Witness statements and Reg 35

I was looking at some training notes from CPAG from a while back which suggested advisers might want to present witness statements reflecting real experience of work-related activity, to balance the evidence provided by DWP. 

Now that the DWP are increasingly arguing that WRA consists of low level activities such as getting out of bed, going to the library, or making a list of hobbies, this sounds like a good way to proceed.

Has anyone got any experience of the ins and outs of drawing up the evidence, and presenting it to tribunals?

ROBBO - 27 September 2017 10:11 AM

Has anyone got any experience of the ins and outs of drawing up the evidence, and presenting it to tribunals?

well yes.  and to courts.

there’s no “in and out” as such

but i usually do them as i would for court - case name.number

I joe bloggs of address make this statement about my (name benefit)

this statement is to set out the ways in which my condition affects my abilities

i have (name condition)

it effects me as follows (set out effects)

describe each effect, what is is, how long it takes to do whatever task it is etc

use numbered paragraphs

don’t go OTT and ensure it hangs together (in another context, once had a man who said he’d used a drill to drill x holes a day at y minutes per time, and he got the math wrong…..longer than the working day)

and so on

and finishwith “i believe the contents of this statement are true”

signed/dated (space for client to do that)

My take on this was that a witness statement would be of little use unless the appellant had actually been referred for WRA and/or taken part in the same.

In a case where there was a decision of non-entitlement or placement into the WRAG and the claimant had no actual experience of WRA then the evidence would be reliant on other information.

If the witness statement was that of an adviser then they would need direct experience or observations of the WRA claimants are referred to and take part in otherwise an advisers description of other claimants experiences is hearsay evidence and is offset by the direct evidence of the SSWP.

Thanks for the replies.  For the avoidance of doubt, the suggestion was made in these terms :

“As advisers, we may be in a good position to provide evidence regarding work-related activity.  Advice agencies are likely to see a lot of claimants participating in the Work Programme in their particular area.  It may be possible for such agencies to draw up a witness statement for use in appeals that raise the Reg 35 issue which sets out, based on the experience of advising these claimants and their instructions, what the content of the work programme is locally, the degree to which local providers are flexible and respond to the particular needs of claimants and so on.  For example, if advice agencies have seen situations where claimants who suffer from anxiety in social situations are asked to participate in group workshops under threat of sanction and providers are unwilling to relax that requirement or to offer alternative provision, that may well be relevant to assessing the risks for a particular claimant’.

My esteemed colleague Mr Birks has raised the issue of evidence of others’ experience of WRA being criticised as hearsay - but I’d be interested to know if it’s been a helpful argument in practice to anyone.  I would have thought that if enough experiences could be evidenced showing that local WRA was of a different nature to what was being suggested, it would be persuasive…

sorry i thought the question referred to the practicalities

but in any event, having a statement from the client, or anyone else who can evidence the client’s disabilities/difficulties with tasks/activities, is evidence before the tribunal, makes it difficult for that evidence to be overlooked if its in writing and in the bundle, means that no one is reliant on the chair’s note of evidence (and frankly, who can take a sensible note when they’re participating?) and also means that nothing can be overlooked when thinking about submissions etc etc.

the client/witness can be taken to their statement in the bundle and use that/rely on it.  saves people forgetting whatever it was they wanted to say.

Slightly different angle on this, where a client gives evidence of the difficulty encountered with a third party Work Programame provider, have others been able to to get information from the provider ?

I have a very articulate client who was referred to a Work Programme Provider, struggled to make face to face appointments and advised the WPP of her difficulty on the phone and in writing; apparently no adjustment or tailoring of mandatory activities was made and and this resulted in a number of sanctions and deteriorated mental health. I would be interested to see any notes from the WPP of what has been discussed with my client over the phone and by email, for sanction and Support Group reconsiderations/appeals.

I was thinking of doing a subject access request to the WPP, possibly also the DWP, to supplement the client’s own evidence, have others used this approach & were you successful in getting evidence?

I always do a Subject Acces Request for the provider’s file when there are sanctions in play. DWP are the data controller so it needs to go through them. Rarely have a failed when I’ve challenged a sanction decision.

Also there are Equality Act considerations and a word with a solicitor with a discrimination contract might be in order if they’ll accept EHRC funding .