“presumption of regularity”

Anyone know of benefit related caselaw concenrning this? It has been used by a tribunal to justify assuming that, where the DWP have refused to provide details of the action they took, the action they took must be assumed to be flawless.

It is a really annoying principle: “omnia praesumuntur rite essa acta”
As far as I can see then it is a factual presumption which is rebuttable if the evidence shows that things were likely not to have happened in that way.

One case where it was an issue is: CSG/741/2006- an overpayment case in which it was put for the claimant that there was no evidence of notification of a supersession decision and therefore the decision had not been made (following Anufrijeva). The Commissioner seems to have accepted that had the decision on supersession not been notified the claimant would have had an argument, however he held that there could be a presumption of fact that it had occurred and therefore the issue did not arise. The relevant part of the case is as follows:

7. Mr Orr [NOTE ADDED: for the claimant], in his response to the submission made by Mr Bartos, made a further and different submission to the effect that the decision of 19 March 2005 does not bear to have been notified to the claimant.  He referred me to CJSA/0473/2003, in which Mr Commissioner Jacobs said:

“So, the Secretary of State decided to terminate the claimant’s award of a jobseeker’s allowance on supersession.  That decision was of no effect unless and until it was notified.  See the detailed analysis of the House of Lords in R(Anufrijeva) v Secretary of State for the Home Department, reported in The Times on 27 June 2003.  The same point was made more succinctly by Mr Commissioner Lazarus in R(I) 14/74, paragraph 14(a).  Until that decision is notified to the claimant, he remains entitled to his jobseeker’s allowance under the award that was terminated by the decision.  There is nothing in the papers that is sufficient to amount to notification.”

Mr Bartos [NOTE ADDED: for the SSWP] did not dissent from what is said by Mr Commissioner Jacobs in that paragraph.  However, he referred to what was said by Lord Clyde and Denis Edwards in “Judicial Review” in submitting at paragraph 1706 that the presumption omnia rite acta praesumuntur applied.  It was said:

“The presumption that statutory procedural formalities have been complied with can be rebutted, but the person alleging a failure in observing this must be able to identify where the alleged defect lies.”

It was Mr Bartos’s submission that, in these circumstances, it was for the claimant to demonstrate that she had not been so notified.  Mr Orr was not in a position to tell me one way or the other what the claimant’s position was as a matter of fact about notification.  He also did not seek to contradict Mr Bartos’s submission about the presumption.  I accept Mr Bartos’s submission on that.

Really I think that in most cases there is some actual evidence either way to show whether or not something occurred. Where that is the case then the proper thing to do is to actually work out what was more likely than not to have happened based on the evidence rather than relying on a presumption.

Thanks Martin - very useful. There was some evidence in this case so looks like we’ll have an argument to make. Vincit ominia industria!