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Burden of Proof
Quite a simple query for once- where does the burden of proof lie when a claimant is sure that they ‘phoned DWP to notify a change and the DWP concede that the call was recieved but did not note what it was about?
There is no proof that the call wasn’t to disclose a change and no proof that it was,other than the claimant’s recollection. While it may be that a Tribunal could make findings of fact on that alone it would help if I could show a precedent - I have looked at CIS/427/91 which is the closest I can get but I was wondering if anyone else had some thoughts about case law.
It’s not necessarily a red herring but I’d forget burden of proof. This comes down to credibility of evidence in terms of where the burden is placed. If your claimant can submit credible, albeit uncorroborated evidence regarding said call then the burden falls on the DWP to refute it. They have a big problem already though given that they’ve acknowledged they did receive a call.
1) Can your claimant recall things like the time of day they rang? Does it chime with when DWP say they received a call? Was the call recipient male or female? Was it someone they’ve spoken to before?
2) Does the claimant have any record of notifying DWP of changes by phone i.e. have they done it successfully before? Can they recall the number they rang? Have you checked it out. Worth clarifying. I once had an appellant who was absolutely credible in respect of all the above type of issues. Then it came out they’d made the same claims with regard to 2 previous disclosures and DWP had been able to prove both wrong e.g. claimant said they rang a specific number and spoke to a male with a particular name. No males in that specific office and no-one with even 1 of those names in the building at that time and good evidence to back that up. Sigh.
Generally though this IS the way to go.
3) Critically, what else could the call have been about? Was there some other reason why the claimant would have called DWP at that point in time? If not then the DWP are in a hole really on the balance of probabilities. They want to argue there was no disclosure. They concede there was a call but they don’t know what it was for! Try not to sound as though you’re ridiculing them too much 😊
If the client called in there should be a recording of the telephone call. A subject access request to DWP would be a way forward citing the date and time of the call if possible.
Thanks for that, its pretty well exactly how I intended to approach it but I was hoping that if there was some caselaw we might have spared the appellant having to go to a hearing
If the client called in there should be a recording of the telephone call. A subject access request to DWP would be a way forward citing the date and time of the call if possible.
They have conceded that there was a call and have given a time and date but say that there were no notes about what it was about, hence the posting about burden of proof.
Don’t know if this is any help Pete?
It was for the Secretary of State to establish that the claimant had breached his duty under regulation 32(1A) or (1B) of the Social Security (Claims and Payments) Regulations 1987 to disclose a material fact. In this case, the tribunal accepted the necessary disclosure had been made, but assumed it had not been made to the correct office. It failed to explain, however, on what basis it decided that the claimant had not, on the balance of probabilities, contacted the correct office.
For this type of case, CSB/347/1983 (cited with approval in R(SB) 10/85) is still good law - if a claimant states there was disclosure by telephone and the DM says there is no record of this, it is for the DM to show (on the balance of probabilities) that there would be a record of the call and its contents had it taken place - and to do this the DM has to provide the tribunal with information as to;
i) what instructions/procedures there were for recording information and attaching it to the claimant’s file/records,
ii) whether the proper adminstrative procedures were in place to allow this to happen
iii) and the extent to which the procedures are adhered to in practice.
You’re already a considerable way there with this - there was a call, but they can’t say what it was about! So at least one concrete example of there being inadequate procedures - or good procedures that weren’t actually followed. And Mike’s point re what other purpose the claimant might have had for calling at that particular date is worth pushing too.
Both decisions are available on the Rightsnet archive.
[ Edited: 2 Nov 2015 at 02:24 pm by past caring ]I would not get too hung up on the burden of proof because there is a distinction between the legal burden and the evidential burden, just as Mr Commissioner(as then was) Jacobs held in CH/4065/2001 ( a case resting on a phone call by the claimant.)
Having said that , Baroness Hale as lead judge in the House of Lords hearing Kerr v Department for Social development for Northern Ireland [reported as R1/04(SF)] held at paragraphs 62-63 of Appendix 2
62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself.
Whilst in Kerr Baroness Hale was referring to information needed to support a claim, the same principle must equally apply to information or evidence necessary to determine a question of any fact that is in issue in an appeal. In other words, if the Department is at fault in its recording or retrieval of evidence, then it must accept that there is a risk of an adverse inference being drawn against it.
A similar point was made by Judge Williams in CH/1757/2009 relation to missing documents. Judge Williams held at paragraphs 6-8
“Missing documents
6 The formal submission of the Secretary of State to the tribunal also states:
“Some of the documentary evidence surrounding this decision cannot be produced as it has either been list or accidentally destroyed. This of itself, however, does not make the decision incorrect in accordance with the principles of R(IS) 11/92.”
