Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C72/97(DLA) (10 November 1998)

 


Decision No: C72/97(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

Belfast Disability Appeal Tribunal

dated 9 June 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant is a child born on 30 September 1984. On his behalf his mother appeals against a decision of the Disability Appeal Tribunal to the effect that from and including 30 September 1996 the claimant is not entitled to either the care component or the mobility component of Disability Living Allowance. Leave to appeal was granted by a Chairman on 10 December 1997.
2. On 17 April 1992 Mrs M... made a claim for Disability Living Allowance in respect of her son, the claimant. The middle rate care component was awarded for the period 17 April 1992 to 16 April 1993. On 16 December 1992 a renewal claim was received. An award of the middle rate care component was subsequently awarded for the period 17 April 1993 to 29 September 1996. On 15 May 1996 a further renewal claim was received. After a report was completed by the claimant's General Practitioner, an Adjudication Officer on 12 August 1996 disallowed the claim from and including 30 September 1996. A request for a review was received on 10 September 1996. Further letters were provided from the claimant's General Practitioner and G… Primary School and, in addition, a further report from Dr D… C…, Consultant Paediatrician, was also produced. On 13 February 1997 a different Adjudication Officer reviewed the decision of 12 August 1996 but did not revise it. On 14 April 1997 Mrs M...'s appeal was received and on 28 April 1997 the Department appointed her to act on behalf of her son, the claimant.
3. On 9 June 1997 a Tribunal heard the appeal in relation to both the mobility component and the care component of Disability Living Allowance.
4. In relation to the care component the Tribunal found the following facts material to its decision:-

"Claimant is aged 12.

Main problem is diabetes.

He has behavioural problems and related nocturnal enuresis -

these are not because of physical or mental disability.

The extra care in relation to his diabetes is in supervision

of his dietary intake and administration of injections. That

does not amount to care substantially in excess of normal

requirements."

In relation to the care component the Tribunal gave the following reasons for its decision:-

"Behavioural problems, enuresis are not due to any diagnosed

physical or mental disability and are therefore outside scope

of Disability Living Allowance.

Diabetes is well controlled and he can self medicate. Needs

some supervision and encouragement."

5. In relation to the mobility component the Tribunal found the following facts material to its decision:-

"Claimant is aged 12.

Main problem is diabetes.

He has behavioural problems and related nocturnal enuresis -

these are not because of a physical or mental disability.

Claimant can walk and is not virtually unable to walk.

His appointee accepts there is no significant mobility problem."

In relation to the mobility component the Tribunal gave the following reasons for its decision:-

"It is accepted on behalf of the claimant there are no mobility

needs.

Having perused all the medical evidence we agree."

(Examination of the original handwritten notes would suggest that the word "medical" has been inserted in error in the typed up reasons for the Tribunal's decision in relation to the mobility component).

6. Mrs M... appealed on her son's behalf to a Commissioner, with leave of a Chairman. The grounds of appeal were stated as follows:-

"I wish to apply for leave to appeal on the decision of a

Disability Appeal Tribunal by virtue of Section 32 of the

Social Security Administration (NI) Act 1992 and Regulation

32 of the Social Security Adjudication Regulations (NI) 1995.

I respectively submit that the decision of the Tribunal was

erroneous in law as follows:

At page 11 of the Adjudication Officer's submission, reference

is made to a recent Northern Ireland Commissioner's decision,

ie C46/96(DLA). The Adjudication Officer asked the Tribunal

to consider the relevance of that decision when considering

the appeal in question. At point 3, "Reasons for Decision"

which was issued on 2 September 1997, the Tribunal recorded

the following:

"Needs some supervision and encouragement".

In reaching their conclusion, there is nothing to suggest that

the relevance of Commissioner's decision C46/96(DLA) was

considered. If considered by the Tribunal who heard the appeal,

reasons for not accepting this decision to be relevant have

been omitted. I submit therefore that the decision of the

DAT contains an error of law ex facie since the Tribunal had

failed in their obligation to give full written reasons and

findings of fact for their decision."

