When SoR's are requested the Chairs in this area have increasingly stated that the clients were not credible witnesses. This seems to be a difficult thing to argue against and we are becoming increasingly frustrated. Anyone encounter this problem? Any suggestions on how to deal with it?
Cheers

There's no doubt that this can be a difficult one! All I can suggest is that you need to go through the SOR and evidence very carefully. A finding that the appellant was not a credibible witness is open for the tribunal to make but you need to look at two things:

Firstly, on what basis was that conclussion reached? Were there genuine discrepancies in the appellants evidence or was their evidence inherently improbable? If so you are on an uphil struggle to challenge it. If however, the conclusion has been reached on less concrete grounds, e.g. the appellants presentation during hte tribunal, stumbling, hesitation, wanting to speak to the rep during the hearing etc, then you might have an appeal on your hands if the finding is not supported by the evidence. In addition if the client has clear mental health problems that would explain any discrepancies but this has not been taken into account it might again be open to challenge, perhaps even under the DDA.

Secondly, how has the finding actually been used? I have seen SORs where the tribunal has found the appellant to not be credible, perhaps in one minor aspect of the evidence, but then used that to dismiss the appellants evidence out of hand in respect of all other aspects of the appeal. In this situation again you might have an appeal on your hands if that can't be justified.

Also, although such a finding has been made, it doesn't absolve the tribunal from examining all of the evidence, so again, if supporting evidence has not been given proper conisderation you are on to grounds for appeal. There might also be an argument that the tribunal should have told the appellant that they were considering making such a finding and give the appellant an opportunity to explain any contradictory statements etc, not entirely sure how far you would get with this though.

I agree completely. It is the same when a tribunal says the appellant was exaggerating. I usually find that when a tribunal makes the bald statement that the appellant was exaggerating and then leaves that statement hanging in the air (unsupported by explanation or findings of fact) that I have grounds for appeal. Otherwise (as above) finding grounds may be difficult.

Thankyou, that is helpful and something to look at.
Cheers

EXTRACT FROM A SUBMISSION DEALING WITH THE POINT:-


" 3). The sentence that starts off part 1 of the Reasons section of the Statement alleges that my client exaggerates the effect of his disabilities. They do not, however, appear to base this conclusion on any clear evidence to suggest that the Appellant’s evidence was, as a matter of fact, unreliable. The fact that his evidence may be different in effect from that of the G.P. does not either prove or even imply that he is exaggerating, or providing unreliable evidence, any more than it would tend to suggest that the G.P. was exaggerating his evidence in the opposite direction. There is merely a difference of opinion, and a difference between two pieces of evidence does not imply that either party was exaggerating, as exaggerating implies something more than difference of opinion. It implies wilful overstatement. This is not proved, and my client strongly disputes it.

4). This conclusion that he was exaggerating reveals an error of law because the Tribunal have not offered any clear explanation for their conclusion. In R(SB)33/85, it was held that Tribunals should not conclude that an Appellant is not a reliable witness without explaining the reason for such a conclusion."


AND ANOTHER EXTRACT FROM ANOTHER SUBMISSION:-


" 4). The Appellant’s evidence, however, is certainly subjective, but that does no mean it is wrong. It is accepted that subjective evidence should be accepted only if it is not inherently unreliable or improbable. There is submitted to be nothing here to suggest it is. The Tribunal, however, do maintain that her evidence is unreliable in Part 3 of the Statement of Reasons, in the points numbered a to d on page 2. I shall deal with these in turn, under the same letters: -

a). The first of these says she sat “for upwards of 40 minutes without any sign of discomfort“ (my emphasis). It appears that they have taken her sitting as evidence that she may be able to cope better than she maintained she could. However, it is not made clear why they considered her sitting ability to be relevant to the D.L.A. criteria. Furthermore they did not make clear to her that they thought their observations of her sitting may damage her case. This has been held to breach the rules of natural justice., as she had no way of knowing this was on their minds. In R(DLA)1/95 (CDLA/21/94 unreported) it was held that the Tribunal could take account of such observations only if they were not contrary to the medical evidence. CDLA4/98 also dealt with this type of issue, and in CDLA/849/99 it was held that a Tribunal will err if it holds that such observation was relevant to some disputed issue but does not explain which disputed issue this was. The relevance the Tribunal attached to this is not apparent.

In CM/166/1988 it was held that pain can be borne in “stoic silence”, and it was not sufficient for a Tribunal to base its decision on a lack of appearance of such pain. CM/87/89 held, in a case where a Tribunal had held an Appellant had showed no sign of pain, that “it is not the sign but the fact that is crucial”.

b). A similar point is made in response to the Tribunal’s comments about driving. It is not part of the D.L.A. criteria and it would not be obvious to the Appellant what, if any, relevance her ability to drive short distances would have to these criteria. The Tribunal did not make any thinking they had in relation to this known to the Appellant in order to afford her the opportunity to respond to such inferences as they may have wished to make. She is noted, at Document 66, as saying (to the E.M.P.) “I haven’t driven since my neck’s ‘gone’. My daughter takes me to the hospital when she can”. The documents in the Schedule of Evidence also contain, at Document 47, the comment (again to the E.M.P.) “My neck’s been like this for 8 months”. These are the E.M.P.‘s written record of answers given in answer to questions he had asked her. As such, we do not know the exact context of these questions or answers. In any case, she could have started driving again, albeit for short distances only, between the time of the E.M.P. visit and the hearing. She should hardly be penalized for this if she had, yet, this is what the Tribunal’s reasoning on this point perversely implies.

c). At the third of these statements, the Tribunal Statement says that the Appellant said she had “forgotten” her walking stick. I telephoned her about this before preparing this application, as I did not personally recall this. She told me that this is not correct, and that she had left it in the car because she had been walked into the venue from outside while being supported by linking arms with her companion. She did not say she had forgotten it.

I have perused the Tribunal‘s Record of Proceedings and would respectfully submit that there is no reference at all therein to this alleged statement (regarding “forgetting” her stick) having been made by the Appellant. Thus it is submitted that the Tribunal are, here, attaching considerable importance to a (disputed) statement which there is no first-hand evidence of. This finding is based on insufficient evidence. The Chairperson did not record this as having been said during the hearing, and it follows, in this respectful submission, that they cannot then rely on it as a finding, as there is no contemporaneous evidence that it was even said at all.

d). The Tribunal then refer to the Appellant saying she “had used a deep-pan fryer”. Exactly the same points are made in response to this as are made for c). above. This simply does not appear in the Record of Proceedings. I cannot recall this evidence either way, and as there is no record of it, it is impossible to discern the actual context of such an alleged remark (even if it was made), as she may, for example, have said she had used one but not within the last year.
5).These four points used by the Tribunal are all submitted to be based on the various errors of law identified above. They provide, at best, an insufficient evidential basis for a finding that the Appellant’s evidence was unreliable."