DWP duty to trace evidence - update to guidance

I used this judgement in Oneman's case:

https://www.rightsnet.org.uk/forums/viewthread/14391/

The judgment in Kerr (AP) v Department for Social Development (Northern Ireland) [2004] UKHL 23 considers the process involved in the determination of a claim and what happens if, at the end of the process, relevant facts are not known. Lady Hale states that (my emphasis added):

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself.

Following CPAG pre-action correspondence and policy work DWP have updated guidance (paragraph A1405) for DWP decision makers to make clear that where evidence is not available to a claimant but is available to the department then the decision maker must take the necessary steps to enable the evidence to be traced. While this duty was established in caselaw by Kerr the guidance had not previously made clear that the department had this duty.

This will be of particular use for women fleeing domestic violence who are relying on their status as the family member of a European national (e.g. as the partner of a worker) to access benefit. Previously many women in this situation were trying to get hold of their own evidence of their partner’s work history – I even heard of one woman who had sneaked back into her ex-partner’s house to try to find payslips to provide to DWP.

Paragraph A1405 reads as follows (the text in bold is new):

A clear understanding of where the burden of proof lies helps the DM to weigh the evidence and decide whether further evidence should be sought. DMs should note that:
1. Initially the burden lies with the claimant to prove that the conditions for a claim are satisfied but they should do as much as possible to ensure that the claimant has every opportunity to provide all relevant evidence and where the information is available to them rather than the claimant, then they must take the necessary steps to enable it to be traced

The ADM was updated in March and the DMG updated in February:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793869/admchap-amends-march-2019.pdf
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/794843/v01am58.pdf

nice one ND

Well Non-Deficere, you have opened up an ugly and scary can of legal eagle worms here.

As one who is well-informed and well versed in such matters you will be able to take all this stuff in your stride, take it all in and apply it constructively to real life examples or cases.

I doubt if there is no more than a small minority of claimants who could say that they are familiar and confident of their abilities in this area of legal ping-pong at this level.

Therefore, on behalf of the majority and to humour me, if for no other reason, let me play the Devil’s Advocate for the purpose of discussing the issue you’ve raised here with a view to make sense of it for the average mere mortal.

First of all, the issue you raise obviously relates to cases that appear before Tribunals, is it also relevant at the Mandatory Reconsiderations stage involving Decision Makers?

In cases before a Tribunal is it still mandatory for DWP/JCP to disclose to claimant in advance all documents/evidence that they intend to present to the Tribunal as evidence, and is the requirement reciprocal?

Before a case reaches Tribunal stage who/what initially triggers it and what is the procedure to be followed before it gets to Tribunal stage?

At all events, unless the whole dispute process has been altered, is it not invariably triggered initially by a coach raising a doubt and informing the claimant of what the doubt is?

Committed Claimant wrote:In cases before a Tribunal is it still mandatory for DWP/JCP to disclose to claimant in advance all documents/evidence that they intend to present to the Tribunal as evidence, and is the requirement reciprocal?

Not sure about this type of tribunal but that was certainly the case for employment tribunals, so it may be the case for other types of tribunal. Don't quote me on this, I am just speculating.

DWP staff are experts at fabricating non existent evidence.

Thanks for your response Non Deficere.