Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C12/97(DLA) (6 November 1997)

 


Decision No: C12/97(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 Appeal to the Social Security Commissioner on a question of law from the decision of the Dungannon Disability Appeal Tribunal dated 30 January 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal brought on behalf of a child C( by his father C( R(. The Child who was born on 21 December 1993 and is now 3 years and 9 months suffers from asthma and from eczema. The Adjudication Officer made his decision not to award the benefit on a report from the claimant's doctor which says very little, other than that the child suffers from moderate asthma, that night symptoms awaken the child frequently, that he needs help three or four times per day and at night when required. On the basis of that which is referred to as a medical report, and a letter from the claimant's mother the Adjudication Officer decided that there was no entitlement.
2. At the hearing of the appeal to a Disability Appeal Tribunal (DAT), claimant's representative produced an involved argument relating to Section 72(1) and (7) which clearly arose from a misunderstanding of the section. In any event arguments were produced of the needs and attention which the child receives in that he needs to be steamed, that he gets medication 3 to 4 times a day which takes 5 to 10 minutes each time, that he has 3 different creams applied 5,6 and 7 times a day which takes 15 to 20 minutes each time and that at night he is sick with coughing 2 to 3 nights a week and has to be steamed at night 2 or 3 nights a week which takes from one hour to one and a half hours. He needs calmed down every night, sometimes 3 or 4 times per night. Three or 4 times a week due to vomiting the bedclothes have to be changed. His hands are bandaged 2 or 3 nights a week, he needs checked quite often at night.
3. The Adjudication Officer who attended the hearing appeared to make only one contributions which was "attention not substantially in excess".
4. The Tribunal, in its findings of fact, said that there was no reference to eczema in the initial self-assessment form or the General Practitioner's certificate or in DLA1 and one would have expected reference to such an extreme condition. It said that in balance there was little support in the medical evidence for the stated level of disability and it was not consistent with the lack of medical intervention. The Tribunal also found that there was inconsistencies in the account by the father of the administration of asthma medication relating to the night monitoring.

Claimant was granted leave to appeal against the decision of the Tribunal by the Chairman mainly on the ground that the Tribunal erred in not accepting the argument relating to section 72 but also argued that there was a lot of attention given to the child and said that the steaming took a lot of time and attention.

5. I arranged an oral hearing of the appeal at which the claimant was represented by Mr C... and the Adjudication Officer was represented by Mrs Moffett. Mr C... argued it was clear the substantially in excess provision applied to this case. He said that the evidence before the Tribunal was sufficient to satisfy the award. Mrs Moffett said that there was a lot of conflicting evidence with regard to the steaming. There were very few details on the claim form. She said the Tribunal did not accept the father's evidence but gave no reason for rejecting it.
6. I have considered all that has been said and I have read all the documents in this case. I am unimpressed by the Tribunal's comments relating to the fact that there is little support in the medical evidence for the stated level of disability. There is no medical evidence. There was a form sent out to claimant's doctor and he merely recorded that the child suffered from moderate asthma and had made 3 visits to the clinic within the space of 4 months and needed the help which I have recorded above. I am also unimpressed by the comments that the General Practitioner's certificate or the DLA1 contained no such reference of such an extreme condition. In fact if one looks at DLA1 it contains absolutely no information at all other than the fact that the child suffers from asthma and needs medication. The question then comes to consideration of the reasons for rejecting the evidence which the Tribunal had before it and I am quite satisfied that the reasons given by the Tribunal for rejecting the evidence are insufficient and consequently it erred in law.
7. I therefore allow the appeal and set aside the decision. At this point I heard further evidence of the attention required by the child, particularly in relation to the steaming and night attention.
8. I am satisfied that this is a proper case in which I should give the decision which the Tribunal should have given. I have considered all the evidence and the submissions made to me at the hearing in respect of the attention which the child receives. Having heard that evidence at the hearing the Adjudication Officer is now prepared to accept that if the Tribunal's decision was to be set aside then there was sufficient evidence before me to merit the award of the middle rate of the care component from the date of claim, namely 15 December 1995. As I find that the decision should be set aside I accept the Adjudication Officer's concession. I make that award of the middle rate care component from 15 December 1995 to 20 December 2009 which is up to the child's 16th birthday.

(Signed): C C G McNally

COMMISSIONER

6 November 1997