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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP duty to trace evidence - update to guidance

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Owen_Stevens
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The judgment in Kerr (AP) v Department for Social Development (Northern Ireland) [2004] UKHL 23 considers the process involved in the determination of a claim and what happens if, at the end of the process, relevant facts are not known.  Lady Hale states that (my emphasis added):

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.

Following CPAG pre-action correspondence and policy work DWP have updated guidance (paragraph A1405) for DWP decision makers to make clear that where evidence is not available to a claimant but is available to the department then the decision maker must take the necessary steps to enable the evidence to be traced.  While this duty was established in caselaw by Kerr the guidance had not previously made clear that the department had this duty.

This will be of particular use for women fleeing domestic violence who are relying on their status as the family member of a European national (e.g. as the partner of a worker) to access benefit.  Previously many women in this situation were trying to get hold of their own evidence of their partner’s work history – I even heard of one woman who had sneaked back into her ex-partner’s house to try to find payslips to provide to DWP.

Paragraph A1405 reads as follows (the text in bold is new):

A clear understanding of where the burden of proof lies helps the DM to weigh the evidence and decide whether further evidence should be sought. DMs should note that:
1. Initially the burden lies with the claimant to prove that the conditions for a claim are satisfied but they should do as much as possible to ensure that the claimant has every opportunity to provide all relevant evidence and where the information is available to them rather than the claimant, then they must take the necessary steps to enable it to be traced

The ADM was updated in March and the DMG updated in February:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793869/admchap-amends-march-2019.pdf
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/794843/v01am58.pdf

Andyp5 Citizens Advice Bridport & District
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Brilliant stuff!

Mike Hughes
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So, if I’m understanding this correctly this is reiterating the public law principle that you must use what you have?

Particularly interesting in light of the ongoing discussion at https://www.rightsnet.org.uk/forums/viewthread/14329/

Dan_Manville
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It’s only taken them 15 years!

A Stavert
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I’ve got a right to reside case on the go involving the wife in a separated, but still married, Polish couple.  I asked DWP to use the principle in Kerr to verify that my client’s husband is an EU citizen, is currently a worker and that he had completed 5 years lawful residence.  (I don’t know the answer to the last point and it was so long ago that he can’t remember if he did register his employment when it started).  I do know that he has in the past been paid income based JSA for them when they were a couple. 

DWP’s appeal response states that they can’t use Kerr because of ‘data protection’.  They don’t cite any legislation but the data protection principles they quote are from the 1998 Act, which of course was in force when Kerr was decided.

Elliot Kent
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A Stavert - 18 April 2019 02:17 PM

DWP’s appeal response states that they can’t use Kerr because of ‘data protection’.  They don’t cite any legislation but the data protection principles they quote are from the 1998 Act, which of course was in force when Kerr was decided.

c.f. https://www.rightsnet.org.uk/forums/viewthread/14367/

Dan_Manville
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A Stavert - 18 April 2019 02:17 PM

I’ve got a right to reside case on the go involving the wife in a separated, but still married, Polish couple.  I asked DWP to use the principle in Kerr to verify that my client’s husband is an EU citizen, is currently a worker and that he had completed 5 years lawful residence.  (I don’t know the answer to the last point and it was so long ago that he can’t remember if he did register his employment when it started).  I do know that he has in the past been paid income based JSA for them when they were a couple. 

DWP’s appeal response states that they can’t use Kerr because of ‘data protection’.  They don’t cite any legislation but the data protection principles they quote are from the 1998 Act, which of course was in force when Kerr was decided.

In my experience when I obtain direction from the Tribunal to provide that evidence they will revise in favour of the claimant rather than disclosing. Three times that’s happened to me.

A Stavert
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Dan Manville - 18 April 2019 02:54 PM

In my experience when I obtain direction from the Tribunal to provide that evidence they will revise in favour of the claimant rather than disclosing. Three times that’s happened to me.

