The 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, and this inconsistency is relevant, 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 receives Scottish Adult DLA as they have severe depression that impacts on their care needs throughout the day
• you are aware from their case file that their symptoms impact their ability to communicate independently, meaning they require frequent support, including through someone speaking on their behalf and encouraging/prompting them to speak
• the individual sets out in their review form that they now require frequent prompting at every mealtime to eat and get help to wash and dress due to struggling with their energy levels
• has recently changed their medication to a medication that has known side effects that can impact appetite and energy levels
• sets out that they do not have any night-time needs

The information provided is more closely related to attention with bodily functions rather than continual supervision, and the individual does not have night-time needs. Therefore, you should be able to answer easily whether it is more likely than not that this individual requires frequent attention throughout the day in connection with their bodily functions. This will allow you to make a determination in line with guidance that the individual continues to be entitled to the middle rate of the care component of Scottish Adult DLA through satisfying the daytime care condition.

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 relevant gaps in the information
• there are relevant 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:

• lowest rate care component, or whether their needs are not significant enough to be entitled to Scottish Adult DLA (i.e. entitlement to lowest rate care component of Scottish Adult DLA v no entitlement)
• daytime care condition, where you have already established that they satisfy the night-time care condition (i.e. entitlement to highest rate of the care component of Scottish Adult DLA v entitlement to middle rate of the care component of Scottish Adult DLA)
• lower rate of the mobility component, where you have already established that they satisfy the middle rate of the care component (i.e. entitlement to middle rate of the care component only v entitlement to middle rate of the care component and lower rate mobility).

All other gaps and small inconsistencies are unlikely to be relevant and do not need to be explored. For example, you have established the facts that an individual requires frequent attention from another person throughout the day in connection with washing and dressing themselves, as well as with toileting and eating.

There is some indication in the information they have provided that they are unable to prepare a cooked main meal for themselves, but this is too vague for you to understand whether that’s indeed the case. This gap is not relevant, as the individual being able or unable to prepare a cooked main meal would not change their level of entitlement to the care component. This is because they already satisfy the condition for the middle rate of the care component due to requiring frequent attention throughout the day in connection with their bodily functions.

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 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 component in question. 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

Related reading

• Decision-making tools
• Making robust decisions – example section
• Supporting Information chapter
• Understanding and Interpreting Information [section on establishing value of information]
• Scottish Adult DLA - Care Component - Eligibility Criteria and Definitions chapter
• Scottish Adult DLA – Mobility Component – Eligibility Criteria and Definitions chapter