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Whose Evidence to prefer client (CF) or consultant?
Should a FTT re PIP prefer a clients written evidence (CF) as part of the hearing or should it be that of a consultant - which should be given preference and why?
Thanks in advance
Real question? Trick question? Rhetorical?
It is a real question
There’s too much in this to give chapter and verse - and if you need actual case law that will have to wait. But…....
.........to an extent, there’s a preliminary question - ‘evidence as to what?’
If the issue is one where the consultant’s expertise if of real importance, such as clinical diagnosis - i.e. whether or not the claimant has been diagnosed as suffering from a specific condition, then absent anything else, the consultant’s evidence would generally be preferred. In the same way you’d go a heating engineer to sort out your boiler and not a plumber.
If the issue is the actual effects of an undisputed condition on the claimant’s ability to function, then the claimant is usually best placed to give evidence of that - again, absent any justified findings as to the claimant’s credibility or statements by the claimant that are wildly at odds with the clinical evidence.
Generally, all evidence has to be weighed and taken into account and there is no automatic rule that one category of evidence must automatically be preferred to another. It is, however, entirely permissible (necessary even) where evidence is in conflict for one person’s evidence to be preferred to another’s - but reasons for that preference have to be given and those reasons have to be ones that are rational/sustainable….
[ Edited: 1 Dec 2017 at 09:54 am by past caring ]It is as regards para 3 above but she signed CF to say she does not need help when consultant is of firm opinion she does need help with daily living activity
What stage is this case at? Has the appeal been heard or is it pending?
It might also help to know which specific activity is in issue.
a hearing has taken place
1. What specific activity are we dealing with? I am asking in case it was something like managing toilet needs or possibly washing and bathing where it would not necessarily be unusual for a claimant to be reluctant to admit the full extent of their problems (e.g. out of embarrassment). Any embarrassment would be all the more understandable if the claim form was completed at a point the claimant did not have professional welfare rights advice.
2. If the client said she didn’t need help in the claim form, did she maintain that position in the PIP consulation/examination?
3. At what stage did you become involved? If before the tribunal what did you make of the contradiction between her evidence and the consultant’s? In other words, did you attempt to resolve the contradiction or explain it? Some explanation is going to be necessary - if I were a tribunal member hearing an appeal where I was being asked to accept the appellant’s evidence in respect of all activities but one - and in respect of that activity I was being asked to disregard her evidence and to instead accept that of a medical professional - I would want to know a) why I should do that? b) the circumstances in which she came to give inaccurate evidence and c) why it is the inaccurate evidence in respect of this one activity should not taint her evidence in respect of the other activities?
The need only came to light in a letter from the consultant it had not been acknowledged by her at any stage previously
Should a FTT re PIP prefer a clients written evidence (CF) as part of the hearing or should it be that of a consultant - which should be given preference and why?
Thanks in advance
It depends on the evidence.
It isn’t possible to be so certain and say one must be preferred to the other.
The assessment of evidence could only be on a case by case basis. Otherwise you wouldn’t need a tribunal, just a flow chart.
I was not expecting a definite answer I am aware of the information you state
See the AA case cited here
Post #3 has effectively dealt with this until such time as we have more information about what the consultants evidence related to and what the claimants written evidence was saying.
Thanks Mike - but I think this needs addressing…..
The need only came to light in a letter from the consultant it had not been acknowledged by her at any stage previously
At what stage did you/your organisation first become involved? Before the hearing or after?
Because if it was before the hearing, the onus was on you as rep to have spotted the contradiction when preparing the case and to come up with an argument as to why the consultant’s evidence should be preferred when the client maintained there was no problem.
If afterward, I think you’re going to be hard pushed to establish an error of law on this single point - there might be some circumstances where it is possible (e.g. claim pack throughout completed in only the briefest terms, whereas consultant’s evidence was comprehensive and detailed as to why the claimant had difficulty with a specific activity) but as a rule there would need to be specific/particular reasons for a tribunal awarding points in respect of an activity not argued for by the appellant.
But I’ll say no more now, other than it would help if information wasn’t coming out in dribs and drabs.
Ah, had missed that bit. Yes, needs a post explaining what happened and when.
also - if the consultant’s letter WAS in the tribunal papers, shouldn’t they have read it and asked client relevant questions?
If it wasn’t, they can’t be expected to have known about it.
The answer to that might answer your question?