Making the DWP produce the proof they have done something they say they have done and winning your appeal when they don't produce the proof.
Preparing for an appeal hearing? You can now ask the DWP to provide proof that they have done something when they say they have done it, but have not produced actual proof that it was done!
We believe that given the currently high instances of non production of important letters and documentation in relation to Universal Credit, using the power of this judgement will prove to be an appeal winner in a lot of Universal Credit appeal cases.
The Upper Tribunal 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, which means that if the DWP doesn't produce the evidence requested, the Judge can make an award in the claimants favour without discussing the detail of the case at all.
This decision will become an essential tool 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.
The DWP say they based a decision on information from your doctor and your doctor says they haven't provided any information? You can now insist that the DWP produces proof of the existence of the information!
The case that has brought about the ruling that allows you to do this 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.
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 Upper Tribunal 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.
How can you use this ruling to potentially win your appeal case?
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 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.
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, such as;
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 (CJSA/1744/2015)
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.
If you are unsure about how to prepare for an appeal hearing or have a question about any other benefit issue, join our active Facebook communities or ask to speak to one of the adviser team using the contact forms on our main web site.
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