Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C15/00-01(DLA) (15 May 2001)

 


Decision No: C15/00-01(DLA)

IRO: (A CHILD)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 30 May 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, against a decision dated 30^th May 2000 of a Tribunal sitting at Belfast. That Tribunal had disallowed the claimant's appeal in relation to Disability Living Allowance in respect of her son. The period under consideration was 24^th October 1997 to 26^th August 1999. The Tribunal did not consider that any award of Disability Living Allowance was merited in respect of this period. The claimant's grounds of appeal to me were contained in a document dated 24^th September 2000 and were set out as follows:-

"The Grounds of Appeal are that the Tribunal has erred in law in the following respects:

1. The "Reasons for the Decision" do not include reference to the legislation and case law which the Tribunal relied upon in arriving at its decision;

2. The reasons given are inadequate because they fail to identify the facts and evidence upon which Tribunal relied upon in arriving at its decision

3. The reasons are inadequate because they do not indicate whether the written evidence or oral evidence in this case was preferred by the Tribunal and which was rejected up and why

4. The tribunal failed to apply (properly or at all) the correct test for the lower rate care allowance and failed to have regard to the case law pertaining thereto

5. The Tribunal failed to take proper or any account of relevant evidence, namely the report of Dr L... 30 March 2000

6. The Tribunal failed to explain properly or at all the reason for rejecting the evidence of enuresis."

2. The appeal was opposed by the Decision Making and Appeals Unit of the Department by letter dated 19^th February 2001 from Mrs Gunning. Mrs Gunning submitted that the record of proceedings showed that the Tribunal considered the scheduled documents, the General Practitioner notes and the evidence from the claimant. The Tribunal had noted that there was no specific treatment for enuresis nor no specialist referral and that the evidence as regards the frequency of the problem was a little vague. It had also concluded that the evidence in relation to the child's behavioural problems was less than satisfactory as there was little sign of difficulty at school and no real evidence that during the school day the child required supervision over and above that needed by any 12 year old schoolboy. The Tribunal had accepted the veracity of the claimant's evidence but concluded that neither it nor the medical evidence supported needs sufficient to satisfy the entitlement conditions.
3. Mrs Gunning further submitted that the question before the Tribunal was whether the claimant's son was entitled to Disability Living Allowance as a result of the claim made on 24^th October 1997. The onus was on the claimant to show that the entitlement conditions were satisfied. The Tribunal had considered the evidence and concluded that the child was not entitled to the allowance. It was required to explain why it arrived at its decision but it did not have to produce evidence for its decision. In this respect Mrs Gunning referred to decision C7/98(DLA) paragraphs 5 and 6 (a decision of my own). She submitted that the Tribunal had recorded adequate reasons for its decision, that the decision was sustainable on the evidence and the Tribunal decision was not erroneous in law.
4. Further comment on the Departmental submissions was made by the claimant by letter dated 8^th March 2001 which stated as follows:-

"(1) The record of proceedings does state that the documents in the schedule were considered; however despite the fact that the tribunal accepted the truth of my statements they stated that the evidence regarding [the child's] needs at night was not convincing. I find those assertions contradictory and hard to reconcile.

(2) If the Tribunal accepted the truth of my evidence then they should accept the facts also as stated in my written application which clearly show that [the child's] disability is such that he does require attention such as to satisfy the lower rate of care allowance. To find otherwise is perverse.

(3) I did not state that the Tribunal had to produce evidence. What I stated was that the tribunal failed to identify the evidence it accepted and rejected and I also stated that it failed to take account of the totality of the evidence provided by me and included in all the documents that were read. …"

5. A hearing was not requested and having considered the papers in the case I am satisfied that I can properly decide the matter without such a hearing. My decision is given in the final paragraph.
6. This is the second time on which I have had to consider a Tribunal decision in respect of this claimant's claim for this period of time for Disability Living Allowance for her son. My last decision was dated 31^st January 2000 when I remitted the matter for rehearing by a differently constituted Tribunal (the decision which I gave was numbered C35/99(DLA)). At that time I stated that I considered that the Tribunal had erred in law in that its decision did not adequately explain to the claimant why her evidence did not satisfy the statutory conditions and I set the decision aside for that reason. I suggested in paragraph 5 of that decision that there could have been various reasons why the Tribunal considered that to be so but that it had not explained its conclusions. I directed that the new Tribunal should clearly indicate its assessment of crucial evidence and indicate its application of the statutory conditions to any accepted needs. Pursuant to my direction the matter was re-listed before a differently constituted Tribunal. By the time that Tribunal had come to sit the express statutory requirement for findings of material fact to be recorded had been removed.
7. The present Tribunal's reasons for its decision were in two parts, one of which appears to relate mainly to the mobility component and the other to the care component. This is not necessarily a total separation, the benefit being one benefit and the decision being one decision.
8. I set out below the reasons recorded by the Tribunal beginning with those that appear to relate mainly to the care component:-

"While it was stated by claimant and also by the General Practitioner that the claimant suffers from enuresis it appears that he has never been specifically treated for it nor referred to a specialist. The evidence as to the frequency of the problem was a little vague.

