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New evidence at tribunals

Anne Higgins
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Welfare rights officer - North Lanarkshire Council

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Came across a few cases where PIP form or ESA 50 completed wrongly but when meeting claimants it becomes apparent that some sections should have been completed.  Recently tribunals in my area are picking on this and more or less saying if it is not on your form we will not award points.  I seem to remember a UT decision stating all evidence given on day of tribunal must be taken into account, can anyone help?

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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The fact that there is case law on this point both surprises me and doesn’t surprise me in equal measure.  The rules of evidence in tribunals are well established and are more or less non-controversial.  All evidence is, in theory, admissible, it is how much weight is put on it is the issue.  Tribunals taking the claimant to the claim form/questionnaire is nothing new and entirely legitimate, particularly when the claimant says something different at the hearing.  Claimants unfamiliar with the qualifying criteria will say lots of things on the form that reps often advise to rule out of argument, or miss things out which reps pick up on and make submissions on.  Tribunals know this and for most it is not an issue.

Asking claimants to clarify why they didn’t mention the point in the first place is reasonable enough.  What tribunals cannot do is use that point in itself, to ‘hang the claimant’ as it were, or to let it outweigh any other evidence before them, on principle.  That would be an outright error of law.  There was an Attendance Allowance case many years ago (I can’t remember the reference) where the claimant who the commissioner called a “feisty old lady” disavowed any care needs.  The commissioner disagreed and said that the objective evidence stated otherwise.  In other words, tribunals and courts should not allow people to cut their own noses off to spite their faces.  I would begin to doubt the sanity or competence of any tribunal judge (who is legally trained after all) who didn’t know this.

Anne Higgins
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Welfare rights officer - North Lanarkshire Council

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Hi
Thank you for that but the tribunal we deal with do their own thing I have applied for permission to UT today

Oldestrocker
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nevip - 04 September 2015 12:15 PM

The fact that there is case law on this point both surprises me and doesn’t surprise me in equal measure.  The rules of evidence in tribunals are well established and are more or less non-controversial.  All evidence is, in theory, admissible, it is how much weight is put on it is the issue.  Tribunals taking the claimant to the claim form/questionnaire is nothing new and entirely legitimate, particularly when the claimant says something different at the hearing.  Claimants unfamiliar with the qualifying criteria will say lots of things on the form that reps often advise to rule out of argument, or miss things out which reps pick up on and make submissions on.  Tribunals know this and for most it is not an issue.

Asking claimants to clarify why they didn’t mention the point in the first place is reasonable enough.  What tribunals cannot do is use that point in itself, to ‘hang the claimant’ as it were, or to let it outweigh any other evidence before them, on principle.  That would be an outright error of law.  There was an Attendance Allowance case many years ago (I can’t remember the reference) where the claimant who the commissioner called a “feisty old lady” disavowed any care needs.  The commissioner disagreed and said that the objective evidence stated otherwise.  In other words, tribunals and courts should not allow people to cut their own noses off to spite their faces.  I would begin to doubt the sanity or competence of any tribunal judge (who is legally trained after all) who didn’t know this.

I would quote from an Attendance Allowance claim heard before the FTT in 2010. The application form had been completed by her husband (82) who obviously had no idea as to how to complete it. The claimant could not appear in person due to poor health and her husband attended instead. After some while of being questioned, the Chair asked who had completed the application form to which the husband replied he had. Considerable supporting evidence was submitted on the day of the hearing. The Chair summed up and pointed out that the Tribunal could not take into account something that was not mentioned on the claim form. Further, he dismissed the husband’s evidence as weak and unreliable. The result was a refusal to award and the decision notice actually said that the Tribunal did not believe what the husband had said.
A new application was submitted immediately and within a few weeks the DWP awarded her AA at the day & night rate indefinitely!

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Ludicrous, and wrong. The decision that is.

[ Edited: 16 Sep 2015 at 12:49 pm by nevip ]

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stevenmcavoy
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Welfare rights officer - Enable Scotland

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Anne Higgins - 03 September 2015 02:51 PM

Came across a few cases where PIP form or ESA 50 completed wrongly but when meeting claimants it becomes apparent that some sections should have been completed.  Recently tribunals in my area are picking on this and more or less saying if it is not on your form we will not award points.  I seem to remember a UT decision stating all evidence given on day of tribunal must be taken into account, can anyone help?

what venue anne or is it both?

I think you guys go to glasgow and hamilton?

single case but i represented one where the form was filled in by another agency but was done by using stock phrases of what a person with a learning disability would be likely to struggle with rather than being specific to the client. 

I was just up front about it in the submission and it didnt cause any issue at the hearing.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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I’m concerned this might be thought to not be an issue. Tribunals in central Manchester have long history on starting and ending with claim packs. I suspect the concern derives less from judges than disability members and medical professions whose attitude to such things could be described just as well by the term “feisty”. There’s very much an attitude of there being a problem if something is raised which is not in the claim pack and it’s immensely frustrating.

Moreover, in a climate where the advice sector is taking hit after hit, we find ourselves increasingly having to let people crack on with their own claim packs because we (and I use “we” in the sense of the sector as a whole, not specifically the service I work for) simply aren’t resourced to do anything else. We all know it’s (generally) better to have involvement in the claim from the off but it’s often not practical. The inevitable consequence of this is a growing divide between the claim pack and the actual facts of the case. The natural consequence of that is that claim packs increasingly resemble HCP reports in terms of consistency of gaps and many tribunals see that as a fait accompli.

The other aspect of this is that the moment you get into why a claim pack might not resemble the facts you’re presenting many appellants simply have no coherent explanation. Articulating that you ticked all the boxes; did the best you could but were never advised what was being looked for is simply not credible in the eyes of many tribunals in the face of reams of DWP paperwork available on qualifying criteria and so on.

I find it very telling to ask an appellant in front of a tribunal what DLA, PIP or ESA is and whether anyone has ever bothered to explain it to them. 

Obviously this is a useful tactic when picking up cases at a late stage or where there’s been a change of rep. etc. Inevitably I try to drill the basics into my clients but from time to time an appellant will happily sit there and swear to the tribunal I have never described broadly how you qualify for PIP etc. It comes with the territory I guess. It’s up there with appellants who blank on what happens in an appeal hearing. The number of clients who I have run through this with at a HV; run through it again immediately prior to the hearing and then had the clerk say “I presume your rep. has explained what’s going to happen?”

“No!”.

Same happens with claim packs really. “Did you complete this claim pack?”

“No!”

“Do you know who did?”

“No idea.”