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Chapter A1: Principles of decision making and Evidence

Contents
A1001:Introduction
A1002:Who decides claims and applications
A1010:Making decisions
A1015:When decisions become valid
A1030:What decisions are made by DMs
A1040:Other decisions and determinations
A1045:Reference to HM Revenue and Customs
A1050:Credits
A1051:Credits awarded by HM Revenue and Customs
A1052:Credits awarded by DWP
A1060:Determinations on incomplete evidence
A1064:JSA determinations
Referring a claimant for a medical examination/consultation
Reference by the DM
A1080:PIP
A1081:Reference by First-tier Tribunal

Limited capability for work and limited capability for work
A1082:related activity
A1084:Meaning of health care professional (ESA and UC)
A1085:Meaning of medical practitioner
A1086:Meaning of Health Professional (PIP)
A1087:Failure to attend for medical examination/consultation
A1091:Has the appointment been cancelled
A1092:Good cause (ESA)
A1093:Good reason (PIP & UC)
A1100:Outcome decisions
A1105:First-tier Tribunals and outcome decisions
A1111:How is the decision recorded
A1113:Defective decisions
A1116:How is the decision notified
A1118:When is the decision notified
A1119:Failure to notify the decision
A1120:Explanation
A1130:Request for written statement of reasons
A1150:Finality
A1152:Changing a First-tier Tribunal's decision
A1160:Claim or award disallowed
A1170:Revision following backdating request
A1180:Finality of determinations
A1200:General principles of common law
A1201:Definitions
A1205:Relevant law
A1206:Uprating
A1210:Estoppel (personal bar in Scotland)
A1212:Res judicata
A1220:Natural justice
A1260:European Convention on Human Rights
A1261:Human Rights Act 1998
Evidence
A1300:Introduction
A1310:Types of evidence
A1320:Responsibility for collecting evidence
A1330:Evidence from HM Revenue and Customs
A1332:Further Information Sharing Provisions
A1340:Standard of proof - balance of probability
A1350:Failure to provide evidence
A1372:Treated as not having LCW
A1380:Corroboration of evidence
A1390:Contradictory evidence
A1391:Self-contradictory evidence
A1392:Inherently improbable evidence
A1400:Claimant's own evidence
A1405:Burden of proof
Evidence in certain situations
A1420:Destruction of documents
A1430:Evidence of Departmental procedures
A1431:Evidence of a decision
A1440:Evidence given in confidence
A1450:Appeals: Address of partner from whom claimant is separated
A1451:Fraud
A1460:Advice on the law
A1470:Decisions given by other courts
A1474:Appellate authorities
A1475:Upper Tribunal decisions
A1490:Court of law
A1492:Rehabilitated offenders
A1500:Employment tribunals
A1510:Coroner's court
A1520:Medical evidence
The role of Assessment Providers
A1540:PIP
A1551:ESA and credits
A1554:UC
A1570:Exchange of medical reports
A1590:Consent and medical evidence
A1595:Appeals
Areas where information gathering and decision making functions
must always be undertaken by separate members of staff ............. Appendix 1

Chapter A1: Principles of decision making and Evidence

Contents
A1001:Introduction
A1002:Who decides claims and applications
A1010:Making decisions
A1015:When decisions become valid
A1030:What decisions are made by DMs
A1040:Other decisions and determinations
A1045:Reference to HM Revenue and Customs
A1050:Credits
A1051:Credits awarded by HM Revenue and Customs
A1052:Credits awarded by DWP
A1060:Determinations on incomplete evidence
A1064:JSA determinations
Referring a claimant for a medical examination/consultation
Reference by the DM
A1080:PIP
A1081:Reference by First-tier Tribunal

Limited capability for work and limited capability for work
A1082:related activity
A1084:Meaning of health care professional (ESA and UC)
A1085:Meaning of medical practitioner
A1086:Meaning of Health Professional (PIP)
A1087:Failure to attend for medical examination/consultation
A1091:Has the appointment been cancelled
A1092:Good cause (ESA)
A1093:Good reason (PIP & UC)
A1100:Outcome decisions
A1105:First-tier Tribunals and outcome decisions
A1111:How is the decision recorded
A1113:Defective decisions
A1116:How is the decision notified
A1118:When is the decision notified
A1119:Failure to notify the decision
A1120:Explanation
A1130:Request for written statement of reasons
A1150:Finality
A1152:Changing a First-tier Tribunal's decision
A1160:Claim or award disallowed
A1170:Revision following backdating request
A1180:Finality of determinations
A1200:General principles of common law
A1201:Definitions
A1205:Relevant law
A1206:Uprating
A1210:Estoppel (personal bar in Scotland)
A1212:Res judicata
A1220:Natural justice
A1260:European Convention on Human Rights
A1261:Human Rights Act 1998
Evidence
A1300:Introduction
A1310:Types of evidence
A1320:Responsibility for collecting evidence
A1330:Evidence from HM Revenue and Customs
A1332:Further Information Sharing Provisions
A1340:Standard of proof - balance of probability
A1350:Failure to provide evidence
A1372:Treated as not having LCW
A1380:Corroboration of evidence
A1390:Contradictory evidence
A1391:Self-contradictory evidence
A1392:Inherently improbable evidence
A1400:Claimant's own evidence
A1405:Burden of proof
Evidence in certain situations
A1420:Destruction of documents
A1430:Evidence of Departmental procedures
A1431:Evidence of a decision
A1440:Evidence given in confidence
A1450:Appeals: Address of partner from whom claimant is separated
A1451:Fraud
A1460:Advice on the law
A1470:Decisions given by other courts
A1474:Appellate authorities
A1475:Upper Tribunal decisions
A1490:Court of law
A1492:Rehabilitated offenders
A1500:Employment tribunals
A1510:Coroner's court
A1520:Medical evidence
The role of Assessment Providers
A1540:PIP
A1551:ESA and credits
A1554:UC
A1570:Exchange of medical reports
A1590:Consent and medical evidence
A1595:Appeals
Areas where information gathering and decision making functions
must always be undertaken by separate members of staff ............. Appendix 1

Chapter A1: Principles of Decision Making and Evidence

A1001 Introduction A1300

This chapter is about applying the principles of decision making and evidence in
relation to
1. UC
2. PIP
3. new style JSA (hereafter referred to as JSA)
4. new style ESA (hereafter referred to as ESA).
Note
1: ADM Chapter M1 contains guidance on the meaning of new style JSA and
new style ESA.
Note
2: Guidance on decision making and evidence for benefits not listed above is
in DMG Chapter 01.
Note
3: The guidance comes into effect (1) from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 1(2) & 1(3)

A1002 Who decides claims and applications

Decisions on claims and applications are made by the Secretary of State. In practice
the Secretary of State does not make decisions personally. Instead, under the
Carltona principle officials act on the Secretary of State's behalf, provided that he is
satisfied that they are suitably trained and experienced to do so. Throughout this
guide these officials are called decision makers (DMs).
Note: Application means an application for a revision or supersession.

A1003

The Carltona principle dates from a judgment of the Court of Appeal in October
19431. The judgment said that the Secretary of State could not possibly make every
decision for which he is constitutionally responsible and accountable to Parliament.
The Secretary of State is therefore entitled to authorise a person of suitable authority
to exercise these functions on his behalf.

1 Carltona Ltd v. Commissioners of Works and others

A1004

The Secretary of State provides training and approved guidance to DMs on how to
make decisions on his behalf. The ADM itself is one such form of guidance, advising
DMs how to apply SS law. DMs should note that approved guidance must be
followed when applying the law to the facts of the case. However, DMs may request
advice from DMA Leeds on the application or clarification of the ADM in cases of
doubt.
Note: See A1460 for guidance about legal advice as evidence.

A1005

The DM takes all necessary actions on behalf of the Secretary of State, including
1. gathering
information :
2.
making decisions on claims and applications :
3.
dealing with administrative matters such as suspension of payment.
Note: The DM is not an independent officer.

A1006

Although a DM may undertake all these functions, in some circumstances it may be
appropriate to divide functions between different members of staff. However, there
are some areas in which functions must always be undertaken separately for
business and/or system security. See Appendix 1 for details.

A1007

The DM must make a decision by considering all the evidence and applying the law,
including any relevant case law, to the facts of each case. Where the legislation
specifies or implies discretion, the DM's judgement must be reasonable and made
with unbiased discretion.

[A1008-A1009]

A1010 Making decisions

Generally, each decision must be given on the facts as they exist at the date of the
decision and not in anticipation of a future state of facts (1). But there are variations
and exceptions, for example where entitlement begins after the date of the claim.
Entitlement can be established from a date after the date of the claim under :
1.
the advance claim provisions (2) or :
2.
the principle that the DM must consider the claimant's circumstances down to
the date on which the claim is decided.
Note: See ADM Chapter A2 for further guidance on deciding claims.

