Balance of probabilities

All determinations are made on the balance of probabilities. This means that if something is more likely than not, it’s considered a fact for the purposes of decision-making.

We’re not looking to be satisfied that any information is true ‘beyond reasonable doubt’ – that is a higher degree of certainty used in criminal justice decision making.

When considering any information, we start from a position of trust. Where information conflicts, you should consider the value of each piece of information and decide which is more likely to be accurate.

Making decisions on the balance of probabilities

You must establish the facts of a case on the balance of probabilities for:

• every decision that forms part of a determination of entitlement
• the determination of entitlement

You must consider all the relevant information you have when making decisions on the balance of probabilities.

If you have to consider contradictory information, you must decide which account is more likely than not to be accurate.

We always start from a position of trust. Trust in what the individual has told us should be the baseline assumption during the decision-making process. However, this trust is not absolute. If there are details which suggest that information is more likely than not to be untrue, you should explore these inconsistencies and may decide that the information is not an accurate reflection of the facts. There could also be information from the individual which is so inaccurate it suggests it may be intentionally misleading. See ‘enabling people to access assistance’ for what to do in these circumstances.

Similarly, the balance of probabilities does not mean that the individual must be given the benefit of the doubt if there is not enough information to establish the facts of the case. In this case, you would need more information.

Decisions which are straightforward

In some cases making decisions on the balance of probabilities will feel easy. This could be because:

• there is a lot of available information
• the pieces of information are consistent with one another
• the individual’s circumstances are very straightforward

For example, you could have a case where an individual:

• has severe depression that impacts on their ability to complete Daily Living Component activities to an acceptable standard
• sets out in their application that they require frequent prompting at every mealtime to eat, engage socially with others, and get help to wash and dress due to struggling with their motivation levels
• is currently taking medication that has known side effects that can impact appetite and energy levels after trialling a number of other medications, and might move on to different medications, due to the side effects

As the information provided demonstrates a significant impact on the individual’s ability to manage their own needs, you would be able to answer the question ‘is it more likely than not that this individual needs assistance to prepare food’ in order to make a determination in alignment with the decision making guidance that the individual is entitled to 4 points for Daily Living Activity 1.

For the purposes of Daily Living Activity 4, Washing and Bathing, the case manager may need to approach the individual for more information regarding the assistance needed when washing or bathing, but the needs listed in the individual’s application suggest that this individual would qualify for at least 2 points on the basis of need of supervision or assistance when washing or bathing.

Depending on the level of assistance that the individual might need when dressing, you should be able to answer the question ‘is it more likely than not that this individual needs prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed; or prompting or assistance to be able to select appropriate clothing?’. This would allow you to make a determination that the individual is eligible for 2 points on the basis of needing supervision or reminding to dress.

Finally, for Daily Living Activity 9, Engaging Socially with Other People Face to Face, you would be able to answer the question ‘is it more likely than not that this individual needs prompting to be able to engage socially with other people?’ This would enable you to make a determination that the individual is entitled to 2 points for this activity.

Then, on the basis that this individual is still trialling different medication and may change their medication again as their needs are significantly affected by the medication they are taking to manage their severe depression, you would look to set a short (2 year) review period.

Decisions which are complex

In some cases making entitlement decisions on the balance of probabilities will be more difficult. This could be because:

• some information is missing
• there are inconsistencies
• the individual’s circumstances are very complex

If this is the case, you’ll need to establish on the balance of probabilities which information is more likely to be true in order to:

• resolve relevant inconsistencies
• close existing gaps that are relevant to establishing the individual’s entitlement

To do this, you’ll need to:

• carefully establish value between the information available
• use your judgement

If more information is needed

In some cases, you may need more information to make a decision on the balance of probabilities. This could be because:

• there are significant gaps in the information
• there are significant inconsistencies in the information
• the individual’s circumstances are very complex

By relevant we mean that if the information that is the source of the inconsistency was taken as fact, it would impact the individual’s entitlement. For example, exploring the gap or inconsistency would enable a decision as to whether the individual satisfies the

• Standard rate, or whether their needs are not significant enough to be entitled to ADP (for example entitlement to standard rate ADP v no entitlement)
• Mobility component, where you have already established that they satisfy the standard rate daily living component (for example entitlement to standard rate daily living component of ADP v no entitlement to the mobility component)
• Enhanced rate, where you have already established that they satisfy the enhanced rate payment for both daily living and mobility needs (for example entitlement to enhanced rate ADP v entitlement to standard rate ADP).

All other gaps and small inconsistencies are unlikely to be relevant and do not need to be explored. For example, A client has a spinal cord injury causing them to be paralysed from the waist down and unable to stand or walk. They also have depression and anxiety for which they are prescribed appropriate medication. We have supporting information from a professional confirming the client’s condition. The client uses a wheelchair to mobilise and in relation to mobility activity 1 tells us they have anxiety around going out due to their mobility difficulties and so has someone with them for both familiar and unfamiliar journeys.

The information provided in relation to mobility activity 1 doesn’t make clear whether the client experiences overwhelming psychological distress (OPD) nor if they are unable to go out without someone with them. In general, this is information that would be needed to make a robust determination. However, in this instance, the client is already entitled to the enhanced mobility component due to their spinal cord injury and so scoring points in relation to mobility 1 will not meaningfully impact their entitlement. In the first instance the case manager should contact the client or their wider support network to ask these details. But if no information is forthcoming, consideration should be given to whether a reasonable conclusion can be drawn from all of the information available that the client does experience OPD. If that is not a reasonable conclusion, the client will still be entitled to an enhanced award and so the determination should not be delayed by further attempts to obtain information.

If the existing gaps and inconsistencies are relevant, you must explore them by using one or more decision-making tools. This could include contacting the individual, where appropriate, or their representative with follow-up questions.

If the information needed cannot be gathered, you must use whatever information is available to make a decision based on the balance of probabilities whether the individual meets the eligibility criteria for the care component. If there is not enough information to conclude that the individual has any needs that relate to the criteria, you should make the decision that they don’t meet the relevant criterion.

If you are unsure whether you have enough information to make that decision, you should request a case discussion or speak to your team leader.