Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C35/96(DLA) (25 October 1996)

 


C35/96(DLA)

RE: D… (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 Disability Appeal Tribunal

dated 21 November 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant in this case is a child of 12 who suffers from asthma and enuresis. On her behalf her mother appeals against the decision of the Disability Appeal Tribunal sitting at Strabane; whereby it was held that the claimant was not entitled to the care component of disability living allowance from 12 January 1994. The appeal in respect of the disallowance of the mobility component had been withdrawn at an earlier hearing.
2. The grounds of the appeal, brought by leave of the Tribunal Chairman, are set out as follows in a letter dated 26 February 1996 from the claimant's representative, Mr Johnny McLaughlin of Contact 2, 6 Georges Street, Omagh, Co Tyrone:-

"A. We would contend that the tribunal errored in law by stating

that D...'s Asthma was not such as to merit attention at night.

The child had been admitted to Altnagalvin Hospital, Londonderry

on the 13/8/95 until the 21/8/95 and had flare-ups on the 25/9/05

and again on the 25/10/95, with the latter being managed successfully

at home. The reasons for this was due to Care, Attention and

Supervision being managed provided to her by her Mother, thus

no re-admission to Hospital was required. In the tribunal findings,

these factors were never related to, only that they had received a

very exaggerated picture of D...'s Night Needs.

B. In further support of our request, we would draw attention to

the Tribunal Findings of stating "We are also by no means convinced

on the balance of probabilities, in light of the treatment history,

and the somewhat contradictory evidence today that D...'s Asthma

is as troublesome as stated". Here the tribunal did not state

clearly how they reached their opinion, especially since Danielle

had only earlier been in Hospital for eight days, and had after this

at least two flare-ups of Asthma.

It is our contention, that having not given proper clarification on

findings of fact that the tribunal errored in law, leaving it that

the family does not know as to why their appeal failed."

3. It is unnecessary to set out the background facts in any detail. The appeal before the Tribunal was against the Adjudication Officer's decision on review, (dated 27 June 1994), which confirmed an earlier decision of 23 January 1994 that the claimant was not entitled to either the care or the mobility component of disability living allowance. The final hearing by the Appeal Tribunal did not take place until 21 November 1995; but there had been two previous adjourned hearings. On 21 February 1995 the Tribunal recorded that the appeal in relation to the mobility component was withdrawn and decided that there should be an adjournment of the appeal against the refusal of the care component. The purpose of the adjournment was to enable a report to be obtained from "Harberton House" on the subject of the claimant's enuresis during her stay there, which had ended shortly before the date of the hearing.

The next hearing on 24 August 1995 was also adjourned; this time at the request of the claimant's representative, "for the production of further medical evidence in the context of recent hospitalisation".

When the appeal was finally dealt with on 21 November 1995, the Tribunal had before them a report from Foyle Community Unit which comprised the information requested from "Harberton House" and further medical evidence to the apparent satisfaction of the claimant and her advisers.

4. As indicated in paragraph 1 above, the Tribunal disallowed the appeal and confirmed the Adjudication Officer's decision that the claimant was not entitled to the care component of disability living allowance from 12 January 1994. The record of the Tribunal's decision contains a lengthy note of the submissions and evidence and includes the following findings of fact:-

"Since 12 January 1994 D... has suffered from asthma and

enuresis. Since that date she has been able to self medicate.

There has been no diagnosis of bladder problems or of any mental

disablement. D... suffers occasional flare-ups of asthma -

approximately once per month but has not missed school due to this.

Incontinence pads could be worn by D... D...'s asthma

medication is effective."

The Tribunal's "reasons for decision" were:-

"We consider that we are being given a very exaggerated picture

of D...s night needs. As regards the bed-wetting we are not

of the view that same is as great as stated in the light of the

evidence from Harberton House and the somewhat contradictory

evidence given today. In any event we are not convinced on the

balance of probability that same comes from other than a behavioural

problem. There is no evidence of any physical or mental disablement.

As regards the asthma, we are not of the view that any attention is

required at night. D...is aged 11 and can effectively

self-medicate, she does not require any attention in connection

with this. She is able to rouse her mother if she needs her and

does not require anyone to be awake and watching over her. We

are also by no means convinced on the balance of probabilities,

in the light of the treatment history and the somewhat contradictory

evidence today that D...s asthma is as troublesome as stated.

We consider in any case that she does not require anyone to be

awake and watching over her on most nights. She can self-medicate

and take a drink and flare-ups occur only once per month.

We do not accept the explanation given for the few incidents of

enuresis at Harberton House. It appears highly unlikely that a

child of this age would not sleep for 6 weeks and enuresis is

usually worse at times of disturbance. We also consider

that much of the need could be resolved by wearing incontinence

pads which are a reasonable precaution.

All above applies from 12 January 1994.

Lower or high rate care or mobility component were not put in issue

and do not appear relevant."

5. My first comment on the Tribunal's findings of fact and reasons for decision is that, in my view, they make it abundantly clear why the appeal failed. As I have explained on previous occasions, the responsibility of the Tribunal Chairman, now set out in regulation 29(5) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995, (the Adjudication Regulations), is to include in the record of the decision a statement of the reasons for the decision, including findings on all questions of fact material to the decision; and so long as the necessary material is included it matters not where it appears in the recorded decision. In this instance it may well be that some of the statements appearing under the heading "reasons for decision" might have been more appropriately included under "findings of fact", but that is of no consequence. The decision must comply with the relevant provisions of the regulations, and must be such that the parties can clearly understand what it is and how it has been reached. In my view the Tribunal's decision in this case satisfies both of these requirements. So far as the claimant's grounds of appeal are concerned, it seems to me that they indicate dissatisfaction with the Tribunal's findings of fact rather than with their interpretation and application of the relevant law. Tribunals are required by the Adjudication Regulations to record the reasons for their decision, not for their findings of fact, and having studied the case file in detail I am satisfied that in this instance all of the Tribunal's findings were fully justified. Altogether the conclusion which I have reached is that the claimant's grounds of appeal are without substance.
6. I have also considered whether there is any other ground for holding that the decision of the Appeal Tribunal was erroneous in point of law and have reached the conclusion that there is not. This appeal will accordingly be dismissed.

(Signed): R R Chambers

CHIEF COMMISSIONER

25 October 1996