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The Upper Tribunal recently decided (CJSA/1744/2015) that Tribunals can ask DWP for proof when the department says it had done something but hadn’t produced any actual proof of this. If the DWP fails to provide that proof, the Upper Tribunal also said that Tribunals can decide in your favour without looking at the issues.
 

This decision will be very useful for anyone having an argument with DWP about whether or not the department has done something, such as sent a letter to you, or where DWP is trying to punish you for not having done something.
 

BACKGROUND
This case was about a JobSeekers Allowance sanction where the DWP had failed to produce a copy of the letter imposing the sanction after being ordered to do so by a Tribunal. When the DWP failed to do so, the Tribunal allowed the appeal against the sanction because the DWP had failed to prove it had imposed the sanction properly. The DWP then appealed to the Upper Tribunal, arguing that it was not the role of Tribunals to challenge the department to produce proof.

Although this was a JobSeekers Allowance appeal, it applies to all social security benefits including disability benefits.
 

WHAT THE UPPER TRIBUNAL DECIDED
The Upper Tribunal said that social security Tribunals have an important role to protect claimants, who usually do not have lawyers or legal representatives. For that reason, the Tribunal should itself ‘put the DWP to proof’ when the department was saying it had done something but hadn’t produced any proof of this. The UT dismissed the DWP argument that this isn’t something Tribunals should do.

The Upper Tribunal also said that, if the DWP has been asked for proof and cannot produce it, the claimant effectively automatically wins their case.
 

WHAT THIS MEANS FOR YOU
The Upper Tribunal has given you a really important new way to challenge the DWP.

Imagine the DWP tries to punish you for something, for example stopping your PIP claim because you didn’t go to an face-to-face assessment, or sanction you under Universal Credit, ESA or JSA for not complying with a requirement. Now, you can now use this judgement to ask a Tribunal to ‘put the DWP to proof’. This means asking the Tribunal to order DWP to produce copies of any documents which the DWP are relying on to prove their case, but have not actually sent to the Tribunal. Examples of documents which the DWP rely on are letters telling you to go to an interview or assessment, or telling you that you must join a particular scheme.

If DWP cannot produce these documents (and they often do not keep copies), then they automatically lose the case.

However, note that this only applies when you get to the Tribunal stage. You still need to ask DWP to review their decision (a mandatory reconsideration) and then submit your appeal form.

However, you don’t need to wait until your hearing. Once your appeal has been accepted by HMCTS and DWP have produced the ‘bundle’ of documents, check to see that DWP have produced a copy of every document on which they are relying. If they say you haven’t responded to a letter, is that letter in the bundle? If they say that they have done something, is there written proof of this in the bundle? If there are any gaps in the DWP’s evidence, you can immediately ask for a Regional Tribunal Tribunal judge to make an ‘Interlocutory Order’ requiring the DWP to produce necessary proofs before your hearing, quoting this judgement. If the judge agrees, DWP will be ordered to produce the evidence before your hearing. If the DWP cannot do so, you can then ask the Tribunal to allow your appeal, again quoting this judgement.

Having the support of a welfare rights lawyer or advisor would be helpful but you can do it yourself.
 

TIMING
The Upper Tribunal made this decision on 27 December 2017 but it’s a clarification of the law rather than a new definition. This means that this decision applies straightaway to all claims, mandatory reconsiderations and appeals.
 

This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information and you should take advice on your own case. If you value our entirely voluntary charitable work, please consider making a donation via https://mydonate.bt.com/fundraisers/alexandermcpherson1

You can read the full judgement here: https://www.gov.uk/…/secretary-of-state-for-work-and-pensio…

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