7. By letter dated 28 February 1998 Mr Shaw, on behalf of the Adjudication Officer made certain written observations which agreed with grounds of appeal put forward on behalf of the claimant. In addition he submitted that the Tribunal had not applied the disability tests in section 72(1) and section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 properly in that it did not take account of the decision of Chief Commissioner Chambers in C1/97(DLA) which sets out the appropriate approach in the case of claimant's under 16.
8. I directed an oral hearing at which Mrs M... was represented by Ms Slevin of the Law Centre (NI) and the Adjudication Officer was represented by Mrs Gunning.
9. Ms Slevin submitted that in light of the Tribunal's finding that the claimant required encouragement, it should have addressed the question whether the claimant would probably not perform the bodily function in question without such encouragement, and that, in consequence, his general health or well being would to some significant extent be adversely affected. In this submission Ms Slevin was relying on paragraph 5 of Chief Commissioner Chamber's decision in C46/96(DLA).
10. Mrs Gunning, in addition to relying on Mr Shaw's submissions, also submitted that the Tribunal had not dealt properly with the claimant's possible entitlement to the low rate of the mobility component, in light of the decision of Mrs Commissioner Brown in C34/98(DLA).
11. In relation to the particular point raised by Mrs Gunning it is noteworthy that in the findings of fact the Tribunal found that the claimant was able to walk and was not virtually unable to walk, and that his appointee accepted that there was no significant mobility problem. However, in light of the context of the whole case it seems to me that the Tribunal was focusing its attention on physical mobility. Mrs Commissioner Brown in decision No. C34/98(DLA) at paragraph 19 stated, when dealing with section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as follows:-

"... Tribunals and other adjudicating authorities, when dealing

with entitlement to the low rate of the mobility component,

should ask themselves the following questions -

(1) Can the claimant walk?

(2) Is the claimant so severely disabled physically or mentally

that, disregarding his ability to use familiar routes on

his own, he is actually unable to walk out of doors without

guidance or supervision most of the time?

(3) Is the claimant so severely disabled physically or mentally

that, disregarding his ability to use familiar routes on

his own, it would be completely unreasonable to expect him

to walk out of doors without guidance or supervision most

of the time?

If the answer to question 1 and either question 2 or question

3 is yes, provided other conditions are satisfied the claimant

will be entitled to lower rate mobility component. ..."

Therefore the Tribunal in the present case was obliged not only to consider whether the claimant could walk but also should have considered question (2) and (3) as set out in the quotation from C34/98(DLA). To fail to do so in this case in my view is an error in law.

12. I also accept that both Ms Slevin and Mrs Gunning are correct in their submissions that the Tribunal did not properly take into account decision C46/96(DLA) either by failing to have regard to it or, alternatively, by failing to have recorded the relevant findings. Clearly the Tribunal considered encouragement to be an issue in the case. Chief Commissioner Chambers at paragraph 5 of C46/96(DLA) stated as follows:-

".... it must be accepted that "encouragement" to perform relevant

functions may constitute attention for the purposes of establishing

entitlement to disability living allowance. I would point out,

however, that the mere proof of the provision of such encouragement

of the stipulated duration or frequency, will not, in itself,

be sufficient to establish entitlement to the care component.

As well as being related to physical or mental disability the

attention in question must in all cases be "reasonably required",

and it seems to me that this is a matter of particular importance

where attention by way of "encouragement" is concerned. In my

view such attention ought not to be accepted as being reasonably

required unless it is established that, without it, the claimant

would probably not perform the bodily function in question, and

that, in consequence, his or her general health or well-being

would to some significant extent be adversely affected."

Accordingly in my view the Tribunal, in light of its findings that the claimant needed some encouragement, ought to have considered whether encouragement in this case constituted attention for the purposes of establishing entitlement to the care component of Disability Living Allowance. In the circumstances I agree with Ms Slevin and Mrs Gunning that the Tribunal has erred in law in this respect.

13. I have also come to the conclusion that the Tribunal did not apply the disability tests in section 72(1) and section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 properly as it seems to me that the Tribunal has failed to approach this case, which involves a claimant under 16, in accordance with the statement of law set out by Chief Commissioner Chambers in C1/97(DLA). The Chief Commissioner at paragraph 8 stated as follows:-

"The first point I would make is that, because there are 3 rates

of the care component and two of the mobility component, there are

a number of possible issues which may arise in any disability living

allowance case. Whether or not all will require to be considered

will depend upon the facts of the individual case, and upon the

provisions of section 31(4), (5) and (6) of the Social Security

Administration (Northern Ireland) Act 1992. If the case involves

a person under the age of 16 there may be anything up to four

further issues arising out of the additional tests in sections

72(6)(b) and section 73(4) of the C and B Act. In such cases I

would suggest that the following are the issues which, again

depending always upon the facts, may require consideration:-

A. Has the child a physical or mental disability?

B. If so, is the disability such that the child has

requirements:-

(a) as in section 72(1)(a)(i) of the C and B Act?

