system employed is sufficiently sound such that, if there is no disclosure recorded, it is an appropriate inference that the claimant never in fact disclosed. If no such evidence as to an efficient system is produced, the tribunal is likely to conclude that the claimant’s evidence is to be believed although this is not inevitable. At the end of the day, it is a matter of analysis of all the evidence, having regard to the legal and evidential burdens of proof”.

Regards
Paul

Hi Tony,
I take the point about Tribunals reaching an adverse decsion but they wouldnt they also have the option of adjourning with directions that the PS produce records of 'phone calls?

Thanks to all so far,

I did consider an adjournment but it is not on the cards for us since we requested, and were granted, an expedited hearing. This is because the claimant has a small entitlement to PC now, even with notional capital. But in a short while he'll be 65 and will get a state pension and, from that point on, he will not have the resources to pay his rent and council tax. Also, the PS have been buggering us about with this case for a long time and I will question the fairness of giving them another chance.

I've made reps in my written sub about how tribunals give credence to poor DM'ing standards, and an adjournment for this reason could be seen in the same light. That's why, I'm going down the adverse inference route. After all, what's good for the goose is, in my book at least, good for the gander and I'm relying, in part, on the over-riding objectives for a decision in client's favour.

Hi Tony,

Please try my old favourite CH/4065/2001, with Commissioner Jacobs in cracking form on the so called infallibility of telephone recording systems used by decision makers. Also useful on the acceptability of believing what claimants say. Para 12,13 and 21 especially.

More recently, CH/3240/2007 may be helpful on the same matter.

Best wishes

Steve

Thanks Steve,

the latter of the two decisions is very helpful - it contains this paragraph about withholding information:

19. If a local authority withholds information that is relevant to an appeal, it may be in breach of a principle analogous to natural justice, which was recognised by Lord Bridge in the House of Lords in Al-Mehdawi v Secretary of State for the Home Department <1989> 3 All ER 843 at 848. See also R(CS) 1/99 at paragraph 8. And that alone is sufficient to justify a decision being set aside.


Something that occurred to me recently though is of more concern.

Suppose a person phones the PS (or any other department for that matter) and advises how he intends to spend capital and asks if this is acceptable. He is told that it is as long as he keeps receipts.

How does this sit with deprivation for the purpose of gaining benefit? Such advice from an official doesn't remove the fact that a deprivation might have been for gain, but the deprivation might not have occurred if the official had not sanctioned the proposed expenditure.

Who is responsible in this scenario and how would you argue against the application of notional capital?