Page 34 - Reforming Benefits Decision-Making -(updated - August 2021)

additional evidence. In particular, those with mental health or neurodivergent
conditions may fail to understand the need for additional evidence because of
cognitive difficulties, or because they do not understand that the professionals
named in the questionnaire will not automatically be contacted in the
assessment processes. Nevertheless, additional evidence is particularly
important for claimants with mental health conditions because they may have
difficulties self-reporting the way their disability affects them.
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2.22 The third Independent Review of the WCA recommended that “Decision
Makers should actively consider the need to seek further documentary
evidence in every claimant’s case. The final decision must be justified where
this is not sought”. This was ‘provisionally accepted’ by the DWP.
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However, the WCA guidance for assessors states the opposite: that the reason
for requesting further medical evidence must be clearly justified and
documented, whilst it is not mandatory to provide justification if further
evidence is not sought. The decision-maker guidance states “it should be
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remembered that the onus is on the claimant to provide evidence in support of
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their claim”.
2.23 The State has a positive legal obligation to make correct decisions and the
burden of proof does not fall solely on the claimant to provide evidence; if the
decision-maker/assessor does not have sufficient evidence to make an
assessment or decision, they should request it. Further, claimants are
expressly told not to provide medical evidence they do not already have. We
acknowledge that in the past some of the assessment providers have struggled

75 Ibid. In MM & DM v SSWP [2013] EWCA Civ 1565, the Court of Appeal upheld a decision of the
Upper Tribunal that claimants with mental health conditions are at a substantial disadvantage by the
ESA assessment process because of the policy not to seek further medical evidence save in certain
relatively limited circumstances. First, because there was a greater risk that the decision-maker would
not read the right decision because the information available from the claimant himself or herself would
often be insufficient to indicate the true nature and extent of the illness from which they were suffering.
Second, the Tribunal concluded that the process itself imposes a greater stress and anxiety on this
group than others (para 35).
76 Professor M. Harrington An Independent of the Work Capability Assessment – year 3 (see n. 13
above), p.22.
77 Centre for Health and Disability Assessments, WCA Filework Guidelines (2019) p.23.
78 DWP, ADM A1: Principles of decision making and evidence (A1524, June 2021).

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