I have an overpayment appeal coming up in a couple of days which (after much debate around other issues) is now down to an issue on disclosure of change of circs.

In a nutshell, client was in receipt of IS but then started as a student and failed to declare loan and grant income.

However, the key issue is that client maintains that she advised her new deal/lone parent adviser that she was starting her course before it started.

With nothing concrete (times, dates) etc, we requested disclosure from the DWP of her IS/new deal records. However client has just received a letter saying these reocords are no longer available/unfound/destroyed. So, nothing concrete to prove the disclosure and whilst client is adamant about this, we have no detials.

I'm sure this kind of issue has come up before on this forum but a quick search was fruitless. Does anyone know if we can use the lack of info from the DWP to to client's advantage?

How long ago did you client visit the DWP, because are'nt they supposed to keep their records for six years?
If they have lost them then you may be able to use this point in support of your case.

Not sure that the DWP are required to keep records for 6 years are they? DPA says something along the lines of data should only be kept for a reasonable period (can't remember of the top of my head the exact phrase). Perhaps a wiser sage than me has the dfinitive answer.

Anyway, the point in this case is that the records are not available. What I was angling for was a killer argumnent on burden of proof but I think this is all going to boil down to credibility, which, as the client cannot recall the spcifics, is not very hopeful.
I recall a CD along the lines of a client's evidence should be accepted unless it is non-credible or displaced by other evidence. Can anyone point me to it?

Purely in terms of the effect of missing documents it might be worth having a look at Commissioner Mitchell's decision R(IS) 11/92 that is often cited by the DWP as it holds that no presumptions fall to be drawn against the Secretary of State for having lost or destroyed the missing documents unless it can be shown that this has been done deliberately with the intention of destroying evidence.

Whilst Commissioner Mitchell does hold this, he also holds that a decision on the balance of probabilities must still be based on the available evidence and that where documents are missing it may be the case that no conclusions of fact can be made: there is no evidence from which to infer what the true facts were. In such a case, then the decision that should be made is on the basis that the burden of proof has not been discharged.

In CG/3049/2002 Commissioner Williams also points out that R(IS) 11/12 had more to say than being simply concerned with the idea that missing documents should not create a presumption against the party who has lost them.

In terms of the assessment of a claimant's evidence in the absence of DWP records it might also be worth looking at Commissioner Parker's decision in CSIS/345/2004.

There is a summary of CSIS/345/2004 in the briefcase area of rightsnet, together with a link to the full decision itself.

Hi

I think the decision you might be recalling is R(SB)33/85 - from memory as i don't have a copy where I am or find one on system, there is no rule of English law requiring evidence to be corroborated, unless it is contradictory or inherently improbable etc

Tony

Many thanks to you all for your help. Tribunal was held last week and a decision awaited. Chair agreed that the decision will revolve around the tribunals findings on fact on the evidence available, i.e. hte missing "documents" could be reconstructed as far as possible by the tribunal which is basically what the case law says should be done, but it was good to be prepared! Thanks again.

Appeal was dismissed, but then client did change the account of events when giving evidence and not in a way that helped the case! Thank you again, especially to ken for the very helpful review of case law and the links.