1 R(G) 2/53; 2 UC, PIP, JSA & ESA (C&P) Regs, reg 32 - 34

A1011

A decision may be revised or superseded for past periods when facts relating to the
period were not known at the time. For further guidance on revision and
supersession, see ADM Chapters A3 and A4.

Example

Following an investigation, a JSA claimant is found to have been outside GB over a
year ago for a period of one month. The effect of this is that there is no entitlement to
JSA for that one month period. The decision awarding JSA is superseded to disallow
JSA for the period outside GB only. Entitlement after the period outside GB is
unaffected.

A1012

A fact is either a relevant circumstance or an occurrence which :
1.
exists at the time the decision is given and :
2.
is known, accepted or proved to be true.

A1013

The DM may use the help of an expert in cases where a question of fact needs
special expertise (1). An expert is a person who appears to the DM to have knowledge
or experience in determining a particular question of fact (2).
1 SS Act 98, s 11(2); 2 s 11(3)

Example

Norman claims PIP. A report is obtained from a HP. The DM then considers all the
evidence to decide whether Norman is entitled to PIP.

A1014

If the decision is found later to be inaccurate it can be altered by
1. revision (1) :
2.
supersession (2) :
3.
appeal (3).
1 SS Act 98, s 9; 2 s 10; 3 s 12

A1015 When decisions become valid A1119

A decision is valid as soon as it is properly recorded by the DM. If a decision is not
acted upon or not communicated to the relevant parties, this does not invalidate the
decision (1). However a decision is not fully effective unless, and until it is notified (2). See A1116 - A1118 for guidance on how and when decisions are notified and for failure
to notify the decision see A1119.
1 R(P) 1/85; 2 R(U) 7/81; R (Anufrijeva) v Secretary of State for the Home Department & Another [2003]
UK HL 36

[A1016-A1029]

A1030 What decisions are made by DMs

The DM :
1.
decides any claim for a relevant benefit :
2.
makes contribution decisions on credits (see A1050) :
3.
makes any decision that is made under, or by virtue of, a relevant enactment
(see A1031).
These decisions are called outcome decisions. It is important that DMs distinguish
between outcome decisions and other decisions and determinations. This is
because only outcome decisions carry the right of appeal to the FtT (1). See A1100

A1102 A1101

for further guidance on outcome decisions.

1 R(IB) 2/04

A1031 A1030

A relevant enactment (1) is any enactment in :
1.
the JS Act 95 :
2.
Part 1 of the WR Act 07 :
3.
Part 1 of the WR Act 12 :
4.
Part 4 of the WR Act 12
1 SS Act 98, s 8(4); SS Act 98; SS A Act 92

[A1032-A1039]

A1040 Other decisions and determinations

There are other decisions made by DMs which are not outcome decisions. These
are :
1.
the decisions in ADM Annex E, which are generally determinations made as
part of an outcome decision :
2.
determinations or findings of fact.

A1041

Determinations and findings of fact are not outcome decisions, but part of the
process which goes towards making the outcome decision (1). The DM should ensure
that a determination is not notified as an outcome decision with appeal rights. Such a
decision would be defective, and may be set aside as invalid on appeal to the FtT (2).
1 R(IB) 2/04; 2 R(IS) 13/05

Example

Sandy claims UC as a single person. It is later established that she is living with a
partner who is in full time work. The DM determines that they are LTAHAW. As a
consequence of this determination the award of UC is terminated. Any subsequent
appeal would be against the decision to terminate the award of UC and not the
LTAHAW determination.

A1042

The DM can not make a decision on issues in respect of NI Contributions, SSP,
SMP, statutory adoption pay or statutory paternity pay which are decided by HMRC (1)
(see ADM Annex C).
1 SSC (ToF) Act 99, s 8(1)

[A1043-A1044]

A1045 Reference to HM Revenue and Customs

Entitlement to ESA and JSA depends on the contribution conditions being satisfied.
In practice the NI contribution record is usually obtained and any decision is based
on the assumption that the record is factually correct. However, where there is a
dispute about the record, the matter must be referred by the Secretary of State to
HMRC for a formal decision (1). See ADM Chapters A3, A4 and A5 for guidance on
how decisions and appeals are handled after a reference to HMRC.
Note: See A1050 - A1053 where the dispute is about whether credits should be
awarded.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 42 - 43

A1046

The Secretary of State remains responsible for deciding whether the contribution
conditions are satisfied in relation to ESA and JSA including
1. the earnings factor derived from them
2. which are the relevant income tax years
3. the years in which the contributions must have been paid or credited
4. the commencement of a PLCW
5. the start of the relevant benefit year.

[A1047]

A1048

DMs should note that appeals against decisions about contributions matters made
by HMRC are heard by the FtT (Tax Chamber)1.

1 SSC (ToF) Act 99, s 11; R(IB) 1/09

[A1049]

A1050 Credits A1030 A1045

The Secretary of State remains responsible for deciding credits questions (1). In
practice some credits decisions are taken on the Secretary of State's behalf by
HMRC (2).
1 SS Act 98, Sch 3, paras 16 & 17; 2 SSC (ToF) Act 99, s 17

A1051 Credits awarded by HM Revenue and Customs

HMRC considers whether to award credits for
1. SSP
2. SMP
3. Statutory adoption pay
4. jury service
5. periods of wrongful imprisonment or detention in legal custody
6. auto credits for
6.1
16-18 year olds
6.2
men aged 60-65
7. approved training where not awarded by DWP
8. Gulf crisis credits.

A1052 Credits awarded by DWP

DWP considers whether to award credits for
1. LCW
2. unemployment
3. approved
training.
For further guidance on awarding credits, see The Credit Title Guide.

A1053 A1045

Where :
1.
a claim is disallowed because the contributions conditions are not satisfied
and :
2.
the claimant alleges that they should be awarded credits for a past period
the DM should decide the credits issue before dealing with the dispute about the
contributions conditions. This may mean referring the credits claim to HMRC for a
decision where appropriate.

Example

A claim for ESA is disallowed because the claimant failed the second contribution
condition in one of the relevant years. In that year the claimant had been awarded 48
unemployment credits through two awards of JSA. In the remaining period he had
been on holiday. The claimant argues that he should be awarded credits for the
missing weeks. The DM awards two unemployment credits, and revises the ESA
disallowance to award benefit.

[A1054-A1059]

A1060 Determinations on incomplete evidence

The DM can make assumptions about certain matters where the evidence required
to make a determination for the purposes of an outcome decision is incomplete (1).
This enables an outcome decision to be made without waiting for information. A
further determination can be made and the decision revised or superseded as
appropriate when the evidence is received. See ADM Chapters A3 and A4 for
guidance on revision and supersession.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 39

[A1061-A1063]

A1064 JSA determinations

Where a determination falls to be made on whether a person is treated as receiving
relevant education (1) and there is not enough evidence to make that determination the
DM makes the determination on the basis that the missing evidence is adverse to
the claimant (2).
1 JSA Regs 13, reg 45; 2 UC, PIP, JSA & ESA (D&A) Regs, reg 39(3)

[A1065-A1079]

Referring a claimant for a medical examination/consultation
Reference by the DM

A1080 PIP

Before making a decision on a claim for, or entitlement to PIP the claimant may be
referred to a HP approved by the Secretary of State for a consultation (1). The referral
can be made at the initial, revision or supersession stage of a claim. The HP will
decide which form the consultation will take (face to face, telephone, paper based or
fast track for the terminally ill). See ADM Chapter P2.
Note: Telephone consultations are likely to be used to gather information and it is
unlikely for an assessment to be conducted on the basis of a telephone consultation
only.
1 WR Act 12, s 80(4); SS (PIP) Regs, reg 8 & 9

A1081 Reference by First-tier Tribunal

The FtT may refer a claimant for a medical consultation or assessment where
information is needed to determine an appeal (1) and an issue raised by the appeal (2)
1. is whether the claimant satisfies the disability conditions for PIP (3) :
2.
relates to the period for which the disability conditions for PIP is likely to be
satisfied :
3.
is the rate of an award of PIP
1 SS Act 98, s 20(2); 2 TP (FtT) (SEC) Rules, rule 25; 3 WR Act 12, s 78 & 79

A1082 Limited capability for work and limited capability for work-related activity

Where a DM is determining LCW or LCWRA whether on a claim for benefit or
credits, the claimant can be referred for an examination (1) by a HCP approved by the
Secretary of State.

