Calling witnesses to the FtT

I am helping to appeal a benefit overpayment decision. The DWP are trying to reclaim the money under s71 SSAA 1992 but I want to argue that this is the wrong power as the overpayment was caused by 3rd party error. In order to establish this, I am going to have to provide witness evidence, but I’ve never had to do this before and I’m not really sure if and what the procedure for doing it is. Can anyone help with the following questions?

* Does the evidence have to be in the form of a witness statement? Or can the witness just write a supporting letter?
* If a witness statement is required, will the witness be expected to attend the hearing, or will she only have to if the Tribunal issues a summons?
* Do I need to give the Tribunal advance notice of my intention to submit witness evidence (i.e. let them know before actually submitting a (witness) statement)?
* Is there anything else worth considering? Other resources worth looking at?

Thanks in advance!

Hello and welcome. Within limits it would be useful to know a little more about what this is an o/p of and how it came to be deemed recoverable.

If the recovery is under s71 but the cause of the overpayment was a third party error then surely the basic argument would be that recovery is not permitted by s71 as there’s no evidence of a misrepresentation/failure to disclose?

Useful to also remember this is a social security appeal determined on the balance of probabilities. Witnesses are not routinely needed or called. Witness statements introduce an element of formality which may not be needed. To answer the specific questions:

- whatever format you want. This is a tribunal not a court.
- this is your evidence and your witness. The tribunal are unlikely to want a witness present, partly perhaps for technological reasons, but you need to make the choices as to what goes into a statement and how likely that is to lead to further relevant questions. It all seems a bit over dramatic for a s71 o/p.
- no, you simply need to get into HMCTS what you determine to be relevant and do so in a timely manner i.e. asap and ideally well before the matter is listed.
- is there some reason that the statement that the o/p was caused by the error of a 3rd party could not simply be incorporated into a written submission from you on behalf of the appellant? It could be supplemented by a letter from the 3rd party confirming the sequence of events etc. Not sure anything is needed beyond that.

Others may of course have a different perspective. Really depends on the facts of the case. I can conceive of circs. where a formal witness statement could be useful… but not too many.

Thanks Mike. The overpayment was for an adult dependency increase that the claimant stopped being entitled to when his wife/carer started claiming Carer’s Allowance in 2012. The claimant died in April 2020 at which point the o/p came to light. Neither the claimant nor his wife were able to understand written English at the time of the application. The application for CA was made on their behalf by an officer from their local authority (I have copies of the letters establishing this). The claimant’s daughter acted as an interpreter during the meeting. She specifically recalls asking the officer whether the claim for Carer’s Allowance would have any effect on her dad’s benefits and was told no. My argument is that the claimant’s failure to notify the DWP about their change of circumstances was because of an error on the part of the local authority - they were led to believe that no change had occurred.
Not the most solid argument, really, but I couldn’t find much in the way of alternatives - DWP are refusing to discuss writing off the debt until after the appeal has concluded, so didn’t think there was much to lose.

Just to add to what Mike has said. You say that you haven’t had to use witness evidence before, but that will only be true if you have never done an FtT case. In virtually every case you will be putting your client forward as a witness and it is no different in principle to put someone else forward.

The tribunal can take evidence in whatever form it wants. It doesn’t need to follow the rules of evidence. DWP obviously frequently relies on medical reports from assessors which would probably be inadmissible in the courts (both because they are hearsay by nature and because the authors would probably not be qualified to give opinion evidence).

That doesn’t mean that the Tribunal is bound to accept everything put in front of it, so you need to present the evidence is the way which is most likely to persuade.

I think witness statements can be helpful in some contexts. E.g. in a case I did there was a massive overpayment arising because two people were alleged to be living together. The other alleged partner lived hundreds of miles away. He was happy to put something in writing but there was no chance we could get him to the hearing (and it would probably have been unhelpful to have done so). Putting a full witness statement together seemed a better option than just having him pop in a supporting letter.

If your entire case depends on the daughter having an accurate recollection of a single line from a conversation she had 9 years ago, then I would want to be doing everything possible to convince the tribunal that she is a plausible witness. I think that a witness statement going into excruciating detail about the specifics of the conversation and why she has such a vivid and reliable memory of it could be one way to do that. She is going to need to go to the hearing and live up to it too.