Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A97/96(DLA) (12 December 1996)

 


A97/96(DLA)

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
Application for leave to appeal to the Social Security Commissioner on a question of law from the decision of the Disability Appeal Tribunal dated 30 January 1996
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant in this case is a child now aged 3. On her behalf her mother seeks leave to appeal against the decision of the Disability Appeal Tribunal sitting at Ballymena, confirming an earlier decision of the Adjudication Officer that the claimant was not entitled to any rate of the care component of disability living allowance at any time since 31 March 1995.
2. The Tribunal's findings of fact were recorded as follows:-

"The claimant is aged 3, her date of birth being 27 January 1993.

She had experienced several upper respiratory infections in late

1994 and in March 1995 it was considered that she may have asthma

and her General Practitioner prescribed inhaled steroids. We

accept Dr Mc( statement that her condition improved on starting

medication which is currently becotide 200-400 mcg 3 times daily

depending on her condition and ventolin as required. Serevent was

introduced at night in January. We accept Dr Mc( evidence in

his letter of 26 January 1996 that during severe exacerbations in

her condition S( experiences breathlessness, cough, wheeze and

occasional vomiting and her condition is aggravated by chest

infections. Her symptoms were aggravated in June 1995 and in

October 1995. Between exacerbations Ventolin is normally given

twice per day but since December 1995 has been administered

2-3 hourly. Time spent administering medication would not normally

exceed 45 minutes per day although more time would be required

during exacerbations of the condition. S... has suffered from

mild to moderate atopic eczema since birth and this is treated

with oil in S...'s bath 3 times per week and E45 is applied twice

daily. We consider that time spent applying creams daily would

not exceed 10 minutes. S... has not been referred for specialist

opinion in connection with her asthma or eczema and she has not been

hospitalised for either condition. She has not required any courses

of oral steroids and has not been nebulised. S... has had poor

appetite since birth and requires encouragement to eat particularly

when she is unwell.

At night the household settles at approximately 10.30pm. We find

that at the date of claim, in March 1995 S... required attention,

being administration of medication, on up to 3 nights per week

up to twice per night when coughing. During the exacerbations

in June 1995 and in October 1995 night time attention would have

been more frequent and since December 1995 she has required

attention on 4-5 nights and on most nights during January.

Attention since then has been required 2/3 times nightly for

variable periods from approximately 10 minutes to 2 hours.

S... has otherwise the same care and supervision requirements

as other children of her age who do not suffer from asthma or

eczema."

The reasons for decision were:-

"S... requires, in common with all other children of her age,

frequent attention throughout the day in connection with bodily

functions but in addition she requires medication to be

administered as stated in our findings but we do not consider

that the attention in this connection is substantially in excess

of normal requirements. There appears to have been a significant

increase in night time attention needs since December 1995 but we

are satisfied that prior to this, attention was not required on

most nights. We are unable to make an award on the basis of night

time attention required since December 1995 as this attention has

not been required for a period of 3 months, as prescribed by

Section 72 of the Social Security Contributions and Benefits

(Northern Ireland) Act 1992. There is no evidence that S...'s

poor appetite is related to her medical conditions, except that

during periods when she is unwell and her appetite would be reduced,

requiring more encouragement. Should the present level of night

time attention continue, it may be that a fresh claim would be

appropriate."

3. The grounds relied upon by Mrs R... in support of the application for leave to appeal to the Commissioner are set out in her letter dated 10 May 1996, which is on the case file. Briefly, her criticisms care that the Tribunal only had regard to the claimant's care needs during "good" periods and that even on this basis they erred in law in deciding that 55 minutes of care needs over and above the normal requirements of a child of the claimant's age did not amount to attention for a significant portion of the day. She further submits that the Tribunal failed to make any findings of fact in relation to the claimant's need for physiotherapy or for encouragement at meal times.
4. In response to an invitation to comment upon the application for leave to appeal, Mr G L Shaw, the Adjudication Officer now concerned with the case, by letter dated 13 September 1996 pointed out that the Tribunal had distinguished between the claimant's needs for attention during "good" and "bad" periods and submitted that they had been correct in only having regard to needs for attention or supervision during the "good" periods, which comprised most of the time. Mr Shaw also referred to the Tribunal's finding that disability related attention amounted to a maximum of 55 minutes per day and suggested that I might wish to consider the limits of the Tribunal's discretion in this area.
5. As will be evident from the extract set out in paragraph 3 above, the Tribunal's decision has been recorded in some detail, and one important feature is that a clear distinction has been drawn between the claimant's care needs before and after a deterioration in her condition which occurred in December 1995. The basis of their decision is that, until then, the claimant's regular requirements were such that she did not qualify for the allowance. The fact that she suffered temporary exacerbations which resulted in increased needs for short periods did not affect her entitlement, and the Tribunal were in my view not under any obligation to decide what additional attention was required on these occasions. I accordingly do not accept that the Tribunal's findings of fact or reasons for decision were inadequate.

On the question of the limits of the Tribunal's discretion in relation to the time occupied by regular disability-related day-time attention prior to December 1995, I note that the daily figure of 55 minutes was a maximum rather than a minimum. In my view it was essentially a matter for the Tribunal to decide whether or not, in the circumstances of the case, the relevant attention could reasonably be said to be substantially in excess of the requirements of a normal child, and I would not be prepared to hold that in this instance their decision on this issue was wrong in law. Altogether the conclusion which I have reached is that there are no grounds for holding that the decision of the Disability Appeal Tribunal is or may be erroneous in point of law and leave to appeal will accordingly be refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 December 1996