1 ESA Regs 13, reg 19 & 35; UC Regs, reg 44

[A1083]

A1084 Meaning of health care professional (ESA and UC)

A HCP is (1) :
1.
a registered medical practitioner or :
2.
a registered nurse or :
3.
a registered occupational therapist or physiotherapist (2)
1 UC Regs, reg 2; ESA Regs 13, reg 2; 2 Health Act 99, s 60

A1085 Meaning of medical practitioner

A medical practitioner is defined in the UK as a registered medical practitioner. This
definition includes a person outside the UK who has the equivalent qualifications as
those of a registered medical practitioner (1).
1 SS A Act 92, s 191

A1086 Meaning of Health Professional (PIP)

A Health Professional has to be approved by the Secretary of State (1). There is no
definition of what type of Health Professional may be approved (2). Examples of a
Health Professional are
1. Occupational therapist :
2.
Nurse (Level 1)
3. Physiotherapist
4. Doctor
5. Paramedic.
1 WR Act 12, s 80(4)(c); 2 PIP Regs, reg 9(5)

A1087 Failure to attend for a medical examination/consultation

In PIP cases if the claimant fails, without good reason, to attend or submit to a
consultation (1) the DM will make a "negative determination". If good reason is shown
the claimant will be referred for another consultation. In ESA or UC cases where an
LCW or LCWRA determination is required, and the person fails, without good cause
(ESA) or good reason (UC), to attend or submit to a medical examination, the DM
should follow the guidance in ADM Chapters F5 and V. See also A1092.

1 WR Act 12, s 80(5); PIP Regs, reg 9

A1088

Generally, in the case of :
1.
a claim, the DM should disallow :
2.
an application for revision, the DM should notify that the decision is not
revised (see ADM Chapter A3) :
3.
an application for supersession, the DM should make a decision not to
supersede (see ADM Chapter A4).
Note:
When the DM makes a "negative determination" in PIP cases then the claim
will be disallowed. In cases where the claimant is in receipt of an award of PIP and a
"negative determination" is made the award will be superseded to terminate
entitlement.

A1089

There may be some cases where it is not appropriate to give a decision as in ADM.
This is where the DM was able to award benefit on the existing evidence, and the
examination was required in order to establish whether a higher rate of benefit
should be awarded. This does not apply to PIP.

[A1090]

A1091 Has the appointment been cancelled

Claimants cannot fail to attend the medical examination/consultation if the
appointment has already been cancelled (1). The DM should investigate any
indications that the claimant had made contact with the issuing office before the time
of the examination. This is so that they can satisfy themselves that the appointment
has been left open for the claimant.
1 R(IB) 1/01

A1092 Good cause (ESA) A1087

Good cause is not defined in legislation but a number of UT Judges' decisions deal
with it. It includes any facts which would probably have caused a reasonable person
to act as the claimant acted (1), for example
1. the claimant's health at the time
2. the nature of the claimant's illness
3. the information that the claimant received
4. whether the claimant was outside GB at the time
5. whether there was any postal delay. Note: See DMG Chapter 02. 1 R(SB) 6/83

A1093 Good reason (PIP & UC)

See ADM Chapters P2 and G1 for guidance on good reason for PIP and UC.

A1094

For details on how to obtain and weigh up the medical evidence see A1520 - A1599.

[A1095-A1099]

A1100 Outcome decisions A1030

The most important issue for a claimant who makes
1. a claim or
2. an application for
2.1
revision or
2.2 supersession
is the outcome of that claim or application. For a claim, the claimant wants to know
whether the claim has been successful, and if so, how much benefit will be paid and
from when. See Chapters A3 & A4 for guidance on revision and supersession.

A1101

The decision on a claim or application is called an outcome decision because it tells
the claimant the outcome of the claim. An outcome decision incorporates all
subsidiary determinations such as the separate elements of entitlement to benefit
and the day that benefit will be paid. A1102
The claimant has a right of appeal against outcome decisions only (1) as listed in ADM
Annex D. An outcome decision on a claim, for example, is whether or not the
claimant is entitled to benefit. As part of the process of making that decision, the DM
makes determinations or findings of fact which lead to the outcome. These
determinations generally do not have the right of appeal - see Annex E2. Although an
appeal is against the outcome decision, in practice the claimant may wish to focus
on a component part of the decision. For further details on appeals see ADM
Chapter A5.
1 SS Act 98, s 12 & Sch 3; 2 s 12 & Sch 2

Example 1

A woman is receiving UC and has three children. Following investigation, the DM
determines that she has been LTAHAW with the father of her children since before
the date of claim. The awarding decision is revised for ignorance of a material fact.
The outcome decision is that she is not entitled to UC from the date of claim as her
partner works F/T. The claimant has the right of appeal against that decision,
although the issue under appeal is the question of LTAHAW.

Example 2

A man who works P/T makes a claim for JSA. The DM makes determinations about
treatment of earnings and availability. The outcome decision is that he is entitled to
JSA.

[A1103-A1104]

A1105 First-tier Tribunals and outcome decisions A1152

The FtT is not required to substitute an outcome decision for the decision under
appeal (1). The power enabling them to deal only with the issues raised by the appeal (2)
does not have the effect that they have to make a decision on every issue if there is
a more appropriate way of dealing with those issues. Where the FtT decides the
issue but does not give a new outcome decision, the case is sent back to the DM.
See ADM Chapter A5 for more details about the FtT and outcome decisions.

1 R(IS) 2/08; 2 SS Act 98, s 12(8)(a)

A1106 A1152

If the case is remitted to the DM, a new outcome decision should be made
incorporating the FtT decision. The FtT decision is binding on the DM, subject to
supersession or appeal. See ADM Chapters A4 and A5 for further guidance.

[A1107-A1110]

A1111 How is the decision recorded A1113 A1434

In most cases the decision is recorded on the Department's computer system.
However, where a decision is revised or superseded, departmental procedures may
require that it is recorded clerically, e.g. on form LT 54. A revision or supersession must
1. identify the person to whom it relates
2. identify the decision it is changing
3. specify whether it is revising or superseding an earlier decision and
4. specify the grounds or authority for doing so.
Example - ESA
In a case where the claimant is in receipt of ESA and has previously passed the
WCA, and on a further WCA fails to satisfy the test, the record of the decision
should say
"I have superseded the decision dated ...[date] awarding ESA/credits. This is
because the Secretary of State has received medical evidence following an
examination by a HCP approved by the Secretary of State, since that decision was
given.
...[The claimant] does not score 15 points or an aggregate score of 15 points where
both physical and mental health descriptors apply. The work capability assessment
is not satisfied.
As a result, [the claimant] does not have limited capability for work and is not entitled
to employment and support allowance/credits from and including ... [date]."

A1112 A1434

Where more than one decision needs changing on revision or replacing on
supersession, each decision should be identified where possible. This is particularly
important in overpayment cases.

A1113 Defective decisions

Where a decision following revision or supersession is appealed, it is the formal
record of the decision which will be considered by the FtT. Failure to set out the
basis for the decision in the record may result in the FtT declaring it to be
1. defective
or
2. unidentifiable as a revised or superseded decision.
DMs should ensure that this is not necessary by following the guidance in A1111.

A1114

In most cases the FtT should perfect or correct such decisions (1). However, where it is
not possible to identify whether the decision under appeal is a superseded or revised
decision, the FtT may conclude that it is not possible to remedy any defects, for
example because there is no effective date, or the decision is in reality a
determination of fact. In such cases the DM may need to make a decision which
complies with the requirements for revision or supersession as appropriate (2). This
may have the effect that the decision takes effect from a later date in cases where
the effective date is the date of the decision. There may also be an impact on any
overpayment decision.

1 R(IB) 2/04; 2 R(IS) 13/05

[A1115]

A1116 How is the decision notified A1015

The written notification of an outcome decision is issued to the claimant either
clerically or by computer (1). The notification contains :
1.
information which gives the effect of the decision such as whether there is
entitlement to benefit and where appropriate the amount payable and when it
is payable from and
2. a statement to the effect that there is a right of appeal only if the Secretary of
State has considered an application for revision (2) - see ADM Chapter A3 :
3.
information regarding the time limits for making an application for
reconsideration (3).
Where the claimant has the right of appeal following consideration of an application
for revision then the claimant must be given written notice of the decision and the
right of appeal (4).

