Hi,

Has anyone experience of dealing with an appeal where the claimant says a telephone call was made and the DCS say we have no record of that?

I am aware of the helpful decision CSB/347/1983 regarding what the DM must show on the balance of probabilities.

In my case we've submitted evidence that calls were made at various times. Sadly client's mobile phone records don't cover beginning of period in question but they cover some of it and show at least some calls were made.

DCS don't seem to be providing any evidence re their administrative arrangements for recording telephone calls as CSB/347/1983 suggests. I've got a copy of their data retention policy and it all seems to hinge on whether the call was classed as ephemeral data or supporting data. Bit unsure whether I should put stuff in the absence of them doing it, or would be better off relying on the complete absence of any info on this issue.

Any thoughts gratefully received.

Sue

At least the DCS is saying "we have no record", not "oh no you didn't". Your client's oral evidence that the calls were made, especially if there is any documentary evidence at all from the relevant period, is good admissible evidence which is more than DCS has got.

That's what I'm hoping! Thanks for that ...

Hi Sue

I always write to the DWP and include the following passage:

Could you please provide us of copies of all Departmental documentation used to record all contact between yourselves and Mr .... as well as copies of any documentation sent to you.

If there is no record of such contact then it is no defence simply to say that there was no such contact. In CSIS/345/04 (copy enclosed) 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”.

Usually, the DWP don’t respond. Often the tribunal will then take a dim view of the fact that the Department hasn’t responded and look favourably on the fact that you have played fair and given the Department every opportunity to do so.

Good quote in CH/609/2004, section 24

'I have not so far referred to the local authority's evidence. It produced evidence of the computer record of all telephone calls logged on its system. I was told how the system worked and how it was impossible for a call to be made without a computer record being made. I take a sligthly more realistic, some might say cynical, view. Operators do make mistakes. Records are lost rather than saved. Systems crash or are not available. I do not regard the local authority's evidence as conclusive that no call was made.'

However the Commissioner put a lot of weight on the fact that the claimant's memory of the phone call was too vague so he did not believe to the claimant in this case.