Who carries the burden of proof in benefit appeals, the DWP or the claimant? There was a posting about this on rightsnet a year or two ago in relation to a tax credit appeal, and the consensus seemed to be that the burden of proof was on the DWP (or tax credit office or housing benefit department) to prove their case first as their decision was deemed to have initiated the dispute. This is a principle of English common law and somebody on rightsnet even came up with the Latin phrase used to describe it. Unfortunately, I don't have my notes on this any more.
The reason I'm asking is: one of my clients had a housing benefit appeal heard (and lost) in her absence. She was in hospital and too ill to attend anyway, but the Tribunal Service didn't inform either her or myself of the date of the appeal. I've asked for a set aside. The regional chair has written back to say the case meets the criteria for a set aside, but he wants a further submission from me demonstrating that the case is winnable before he will agree to a new hearing.
I've already established a prima facie case for the appeal, otherwise I wouldn't have sent it in the first place.
I think the regional chair is out of order, but I need to know the legal basis on which I can tell him why he's wrong.

Generally the claimant has the burden of proving they are entitled to benefit. The authority has the burden of proving grounds for a revision or supersession decision. HOWEVER, most tribunals do not get too bogged down in burden of proof issues and a tribunal should rely on a failure to discharge the burden of proof as a substitute for a proper enquiry. Remember that tribunals are inquisitorial in nature. See R(I)1/71, Kerr (H of L). R(IS) 17/04 and CIS/1021/2001. But I think this is a bit of a red herring...

If both the client and rep were absent due to niether receiveing notification of the hearing then this clearly meets the criterea for set aside (reg 23 HB and CTB (decisions and appeals) regs 2001) provided it appears just...I think this is what the LQPM is getting at s/he wants to know if there is an arguable case and whether the claimants position was prejudiced by non attendance. In the circumstances you describe I'm not sure this is strictly necessary but all you need to do is to give an indication of the evidence that the appellant was unable to give and if this is relavent to the appeal it will improve the prospects of getting the set aside.

Sorry, in the 1st para I meant to say "...a tribunal should NOT rely on a failure to discharge the burden of proof as a substitute..."