1 SS Act 98, s 2(1)(a); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 7(1)(b); 3 reg 7(3) (a); 4 reg 51(2)(a)

A1117 A1130 A1131

The information about revision and appeal rights invites the claimant to ask for an
explanation of the decision - see A1120 - A1124. The claimant is also advised that a
written statement of reasons can be requested if no reasons for the decision were
given in the notification (1) - see A1130 - A1135.
Note: PIP notifications do not advise about a statement of reasons as the
notifications contains sufficient information to be treated as such.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 51(2)(b) & reg 7(3)

A1118 When is the decision notified A1015

A decision is notified :
1.
when it is handed to the claimant or appointee or :
2.
on the day it is sent by post to the person's last known address (1).
Where a decision is posted, DMs should bear in mind that the notification may not
leave the office on the day that it is produced (2). A decision may also be sent by
means of an electronic communication (3). The time and date of receipt is that
recorded on an official computer system (4).
1 UC, PIP, JSA & ESA (D&A) Regs, reg 3(2); Inte Act 78, s 7; 2 R(IB) 1/00; 3 UC, PIP, JSA & ESA (C&P) Regs,
Sch 2, para 1; UC, PIP, JSA & ESA (D&A) Regs, reg 4; 4 UC, PIP, JSA & ESA (C&P) Regs, Sch 2, para 5(3)

A1119 Failure to notify the decision A1015

A decision is not effective unless and until it is notified - see A1015. This can lead to
disputes about whether the time for revision or appeal has expired, or whether the
condition for making an overpayment decision is satisfied. It is therefore important to
ensure that evidence is available to show that a decision has been notified. Evidence
of notice can be a clerical or computer record (1).
1 R(CS) 4/07

A1120 Explanation A1117

Where :
1.
a claimant or their representative queries a decision by
1.1 asking for it to be explained or
1.2 requesting a written statement of reasons or
1.3 making an application for revision or supersession or
1.4 making an appeal and :
2.
the decision is not changed by revision or supersession
the DM or another suitably trained officer should offer the claimant or representative
an informal explanation of the decision. The claimant or representative should be
contacted by telephone if possible, unless they have specifically requested a
response in writing.

A1121

The purpose of the explanation is to help the claimant understand the decision, and
to clarify any areas of dispute in the event of an application for revision or appeal.
Note: Although an explanation is preferable, it is not a compulsory step in the
revision or appeal process.

A1122

The explanation must
1. be
personalised :
2.
be given in a manner that is clear, understandable and effective :
3.
explain why the decision was made :
4.
explain the effects of the law on the facts :
5.
deal with any further points the claimant or representative may make :
6.
ensure that the claimant understands the decision even if they do not agree
with it :
7.
ensure that the revision and appeal process including time limits is explained.

A1123

If the claimant :
1.
cannot be contacted or
2. does not want an explanation or
3. is not satisfied with the explanation
the action which prompted the offer of an explanation should be continued in the
normal way. For applications for revision, see ADM Chapter A3.

A1124 A1117

Where
1. the explanation followed an application for revision or an appeal and
2. the claimant accepts the explanation
they should be asked whether they wish the application or appeal to go ahead. See
ADM Chapter A5 for guidance on withdrawing an appeal.

[A1125-A1129]

A1130 Request for written statement of reasons A1117 A1133 A1134

Where an outcome decision is notified without a statement of the reasons for the
decision, the claimant has one month from the day following the date of notification
to ask for the written statement (1). Claimants can ask for a written statement of
reasons, for example by asking for an explanation of a decision, either orally, by
telephone or in person at an appropriate office, or in writing. They do not have to
use the specific words "request for a written statement of reasons". Where the
application is made orally, the Department must keep a record of the conversation.
The DM must supply the statement within 14 days of receiving the request or as
soon as practicable afterwards (2). See ADM Chapters A3 and A5 for guidance on
extending the revision and appeal period where a written statement is requested.
This does not apply to PIP - see A1117.

1 UC, PIP, JSA & ESA (D&A) Regs, reg 7(3)(b) & 51(2)(b); 2 reg 7(4) & 51(3)

A1131

A written statement of reasons should
1. be personalised
2. give an explanation of why the decision was made
3. provide details of the law used to make the decision, and how it was applied
4. give information about the extended time limit for revision and appeal.
The DM should note when the statement is issued in order to calculate time limits for
revision and appeal where appropriate.
Note: This does not apply to PIP - see A1117.

A1132

Where a decision is revised, the claimant can request a written statement of reasons
for the decision in its revised form, even if a statement was provided for the original
decision. This is because there is a right of appeal against a decision as revised.
Rights to request a written statement of reasons should always be notified when a
decision has the right of appeal.

A1133

Where a decision is not revised, there is no right to request a statement of reasons
for the refusal to revise, as this is not a decision with a right of appeal. The rights to
request a statement or appeal the original decision still exist subject to time limits.
See A1130 and ADM Chapter A5 for guidance on time limits. See also ADM Chapter
A3 for guidance on mandatory reconsideration and the effect on appeal rights when
the claimant makes a late application.

A1134

Where the request for a written statement of reasons is made outside the one month
period in A1130, the statement should still be issued so that the claimant can
understand why the decision was made. However, the claimant should be advised
that the time for applying for revision, or for an appeal, is not extended.

A1135 A1117

In exceptional circumstances a further written statement can be provided, for
example where the claimant requires further clarification of the decision.

[A1136-A1149]

A1150 Finality A1151 A1212

A decision made by a DM, the FtT or the UT is final (1) unless it is
1. revised (decisions of DMs only)
2. superseded
3. terminated after an award has been suspended
4. changed or replaced on appeal
5. corrected
or
6. set aside (decisions of the FtT or the UT only).
Note: See A1180 - A1181 for guidance on finality of determinations.

1 SS Act 98, s 17(1)

A1151 A1212

Where a decision is changed or replaced as in A1150, the new or revised decision
becomes the final decision on the claim, even where it does not change the
outcome (1). But see A1152 - A1153 where an outcome decision is not replaced on
appeal.
1 R(I) 9/63

A1152 Changing a First-tier Tribunal's decision A1151

Where the FtT
1. allows an appeal on the issue or issues raised
2. does not give an outcome decision
3. remits the case to the DM
the DM must follow the FtT's decision when dealing with the matters referred back
for subsequent decision. See A1105 - A1106 for further guidance.

A1153 A1151

The FtT's decision on the issues it has dealt with is final unless
1. there are grounds to supersede the decision (see ADM Chapter A4) or
2. the DM considers it is erroneous in law and applies for permission to appeal
(see ADM Chapter A5)1.
1 SS Act 98, s 17(1)

[A1154-A1159]

A1160 Claim or award disallowed

Where a claim is disallowed or an award is disallowed following supersession, a
later claim for the same period cannot be determined. The DM should give a
decision on the later claim from the date following the disallowance.

Example

A decision awarding ESA which is superseded and disallowed on 21 July from and
including 9 July is effective down to 21 July. Entitlement can only be considered from
22 July if a claim is then made for any period before 22 July.

A1161

Where a disallowance is given by a DM, the claim is disallowed for the period from
the first date covered by the claim to the date of the decision. However, where the
disallowance is confirmed on appeal to the FtT or the UT, the period of the
disallowance is not extended up to the date of the FtT's decision. This is because
the FtT cannot take account of any changes after the date of the DM's decision (1).
1 SS Act 98, s 12(8)(b)

[A1162-A1169]

A1170 Revision following backdating request

The DM should also consider whether a request for backdating, in a case where an
award is made following termination of an earlier award for the same benefit, should
be treated as an application for revision of the decision which ended that award. This
applies where the claimant in the backdating request argues that :
1.
the decision ending the previous award was incorrect or :
2.
the new claim should be backdated to the day following the last day of the
previous award.

[A1171-A1179]

A1180 Finality of determinations A1150 A1212

Normally, determinations embodied within an outcome decision are not conclusive
for the purposes of a further claim for the same benefit (1).
1 SS Act 98, s 17(2)

Example

Following a change of address, a claimant is found to be LTAHAW with a partner
who is in F/T work. Her award of UC is superseded on a relevant change of
circumstances. The DM also decides that the overpayment is recoverable due to the
claimant's failure to disclose. On an appeal against the overpayment decision, the
DM's findings on LTAHAW in the supersession decision is not binding on the FtT.
The finding is also not conclusive on a further claim for UC.
A1181 - A1199

A1200 General principles of common law

The DM must make a decision taking account of common law principles and
European law. The common law principles are
1. definitions of words and phrases
2. relevant law
3. estoppel (personal bar in Scotland) and res judicata
4. natural justice.

A1201 Definitions

The DM can find definitions of words and phrases
1. within the Acts
2. at the beginning of each set of regulations
3. in case law (the UT, Court of Appeal, Supreme Court and the ECJ)
4. in the Interpretation Act 1978.
The DM may use a dictionary if none of these sources contains a definition (1).

1 R(SB) 28/84

A1202

Headings and side notes can be helpful in understanding a provision as can the
explanatory memorandum attached to a SI. These are not part of the legislation but
are permissible aids to construction (1) which can be used to aid understanding.
1 R v. Montila & Ors

[A1203-A1204]

A1205 Relevant law

When a DM is determining a claim or application, the relevant law is the law applying
at the time the claim or application is made. Where there is a change in a particular
legal provision so that it
1. ceases to have effect or
2. begins to take effect
during the period of a claim or application, the DM should apply the change in the
law only from the date of the change (1) unless the legislation has retrospective effect
or there are specific transitional provisions.
1 R(I) 4/84

A1206 Uprating

Legislation provides for benefit rates to be altered in accordance with the Uprating
Order without the need for the DM to supersede the previous awarding decision (1).
1 SS A Act 92, s 155(3); s 159A(3); s 159C(2) & 159D(2)

[A1207-A1209]

A1210 Estoppel (personal bar in Scotland)

In general law the doctrine of estoppel, known in Scotland as personal bar, has the
effect of blocking or preventing a person from alleging or proving in later
proceedings, matters which have already been decided in earlier proceedings (1).
When this doctrine is applied by DMs it is called res judicata (see A1212 - A1213).

