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GPOW - compelling evidence only means ‘balance of probabilities’
New UT decision in Scotland where Judge Agnew finds -
12. Against that background I interpret “compelling evidence” to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has genuine chances of being engaged. I read “compelling” to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged. (paragraph 12)
nice one, that was a good read!
“14. If the Secretary of State’s submission is suggesting that “compelling evidence” means a higher standard of proof standard of proof may be set by a Member State then I reject that submission and hold that the Secretary of State is wrong. It does not accord with the common law that there are only two standards of proof and these are civil proceedings to which the civil standard of proof should apply. If I am wrong and the intention of using “compelling evidence” was to apply a higher standard of proof after six months, then I consider that is contrary to EC law as set out in the Directive and Antonissen. I see no logical reason why different member states are entitled to provide for different standards of proof to prove that a person is “continuing to seek employment and that they have a genuine chance of being engaged.” I consider that would be contrary to the provisions of free movement if it led to different standards in different member states. If that is the intention then applying the dicta in Simmenthal I should disregard it and apply the intended EU law, which I take to be the civil standard of proof.”
It was a race to get this to UT and, lets face it, it was highly unlikely to go any other way.
We knew that this was the logical way of approaching the legislation - i.e. the DWP were chancing their arm, but it is really good to see a UT decision confirming this. Ruth
Let’s save the tabloids the bother of writing their own story - they can copy and paste it from here:
New boost to Leave campaign as judge rules that jobless EU migrants can claim benefits indefinitely
There was a fresh storm over Britain’s soft-touch benefit system last night after a judge ruled that EU migrants can carry on claiming unemployment benefit* in Britain for as long as they like. In a ruling that is set to provide further impetus to the strengthening Leave campaign, Upper Tribunal Judge Crazy-name-crazy-guy said the UK has NO RIGHT to expect migrants to make extra efforts to obtain work even if they still have not found a job despite living on handouts for six months.
[stock picture of some muslims]
Leave campaigner and UKIP leader Nigel Farage immediately condemned the ruling. “It is outrageous that 500 million EU migrants can live off British handouts indefinitely .... etc etc
* it is compulsory in any story of this kind to refer to benefits that no longer exist or never have existed
You are wasted as a benefits advisor - you should be benefiiting humankind as a tabloid journalist Ruth
HB Anorak- that’s just totally made my day.
Give that man some sort of award immediately.
About to use this case for someone whose voluntary work clearly shows (I reckon) that on the balance of probabilities they have a very genuine prospect of work - here’s hoping.
PS HB anorak THANK YOU, I don’t think I’ve ever laughed this much when searching for case law….
The ‘compelling evidence’ side of this whole mess hasn’t troubled me at FTT as most judges don’t entertain it. This new decision sadly isn’t a panacea for GPOW or ‘GOWP’ as it is referred to at paragraph 15 of Sir Crispin’s decision.
this just out on bailii
Here’s a transcript of further submissions received today from SSWP after I submitted KS a month ago. Interesting to see how they are approaching this issue.
———————-
1. Having considered this new evidence I have decided that there are no grounds to revise the decision under appeal.
2. Mr X’s Representative has argued that KS judgement holds that “compelling evidence” actually means “on the balance of probabilities” and that there is nothing that suggests a higher standard of proof. Judge Agnew’s judgement does, in fact, further define the use of the word “compelling”:
‘I read “compelling” to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged.’
This approach is in line with current DWP process as it reflects the reality that the claimant has so far been unsuccessful in finding employment for the relevant period. Therefore; the weight and quality of evidence required must be considered in accordance with that same reality.
3. I respectfully invite the Tribunal to dismiss the appeal and confirm the Secretary of State’s decision of xx/xx/2016., as reconsidered on xx/xx/2016.
——————
Interesting that they missed the first sentence of para 12 of KS. The full para reads:
12. Against that background I interpret “compelling evidence” to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has genuine chances of being engaged. I read “compelling” to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged.
Awaiting listing and I have just submitted MB. See if that gets a response..
I’d be surprised if it does, Mark. I received exactly the same supplemental submission myself. When the matter came before the Tribunal yesterday I (almost) felt sorry for the PO who had clearly not been briefed on the issues arising out of KS and was not aware of MB. Thankfully a very sensible Tribunal Judge accepted our arguments and allowed the appeal. By the way the CPAG seminar I attended in Manchester in November last year and the accompanying materials was invaluable in preparing the arguments.
I wish you every success
This approach is in line with current DWP process as it reflects the reality that the claimant has so far been unsuccessful in finding employment for the relevant period. Therefore; the weight and quality of evidence required must be considered in accordance with that same reality.
Honest guv, we were applying the balance of probabilities test all along!
I’ll just leave this here: http://www.rightsnet.org.uk/welfare-rights/news/item/only-eight-per-cent-of-gpow-interviews-result-in-an-extension-of-jobseekers
The latest decision by Judge Ward out this week - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/requirement-for-compelling-evidence-does-not-raise-the-bar-any-higher-than- argues that the phrase ‘compelling evidence’ can not set the bar any higher than that in Antonissen - so the claimant only has to show a genuine chance of being engaged.
Judge Ward looks at what the definition of ‘genuine’ is -‘real prospects of success in obtaining work’.
He also highlights that the guidance is no more than just guidance - and that the GPOW interviews should not be restricted because of it - the department needs to ask the questions to get the information it needs.