Onus of proof

A client has recently been found fit for work following a re-assessment by ATOS. He was originally awarded full ESA by the DWP.

We appealed the second decision and were told by the Tribunal judge that the onus of proof was on the DWP,and not on the claimant, to show what changes in his health mean that he is now fit for work. As a result the appeal was adjourned for copies of the first assessment/ESA50 so that they could be compared to the second assessment report.

Has anyone else had a similar experience??

This is correct. Where someone is in receipt of a benefit and the DWP withdraws it, the onus is on them to show that the claimant is no longer entitled, not upon the claimant to show that they are still entitled.

In many cases, the difference will be purely academic but as you show, there are cases where this affects what evidence the tribunal will call for.

Hi Carmind

The burden of proof does rest with the DWP when an existing award is superseded. I don't have much personal experience of appeal hearings but from reading Upper Tribunal decisions, the first-tier tribunal sometimes requests to see previous medical reports.

When I last appealed the DWP claimed in their submission that they couldn't find my previous report ( ) so I provided a copy myself. It does suggest that they feel there is some requirement to produce it, but I would never take for granted that either the DWP will provide it or a tribunal will insist on seeing it.

If you think the previous report is helpful, particularly if your condition hasn't changed, it's a good idea to submit it as evidence prior to the hearing.

Best of luck to your client - I hope he/she has kept a copy of the report.

Derek

What's the basis for the onus of proof being on the DWP? Is it from caselaw or an Act or Regulation?

As someone who has recently been placed into the support group on the basis of a lifelong disability, it's something that interests me greatly and I would love this to be correct. But I can't help feeling that it seems a bit too good to be true!

See Crazydiamond's Post from this link :



www.benefitsandwork.co.uk/forum?func=vie...mit=6&start=12#65063

You may also like to read the whole thread which pertains to "Burden of Proof".

It starts from this link :


www.benefitsandwork.co.uk/forum?func=vie...id=10&id=65023#65023

cheers

bro58

Hi, sorry to ask but having reread the link CD put up I am still confused;

if you are on ESA and are sent a new ESA50, who looks at this form? Does the DM only look at it after you have attended a WCA?

Best wishes,
Rachel