An upper tribunal judge has ruled that a tribunal cannot refuse to admit your video evidence unless it gives a clear explanation of why it is fair to do so. Given that the vast majority of hearings are now telephone only, video and photographic evidence could play an important role in future appeals.
In this case, a DLA claimant had been assessed as being on the autism spectrum. His father had asked to submit video evidence to the tribunal of his son walking to show how big and powerful he was and why it was necessary for his father to hold his hand when he was walking outdoors.
This evidence related to a key issue in the appeal, that the claimant regularly required restraint.
The tribunal did not admit the video evidence and gave no explanation for not doing so.
The upper tribunal judge pointed out that tribunals have the power to admit evidence that would not be admissible in a civil trial and also to admit evidence that was not available to a previous decision maker.
Tribunals also have the power to refuse to admit evidence that would be admissible in other courts if, for example, it would be unfair to admit it.
In this case, the upper tribunal judge found that whilst the tribunal had the right to refuse to admit the video evidence, it also had a duty to explain why it was doing so and how it’s refusal met the “overriding objective” to deal with cases fairly and justly.
The judgement is important because almost all hearings are currently telephone only, which means that the tribunal has no opportunity to see the claimant or watch their behaviour in person.
Although the decision is in relation to DLA it is open to claimants to quote it in relation to PIP, ESA and UC appeals. It would be very hard for a tribunal to argue that they were free to ignore it because it is about a different benefit, given that the underlying principle is the same for all benefits.
There may be occasions when video evidence is highly relevant to an appeal. Following this judgement, it is not open to tribunals to refuse to watch videos simply because it is time consuming or technically difficult to do so.
We’d be very interested to hear your experience of submitting videos or photos to an appeal tribunal.
You can download a copy of XTC v SSWP (DLA) [2020] UKUT 342 (AAC)
