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Burden of proof

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Lambeth Every Pound Counts

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Joined: 26 July 2012

Hi all,

Saw this towards the end of a PIP submission from the DWP

“All parties to the tribunal will be aware as this is a new claim made by X the burden of proof lies with the appellant. It’s for the appellant to prove she is restricted as claimed, rather than DWP to disprove any claim.”

Case is a typical PIP refusal where claimants evidence in PIP2 and during medical assessment is sufficient to score enough points for PIP but HCP has concluded that this is not consistent with their medical assessment and recommended no points.

Any thoughts on whether to challenge the statement in my own submission?

Elliot Kent
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Joined: 14 July 2014

I don’t think it would be a good use of your time. If we challenged every inane comment in an appeal submission, we would never get anything done.

What the DWP have said is correct, as far as it goes. It is trite that the claimant has the burden of proof on the initial claim and on a revision or supersession, the burden of proof is on whoever is agitating for the change.

However that point really doesn’t go very far at all. Benefits tribunals are inquisitorial and not adversarial. In an adversarial setting, whoever has the burden of proof has to build their case and the other party tries to knock it down. It doesn’t (or shouldn’t) work like that in an inquisitorial setting where everybody plays a role in trying to get to the truth of the matter. The Tribunal should always reach the end of that process having reached some conclusion one way or another as to who is more likely to be right so just saying that one party or the other had the burden of proving their case doesn’t really make much of a difference.

For more on this, see Kerr v DSD [2004] UKHL 23 at 56-69.

[ Edited: 23 Feb 2022 at 09:04 pm by Elliot Kent ]