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DBU lost original docs and are using evidence from after the decision…?!?!
My client claimed DLA on 04/01/10 and refusal decision was made on 28/01/10, as the original DLA form was lost, i completed a new one on 23/04/10, the evidence used to come to the 28/01/10 decision is as follows:
ESA report 10/02/10
WFHRA 19/03/10
GP report 07/05/10
Is there any legislation/caselaw to argue that any evidence obtained AFTER the original decision cannot be used - and what would i do in this situation - just go with it and argue the case as if the info used was before the decision made?
I’m sure if i lost a GP report and obtained information after the appeal period, it would not be used… :(
Any evidence obtained after the decision is valid, relevant and admissable as long as it relates to a period prior to the decision made. Reps get evidence this way all the time. Tribunals often adjourn for EMP reports. You obviously need to get sight of the evidence.
Is there any legislation/caselaw to argue that any evidence obtained AFTER the original decision cannot be used - and what would i do in this situation - just go with it and argue the case as if the info used was before the decision made?
I’m sure if i lost a GP report and obtained information after the appeal period, it would not be used… :(
The test isn’t the date on which the evidence comes into existence; what counts is whether it relates to the circumstances / events that have happened as at the date of the decision - para 6(9)(b) of Schedule 7 to the Child Support, Pensions & Social Security Act 2000.
This provision has been at issue in several CDs/UTDs and, to date, I’m not aware of anything that would allow an interpretation that widens, or narrows, the provision “as is”. In HB/CTB cases alone, see CH/0115/2006; CH/3400/2008; CH/3935/2007. I’m sure there will be other authorities where different benefits have been at issue.
This also means that if YOU obtain “late” evidence, it is absolutely admissable so long as it “obtains” to the circumstances at the time of the DWP/LA decision.
{Edited}: Alternatively, what nevip said - somewhat more succinctly :-) .
Thanks for the speedy response…I understand where you’re coming from, but the ESA85 Report and WFHRA details information in relation to the client’s current situation and nowhere on the ESA85, WFHRA or the GP report does it mention that the information being requested is for the period upto the date that the decision was made.
The info on the WFHRA is in present tense and continually mentions “client is currently” etc etc and in re: the GP report, the date cl was seen by GP was 21/04/10, so surely this meeting formed the basis of the GP’s analysis of client’s mobility/care needs.
The info on the WFHRA is in present tense and continually mentions “client is currently” etc etc and in re: the GP report, the date cl was seen by GP was 21/04/10, so surely this meeting formed the basis of the GP’s analysis of client’s mobility/care needs.
In which case, on the face of it, this evidence should be not be open to consideration by a Tribunal - you should bring this to the Judge’s attention.
I’m afraid the tribunal will rule this evidence as admissible in order to test its probative value. One way of doing that is to put the question direct to the appellant about whether there have been any changes in his condition, care needs or mobility problems since the decision was made. If he says no then the evidence will have to be weighed against any other evidence submitted and the tribunal will have to be satisfied that the EMP asked himself the right questions. If he says yes then the tribunal will have to test the evidence in order for it to decide which parts, if any, have no probative value and should therefore be disregarded.
There is nothing as a matter of law that says an entire report should be ruled inadmissible on this basis as a matter of course. Indeed all evidence, including hearsay evidence, is admissible in tribunals precisely because the tribunal must exercise its inquisitorial function and this it does by testing all the available evidence and weighing it accordingly. You might want to seek further clarification from the GP regarding the period prior to the decision.
Okey dokey - great stuff, thanks for the input!
Does your client consider that the “new” evidence doesn’t reflect their condiiton at the date of the decision - ie that there has been a change of circumstances (improvement, deterioration, new condition) since the decision was made?
In that case the evidence will simply be irrelevant to the decision. However if they feel they are exactly the same then the evidence can be treated as being a valid reflection of how they were at the date of the decision.
Tribunals are used to dealing with current evidence to prove past facts. They will, for example, seek to check with an appellant whether they consider that they have changed at all since the date in question (the usual answer is “no, I’ve got worse”). They may have to keep reminding a client who has had a major change of circumstances that “we are talking about last Christmas, not know”. Bear in mind too that you often have to be thinking about the three month qualifying rule as well, if you need to prove when particular needs started.
The mere fact that evidence is written after the date of the decsion doesn’t inevitably invalidate it. It may, for example, finally explain why a client ahs been ahving the problems they calim - say, a consultant ahs finally got the diagnosis/test results etc.