Hi all,
We recently had a case in this area where a SoS certificate as prescribed by para 13 of Schedule 1 to the SSA was wielded as stand alone evidence of an old decision having been made on a particlar date and was accepted by the tribunal.
What the para actually says is:
A document bearing a certificate which –
(a) is signed by a person authorised in that behalf by the Secretary of State; and
(b) states that the document, apart from the certificate, is a record of a decision of an appeal tribunal or of an officer of the Secretary of State,
Shall be conclusive evidence of the decision; and a certificate purporting to be so signed shall be deemed to be so signed unless the contrary is proved.
My interpretation is that such a certificate is purely for corroborative purposes in relation to for example, computer-based decision making where the only evidence available of a valid decision having been made is in the form of a dated computer record print or similar.
The key phrases are: "A document bearing a certificate" … and … "the document, apart from the certificate…" in that the only presumption that can be drawn from the wording is that any such certificate must relate to some other piece of documented evidence and therefore, cannot stand alone.
However, an applicationfor leave to appeal to the Commissioner failed as there were 'no arguable issues of law'. I am outraged because as if I'm correct in my thinking this could potentially allow the DWP to circumvent normal rules of evidence relating to proving revisions etc.
Has anyone else come across this? Or is it just me - have I finally lost the plot and completely misinterpreted the law?!

Lorna.

Er, you won't like this response....

This reply assumes that the crux of the case was whether or not a decision had been made (and, inherently, was there sufficient evidence to show that one had been made). I'm also assuming that there is nothing in the legislation relating to the benefit in question to justify it being treated differently to an HB case (at least in relation to this specific issue).

If my understanding is correct, I agree that a Tribunal is entitled to accept whatever evidence it sees fit as supporting a contention that a decision was in fact made. In HB cases (my background is HB), there have been several CD cases where arguments have raged as to whether a decision had been made at all. The vast majority have found / confirmed that decisions have been made, even where the evidence has been relatively minimal. One CD in particular, by Cmmr Jacobs, looks at how the issue can get out of hand. Oddly, an extract was recently posted on another thread. It's repeated below:

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From CH/2349/2002:

6. I commented in CH/4943/2001, paragraph 11 that 'Local authorities should always include a copy of the decision under appeal in the submission to the appeal tribunal.’

I do not know what the capabilities are of the computer system used by the local authority in this case. It would be surprising if it was impossible to produce a copy of a decision, even one generated by the computer software. Even if an actual decision cannot be produced, the documents that are generated should be sufficient to show that the review took place.

7. The observations refer to the burden of proof and the balance of probabilities. I do not consider that probabilities have anything to do with whether or not a review took place. Either it did or it did not. The evidence should be capable of proof one way or the other without reference to probabilities.

8. The direction on this issue, given at the first hearing, resulted in a submission from the local authority consisting of a witness statement of 2½ pages with 11 Appendices. The statement constructs an audit trail of the computer system and records. It goes into detail of faults reported during the relevant period. The representative in her observations on the appeal now refers to the possibility of faults existing that were not reported or not even known. This argument has got out of hand. It now reads more like a detective novel than submissions in a legal proceeding. The simple truth is this. The evidence in this case shows clearly that a review took place. No one with any sense would doubt it. Local authorities should not be put, as a matter of general practice, to the extensive trouble that the tribunal’s direction imposed in this case. It is only in the most exceptional case that the evidence will be such as to justify, let alone require, the sort of exercise that the local authority undertook. To be fair to the tribunal, I am not sure that it intended so extensive a response as the local authority provided.

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Thanks for confirming my loss of plot!
However,despite the above I still don't get it.
Whilst I accept that the tribunal have to suss out what evidence to use I have trouble accepting that a recently written and produced piece of paper stating that the SofS confirms that happened on date fits the bill in the absence of anything else. At least the Commissioner in the decision cited makes reference to some form of documents being produced. In our case only the certificate was produced having been written purely for the purpose of the appeal papers and therefore not even of the time of the alleged decision under dispute. Thinking about it conversely would reps at appeals get away with producing a note saying something like 'We hereby certify that our client definitely notified the department of their change of circumstances on ......' and it being accepted just like that? I think not!
Anyway, rant over - there's a drink with my name on it - will mourn my loss of grip on reality!

When I haveseen this procedure used it has usually been on a computer-generated bit of paper which evidences the making of the decision in osme form, which is then endorsed with a certificate by an officer of the DWP that this is a record of soemthing which genuinely happened.

When I was a real solicitor I used to certify copy documents all the time. What the person is doing is validating the document now being produced, which without the certificate is just a piece of paper. It out to be certified something on the lines of "this is a true copy of the record made on xxx of a decision made on yyy "

Note that the rules only say that it is evidence unless proved otherwise, ie it is a "rebuttable presumption". You or your client are free to produce your own evidence to show that the decision in question was not made as described.

Doesn't seem to happen very often - i haven't seen as many recently as I used to.