Introduction
1. If you are assessing whether care, support or supervision is “de minimis” (i.e. something too trivial or minor to merit consideration), it is essential to consider the relevant facts methodically.
2. The council and the tribunal need to identify and consider both the evidence and related facts supporting De Minimis (i.e. CSS is trivial) and against De Minimis (i.e. CSS has substance), as set out in the assessment chart below. Note that facts supporting De Minimis indicate that the CSS is trivial. Facts against De Minimis show that the CSS has substance.
3. You must not simply cherry pick factual categories. You must consider all the relevant factual categories eg funding, support structure, support roles, support available, support actually provided and so on [see reviewing residents support].
4. In arriving at a conclusion the decision maker must weigh up and consider all the relevant facts that have been identified, and then make a judgement as to whether the totality of the bundle of facts indicates CSS that has substance or not.
5. The visualisation in the form of a chart can provide clarity, especially when shared with colleagues, clients, or in tribunal documents. By breaking down the factors and laying them out visually, the argument and the underlying logic become more accessible and understandable.
6. Here’s how you might visually display the information to help decide the matter.
De Minimis Assessment Chart
Case DETAILS:
Date:
Facts supporting De Minimis: (CSS is trivial)
| Fact | Explanation/Context | Evidence/Source |
|---|---|---|
| Fact 1 (e.g., support contact time average 10 mins pw ) | Contextual explanation | Document reference, witness statement paragraph, etc. |
| Fact 2 | Explanation for fact 2 | Relevant evidence source for fact 2 |
| … | … | … |
Facts against De Minimis: (CSS has substance)
| Fact | Explanation/Context | Evidence/Source |
|---|---|---|
| Fact 1 (e.g., 24 hrs x 7 support availability) | Explanation for fact 1 | Document reference, witness statement paragraph, etc. |
| Fact 2 | Explanation for fact 2 | Relevant evidence source for fact 2 |
| … | … | … |
Linking facts to evidence
7. Linking facts to evidence is crucial. When facts are asserted, they need to be backed up by evidence. By effectively linking each fact to its corresponding piece of evidence, you not only strengthen the credibility of your case but also make it easier for others to follow and understand your argument.
Precedents/Case Law
8. List relevant case law which dealt with de minimis arguments. Mention how those cases might influence or inform the current issue. Highlight similarities or differences.
Recommendation/Conclusion
9. Weight the supporting and opposing bundle of facts and make a finding of fact as to whether or not the support is de minimis. Identify any uncertainties or areas that need further investigation.
Footnotes/References:
10. Add any necessary citations or explanatory footnotes for completeness and clarity.
Documentary Evidence Annex
11. Compile an annex or appendix at the end of the chart containing copies, photos, or exact references to all documentary evidence. Each piece of evidence in the annex should be clearly numbered or lettered.
12. Then, in the “Evidence/Source” column of the table, simply reference the relevant annex number or letter. This makes it easy for a reader to flip to the annex and verify the evidence.
Chronological or Thematic Order
13. Depending on the nature of the case, you might choose to present facts and evidence in chronological order or according to themes/topics, eg funding, support structure, support roles, support available, support actually provided and so on. This aids in creating a cohesive narrative that’s easier for others to follow.
(c) Martin Ward 2023