1 R(I) 9/63

A1211

The doctrine of estoppel does not apply where the claimant :
1.
on the advice or a promise given by the Secretary of State, has formed a view
about future benefit rights and :
2.
has taken a particular course of action.
The DM must decide the matter solely on the basis of the relevant legislation, even
though the decision may be contrary to the original advice or promise (1).
1 R(P) 1/80, R(SB) 8/83 & R(SB) 4/91 Appendix

Example

A claimant in receipt of UC is considering extending his mortgage. He rings his local
Jobcentre Plus office and is told that the new mortgage would be met as part of his
housing costs. He takes out the new mortgage. The DM decides that the loan is not
eligible for housing costs. Estoppel does not apply, because the DM is not bound by
the advice given by another person in the Department.

A1212 Res judicata A1210

Res judicata prevents a judicial authority from deciding a matter that has already
been decided by a person of similar status. This principle is given effect for DMs by
a provision in legislation (1) and is also known as the principle of finality (see A1150 to
A1151).
Note: This does not apply to most determinations and findings of fact - see A1180 to
A1181.

1 SS Act 98, s 17

A1213 A1210

Once a DM has made a decision, a further decision cannot be given on the period of
that claim, or the outcome of an application for revision or supersession, except
where the later decision is given by way of
1. revision or
2. supersession or
3. appeal (1).
1 R(S) 1/83(T), R(SB) 4/85

[A1214-A1219]

A1220 Natural justice

There is a common law requirement that DMs should observe the rules of natural
justice. The rules are not prescribed collectively but they represent the manner in
which justice is expected to be achieved. An unbiased approach is needed,
reflecting the principle that impartiality is at the heart of the judicial process.

[A1221-A1259]

A1260 European Convention on Human Rights

The ECHR is a treaty of the Council of Europe. The Convention contains Articles
which guarantee a number of basic human rights. In addition, Protocols have been
signed which are to be regarded as additional articles to the Convention. The main
Convention Rights are set out in ADM Annex G.
Note: Please see ADM Chapters C1 to C4 for guidance on EC law.

A1261 Human Rights Act 1998

The Human Rights Act 1998 which gives effect in the UK to the rights and freedoms
guaranteed under the European Convention on Human Rights came into force
2.10.00.

A1262

Public authorities, including courts and both the FtT and the UT are under a duty to
act compatibly with the Convention rights and all legislation must be read compatibly
with the Convention rights as far as it is possible to do so. Also, courts and both the
FtT and the UT should have regard to the jurisprudence of the EctHR and decisions
and opinions of the Commission and Committee of Ministers.

A1263

DMs applying the normal principles of decision making, which are
1. natural justice
2. consideration of evidence
3. standard of proof and
4. application of relevant law
should not find themselves in breach of Article 6 of the Convention. This is because
they are already expected to determine questions without bias or discrimination and
within a reasonable timescale.

A1264

For further guidance on appeals to the FtT and the UT involving human rights, see
ADM Chapter A5.

[A1265-A1299]

Evidence

A1300 Introduction

The guidance in the following paragraphs sets out the general principles which the
DM should follow regardless of the benefit or business area involved. See A1001 for
details of the authorisation of suitable people to exercise the function of DM on
behalf of the Secretary of State.

A1301

The DM should approach the determination of claims and applications objectively by
always :
1.
considering the evidence :
2.
from that evidence, establishing the facts of the case :
3.
applying the law to those facts.

A1302

Proper consideration and careful recording of evidence when making and recording
decisions are essential. It is particularly important that telephone conversations and
interviews are accurately recorded. This approach assists DMs dealing with disputes
and may avoid appeals. It also helps in any subsequent appeal proceedings.

A1303

The provision of sufficient information or evidence to establish the NINO is a specific
requirement for certain benefits. For details see ADM Chapter A2.

[A1304-A1309]

A1310 Types of evidence

DMs, like any other statutory authority, must base all decisions on evidence. There
are three types of evidence
1. direct
- for example, a statement by an employer regarding work
2. indirect
- for example, a statement by someone who did not see the claimant
working but saw them leaving and arriving home everyday wearing work clothes
3. hearsay - for example, a statement by someone recording what they were
told about the claimant's work.

A1311

Each type of evidence may be either
1. documentary - for example, certificates or wage slips
2. oral - for example, a statement given verbally (such as in a telephone call)
3. real - something tangible, for example, a wage packet with the money in it.

A1312

The DM can use all three types of evidence. Some carry more weight than others (1).
The weight given should be carefully judged in the circumstances of the particular
case. As a general rule, direct evidence is more significant than indirect or hearsay
evidence. Also, the closer in time to the event the DM obtains and considers the
evidence, the more helpful it is likely to be.

1 R(I) 4/65

A1313

There may be situations where the DM has "secondary" evidence as opposed to
"primary" evidence, for example where an ESA medical report refers to a video
recording which is unavailable or no longer exists. The lack of the primary evidence
does not mean that the secondary evidence is not admissible, and appropriate
weight should be given to it.

Example

Joanne, in receipt of enhanced rate mobility and standard rate daily living
components of PIP, was videotaped by private investigators in a personal injury
claim. The tapes were shown to her consultant and he wrote a report, part of which
said "It is clear that she is able to walk and would be able to perform the majority of
tasks associated with daily living". The decision awarding PIP was superseded and
the award terminated. Through various delays, by the time the claimant's appeal is
heard by the FtT, the video is no longer available but the report is. The claimant
argues that without the tape (primary evidence) the secondary evidence should not
be relied upon to end the award of PIP. The FtT has to have regard to all the
evidence before it, including the report, and has to weigh all such evidence and
reach a conclusion.

[A1314-A1319]

A1320 Responsibility for collecting evidence

Evidence on which the DM decides the claim is collected on behalf of the Secretary
of State. In some cases this person will also be the DM. Evidence can be collected
by telephone, letter or interview. Where evidence is collected by letter, a copy of a
letter asking specific questions should always be kept with the reply. Where
evidence is collected by telephone, the questions asked should be recorded along
with the replies. See A1451 et seq in fraud cases. Documentary evidence carries the
most weight and is preferred.

A1321

The circumstances in which statements are obtained - that is, voluntarily or during
an interview under caution - can be important. Where the circumstances are not
clear, an explanation should be attached to the statement.

[A1322-A1329]

A1330 Evidence from HM Revenue and Customs

Any information held by HMRC for the purposes of
1. contributions functions
or
2. SSP
or
3. SMP
may (or on request by an officer authorised by the Secretary of State must) be given
to an officer of the DWP where the information is required for SS purposes (1). This
enables the DM to obtain information about matters such as contribution records and
employed earners employment.

1 SS A Act 92, s 121E

A1331

In the same way information held by the DWP for SS purposes may be given to
HMRC where necessary for their functions.
1 SS A Act 92, s 121F

A1332 Further Information Sharing Provisions A1333

LAs may provide information to the Secretary of State of the type set out in A1333 in
relation to UC (1).

1 WR Act 12, s 130(7)(a)

A1333 A1332

The information referred to in A1332 is (1)
1. whether a resident is meeting in full the cost of the provision to them of
residential care and if so the date this started and the period over which the
cost is intended to be met
2. whether the LA is funding or has funded in full or in part the cost of the
provision to a resident of residential care and if so
2.1 the date from which the funding started and the period covered or
intended to be covered by it
2.2 the date the funding stopped or is intended to stop
2.3 the enactment under which the funding is being or was provided
2.4 whether there exists any agreement enabling the LA to recover the cost
of the funding on the sale of the resident's home and if so, whether that
recovery has commenced or when it is intended to commence
2.5 whether the LA has entered into a deferred payment agreement with
the resident and if so the date this started and the period the agreement
is intended to cover
Note:
This also includes information about when the provision of the service begins
or ends or is likely to do so.

