- Posts: 70
× Members
Burden of proof
- SusanH
- Topic Author
- Offline
Less More
12 years 3 months ago - 12 years 3 months ago #95481 by SusanH
Burden of proof was created by SusanH
Dear Mods.
I’ve taken this quotation, by bro58, from another thread.
What about the other way round? If you were placed in the WRAG and did not appeal, primarily because you were so relived to have got through the process, especially without a face to face assessment. Also, were too drained and too ill to attempt the ordeal of appealing.
Would someone in that situation, have scuppered their chance of being found unfit for work related activity, and therefore placed in the support group, at a subsequent assessment? Based on their condition as it stands, and without having to demonstrate worsening of, or additional conditions.
Susan
I’ve taken this quotation, by bro58, from another thread.
“…Once in the SG, the "Burden of proof" is on the DWP DM to prove that you no longer qualify for SG, on reassessment. (Unless you qualify for SG under Exceptional Circumstances Rules]…”
What about the other way round? If you were placed in the WRAG and did not appeal, primarily because you were so relived to have got through the process, especially without a face to face assessment. Also, were too drained and too ill to attempt the ordeal of appealing.
Would someone in that situation, have scuppered their chance of being found unfit for work related activity, and therefore placed in the support group, at a subsequent assessment? Based on their condition as it stands, and without having to demonstrate worsening of, or additional conditions.
Susan
Last edit: 12 years 3 months ago by Gordon.
Please Log in or Create an account to join the conversation.
- Gordon
- Offline
Less More
- Posts: 51287
12 years 3 months ago #95490 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:Burden of proof
Susan
I think, from members comments, they may be assuming more of Burden of Proof than it is.
Burden of Proof is an important concept in benefit law, however, it is most likely something that may only be resolved by a Tribunal panel, and is therefore not something to specifically rely on when being assessed.
It is also important to note that Burden of Proof does not have to be definitive, it may only mean 50.1% in statistical terms.
When you are re-assessed, it will be based on your condition(s) at that point in time, because you did not meet the requirement for the SG previously, or did not challenge a Decision that you did not, does not preclude you from being placed in the SG at a new assessment.
I hope this explains it.
Gordon
I think, from members comments, they may be assuming more of Burden of Proof than it is.
Burden of Proof is an important concept in benefit law, however, it is most likely something that may only be resolved by a Tribunal panel, and is therefore not something to specifically rely on when being assessed.
It is also important to note that Burden of Proof does not have to be definitive, it may only mean 50.1% in statistical terms.
When you are re-assessed, it will be based on your condition(s) at that point in time, because you did not meet the requirement for the SG previously, or did not challenge a Decision that you did not, does not preclude you from being placed in the SG at a new assessment.
I hope this explains it.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
- Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
- Offline
Less More
- Posts: 2076
12 years 3 months ago #95507 by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law) on topic Re:Burden of proof
Hi Susan,
The DM must decide claims and applications on the balance of probability. This is
not the same as "beyond reasonable doubt", the standard test for proof in criminal
trials.
The balance of probability involves the DM deciding whether it is more likely than not
that an event occurred, or that an assertion is true. It does not mean that the
claimant can be given the benefit of the doubt. If the evidence is contradictory the
DM should decide whether there is enough evidence in favour of one conclusion or
the other to show which is the more likely.
The DM may decide on the basis of findings made on the balance of probability or may find that there is not enough evidence to satisfy them about findings one way or the other.
1 R(I) 4/65; 2 R(I) 32/61
There is a good guide on the DWP website which includes burden of proof and related matters
Principles of Decision Making & Evidence
Jim
retired Welfare Rights Lawyer & former Tribunal Member
The DM must decide claims and applications on the balance of probability. This is
not the same as "beyond reasonable doubt", the standard test for proof in criminal
trials.
The balance of probability involves the DM deciding whether it is more likely than not
that an event occurred, or that an assertion is true. It does not mean that the
claimant can be given the benefit of the doubt. If the evidence is contradictory the
DM should decide whether there is enough evidence in favour of one conclusion or
the other to show which is the more likely.
The DM may decide on the basis of findings made on the balance of probability or may find that there is not enough evidence to satisfy them about findings one way or the other.
1 R(I) 4/65; 2 R(I) 32/61
There is a good guide on the DWP website which includes burden of proof and related matters
Principles of Decision Making & Evidence
Jim
retired Welfare Rights Lawyer & former Tribunal Member
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
Moderators: Gordon, Gary, BIS, Catherine, Wendy, Kelly, greekqueen, peter, Katherine, Super User, Chris, David