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Schrodinger’s appellant
S v SSWP (DLA) [2018] UKUT 323 (AAC)
https://assets.publishing.service.gov.uk/media/5bc835fe40f0b61ca2dd15fd/CDLA_2323_2017-01.pdf
A somewhat incredible case.
A 14 year old claims DLA. The DWP refuse it. There is an appeal which is dismissed. The statement of reasons refers to weight placed on the evidence which the 14 year old claimant had themselves given.
It goes to the UT - the appointee says that the 14 year old was not actually at the hearing. She has a letter from the school saying that he was at school all day and couldn’t have been there. The record of proceedings doesn’t mention him. But the Judge insists that he was there and that everyone else involved in the appeal would certainly have remembered that.
Judge Mitchell arranges for the medically and disability qualified members and the clerk to be asked for their recollections and they all say that he probably wasn’t there. They would have remembered a 14 year old giving evidence at a hearing. Their notes don’t refer to him being there. The record of proceedings is all in third person.
On balance, Judge Mitchell concludes that the 14 year old probably was at school and not at the hearing. Suffice to say that relying on the oral evidence of someone who was not actually at the hearing is an error of law.
[ Edited: 7 Nov 2018 at 07:53 pm by Elliot Kent ]Funny how DWP claimants can face the full force of the law by making misrepresentations in their claim, yet when Judges do it there are absolutely no consequences.
Its almost as if there was one rule for them…....
Bit of a theme this week Elliot - reminds me of the Schrodinger’s Descriptor Points riddle that you posted for our delectation a few days ago.
There does seem to be a rational explanation for this one though:
The medical member wrote:
“I’m afraid I have no recollection of this case. However, taking evidence from a 14 year old is a very unusual event and I think I would have remembered that. I remember clearly this happening in a different tribunal”
So it looks as if the Judge was mixing up two cases rather than hallucinating on the job. It’s still a pretty bad mistake - suggests such a long delay between the hearing and the write-up that the Judge had basically forgotten what happened, as well as not keeping the paperwork properly organised.