Burden of Proof - ESA Exceptional Circumstances

It has come to light that whilst it is normally the DWP who are required to discharge the burden of proof when considering a claimant's entitlement to ESA following the work capability assessment by way of a supersession of the existing award, there is one important exception to this requirement.

If a claimant wishes to contend that they may satisfy the ESA exceptional circumstances regulations pursuant to Reg 29(2)(b) referable to limited capability for work (the WRAG group) and Reg 35(2)(a)(b) referable to limited capability for work-related activity (the support group), they must demonstrate on the balance of probabilities that they satisfy this condition. Hence, in this situation the onus of the burden of proof transfers to the claimant from the Secretary of State (the DWP). This is defined at paragraph 8 of Commissioner's Decision CIB/2767/2004.

Although this decision refers to Incapacity benefit, it will still be pertinent to ESA.

ok then

so i understand that the burden of proof is on me if i want to argue the exceptioanl circumstances rule.
what does "they must demonstrate on the balance of probabilities" mean?

sorry if im being stupid

martin

I don't understand either, sorry!

In layman's terms this means that a claimant must show that their contention is more likely than not to be the true version.

very interesting link thankx but bit heavy reading through and I will re-read it as i know it would come in handy if my Appeal does end up at benefit Tribunal. This Balance on prob thing then is just really like just convincing the Tribunal panel your word against there`s yep say it how it really is `warts n all

Thank you for posting this.

I am currently doing a renewal of my ESA having previously been put in the WRAG for a year - last time on paperwork only as I had excellent medical evidence.

This time the descriptors have been tightened of course, and my Contributions ESA (WRAG) will end soon. I feel I have nothing to lose in trying for the Support Group using the relevant Exceptional Circs Regs.

I am therefore trying as best I can in my ESA50 to do as this decision said ... provide burden of proof. But how to do this? I have excellent medical evidence re my ME/CFS as my GP and specialist are both willing to put that working would be detrimental to my health (but they know nothing of work related activity, so have not commented on this).

I would like more information on Work Related Activity to demonstrate that if I was asked to do this that it could cause a relapse, but my only experience so far is the 6 Pathways meetings at the end of last year, some of which were done on the phone. They were very downbeat and undemanding.

Info on what is expected now with work related activity seems so vague, and unless I could demonstrate that I would need to do certain activities then I would find it hard to prove this. Can anyone clarify exactly how much would be expected of the person on ESA?