Claimants’ right to be believed

The website Job Seekers’ Sanction Advice posted this case law the other day from Rightsnet in relation to evidencing job searches.

http://rightsnet.org.uk/pdfs/rsb/33_85.pdf

It’s a gem, but it’s also old case law, and before I start using it I thought I’d ask whether the principle of accepting claimants’ own evidence has subsequently been amended or otherwise superseded by more recent case law.

What do people think of this, have you used it? Is it still valid?

thanks

Hi Karina - that’s still the lead case on accepting claimant’s evidence - as you say, is a good one!

cheers Ros

awesome!

Isn’t the principle:

“Unless there is evidence to the contrary, or it is inherently improbable, a person’s word must be taken”.  Or something similar.

Thank you.

Patrick.

yep, that’s what in that decision.

The legal principle is that corroboration is not a necessary requirement. However, it might or might not be a sufficient one.  It all depends upon the circumstances of each case.  For example, in a notional capital case a person’s intention is often difficult to corroborate and the tribunal will only have the claimant’s word to go on.  So that might be sufficient.  But, in a DLA case where the claimant is alleging entitlement the tribunal is probably going to want to see some evidence that, at the least, he is actually suffering from some identifiable medical condition.

Said decision is at the core of my advice work “upbringing” if you like. I cannot be the only one to throw their arms up in despair at the increasing number of advisers who tell claimants that they are reluctant, or plain “won’t” take their case, because it’s “your word against theirs” as though somehow that condemned them to inevitable defeat. That somehow, in a world in which DWP probably still can’t get more than 75% of their decisions correct; rarely turn up to tribunals and produce appeal papers that often don’t even contain the law or a single shred of evidence… that somehow it’s the claimant who will always be the underdog when faced with the might of “the department”.

We’ve all had the odd client who’s just an outrageous (or outrageously bad) liar but increasinly I find people conveniently forget decisions like this when they really ought to be at the core of what we do if one has any remaining belief in a “rights based” approach in the face of the battering we’ve been enduring for years. I’m not sure I’d describe it as a “right to be believed” but I do think we increasingly start from the wrong position. In recent years I’ve heard too many advisers in too many contexts say they won’t pick up a case because…

“well they ought to pay the money back” or “well I happen to think they are co-habiting” or “this gets me quicker gains than that” or “it’s just their word against the DWP and I’m not sure I believe them”.

In other words, the moment you move away from decisions like this, from arguing the hard stuff, the credibility stuff, you end up as subjective, selective and judgemental as the very parties you’re challenging.

Apologies, I needed to get that out of my system 😊 Not aimed at any one organisation or person. Very much a trend though and one we do well to not ignore if we have a concern about the quality of advice as well as the survival of advice.

Well said Mike. We cant afford to develop the same mindset as the DWP

“There is no rule of English law that corroboration of the claimant’s own evidence is necessary, but in some cases a local tribunal may rightly think that they cannot act on the claimant’s uncorroborated evidence either because it is self-contradictory or inherently improbable or because the claimant’s demeanour does not inspire confidence in his truthfulness, though it is seldom safe to reject evidence solely for that reason.”  R(I) 2/51. [my favourite]
Also to worth considering CSIB/459/1997, and CIB/2631/2009 [2010] UKUT 290 (AAC)

R(SB) 33/85 quoted and endorsed R(I) 1/51, but we all used to quote R(SB) 33/85 because you could actually find a copy quite easily

Just to add, I recently attended an ESA appeal with a client who had no specific supporting evidence although we did obtain copies of all his medical records.

The panel gave him quite a grilling but he was found to have both LCW and LCWRA. On the decision notice the chair noted that the decision had been made using clients own evidence.  He then stated this again, when the DWP requested the SofR, saying the clients account of his problems was entirely consistent and also backed up by the medical records. (And frankly quite obvious when you saw him walk into the room!).

It is getting harder and harder to get supporting medical evidence for our clients, other than requesting the medical records, but I always stress to clients that their evidence should be considered just as valuable as a Doctors opinion and it should always be considered by the panel and an explanation given if it is rejected.

I often have long conversations with claimants throughout the process of appealing about how important their evidence is - one of my favourite phrases is ‘you’re your own best evidence’.

I explain to them how they are the person who knows best how they manage not a day-to-day basis, not their GP or consultant who only sees them occasionally who can only really base their knowledge on what could be expected to be a difficulty for someone with that/those particular condition(s) and the short bursts of time they see the claimant when ‘white coat syndrome’ might apply anyway.

I will however caution them about stretching the truth to an unlikely level and how that might affect their credibility with the tribunal when they’re not stretching things. The ‘worst day’ is the bane of my life…..(and many others I’m sure).

Oh tell me about it….where on earth did it come from do you think? It’s up there with ‘it’s OK if he/she only stays for 3 nights per week’ in the Great Benefit Myths stakes…

A credible client is worth their weight in gold. It’s always difficult when you encounter one of those clients who has a very good case in theory, but who will over-egg the pudding to the point where they no longer sound believable. I can understand it (it is often the result of falling foul of too many ATOS-style assessments) but it really isn’t helpful.

Have to say I find it really frustrating the number of clients who can’t give an account of how they are for “the majority of the time”!

With the boom of GPs charging for medical evidence, more and more tribunals rely on appellants’ oral evidence. I actually find judges looking towards me to see if I am frowning, sweating, smiling nervously or nodding in agreement and using this as a barometer for whether the evidence is credible.

I find a credible appellant trumps an Atos report any day of the week, provided discrepancies are clarified orally or in a written submission.

Sadly, for many years, there have been advisers who in certain contexts, have advised claimants to describe how they are on their worst day or the majority of the time. I have an ingrained dislike for both concepts but especially the former and have, sadly, been around long enough to see the pernicious impact it has had on claimants who pick up the concept by word of mouth. A quick look at claimant led groups on Facebook is quite an eye opener in this regard.

I consistently take the line that it is crucial for claimants to describe their variations as all conditions vary, whether we like to address that or not, and it’s variations which lead to unpredictability and the latter which gives rise to the need for supervision.

Going back to medical evidence. I absolutely despair. I really do. A medical professional can give diagnosis; symptoms; medication and likely prognosis. Unless you’re sleeping with them they’re not going to be giving any evidence of any validity on, for example, your night time care needs. If none of those 4 things are at issue then the only evidence needed is your own and it always has been. A medical professional can offer a view that the claimants evidence on their care/mobility needs is credible in terms of what they know on those 4 things but that’s not direct evidence and I rarely see the need for it.

Advisers repeatedly fall back on medical evidence and I could quite happily scream when I hear people advised that there’s no point in taking a case forward in the absence of medical evidence. How easily we forget that DLA was introduced with the idea of self-assessment. The idea that the best evidence is the claimants own. I am equally distressed when I hear advisers justify such an approach by saying such evidence is what tribunals demand. I don’t really care what tribunals demand. If a tribunal dismiss perfectly full, detailed, credible evidence for lack of “medical” evidence then that’s generally erroneous in law and easy enough to take to UT and win. I’d rather avoid that but I’ve rarely found medical evidence as the route to doing that.

There, Friday rant over 😊