(Attention in connection with bodily functions

for a significant portion of the day)

(b) as in section 72(1)(b)? (Frequent attention

or continual supervision throughout the day)

(c) as in section 72(1)(c)?

(Prolonged or repeated attention or a need to be

watched over at night)

C. If the child has any requirements of the description

mentioned at B(a), (b) or (c) above, are those

substantially in excess of the normal requirements of

persons of his age? This is the first test as laid down

in section 72(6)(b)(i) of the C and B Act, and

requirements of each description which are established

will require to be considered. In order to make the

necessary comparisons, the Tribunal will have to

consider what the requirements of a normal child would

be, and it would be at this stage that the totality of

the claimant's needs - both disability-related and

normal - would be taken into account.

D. If the requirements would not apply to a normal child

of the claimant's age; but would apply to a younger

child, are they substantial requirements? This is

the second test in section 72(6)(b)(ii).

If the claimant is between the ages of 5 and 16, and there is any

indication that he is seeking or might be entitled to the mobility

component, the possible additional issues, over and above those

common to all claimants, concern a need for guidance or supervision

when walking out of doors as laid down in section 73(1)(d) of the C

and B Act. In such cases the following issues may arise:-

E. Is the claimant able to walk, but so severely disabled

physically or mentally that he cannot walk out of doors

over unfamiliar routes without guidance or supervision

from another person most of the time? (Section 73(1)

(d) of the C and B Act).

F. If so -

(a) does he require substantially more guidance

or supervision from another person than a normal child

of his age would require? This is the first test laid

down in section 73(4)(a) of the C and B Act, or

(b) are his requirements for guidance or supervision

those which a normal child of his age would not have?

This is the second test in section 73(4)(b) of the

C and B Act.

The above is a formidable and no doubt daunting list of the possible

issues which may arise where the claimant is under the age of 16;

but in most cases only some will be relevant. Once those have been identified, it will be for the Tribunal to decide how they should be

addressed. There is no rule of law that separate findings of fact

and reasons for decision must be recorded in respect of each of them,

and I can well understand why it might often be considered preferable

to deal with them collectively. ..."

14. The Tribunal in the present case decided that the potential issues arising in the case concerned diabetes (resulting in extra care due to supervision of dietary intake and administration of injections), behavioural problems and related nocturnal enuresis. These issues potentially affect a Tribunal's approach when considering how to apply section 72(1) and (6) and section 73(1) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The Tribunal decided that the claimant's behavioural problems did not arise out of physical or mental disability. However, the claimant's behavioural or attitude problems and their relationship, if any, to the claimant's diabetic condition are potentially relevant in determining whether or not the requirement for supervision and attention is likely to be greater than would otherwise be the case. The reasons and findings of the Tribunal suggest that it either did not consider this aspect of the case or did not record the appropriate findings. In the circumstances I consider that it erred in not so doing.
15. The Tribunal also found that the claimant's nocturnal enuresis did not arise because of a physical or mental disability. There was a contention in the case (contained in the self-assessment form and in the request for review) that this problem was linked to the diabetes - because of the fact that the claimant is required to drink a considerable amount of fluid. However, the Tribunal either did not consider this aspect of the case at all or it did not record the appropriate findings. In my view it was in error not to do so.
16. I consider that it is appropriate for a Tribunal in circumstances such as the present to consider the claimant's diabetes, not in isolation, but in the context of other physical or mental conditions, such as behavioural problems or nocturnal enuresis. In so doing a Tribunal must, of course, decide whether there is any relevant link between the main condition and other problems. Then it seems to me appropriate that a Tribunal should, except in the most exceptional circumstances, consider the issues A to F as suggested by Chief Commissioner Chambers in decision C1/97(DLA) quoted at paragraph 12 herein.
17. For the reasons stated I find that the Tribunal's decision in relation to both the care and the mobility component is erroneous in point of law. I therefore allow this appeal and set aside the decision of the Appeal Tribunal. In the circumstances I refer the case for determination by another Tribunal which should have regard to the views expressed in this decision. However, I would wish to quote the following words of Chief Commissioner Chambers at paragraph 9 of C1/97(DLA), which I consider to have equal relevance in the present case:-

"... I wish, however, to make it clear that the success of this

appeal should not be regarded as any indication that the claimant

will ultimately secure an award of either component of disability

living allowance. I would remind the new Tribunal that, in

decision No. CA/21/1988, the additional tests applicable to

children were described by the GB Commissioner as "stringent"."

(Signed): J A H Martin

CHIEF COMMISSIONER

10 November 1998