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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Unreliable witness?

Rosessdc
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Welfare Benefits South Somerset District Council

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Total Posts: 23

Joined: 15 July 2010

I have a very brave and inspirational client who is a single parent. Her back was broken years ago, leaving her in pain that becomes agonising when she does anything. We applied for DLA and she was eventually awarded low rate care. We appealed and went to tribunal looking for high mob. The problem is that she works part-time as a supermarket check out operator. Her employer allows her to stand, as sitting for any length of time is too painful. Throughout the tribunal she stood and moved around to ease her back. The tribunal noted that when she walked in she groaned in pain. The hearing lasted an hour, and by the end she was in tears from the pain. Decision was not entitled to either care or mob. SOR states ‘the tribunal regarded the applicant as an unreliable witness who is prepared to resort to affectation and exaggeration to further her case’. No indication of this opinion was given at the hearing.
SOR also states ‘improbable that she would do as much walking as she says if in so much pain’.
So. It has been decided that this lovely lady who is proud and determined is a liar, just because she puts herself through so much pain to try to provide a normal life for her family.
There is medical evidence on file. Her GP says walking is painful and she could not walk long distances - this has been discounted as ‘it was not clear if the doctor was expressing her own opinion or merely passing on what she had been told by the appellant’!
Loads more evidence confirming spinal damage etc.
I’m asking for decision to be set aside - can anyone recommend case law?
Surely the tribunal should give some reason for doubting a person’s evidence?

chrislpl
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Linskills Solicitors

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Dear Rosessdc,

Hopefully, the attached decision is a good starting point.

I am sure any adviser who has done DLA and IB/ESA appeal hearings will have come across similar findings by a Tribunal to justify the decision they had made before the claimant had even walked in the room. Equally, there may be some clients for whom such descriptions are pretty mild (especially when the client during the hearing starts contradicting everything that they had previously informed their adviser in interview).

Good luck.

Chris

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Ros
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editor, rightsnet.org.uk

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Joined: 6 June 2010

hi

you say you were after higher rate mob, so was the lower rate care unnappealed?  if so, the tribunal should have warned her that they were considering looking at the unappealed component and given opportunity to prepare case on it or withdraw appeal - see CDLA/884/2008 and para 29 of R(IB) 2/04.

also, i wonder about reasoning in relation to GP’s evidence - depends on wording i suppose.  does it say ‘the claimant reports’ or ‘the claimant says’? if it’s not clear why the tribunal might have thought that the GP was not expressiong her own opinion, then reasoning not adequate. could argue that, since decision turned on claimant’s credibility, need to have clear reason for rejecting evidence that supports what she says.

cheers ros

Rosessdc
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Welfare Benefits South Somerset District Council

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Total Posts: 23

Joined: 15 July 2010

Thanks Chris and Ros,

I’ve asked for set-aside using your caselaw.
We didn’t appeal low care decision, but the tribunal did offer an adjournment as they intended to consider it. We didn’t take it as so much medical evidence and so obvious that she would fail the cooking test. SOR actually states that ‘the appellant did not contend at the hearing that she met any of the qualifying conditions relating to attention, supervision or watching over. This seemed to the tribunal to be an entirely realistic view.’ , which seems to indicate that she was a good witness, and then they decided she was a bad one!
Anyway, thanks for your help and encouragement. Will let you know how we get on.

Rosemary