I have a client who had been getting high mob and mid care DLA for many years. She sent back her review forms and was reduced to low care and high mob. She appealed against the decision in respect of the care only. 7 months after the original decision and before the case came to tribunal she was videoed by DWP fraud who then did interview under caution and took away the mobility from date of interview under caution. New appeal lodged against the mobility being withdrawn.

Original appeal (against care component) now being listed but DWP have sent in the transcript of the fraud interview to be included - even though it only considered her mobility.

Any tactics / caselaw on having the offending item chucked out since current appeal is about care only - basis of fraud video/transcript seems to be they watched her walking around a shop (which is obviously covered by CDLA/12551/1996 and others).

Thanks

you could try arguing that's its inclusion is prejudicial to the appeal, if the d-m hasn't explained the relevance of the evidence to the decision 7 months earlier. maybe a weak argument though, but there's not a lot here to go on.

did the transcript reveal why they suspected her of not being VUTW before the video? it should have. since it's been included as evidence, and in itself is intrusive evidence, it might be an idea to obtain info about the decision to investigate her, by way of explanation about how the evidence came to be obtained. was the decision to investigate reasonable in the light of what was known about her condition, and what was contained in what i assume was an allegation against her? disabled people on benefits do have human rights.

any explanation of why there was an interview under caution? IUC's carry a threat of prosecution. they are deeply intimidating and distressing to most people. DLA isn't a benefit which lends itself easily to fraud prosecutions, as we know. i wonder how much the case law on DLA weighs, and how high a pile commissioners' decisions would stack up to?

the get out clause for the SEc of State on human rights is reasonable grounds to suspect a fraud had been committed. the allegation may have given rise to a doubt of entitlement, but did it really give grounds to suspect fraud, so as to justify the state spying on her with a video camera? what evidence was her review 7 months earlier based on...?

jj

DLA isn't my area, so I'm not sure of the rules about retrospective evidence for DLA. However, admissibility in terms of the manner in which evidence is obtained was addressed in:

R(DLA) 04/02 (aka CDLA/2037/2000).

Point 5 on the front page summary seems to apply and, in particular paras 7-10 of the decision. No help at all to your client I suspect, but at least you'll be aware of the CD.

Regards

Admissibilty of evidence doesn't apply in tribunal land.

Horses, flogging and dead come to mind on that avenue unless I'm very much mistaken.

You could try and convince the tribunal that the evidence from the video was not reflective of her condition at the earlier date.

Finally, the appeal cannot be only about the Care component. Those may be the grounds the appeal was lodged upon but other evidence has come to light. The tribunal can and may wish to use the evidence to make their own decision.

Sorry to be negative.

: ) thanks
no, you're probably right about flogging the horses.

still, i doubt admissibility of evidence is a completely dead issue, the way things are going...

does anyone suppose they ever video people who haven't made fraudulent claims?

jj

Are you suggesting that the DWP are selective in the use of evidence?

I'm shocked.......

heh heh!

i'm also wondering if they would ever tell someone they had videoed who was seen to have sufficient difficulties in walking that they closed the investigation. i doubt it, but there is something sickeningly distasteful here imo...

one of the most irritating and tiresome remarks from clients, which i expect we all come across regularly, is the ' i know somebody who gets it and there's nothing wrong with them, yet they turn me down.' i have never met anyone yet who did not immediately understand why that is a useless argument to put to a tribunal, on the occasions i felt obliged to mention it...

i used to work with a young woman who had cerrebellar ataxia, and received high mob. she walked ok with some stiffness and ungainliness of gait, but would suddenly lurch to the left or right, banging into walls etc. she met with quite a lot of hurtful abuse from strangers, because they thought she was drunk.

i wonder how decisions to investigate for DLA fraud are made, on receipt of allegations...?

jj

As it's DLA, I'm floundering a bit, but......

In HB/CTB, there is a specific provision that prevents facts / events / circumstances being considered by a Tribunal if they occur AFTER the decision date . Just wondered if there is an equivalent provision for DLA? If so, I'm presuming any video evidence taken after a DLA decision could not be used in respect of that decision if it was successfully argued that the FACT shown by the evidence did not exist at, or before, the DLA decision.

Just to clarify, in HB/CTB retrospective EVIDENCE is allowed, so long as that evidence relates to the facts / circumstances / events as they stood at, or prior to, the decision date.

Hope the above at least helps to point in the right direction.

Regards

Thanks for the info, I suspected that it was going to be a bit of a long shot.