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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

The point of oral evidence is what, then?

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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From an SOR (presumably it is the current judge who has mixed up the appellant’s gender):

The comment of Lord Reid in R v Kilbourne 1973 AC 729 although in relation to IB has a relevance to PIP viz “The main issue was whether the appellant’s account in the IB50 and to the examining medical practitioner was more accurate than that given to the tribunal. The tribunal considered that the evidence given to it by the appellant was less likely to be reliable because she would have had the benefit of discussing the descriptors with his representative whereas the IB50 and to the examining medical practitioner he gave his own account…Accordingly they regarded the submission of the representative and the evidence to the tribunal as exaggerated. I see no reason to interfere with that finding”

Any thoughts?

Dan_Manville
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I had a case not too long ago where the claimant; a PIP conversion, plainly didn’t qualify for PIP when I first interviewed them. They moved area and care teams and duly an award was made; I have no doubt that they told their new care team exactly what they thought PIP needed to hear!

I have some sympathy with Lord Reid, although one must pay care to the context that an individual gives a statement. I had another client who stated no problem rising from the toilet despite needing crutches; it was going on for so long they didn’t see it as a problem, nor the crutches as an aid. However if the person making the statement makes in with the correct context then their evidence at first instance is most likely to be the strongest.

ClairemHodgson
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but, of course, Lord Reid clearly didn’t have in mind the many people with whom we are familiar who do a good line in minimising their ACTUAL needs for the purpose of putting on a good show and pretending they don’t need the help that it is clear they do in fact require…...

so it’s not really totally simple.

and of course, if someone fills their forms in with benefit of assistance, and then doesn’t come up to proof for whatever good reason when seeing the EMP/the tribunal, what then?

Brian JB
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R v Kilbourne is nothing to do with IB is it? - the IB50 did not exist in the early 70s and the assessment for Invalidity Benefit was not descriptor/activity based - I am not sure where the Tribunal has got that from at all.

Elliot Kent
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Quite right Brian. Its nothing to do with benefits at all - its a criminal case and the comments attributed to Lord Reid were made by Mr Commissioner Henty in CIB/2913/2001

http://www.bailii.org/uk/cases/UKSSCSC/2001/CIB_2913_2001.html

 

Brian JB
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Thank you for finding the correct original source of the quote Elliott. I suspect in that case that the reason given for the change in walking distance, for example, was considered so implausible that it tainted the arguments put forward as a whole. As Claire says, there are cases where a person understates their own difficulties -  I had one such case yesterday. There are also cases where the questionnaire or claim form is not as well worded as people seem to think. The ESA50, for example, asks “how far can you move safely and repeatedly on level ground without needing to stop” and the first option is 50 metres. Logically, ticking that box means that a person CAN move 50 metres repeatedly and without stopping, so could not score 15 points or meet SG criteria. I remember once case where I pointed this out to the tribunal - the client had ticked “it varies”, because that was the only option she thought could apply, and explained in the box below how painful all walking was, etc. The judge insisted that if she was claiming to not be able to walk 50 metes without stopping, she should have ticked the 50 metre box, and the UT refused leave to appeal!!

Mick Quinn
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Brian JB, had virtually the same tribunal decision (but had ticked the 50 metres ) and then explained stops before had etc in the box. Pointed out to the Judge after losing appeal when seeking leave to appeal to UT, refused.  Then refused by UT because…‘had indicated that they could walk 50 metres….TTFIF

BC Welfare Rights
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Thanks all.

This is an unfortunate case of a victim of torture with Learning Disabilities who got his neighbour to fill in his PIP2 for him but did not want to tell said neighbour about the extent of his problems as he has a history of being taken advantage of by others. He also tends to agree with any leading question asked of him, so the HCP (who I have come across many times and is a pathological liar) had a field day producing a PA4 which is a work of complete fiction. She wrote that he used his GPS on his mobile phone to get around unfamiliar places (client has no idea what GPS is); that he drives and uses a sat nav (he hasn’t driven for years and has never seen a sat nav); and despite an IQ of 58 and a psychological report stating that his working memory is is in the bottom 0.1 percentile, he has “adequate general memory and good concentration.”

And the tribunal swallowed it, hook, line and sinker.

past caring
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Wasn’t there that ‘‘first statement likely to be more reliable’ thread relatively recently? This is similar - I’ll see if I can find it…..

Here we go - may be useful;

https://www.rightsnet.org.uk/forums/viewthread/10684/

[ Edited: 23 Jun 2017 at 11:19 am by past caring ]
Mr Finch
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I think the issue rests quite heavily on “I see no reason to interfere with that finding”. While a suspicious change in a claimant’s account may prevent his evidence being believable enough to outweigh an HCP report, the tribunal can’t just turn a blind eye to all other evidence or to other indicators that the HCP’s report is also suspect.

past caring
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I read the statement in the o/p as verging on the tribunal stating that the adviser assisted/colluded with the claimant to exaggerate their difficulties - something I would want to challenge if it were me.

Just off the top of my head;

- the claimant has learning difficulties
- was embarrassed to admit the full extent of their problems to the neighbour
- whilst kindly neighbour was doing claimant a favour, I wonder whether they might have felt under any pressure of time to get the thing completed?
- wonder whether neighbour appreciated the significance of the safely, repeatedly, to an acceptable standard and within a reasonable timescale factors - and whether these were explained to the claimant at all?
- was the first thing the claimant said put down in the form? Or were they actually challenged when giving an answer that was clearly overestimating their abilities?

There’s a whole lot more that could well result in a professional adviser obtaining a clearer picture of the claimant’s actual needs than a neighbour. In fact, I’d have thought this would be the norm - what are we for, otherwise?