1 The Social Security (Information-sharing in relation to Welfare Services etc) Regulation 2012, reg 3

A1334

The Secretary of State may provide information to an LA or an authority which
administers HB (or their service providers or persons exercising functions on their
behalf) for (1)
1. determining a person's eligibility or continued eligibility for a disabled person's badge
2. determining whether to make to any person a disability adaptation grant, a
disabled facilities grant or a discretionary housing payment and if so the
amount of that grant or payment :
3.
determining whether a person applying for housing support services, the
provision of domiciliary care or the provision of residential care is liable to
contribute towards the cost of the service and if so the amount :
4.
identifying households eligible for support under the troubled families
programme and providing appropriate types of advice, support and assistance
to members of such households under that programme
Note: 4.4 applies to LAs in England
1 The Social Security (Information-sharing in relation to Welfare Services etc) Regulation 2012, reg 5

[A1335-A1339]

A1340 Standard of proof - balance of probability A1390

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.

A1341

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 (1). It does not mean that the
claimant can be given the benefit of the doubt (2). 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

A1342

Alternatively the DM may find that there is insufficient evidence to establish the facts
one way or the other and ask for more evidence (1). Claimants must supply all
information and evidence required in connection with the decision (2). The DM should
do as much as possible to see that all the necessary evidence is brought to light.
1 R v. Secretary of State ex parte CPAG [1990] QB (54)0; 2 UC, PIP, JSA & ESA (C&P) Regs,
reg 37- 38, JSA Regs 13, regs 31 - 32

[A1343-A1349]

A1350 Failure to provide evidence

If the claimant fails to provide the requested evidence or information a penalty may
be imposed e.g. for failure to sign a declaration in claims for JSA.

A1351

Evidence requirements for JSA are in benefit specific guidance.

A1352

When making a decision, the DM should decide the importance of the failure and
any reasons given for not providing evidence, as this could cast doubt on the facts
previously provided. See A1405 for guidance on the burden of proof.

Example 1

A UC claimant states that there is no capital or income from the sale of her
business, because the money from the sale was used to clear the business debts.
The DM asks for evidence of the transaction. The claimant is unable to produce any.
The transfer of the business was within the family. The DM is entitled to take the
view that it is more likely that the claimant has not disposed of the assets of the
business.

Example 2

A jobseeker states he left his employment because of a grievance with the
employer, but on being asked to provide more details, does not reply. The DM can
impose a sanction because the jobseeker has not proved good reason for leaving
his employment voluntarily.

Example 3

A PIP claimant completes the claim form but does not return the claimant
questionnaire ("How Your Disability Affects You"). Despite a reminder the form is
never returned. The DM makes a negative determination and disallows the claim for
PIP.

[A1353-A1371]

A1372 Treated as not having LCW

Where the claimant has not replied to enquiries requesting evidence of LCW (1), there
are special rules to treat a person as capable of work. They apply if the claimant fails
without good cause to
1. return the questionnaire for the WCA (2)
2. attend or submit to a medical examination (3).
See ADM Chapters F5 and V.
1 ESA Regs 13, reg 33; UC Regs, reg 43; 2 ESA Regs 13, reg 34; UC Regs, reg 43(3);

3 ESA Regs 13, reg 35; UC Regs, reg 44

A1373

See ADM Chapters F1 and V where a claimant fails to provide medical evidence.

[A1374-A1379]

A1380 Corroboration of evidence P6004

There is no rule of law that corroboration of the claimant's own evidence is
necessary 1. But the DM should not accept evidence, from the claimant or anyone
else, uncritically. It needs to be weighed carefully, in the light of the circumstances of
the case.
1 R(I) 2/51; R(SB) 33/85

Example

A man claims UC. He states he has capital of 20,000. The DM therefore decides
that he is not entitled to UC. Four weeks later the man makes another claim for UC.
He states that he has spent all of his capital, but he cannot produce evidence of any
expenditure. The DM decides that the man still has capital of 20,000 and that he is
not entitled to UC.

[A1381-A1389]

A1390 Contradictory evidence

If the evidence is contradictory, the DM should :
1.
try to resolve the discrepancy or :
2.
decide that there are sufficient grounds to decide the point on balance of
probability - see A1340 et seq.

A1391 Self-contradictory evidence

The claimant's own evidence may include statements which conflict with each other.
These mutually contradictory statements usually need explaining.

Example

An ESA claimant suffering from low back pain fails to attend for a medical
examination. He states that he is unable to travel to the medical centre by public
transport due to his disability and cannot afford taxi fares. When asked how he
manages for shopping etc he replies that he needs very little because he takes the
bus to his parent's house each day and they provide his meals. The distance
between the claimant's house and his parent's is similar to that between his house
and the medical centre. The DM decides that the claimant's reason for not attending
the medical is not enough on its own to excuse the failure.

A1392 Inherently improbable evidence

The DM may decide that a claimant's statement is inherently improbable. This is
where it is very unlikely that what has been asserted can be true.

Example

Following an investigation, the DM finds that a UC claimant has been receiving
1,000 a month occupational pension and disallows the award of UC. The claimant
states that he had no idea that this money had been credited to his bank account.
The DM decides that this is inherently improbable, and that the overpayment is
recoverable.

A1393

In some cases the DM may decide that uncorroborated evidence (that is, evidence
not supported by any other evidence) cannot be accepted because it is self-
contradictory or improbable. Such evidence may contradict itself, or other evidence
before the DM, or the DM may consider that it is unlikely to be true. In such cases
the DM may request further evidence. If none is available the DM should decide the
claim on the evidence provided already.

[A1394-A1399]

A1400 Claimant's own evidence

A claimant's statement, whether oral or in writing, is evidence. It is often the best
evidence and sometimes the only evidence available, even after enquiries. In such a
case, the DM must decide whether the claimant has discharged the burden of proof.
See A1405 et seq.

Example 1

A claimant was overpaid JSA for several years because an increase in the hourly
rate for his P/T work was not taken into account. During the investigation he stated
that he had declared the increase at an interview at the Jobcentre Plus office. He
said he remembered the conversation in detail, including the fact that the interviewer
said that she would write down the details and make sure that the increased income
was taken into account. The claimant could not remember any other details of the
interview or completing the claim form which stated that his P/T earnings had
increased. The DM decided that the statement was unlikely to be true. This view was
reached after considering the claimant's selective memory of events and was
reinforced because he had not disclosed recent changes in his hours and income.
The DM decides that the claimant has not discharged the burden of proof.

Example 2

A woman declared maintenance payments at the beginning of her UC claim and
regularly reported changes. During an investigation it is found that an increase in
these payments has not been taken into account for three months. There is no
record of disclosure of the increase. The claimant states that she declared the
additional income in a letter in which she also reported that her son had left the
household. The letter cannot be found but the award had been adjusted to remove
the child element around the date of the alleged letter. The DM decides that, on the
balance of probability, the claimant had reported the change in income and it had
been overlooked in dealing with the family circumstances.

A1401

The DM should look at each statement made by the claimant and assess it on its
merits. A statement may occasionally be so extraordinary that it casts doubt on the
credibility of the person and any other statements they have made. The DM should
be careful in assessing these matters on written evidence alone. It may be
necessary to interview the claimant to get clarification or further information.

A1402

If it is clear from the case papers that a claimant has previously made statements
which have proved to be incorrect, the DM is entitled to regard evidence provided by
that claimant critically, regardless of whether these statements were genuine errors
or attempts to mislead.

[A1403-A1404]

A1405 Burden of proof A1352 A1400

A clear understanding of where the burden of proof lies helps the DM to weigh the
evidence and decide whether further evidence should be sought. DMs should note
that :
1.
initially the burden lies with the claimant to prove that the conditions for a
claim are satisfied (1) but they should do as much as possible to ensure that the
claimant has every opportunity to provide all relevant evidence :
2.
where they wish to show that an exception to a condition of entitlement is not
satisfied, the burden of proof rests with them (2) :
3.
there is no presumption in favour of the claimant
4. where an allegation is denied by the claimant it is generally for DMs to prove
the facts :
5.
the burden of proving that the conditions for revision or supersession are
satisfied lies with the person who applies for revision or supersession :
6.
in overpayment cases the burden of proof for the purposes of determining the
sum to be recovered falls on them (3) (see ADM Chapter B3 )
7. where a criminal court convicts a person of an offence related to obtaining or
receiving benefit, that conviction shifts the burden of proof relating to the same
benefit and period at issue from them to the claimant (4).
Note: Where 5. applies the question of whether the conditions for revision or
supersession are satisfied must be considered separately from the question of
whether the decision should be revised or superseded.
1 R (SB) 2/83(T); 2 Department for Social Development v Kerr [2004] UKHL 23;
3 SS A Act 92, s 71; R (SB) 34/83; 4 R(S) 2/80

[A1406-A1419]

Evidence in certain situations

A1420 Destruction of documents

The Department destroys documents in order to meet the obligations of the Data
Protection Act. No one can make any presumptions about what evidence the
documents might have contained (1). This means that claimants cannot say that the
destroyed documents must have supported their case. This principle does not apply
if the claimant can prove that the documents were disposed of with the sole intention
of destroying evidence.

