Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C26/96(DLA) (20 May 1996)

 


Decision No: C26/96(DLA)

RE: S…. (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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 15 June 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application made by the mother for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer refusing either component of the disability living allowance (DLA) in respect of the child.
2. The child is now aged 12 years and suffers from asthma, eczema and an irritable hip component. In the decision of the Tribunal in respect of the mobility component the reason given by the Tribunal for disallowing the appeal was recorded as:-

"The claimant does not fulfil the criteria to enable an award

to be made of the mobility component of Disability Living

Allowance."

and in refusing the care component gave reasons as:-

"The care given to S... on an average day is not substantially

in excess of that normally given to a child of 12 years. It is

accepted that at times of exacerbation of her hip problem S...

may have additional care needs but they are not continuous. Her

night needs are confined to 3 or 4 nights a week. S...'s

care needs are not sufficient to justify the making of an award

under the Disability Living Allowance regulations."

3. The grounds of appeal as set out in the application are:-

"The Tribunal erred in law because it failed to give an adequate

statement of the reasons for its decision on the mobility

component. The Tribunal merely state 'The Claimant does not

fulfil the criteria to enable an award to be made of the

mobility component of D.L.A.', but gives no reasons.

It is also felt that on the weight of evidence for S... the

Tribunal could not fairly have reached the conclusion it did,

had it considered the combined care needs of S... in relation

to her disablements.

It is felt that with the combination of personal care requirements

for eczema and asthma that these were not properly considered as

'continuous' through their combination and too much emphasis was

placed on the deemed 10 week period when the hip problem flared.

It is further felt that the medical notes, which as stated in the

record of proceedings as absent - but consent by the representative

given to proceed without them - should have been available. It is

contested that no agreement was given to ignore these notes but to

proceed on what was at hand on the day of the Tribunal and if

further clarification was needed then notes could have been sought.

This was the understanding left in the minds of the mother and

S...'s representative."

4. Upon receipt of the application the Adjudication Officer responded as follows:-

"The application for leave raises several questions which I will

comment on separately.

The adequacy of the reasons for the mobility decision. I concede

that the reasons recorded by the chairman are inadequate, as they

amount to nothing more than the decision arrived at by the tribunal.

The weight of evidence - an unfair conclusion. I would reject

this ground, as the tribunal have a great deal of discretion,

particularly with regard to children. I submit that it would

be perfectly possible for an adjudicating authority properly

instructed as to the law to refuse benefit on the facts of this

case.

The absence of medical notes before the tribunal. I submit that

the tribunal did not err by deciding the case without notes from

the Royal Victoria and Musgrave Park hospitals. This is so

because:

1. the representative consented on the claimant's behalf; and

2. the tribunal had adequate evidence available to them in the

papers, and in the form of direct evidence.

Further evidence could have been sought by the tribunal had they

felt this was necessary. It is well established that a tribunal

does not err in law by failing to take account of evidence which

is not before it. In this respect the reported Great Britain

Commissioner's Decision R(S) 1/88 may be relevant.

I would add the following comments. In deciding that the

claimant's requirements were not substantially in excess of those

of a normal child of almost 12 years the tribunal may have used

the incorrect test. The additional test for children comprises

2 tests, and I submit that the tribunal should also have had regard

to the other test, to be found in the Contributions and Benefits

Act at S72(6)(b)(ii)(care) and S73(4)(b)(mobility). That test is

appropriate to consider when the normal child of that age would

require little or no care of the kind under consideration.

I submit that the additional tests for children should only be

applied after it has been decided that the child satisfies the

normal disability conditions for mobility and care respectively.

The test should be applied in respect of each test separately,

rather than globally as appears to be the case in the decision

on the care component."

5. I arranged an oral hearing at which claimant was represented by Mr McMahon of the Neighbourhood Development Association and the Adjudication Officer was represented by Mr Shaw.
6. At that hearing I granted leave to appeal and both parties having consented I treated the application as the appeal.
7. At the hearing Mr McMahon referred to his submission and drew attention to the concession made by the Adjudication Officer in his comments that the Tribunal had erred in that the reasons given for the mobility decision were inadequate. He also argued that the Tribunal erred and had failed to give proper weight to the evidence which it had before it.
8. Mr Shaw conceded that the decision relating to the mobility component could not stand as no reason was given at all, merely recorded a decision but no reasons, consequently the decision was flawed.
9. In respect of the mobility component he said that the Tribunal should have looked at the two issues, the higher mobility component and lower mobility component but that they had begun with other issues. He referred to section 71 and section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and said that he would have thought that the child would have had no difficulty in meeting the lower rate mobility component.
10. I have considered all the documents in this case. I have considered what has been said at the hearing and the concession made by the Adjudication Officer relating to the absence of reasons for a decision in the mobility component.
11. I am satisfied that the Tribunal erred in not giving proper reasons as conceded by the Adjudication Officer and I am satisfied that the appeal must be allowed, the decision set aside and the matter referred back to be heard by a differently constituted Disability Appeal Tribunal. It would be very desirable if the Social Security Agency could find the time to make a submission and send a representative to that hearing.

(Signed): C C G McNally

COMMISSIONER

20 May 1996