Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C35/95(DLA) (22 April 1996)

 


Decision No: C35/95(DLA)

RE: N… (CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Dungannon Disability Living Allowance

24 February 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer that there was no entitlement to disability living allowance in respect of the child N....
2. The Tribunal against which this appeal is lodged made findings of fact as follows:-

"N... suffers from mild asthma. She needs 2 inhalers and takes

steroids currently. Her daily routine is, however, fairly

unremarkable. She requires help and supervision during the day

and night but not substantially in excess of that normally required

for a child of the same age."

and gave reasons for its decision as:-

"N... is not severely disabled. She does not require help or

supervision substantially in excess of that normally required by

a child of the same age."

3. Claimant sought leave to appeal against the decision of the Tribunal to a Commissioner from the Chairman on the following grounds:-

"1. Error of law on the fact of the record

This appeal centred on the care component of disability living

allowance for a child. The legislative test is that, inter

alia, a person is "so severely disabled ... that ... he requires

in connection with his bodily functions attention from another

person for a significant portion of the day ...". In addition,

a child must require attention which is "substantially in

excess of the normal requirements of persons of his age".

It is submitted that the tribunal erred in apparently

applying as a condition of entitlement that the claimant

should be severely disabled. It is further submitted that

the tribunal erred in its approach to the question of needs

substantially in excess of normal requirements.

a) 'severely disabled'

At the hearing, the representative for N... was asked

whether she considered her to be severely disabled. The

representative responded that she wouldn't describe her

as severely disabled and this response was emphasised by

underlining in the record of proceedings. In addition, in

the reasons for its decision, the tribunal recorded

"N... is not severely disabled". While the findings of

fact refer to help and supervision needs it is not clear as

to whether the tribunal applied an additional test that the

claimant should be "severely disabled". If so, this would

be an incorrect approach in my submission, since there is

no separate requirement that a claimant should be severely

disabled. Rather, the extent of care/supervision needs

informs the tribunal as to the severity of the claimant's

disability. Stating that the claimant is not severely

disabled indicates an error of law.

b) 'substantially in excess'

The tribunal heard evidence that N... needs help with two

different inhalers four times a day, as confirmed by the DLA

370 (ASTH). In addition there was evidence that she required

help in taking steroid tablets and in the application of cream

for eczema. It was stated that she required physiotherapy in

the morning and in the evening and that her bedclothes and

nightclothes required changing 2/3 times each night. In its

findings, the tribunal referred solely to the assistance with

inhalers and current assistance with steroids. It is not

clear whether the evidence in relation to cream for eczema,

physiotherapy and bed changing was rejected by the tribunal

and if so on what basis. It is submitted that the tribunal's

findings or the reasons for the decision should have commented

on whether the care needs amounted, for example, to attention

for a significant portion of the day. Having made that

finding, the tribunal should have then gone on to consider the

question of whether the needs were substantially in excess of

normal requirements.

By making no specific finding on the question of whether care needs

existed for a significant portion of the day, but nevertheless going

on to consider the 'excess' test, it is implicit that the tribunal

found that the attention conditions were in fact satisfied. However

the tribunal found that N...'s needs were not substantially in

excess of a child in normal health. Since a child in normal health

would not have required help with inhalers, steroids, cream for

eczema or twice daily physiotherapy, it is difficult to see how a

reasonable tribunal could have come to that finding. It is

submitted that either the tribunal erred in interpreting the word

'substantially' or that the tribunal came to a decision which was

not sustainable on the evidence."

4. Leave was refused by the Chairman. An application was subsequently made to the Commissioner for leave which was granted. I held an oral hearing of the appeal at which claimant was represented by Mr Stockman of the Law Centre (NI) and the Adjudication Officer was represented by Mr Shaw.
5. Upon receipt of the application for leave to appeal the Adjudication Officer commented as follows:-

"I will address each of the headings referred to in the appeal

separately as follows.

"Severely Disabled"

Section 72(1) of the Act requires a person to be "so severely

disabled" that at least one of the stated conditions is satisfied.

It is therefore correct for the tribunal to have considered

whether the claimant was severely disabled, but not in isolation

from the attendant specific disability conditions, especially in

this case the "significant portion of the day" test. There may

therefore be merit in the suggestion that the tribunal may have

applied an additional and improper test since it is not clear

from the Reasons for the Decision which specific test or tests

were considered, whether they were satisfied, and if not why not.

"Substantially in excess"

As for the additional conditions for children in section 72(6)(b), it

must be noted that there are 2 tests here, one of which must be

satisfied. it is perhaps too superficial for a DAT to refer to the

first alternative only, even though at first glance it may appear to

be virtually the same as the other. The important distinction in

the second test would appear to be that it is measured against

other children with no relevant requirements, whereas the first

test is compared with others who have some relevant requirements.

