I have just received the statement of reasons for an ib appeal which was lost. this appeal was a re-hearing of a previous appeal which was also lost but was set aside by the upper tribunal.

I have identified two potential arguments and just wanting to see if anyone has had any similar cases and pointers which might assist me.

the first is that the statement of reasons states, rightly, that the burden of proof was on the dwp to show grounds for supersceding the original decision. it then goes on to state, however, that as they decided that the dwp had shown grounds that the burden of proof then passed to my client.

I am going to argue that the tribunal failed to follow the correct procedure here in that what they should have done is to look at the case as a whole and then determine if the dwp had met the grounds for reaching its decision.

I cant see any justification for the burden of proof passing to the client in this instance or am i wrong?

secondly the statement records that the client was "adamant" that he did not wish mental health matters to be considered.

having attended the tribunal the client did not put this across at all.

unfortunately the client feels that his physical condition is his main problem where as i am of the opposite opinion (no medical basis for this i have to add just due to the fact he has now been a client for over a year)

whilst he may have stated that physicla problems were his MAIN issue we were very clear in our submission that we wished mental health points to be considered. the client had also previously been awarded five points at the medical with his first tribunal adding an additional 2 to this.

what we essentially have then is a situation where i am adamant that the tribunal have recorded something that didnt actually happen and the record of proceedings is so unclear as to be unreadable.

my second point in this long ramble is basically to see how much joy people have had in arguing points of law on disagreements where its essentially my word against the tribunals as to what was said on the day?

see R(DLA) 2/08 for a general discussion, the Upper Tribunal will accept evidence from you to what happened at the tribunal. It is obviously best if you have your own note of what took place while you were there but that is not essential your (and your client's) recollections can be enough.

What about asking for a transcript of the ROP?

thanks for your replies. chris did you mean to post that particular decision? I have another reported decision which may also be one of yours as it was held in glasgow which is more related to my issue?

sorry, for everyone else it should have been R(DLA) 3/08. As to transcripts in the cases I have had the writing is beyond recovery.

The TJ should be asked to dictate his ROP for typing by a TS audiotypist. You do need to have the original by in case of discrepancies.
I once marked an exam by a student whose handwriting was all but indecipherable. He was told to come in and dictate the script. With the help of the transcript the writing was just decipherable but unfortunately in a few places his dictated version could not be squared with the original...