The district judge has already directed that DWP provide the evidence, though they have so far failed to meet the deadline. 
The disputed decision was made after GDPR came into force so why they are quoting bits of the 1998 Act and not that I don’t know.

Stainsby
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I represented in a right to reside case recently when the DWP came up with the spurious data protection excuse.

The Tribunal was thankfully having none of it maybe thanks at least in part to an interlocutory submission that I made as soon as I got the bundle

I have posted an anonymous version here

[ Edited: 16 May 2019 at 05:55 pm by Stainsby ]

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ClairemHodgson
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i like that ( interlocutory submission).  spot on

Vonny
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I hope you don’t mind but I have just saved this - brilliant

LJF
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were does this stand now with GDPR
right to reside appeal - claimant relying on ex’s work history and they are not amicable.
DWP are saying they cannot use their resources to access an ex partners work history etc as they do not have consent from the ex and this breaches GDPR

what do we quote back to them - they can breach GDPR as part of legal proceedings still?

thanks

Elliot Kent
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LJF - 30 October 2019 01:14 PM

were does this stand now with GDPR
right to reside appeal - claimant relying on ex’s work history and they are not amicable.
DWP are saying they cannot use their resources to access an ex partners work history etc as they do not have consent from the ex and this breaches GDPR

what do we quote back to them - they can breach GDPR as part of legal proceedings still?

thanks

Everything above takes account of GDPR. Stainsby’s submission explains the law on it if you want to use that.

A Stavert
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LJF - 30 October 2019 01:14 PM

were does this stand now with GDPR
right to reside appeal - claimant relying on ex’s work history and they are not amicable.
DWP are saying they cannot use their resources to access an ex partners work history etc as they do not have consent from the ex and this breaches GDPR

what do we quote back to them - they can breach GDPR as part of legal proceedings still?

thanks

This is the nonsense they were relying on in my case mentioned above.  They refused to accept the spouse was Polish without seeing his passport, which they had already seen when he last claimed JSA.  They refused to accept that a marriage certificate showing he had a Polish name and was born and married in Poland made it more likely than not that he was Polish.  They refused to ask him for permission to use their records.
The judge directed that the DWP provided evidence of his nationality and work history but for her attention only.  At the hearing it transpired that they had simply ignored this direction so she went on to decide these points on balance of probabilities. 
 
Appeal successful, client has a permanent right to reside.

Martin Williams
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The judge directed that the DWP provided evidence of his nationality and work history but for her attention only.

I can see the Judge was trying to sort things out (by basically not deciding one way or the other whether you were allowed to see the evidence but still trying to get it)- however, such an apparent willingness to have secret evidence is deeply disturbing….

Open justice is kind of a thing…..

There is a rule on when certain documents may not be disclosed to the representative in rule 14 of the TP(SEC)Rules 2008- but it is fairly clear this was not followed and also is not what the rule is intended for.

 

Stainsby
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I agree 100% with Martin

I have not been before any Judge so far who has invoked Rule 14 in such a way

The Judge hear has arguably had no regard to Rule 14(5) and (6) or Rule 2(1) and (2)(c)

Rule 14(5) and (6) provide

“(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure
to a party who has appointed a representative, the Tribunal may give a direction that
the documents or information be disclosed to that representative if the Tribunal is
satisfied that–
(a) disclosure to the representative would be in the interests of the party; and
(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a
direction under paragraph (5) must not be disclosed either directly or indirectly to any
other person without the Tribunal’s consent.”

The claimant’s right to representation (see Rule 11) is potentially undermined here

Rule 2(1) and (2) c) provides

2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal
with cases fairly and justly.
(2) Dealing with a case fairly and justly includes
(c) ensuring, so far as practicable, that the parties are able to participate fully in
the proceedings

A party simply cannot participate fully in the proceedings if they are not provided with all the relevant documents

If the Judge had decided the substantive issue any other way, there would be very strong grounds indeed for an appeal to the UT because there is no way you could evaluate the work history evidence if you have not seen it

[ Edited: 5 Nov 2019 at 03:37 pm by Stainsby ]