The tribunal did not apparently deal with both options.

I would not disagree with the suggestion that the DAT should have

decided the questions under section 72(1) before going to consider

72(6) which arguably only arises once one of the conditions in (1)

is satisfied."

6. The law is to be found in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 72 and the sections referred to by Mr Shaw and by Mr Stockman are 72(1)(b) which reads:-

"72.-(1) Subject to the provisions of this Act, a person shall be

entitled to the care component of a disability living allowance for

any period throughout which -

(a) he is so severely disabled physically or mentally that -

(i) he requires in connection with his bodily functions

attention from another person for a significant portion

of the day (whether during a single period or a number of

periods); or

(ii) he cannot prepare a cooked main meal for himself if he

has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day,

he requires from another person -

(i) frequent attention throughout the day in connection with

his bodily functions; or

(ii) continual supervision throughout the day in order to avoid

substantial danger to himself or others; or ..."

(c) he is so severely disabled physically or mentally that, at night -

(i) he requires from another person prolonged or repeated

attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others

he requires another person to be awake for a prolonged

period or at frequent intervals for the purpose of watching

over him."

and 72(6) which reads:-

"(6) For the purposes of this section in its application to a person

for any period in which he is under the age of 16 -

(a) sub-paragraph (ii) of subsection (1)(a) above shall be omitted;

and

(b) neither the condition mentioned in sub-paragraph (i) of that

paragraph nor any of the conditions mentioned in subsection

(1)(b) and (c) above shall be taken to be satisfied unless -

(i) he has requirements of a description mentioned in

subsection (1)(a), (b) or (c) above substantially in

excess of the normal requirements of persons of his

age; or

(ii) he has substantial requirements of any such description

which younger persons in normal physical and mental health

may also have but which persons of his age and in normal

physical and mental health would not have."

7. This application is in respect of a child who was born on 10 August 1992 and is now 3½ years of age. The evidence which was before the Tribunal was from the family doctor who recorded that the child had suffered asthma for the past 2 years, she received medication daily with 2 inhalers and other medicine and at night she had bouts of coughing causing her to need bedclothes changed and nightclothes changed, she sweats severely and needs inhalers also. Mother needs to give her constant attention during the day and 2 to 4 occasions during the night spending 20 minutes or more. Her GP recorded that she does not respond well to inhalers.
8. At the hearing before me Mr Stockman referred to Section 72(6) and in particular the requirement that the test for a child relating to either the attention or the supervision was a test with two alternatives. One that the requirements were substantially in excess of the normal requirements of a person of the same age; and the other was for substantial requirements which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have. He said that it was clear that the Tribunal only looked at one aspect of Section 72(6). He also said that in its reasons for decision it said that the child was not severely disabled and argued that that was not a condition for entitlement and said that there should have been more findings in relation to the needs and whether or not they were substantially in excess of normal. He referred to the grounds of appeal and said that the Tribunal made no specific finding on the question of whether the care needs existed for a significant portion of the day. The Tribunal ignored the attention which the child got at night, although it recorded that the child needed help and supervision at night but did not go on to say how that was related to the needs of a normal healthy child.
9. Mr Shaw referred to his written comments on the application for leave. He also criticised the Tribunal for using the term "so severely disabled" as if that was a condition of entitlement. He also argued that the Tribunal appeared only to have considered the first test in Section 72(6)(b). He argued that the Tribunal should have considered the question under Section 72(1) before going on to consider Section 72(6) which only arises once one of the conditions in Section 72(1) is satisfied. He also accepted most of what Mr Stockman had argued.
10. I have considered all that has been said and I have read all the documents. While there is a letter on the file to the Citizens Advice Bureau allegedly enclosing a copy of the written submissions prepared by the Social Security Agency there is no submission on the file and to the best of my knowledge no submission was made nor did any representative from the Agency attend the hearing to assist the Tribunal which increases the burden on the Tribunal very considerably.
11. I have considered all that has been said. The Tribunal went down the wrong road when it laid so much emphasise on whether or not the child was severely disabled. I am also satisfied that it did not properly consider Section 72(6)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 or if it did it did not properly record either findings of fact relating thereto or mention it in the reasons for its decision. One is left wondering how the Tribunal arrived at the decision it did, particularly as the findings of fact are so scant.
12. For those reasons I am satisfied that the Tribunal erred in law, that the appeal is allowed, the decision set aside and the matter referred back to be reheard by a differently constituted DAT.

Signed): C C G McNally

COMMISSIONER

22 April 1996