Burden of proof for PIP tribunal

Hi Spuggie

It may be semantics - but for me it's their 'reasoning' that is flawed, not their 'evidence'. For instance, I am assuming that your husband works because you haven't contradicted that point. So that's a fact. Where the assessor and decision maker got it wrong is because of assumptions made, because he works it automatically, it means he can do A, B & C. You need to take each point they have made and say where they are "incorrect", or "mistaken", or "have ommitted", or "have misunderstood" and point either to the evidence your husband gave on his form, or what he said at his assessment (if he had one) or from any medical evidence you have provided or any additional thoughts you have that contradict what they say. You don't have to come up with new 'evidence', Claimants are allowed to work and claim PIP, but it can sometimes be harder to get an award because of the bias of assessors.

The DWP are always obsessed with the amount of medication. I can imagine your husband's frustration at being told that because he does not have mental health support, that means he can't suffer from anxiety, depression or distress. What a load of utter hogwash. It is well known that there is an acute shortage of mental health services across the country and lots of patients have been discharged. Crisis teams are for a short-term crisis - not long-term mental health support. And I don't know about your health authority, but where I live, the 'support' on offer is an online course! Lots of people don't find that helpful.

The one area you may have difficulty with is your husband being a carer. Again, there are many disabled people looking after disabled partners - but the DWP always question it, and I expect it will come up at the Tribunal. Don't panic, just be ready with your answer. They will try to imply that if you are both disabled, you can't be a carer. I have two family members who are both disabled, and this question was asked. They were able to say truthfully that one gave physical care and one gave mental health support to their partner, and this was accepted. The important thing is to ensure there are no contradictions in what your husabnd struggles with and the support he gives as a carer.

Since when were GCSE's a PIP criteria? I think the Tribunal panel will skip over that.

So the important thing is to be able to argue where they are wrong. Only say something is 'unlawful' if you know that it is. I'm not saying that they haven't acted unlawfully, but I'd generally let the panel decide. Often, the DWP have given an 'opinion', one that the claimant vehemently disagrees with.

BIS

Hi Spuggie,
To add to BIS' response...
If this is an initial claim then the burden of proof is on the claimant.
If this is an appeal because DWP have reduced or removed an existing claim upon renewal or other reason, then the burden of proof shifts to DWP.
The standard if proof is 'on the balance of probabilities' in both instances. This effectively means 'its more likely than not' . (Note this is very different to the 'beyond reasonable doubt used for criminal trials'.)

So as an example assuming an initial claim, the tribunal will need to determine is it more likely than not that the claimant has health difficulties which cause him to need an aid/appliance/ need prompting/ need supervision etc for the majority of days when preparing it cooking food, when taking into account, safety, acceptable standard, repetition and reasonable time.* A similar thought process will be required for each relevant descriptor.
* Ie the 'reliability' criteria of Regulation 4(2A).
If this is not an initial claim it is a 'supersession' - legal term for change in benefit - in supersession cases DWP needs to show on balance of probs that firstly there is a ground to supersede - this could be receipt of an assessment report, medical or other evidence, AND that there is an ACTUAL change of circumstances that the disability has improved and hence points should be properly reduced and or removed.
In most cases there will be clear evidence for one side. The strict adherence to law means that if the tribunal aren't sure and there really isn't compelling evidence either way, then they would consider the burden and standard of proof. In this situation they would decide the case by saying the burden of proof isn't reached. So, the initial claimant hasn't got enough evidence, (claimant appeal is not upheld- IE no benefit) or DWP have failed to show a supersession is required( claimant wins - benefit is re-awarded at previous level as if no supersession or possibly higher level if tribunal feels that recent health shows extra disability needs within the descriptors.)
DWP make sweeping assumptions. I'm not sure how these started but they have existed for many years and simply perpetuate.
Common comments include
He can drive, so he can cook
He takes no medication
He has no cognitive diagnosis
He can work
These rather sweeping assumptions keep appearing again and again. The Upper Tribunal becomes aware of these and confirms that these sorts of erroneous comparisons can't be used.
caselaw.nationalarchives.gov.uk/ukut/aac/2025/307
This case EW confirms that DWP can't use work as an excuse for no points.
This is a similar case
assets.publishing.service.gov.uk/media/6...-2024-001023-PIP.pdf
See also this
assets.publishing.service.gov.uk/media/6...-2024-000378-PIP.pdf - especially the conclusion paragraph - there has to be a genuinely comparable nature to activities.

Forget the burden of proof. Simply write in and explain the incorrect assumptions. For example if 'you have no meds or don't visit the GP' You could counter this with 'I have tried various meds and they do not work/my condition is stable and the doctors can't help/I have autism and this is a lifelong condition which can not be helped with medicine etc
Concerning work - this may be only part time or more importantly you have a caring employer who looks out for you by reducing hours, giving more strenuous tasks to others, making other 'reasonable adjustments' - special equipment, allowing you more time, being nearer the loo or canteen, no heavy lifting, etc etc. Or maybe you have a bad sickness record, so in fact you don't really work! Alternatively you might ignore significant pain or immobility and do the job regardless, and like in the first 2 cases do the job but nothing else later!
It is important to understand the 'principle of normality' derived from the care of Fairey. This means disabled people have a right to do normal things. Now obviously by virtue of disability not all things will be possible, but working is certainly a normal thing. However, if you can show, using the examples above how difficult it is to work then you can counter these ingrained assumptions.
Driving - see the locked post at the top of the forum this is another area for assumptions.
Counter the assumptions with a statement from you or carer or employer. You don't need anything else. The assumptions are simply just that.
I hope this helps
LL26