Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C75/97(DLA) (3 August 1998)

 


Decision No: C75/97(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

Omagh Disability Appeal Tribunal

dated 15 October 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal against the decision of a Disability Appeal Tribunal (DAT) which held that claimant, although entitled to the highest rate care component was not entitled to any rate of the mobility component of Disability Living Allowance (DLA).
2. The facts are that P... is a boy now 14 years of age who is described by the Consultant Psychiatrist as having chronic behavioural problems, impaired social interaction, poor educational achievement, poor impulse control, severe behaviour outbursts and mild paranoid ideation, all of which adds to his general vulnerability and as a consequence a corresponding need for him to be regularly supervised.
3. The Tribunal in awarding him the higher rate found that his needs are for continual supervision by day and attention for prolonged periods at night. Nevertheless, as far as the mobility component was concerned it stated:

"... though at times inclined to behave recklessly. The supervision

requirement is not to avoid risk to health (as the care component)

it is to enable P... to take advantage of his faculty of walking

on unfamiliar routes. He is able to do this without supervision

or guidance most of the time. His family do supervise him due to

heavy traffic and his behaviour problems but these do not affect

his ability to walk on unfamiliar routes."

4. I arranged an oral hearing of the appeal at which claimant's mother was present and was represented by Miss Peoples of the CAB and the Adjudication Officer was represented by Miss Swann.
5. Miss Peoples drew attention to comments made by the Adjudication Officer in a written submission and argued that the finding that P... was able to walk on unfamiliar routes unaided was not supportable. He needed supervision at all times when he was out walking. He was entitled to at least the low rate mobility component.
6. The Psychiatric report from the Consultant Psychiatrist spoke of his need for supervision.
7. I have considered this matter at length and I am satisfied that the Tribunal misdirected itself in applying the test for mobility. I have also considered Decision C34/98(DLA), in particular paragraph 18. The low rate mobility component merely requires that the Tribunal consider whether a degree of supervision is required most of the time to enable the claimant to take advantage of his walking ability on unfamiliar routes. I am satisfied in the light of the evidence before the Tribunal and the Tribunal's finding that that test is satisfied. I find it difficult to see how he requires attention and supervision and cannot be left safely at home for any period of time, but nevertheless would be permitted to walk on unfamiliar routes without someone present to supervise him. I am satisfied that the additional test for children in section 73(4) is also satisfied on the evidence.
8. I find that the Tribunal erred in law in that it misdirected itself on the test for mobility. I therefore allow the appeal, set the Tribunal's decision aside and proceed to give the decision which the Tribunal should have given. I find that the evidence is sufficient to justify an award of the lower rate mobility component from 17 May 1994. I confirm the award of the higher rate care component from the same date.
9. I also heard arguments as to whether or not there should be a termination date of the award but as it would appear that this child has not improved and I think the more correct award would be both components from 17 May 1994 for life.

(Signed): C C G McNally

COMMISSIONER

3 August 1998