1 R(IS) 11/92

A1421

The DM should take account of any available evidence and make a decision on the
balance of probabilities. Where it is impossible to reconstruct the document the DM
should not assume any fact but decide the question on the basis of any other
evidence.

A1422

The DM must consider the burden of proof when looking at evidence. This can rest
with either the claimant or the DM.

[A1423-A1429]

A1430 Evidence of Departmental procedures

Where a case relies on systems of work or Departmental forms no longer available,
the DM should
1. get evidence of the system of work or
2. explain why the original form is not available.
The DM could then decide on the balance of probabilities whether the procedures
were properly followed.

Example

An overpayment of PIP has been identified. The DM is looking at recoverability.
Benefit is paid to the claimant by direct payment. The DM knows the benefit cannot
be paid by direct payment unless the claimant signs a declaration of understanding
and agreement that overpayments may be recovered (1).
The DM decides that the prescribed conditions for recoverability are satisfied even
though the original document has been destroyed under normal destruction
procedures.
1 SS (POR) Regs, reg 11(2)(b)

A1431 Evidence of a decision

It may be necessary for the Secretary of State to produce evidence of a decision of a
DM, for the purpose of an appeal for example. If so, the evidence of the decision
should contain a certificate signed on behalf of the Secretary of State stating that the
document is such a record. The certificate must be signed by an officer specifically
authorised to do so (1).

1 SS Act 98, s 39ZA

A1432 A1433

A certificate should not be produced where there is no evidence that a decision was
made or recorded, or that the decision was different from that provided in any
explanation or recorded in a response to the FtT.

A1433

Where A1432 applies, the DM should not use the certification process to construct a
record of what ought to have been decided. DMs should be aware that it is a false
statement which could lead to criminal sanctions (1).

1 Perjury Act 1911, s 5

A1434

Where the decision was made electronically, the DM should :
1.
produce a computer printout showing the decision history and :
2.
provide an explanation of codes used in the computer record.
See A1111 - A1112 for guidance on recording decisions.

[A1435-A1439]

A1440 Evidence given in confidence

If evidence raises any question of confidentiality, the matter must be resolved before
it is put to the DM. If any confidential evidence is disclosed to the DM, that evidence
must be disclosed to the FtT. However, the FtT may make an order prohibiting the
disclosure or publication of confidential evidence (1).

1 TP (FtT) (SEC) Rules, rule 14

A1441

All evidence available to the DM should be available to the FtT (1) and disclosed to the
claimant or representative (2) except medical evidence that is harmful to the claimant's
health.

1 TP (FtT) (SEC) Rules, rule 24(4)(b); 2 R(S) 1/58

A1442

All information obtained in the course of deciding a claim is confidential between the
claimant and the statutory authorities. It follows that personal details of one
claimant should not be put to the DM as evidence for the claim of another
claimant. An exception would arise if a claimant alleges to have responsibility for a
child or children included on another person's claim.

A1443

Information given in confidence from a third party, such as
1. social workers or
2. doctors or
3. letters containing allegations where the writer has not given written permission
for the contents to be disclosed or
4. verbal allegations where permission has not been given should not be
available to the DM when making the decision.

A1444

All information obtained in the course of deciding a claim should be regarded as
confidential.

A1445

All the evidence that is put to the DM must be put to the FtT if a claimant appeals.
This includes confidential evidence. See ADM Chapter A5 for details.

[A1446-A1449]

A1450 Appeals: Address of partner from whom claimant is separated

Where a document shows any details which could lead to the location of the
claimant being discovered by the other party, these details must not be made known
to the FtT if the separated partner has asked for their whereabouts not to be
divulged. If this information is not to be released the DM should :
1.
prepare a note to the Presenting Officer to explain the omission to the FtT
and
2. make sure that all copies of the document have the information blanked out.

A1451 Fraud A1320

To ensure that DMs act independently and fairly officers involved in fraud work do
not make decisions with regard to payment of, or entitlement to, benefit. Cases of
suspected fraud which need a decision must be referred to an officer who is not a
fraud specialist. See Appendix 1.

A1452

Full-time fraud specialists temporarily engaged on other duties and staff who are
employed part-time on fraud work may make decisions while they are carrying out
duties unrelated to fraud work. They must not give a decision on any case :
1.
which is the subject of current fraud action or :
2.
in which they have been engaged in investigating fraud.

[A1453-A1459]

A1460 Advice on the law A1004

Advice on the interpretation and application of law in an individual case, for example
from DWP Legal Services or DMA Leeds, should not be disclosed to the claimant,
the claimant's representative or the FtT. This type of information is covered by legal
professional privilege, and as such there is no obligation to disclose it in legal
proceedings. There is no obligation to supply the advice where there is a request to
disclose it under the Data Protection Act 19981. However, if a request to disclose is
made under the Freedom of Information Act 20002 the information may be
disclosable if it is in the public interest to do so.
1 Data Protection Act 98, Sch 7, para 10; 2 Freedom of Information Act 2000, ss 2 and 42

[A1461-A1469]

A1470 Decisions given by other courts

In making decisions, DMs should take account of
1. their own independent conclusions and
2. decisions of appellate authorities including reported UT decisions.

A1471

The DM is bound by decisions of the appellate authorities (see A1474) on questions
which are identical to those they have to decide.

[A1472-A1473]

A1474 Appellate Authorities A1471

The appellate authorities are
1. the
UT
and :
2.
the higher courts.

A1475 Upper Tribunal decisions

Reported decisions are those of general importance. They :
1.
deal with points of construction on statutes and regulations :
2.
add to the consistent and orderly development of the law :
3.
have the agreement of at least the majority of the UT judges :
4.
often deal with important questions of interpretation of provisions in the Acts
and regulations :
5.
have been selected for reporting by the editorial board of the UT.

A1476

Reported decisions are now numbered using neutral citation, - see Annex K - an
example of which is KS v Secretary of State for Work and Pensions (JSA) [2009]
UKUT 122 (AAC); [2010] AACR 3. To explain the composition of the citation, it is
broken down below into its component parts
1. KS v Secretary of State for Work and Pensions (JSA) refers to the parties to
the appeal and the benefit involved;
2. [2009] UKUT 122 (AAC) refers to the year the decision was made, United
Kingdom Upper Tribunal and the neutral citation number; i.e. the consecutive
number of the case within the year's series and the name of the chamber
making the decision, in this case The Administrative Appeals Chamber; :
3.
[2010] AACR 3 refers to the year the decision was reported, the name of the
publication it is reported in and the consecutive reporting number within that
year's series.

A1477

At the head of each reported decision is printed :
1.
a brief note of the facts of the particular case and :
2.
the substance of the decision.
This headnote is not part of the decision and carries no authority. A guide to reported
decisions can be found in Reported Decisions Digest/Neligan (1). Annex L contains an
explanation of the previous reported decision serial numbers and the benefits to
which they relate.

1 Neligan - Social Security Case Law, Digest of Commissioners' Decisions

A1478

Copies of all reported decisions are held by
1. the President of the TS
2. TS regional offices.
DMs in all offices of the DWP should have access to all reported decisions.

A1479

Reported decisions have the support of the majority of the UT and contain points of
general importance about the interpretation of the law. Both reported and unreported
decisions are sources on the interpretation of legislation. The DM should rely
primarily on reported decisions. Many unreported decisions do not deal with matters
of general importance and are specific only to the facts of a particular case.

A1480

Great care is needed before using an unreported decision as the basis for general
application in similar cases. If decisions of the UT conflict, then a reported decision
has more weight than an unreported one (1). A decision of the UT consisting of 2 or 3
Judges should be preferred to that of a single UT Judge (2). Where a claimant or a
representative produces a decision without warning at a tribunal, the presenting
officer can seek an adjournment so that a copy of the decision can be obtained and
made available to all parties.
1 R(IS) 9/08; 2 R(I) 12/75

[A1481-A1489]

A1490 Court of law

The conviction of a claimant in a court of law for falsely obtaining benefit should not
be ignored and should have a bearing on the case relating to benefit (1). When a
prosecution has taken place the DM should try to obtain
1. all the evidence that was available for the criminal proceedings and
2. evidence of the conviction itself
before giving a decision on benefit, or revising a decision which has already been
given.

1 R(S) 2/80

A1491

The initial responsibility of showing that the conviction relates to the benefit and
period at issue rests on the DM. A conviction for an offence relating to the same
benefit and period at issue before the decision making authorities has the effect, on
reconsideration, of shifting the burden of proof on to the claimant who has been
convicted. The claimant must show, on the balance of probability, that there is
entitlement to the benefit at issue.

A1492 Rehabilitated offenders

It is a criminal offence for anyone whose official duties involve access to official
records to disclose information about spent convictions of rehabilitated offenders
other than in the course of those duties (1). See A1493 et seq.