That assertion is made without any apology or any other explanation, or any indication of any attempt to make good this clear failure to retain proper records for the claim and appeal. I say “failure” because R(IS) 11/92 does not assist the Secretary of State in this case. These were papers recently received from CM in an ongoing appeal. The attempt to use R(IS) 11/92 to protect the decision from criticism (for that is how this reads) is entirely misplaced.
7 I set out in full the relevant conclusions from R(IS) 11/92:
“[38] I set these out thus:
(a) None of the documents that are now “missing” was destroyed with any intention of destroying evidence.
(b) On the contrary, most, if not all, of such documents as would (if extant) bear upon the three decision in respect of which review is sought were destroyed pursuant to routines prescribed in order to keep the storage of documents within manageable proportions.
(c) Those routines re not, of themselves, unreasonable.
(d) No reasonable person would have supposed that the documents with which this particular case is concerned would ever be required again.
(e) In consequence, no presumptions as to the contents of those documents fall to be made (in either party’s favour).
(f) Secondary evidence, whether written or oral, is admissible as to what the original documents contained.
(g) Such secondary evidence falls to be evaluated upon the principles applicable to evidence in general.”
8 CM has asserted that the documents were destroyed deliberately. I make no finding on that. I do not need to. It is transparently clear that (d) cannot be applied to this case. Nor would any procedure that allowed the destruction of key documents during the course of an appeal possibly be “reasonable” in terms of (c) even if they were in accordance with a procedure within (b) (which I very much doubt). R(IS) 11/92 is plainly irrelevant to this case, save in the way Commissioner Mitchell reached his decision. He reached it having heard oral evidence from a responsible official about the case itself, and having been told of the official procedures and of an attempt by the local social security office to find the missing documents. As the Commissioner added (at [23]), his comments were made in the light of that evidence and were related to that case. Similar evidence must be produced in this case and I so direct. I do so because no attempt appears to have been made here by the Secretary of State to find or replace the missing documents, yet at the same time the Secretary of State asks the tribunal to consider a revised decision against CM for producing “no evidence” because, in effect, of the documents that the Secretary of State cannot produce. That, it seems to me on the papers before me, entirely the wrong way round. If any adverse inferences are drawn here, they should be against the Secretary of State. “
In short, regardless of the burden of proof, if the call was made but not properly recorded by the DWP, the evidence is already tipping in your direction
Here’s the cases cited by past caring -
i would also look at what the dwp worker said when the client reported the change….im assuming the change should have meant a material change in entitlement obviously.
would it have been obvious to the claimant there should have been a change in entitlement after the reporting of it? did they chase it up? did the worker say it would/wouldnt affect entitlement or did they say they would look into it and then they would get a letter etc etc.
If the client called in there should be a recording of the telephone call. A subject access request to DWP would be a way forward citing the date and time of the call if possible.
They have conceded that there was a call and have given a time and date but say that there were no notes about what it was about, hence the posting about burden of proof.
I have seen very similar with the Pensions Service and they hadn’t thought to check whether the actual recording of the call was still held; the just looked what the call handler had written on notepad. We got the calls and client had done everything but disclose what they alleged to have disclosed during the call. Game over.
Alll calls in are recorded; that content is a world away from what might, or might not, be written on notepad…
Thanks everyone, much appreciated
For this type of case, CSB/347/1983 (cited with approval in R(SB) 10/85) is still good law - if a claimant states there was disclosure by telephone and the DM says there is no record of this, it is for the DM to show (on the balance of probabilities) that there would be a record of the call and its contents had it taken place - and to do this the DM has to provide the tribunal with information as to;
i) what instructions/procedures there were for recording information and attaching it to the claimant’s file/records,
ii) whether the proper adminstrative procedures were in place to allow this to happen
iii) and the extent to which the procedures are adhered to in practice.
You’re already a considerable way there with this - there was a call, but they can’t say what it was about! So at least one concrete example of there being inadequate procedures - or good procedures that weren’t actually followed. And Mike’s point re what other purpose the claimant might have had for calling at that particular date is worth pushing too.
Both decisions are available on the Rightsnet archive.
Hot off the press: It has been held that CSB/347/1983 does not contain a general rule that DWP must always provide such evidence or lose on a burden of proof basis: AS v SSWP (CA) [2015] UKUT 592 (AAC)
However, in this case, I think you can still show, as Past Caring notes, that there was a call and then pick up the point saying “What else could this have been about?” at that time - thereby establishing that the DWP would need to do something more to displace the claimant evidence from being accepted as fact by a Tribunal.