The need for balance when assessing the claimant’s evidence

VS v Secretary of State for Work and Pensions (ESA): [2017] UKUT 274 (AAC) (Upper Tribunal Judge E. Jacobs) 30 June 2017

The claimant had delayed producing a medical report following the First-tier Tribunal’s (FtT) direction to do so. The FtT was highly critical of the claimant, holding that she was “not a witness of truth”, and it found that her evidence was “contrived, contradictory and inherently incredible”.

Allowing the claimant’s appeal, the UT (Upper Tribunal) Judge held that the FtT's approach created the impression that it was more concerned with punishing the claimant for what she had done than it was to assess the evidence as a whole. The FtT had devoted so much time to the circumstances surrounding the eventual disclosure of the medical report that it failed to undertake a balanced assessment of the evidence as a whole and to give the claimant a fair hearing.

The Judge set the decision aside and remitted the case to a fresh FtT. The UT Judge also found that the FtT had misunderstood how the application of the standard of proof operates when assessing each piece of evidence on a balance of probabilities. Judge Jacobs held that the correct test was that applied in DK v SSWP [2016] CSIH 84, namely, that what mattered was the probability of the ultimate conclusion, which in turn would depend on an assessment of the whole of the evidence that may have a bearing upon it.

The full judgment is available: VS v Secretary of State for Work and Pensions (ESA): [2017] UKUT 274 (AAC) 30 June 2017