1 ROO Act 74, s 9

A1493 A1492

An offender who has been sentenced on conviction to
1. a term of imprisonment or
2. detention in legal custody
of not more than 2 years can be rehabilitated by avoiding re-conviction for a
serious offence within a specified period beginning with the date of conviction (1).

1 ROO Act 74, s 1 & s 5

A1494

When an offender has completed the rehabilitation, the conviction becomes spent
and evidence relating to it is only admissible in proceedings before a judicial
authority (1). DMs are judicial authorities within the meaning of the Act (2).

1 ROO Act 74, s 7(3); 2 s 4(6)

A1495

The DM should only consider evidence relating to spent convictions when that
evidence is essential to the determination of the claim. The DM is then acting within
official duties for the purposes of the Act.

[A1496-A1499]

A1500 Employment tribunals

Decisions of FtTs are not binding on Employment Tribunals or vice versa. Although
the issues before the tribunals have much in common, they are not identical (1). The
DM should consider any relevant evidence given to an Employment Tribunal, but
does not have to take the same view of its credibility or draw the same inferences.
1 R(U) 2/74; R(U) 4/78

[A1501-A1509]

A1510 Coroner's court

A Commissioner declined to follow the decision of a Coroner's jury, declaring that it
was the duty of Commissioners to determine the probabilities, having regard to the
evidence before them (1). DMs have the same duty.
1 R(I) 25/60

[A1511-A1519]

A1520 Medical evidence A1094

In general, medical evidence should be treated in the same way as any other
evidence. Medical training is not required, but there are additional considerations for
DMs.

A1521

Medical evidence is often given as a medical opinion and is not conclusive. See
ADM Chapter A4.

A1522

The DM is entitled to reject an opinion (1) where there is direct or circumstantial
evidence which raises a strong inference against the opinion. Where doctors or
HCPs or Health Professionals (PIP) disagree, the DM has to decide, on the balance
of probabilities, which of the contrasting opinions is more likely to be correct. The
view of the claimant's own doctor is not conclusive (2).

1 R(S) 4/60; 2 R(S) 4/56

A1523

Where a decision hinges on a medical issue the DM must seek advice from Medical
Services or the Health Professional if they have any doubt about
1. whether the evidence is sufficient to make a decision, or
2. how it should be interpreted.

A1524

It should be remembered that the onus is on the claimant to provide evidence in
support of their claim. The DM may consider that additional evidence will help
Medical Services give better advice. If this can be obtained quickly, either from the
claimant or elsewhere, it should be requested. However, if the information is then
delayed, the claim form should be sent to Medical Services who should be told that
further evidence has been sought but not received. It will be for Medical Services to
decide how then to proceed. For PIP evidence gathering is the responsibility of the
Health Professional. On receipt of the Health Professional's assessment the DM
may, in consultation with the Health Professional discuss the need for further
evidence.

A1525

The DM may refer any question of special difficulty to one or more experts for
examination or report (1). An expert in this context may include, for example,
1. a registered medical practitioner
2. a physiotherapist
3. a nurse.
Examination includes a physical examination if the claimant agrees (2). Referral to an
expert may be made through Medical Services. See benefit specific guidance for
more details.
Note: For PIP it will fall to the Health Professional to determine what, if any, further
evidence is required.

1 SS Act 98, s 11(2) & s 19; 2 R(I) 14/51

A1526

The DM should decide the claim in the light of all the evidence including the HCP or
HP's report.

A1527

For PIP the assessor reports are advice following a consultation and are not
considered "medical".

[A1528-A1539]

The Role of Assessment Providers

A1540 PIP

Following an initial claim for PIP, the claimant will complete a claimant questionnaire
("how your disability affects you"). This will ask for details about their ability to carry
out the daily living and mobility activities. This will be sent to the Assessment
Provider. The Assessment Provider is a Health Professional who will undertake the
consultation.

A1541

The Health Professional will decide what additional evidence, if any, is required.
Prior to the Health Professional giving an opinion the claimant will, in the majority of
cases, be called for face to face consultation. The subsequent report will be sent to
the DM. Where the DM is not content with the assessment report the DM will
discuss with the DWP advisor who will liaise with the appropriate Health Professional
to resolve the matter.

[A1542-A1550]

A1551 ESA and credits

To be entitled to ESA a claimant must have LCW (1). Claimants who are not treated as
having LCW have to answer a questionnaire. The questionnaire is designed for the
claimant to give as much information as possible about their condition and how it
affects them in their daily functioning and how they manage their condition. Medical
Services are responsible for gathering the information required. This includes
sending the questionnaire.

1 WR Act 07, s 1(3)(a)

A1552

Medical Services will also provide an independent medical opinion on the claimant's
condition, functionality and their ability to perform activities related to work. They do
not provide a diagnostic examination.

A1553

The questionnaire and the medical opinion are referred to the DM to consider
whether the claimant has LCW. See ADM Chapter F5 for full guidance.

A1554 UC

UC claimants can receive (1) an LCW or an LCWRA element if they have, or can be
treated as having LCW or LCWRA. See Chapter F1.
1 UC Regs, reg 39(1), 27(1)(a), reg 40(1)(a), reg 27(1)(b)

[A1555-A1569]

A1570 Exchange of medical reports

A claimant may argue that a medical report produced for another benefit should be
used to decide a claim or dispute. The DM should, if possible, obtain a copy of the
report and take it into account when making the decision.

A1571

The same applies when a DM is sent a medical report by another officer of the
Department. For example, an officer dealing with a claim for ESA may be sent
medical reports obtained for the purpose of a compensation recovery case.

A1572

DMs should bear in mind that medical reports are produced in order to determine
whether the person satisfies the conditions of entitlement for a particular benefit and
that some of the findings might not be relevant to another benefit. If reports appear
to conflict, DMs must take into account the level of expertise of the HCPs
concerned. For example, a HP is specially trained to assess disability in the context
of a claim for PIP and their evidence may therefore be preferable to that of another
HCP when deciding a claim for that benefit. DMs should consult Medical Services or
the Health Professional if they have difficulty interpreting the medical advice.

A1573

The DM also needs to be aware of other factors which may affect the weight to be
given to the report as evidence. For example, where a WCA report is used as
evidence to disallow an award of ESA or credits, and the decision is overturned on
appeal, the WCA report may not be a useful source of evidence when deciding a
claim for PIP.
Note: For the purposes of PIP medical reports are referred to as "assessment
reports".

[A1574-A1589]

A1590 Consent and medical evidence

Claims for ESA and PIP which include consent to collect medical evidence include
consent to the information being made available to the decision making authorities.
The whole report should be disclosed to the claimant or representative unless A1591
applies.

A1591 A1590

Medical evidence should not be disclosed to the person to whom it relates if
disclosure would be harmful to the health of that person. If a report from a GP or
consultant is signed to indicate that no information need be withheld, the report can
be disclosed on request as normal. In PIP cases the Health Provider will indicate on
the report that the assessment does not contain harmful information. Where the GP
states that information in the report is harmful, the DM should consider whether it
should be disclosed, asking Medical Services for advice in cases of doubt. In PIP
cases a form is completed where the report contains harmful information that is not
to be copied to the claimant. The DM should take account of the evidence where it is
relevant.

A1592

Where the DM considers that disclosure of medical evidence would be harmful, the
evidence should not be disclosed to anyone acting for the person concerned unless
the DM is satisfied that it is in the interest of the person to do so. If the evidence is
disclosed it should be on the understanding that it will not be disclosed to the person
to whom it relates.

[A1593-A1594]

A1595 Appeals

Where :
1.
medical evidence used to make a decision is considered by the DM to be
potentially harmful and :
2.
an appeal is made against the decision
the appeals officer should prepare two sets of documents including the response.

A1596

The first set should have all evidence including that considered to be potentially
harmful medical evidence, with a form explaining what evidence is considered to be
potentially harmful medical evidence and why. The form will ask the FtT for a ruling
on disclosure (1).

1 TP (FtT) (SEC) Rules, rule 14

A1597

The other set should have the potentially harmful medical evidence obliterated. The
response should not be sent to the appellant.

A1598

On receipt of the FtT's ruling, the clerk will :
1.
send the appropriate response as directed together with the pre-hearing form
to the appellant and representative and :
2.
send a copy of the ruling to the Department.

A1599 A1094

The Department's file should be noted to ensure that the ruling is followed in any
contact with the appellant or representative. The appropriate response should be
issued to the presenting officer if there is to be one.

[A1600-A1999]

Appendix 1
Areas where information gathering and decision making functions must always be undertaken by separate members of staff
1. Allocation of NI numbers
2. Determinations about LTAHAW and LTACP
3. Fraud investigation
4. Instrument of payment replacement
5. Dealing with claims and applications from relatives.