The evidence as to his behavioural problems was also less than satisfactory. It seems that at school there is little sign of difficulty and no real evidence of any supervisory requirement during the school day (over that normally appropriate to any 12 year old schoolboy).

It is accepted that there is a disability ie asthma, but not that this gives rise to requirements for attention with bodily functions for a significant portion of the day nor for frequent attention or continual supervision throughout the day. He obviously needs some attention and help at night when he needs to change bedclothes etc but the evidence did not convince Tribunal that this attention was prolonged or repeated. Equally Tribunal felt that any requirements which he has were not substantially in excess of the normal requirements of children of his age.

Tribunal accepted the veracity of claimant's mother's evidence but felt that neither it nor the medical evidence supported a degree of need sufficient to bring the claimant within the legislation. The attention which she, as a caring parent, may give to the child is not the issue to be determined; it is the attention for which objectively, the child's disability gives rise to a requirement.

Claimant is not unable to walk nor can he be considered virtually unable to do so. While it was suggested that his asthma gave rise to difficulties in walking the evidence did not seem to support this. Indeed, the alleged degree of hyperactivity (if that indeed be his problem) would seem to mitigate against such a situation. His mother did indeed say that he was "always on the go".

As regards lower rate, his mother stated in the claim form that he required supervision in the use of inhalers and also supervision when out of doors. Her evidence to the Tribunal was that he takes his inhalers to school and is able to use them himself. She had not often been called to the school to help him.

Tribunal was invited to award lower rate mobility on the basis of frequent asthma attacks during the day and was referred to the General Practitioner's report of 30^th March. However, in Tribunal's view neither that report nor any of the other evidence before it substantiated a finding of attacks of such frequency and severity as to necessitate supervision of the degree required by the legislation.

Tribunal is satisfied on the balance of the evidence that the claimant does not, for most of the time, reasonably require substantially more guidance or supervision when walking out of doors (on unfamiliar routes) than would normally be required by a child of the same age."

9. From the oral evidence before it the Tribunal was obviously entitled to its conclusion that the child in question was able to utilise his own inhalers. From this and the written evidence, particularly that from the school, that the child was able to take part in P.E. it was entitled to its conclusion that his walking limitations were not such that he could be considered unable to walk or virtually unable to do so. It is also correct that his mother did say that he was "continuously on the go". I can find no fault in the Tribunals conclusions with relation to the mobility component and they do appear to be adequately explained with reference to the evidence given at hearing by the claimant's mother.
10. As regards the grounds of appeal I can find no merit in ground one. A Tribunal is not obliged to include reference to the legislation and the case law used. This is not an error of law per se. The Tribunal has in fact referred specifically to the correct legal tests in its reasoning and the reasoning overall does indicate that the correct tests arising from the statutory conditions were in the Tribunal's mind.
11. With regard to ground four, which is to some extent linked, I can find no indication that the incorrect test for the low rate of the care component was applied. Indeed the Tribunal has specifically recorded in its reasons its conclusion that the claimant's disability did not give rise to requirements for attention in connection with bodily functions for a significant portion of the day. That is the correct legal test to be applied pursuant to section 72(1)(a)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the relevant statutory provision as regards the care component for children under the age of 16. The alternative condition for entitlement to that rate of the component ie that a person cannot prepare a cooked main meal for himself if he has the ingredients does not apply to young persons under the age of 16. (section 72(6)(a))
12. As regards ground five I do not consider that the Tribunal failed to take into account Dr L...'s report of 30^th March 2000. The Tribunal in fact specifically refers to the report in its reasons for decision. I am satisfied that the Tribunal did take into consideration this report.
13. Linked to that and to ground six I do not think that the Tribunal has rejected the evidence of enuresis. The Tribunal has commented that the evidence as to the frequency of the problem was a little vague. It must be borne in mind that the period with which the Tribunal was dealing ended on 26^th August 1999. Dr L...'s report is dated 30^th March 2000 so its relevance to this past period is uncertain. In addition Dr L... has mentioned in a previous report (closer to the time in question) that the child had enuresis "off and on".
14. In the written evidence there is also considerable variation. The GP has referred to enuresis once per night (though as the GP could hardly be expected to be in attendance at the house every evening it perhaps is to be presumed that this evidence was based on history given by the child's parent). The child's parent (the claimant) has referred to enuresis three to seven nights per week normally about twice per night. The total attention required at night has been stated to take from minutes to up to two hours. Against this background I can understand why the Tribunal was concerned with vagueness in the evidence and I do not think there was any implication of any dishonesty on the part of the claimant.
15. There is a vast volume of repetitious and somewhat vaguely phrased questions in the numerous forms competed in this case. In the very lengthy replies there are included attention needs not apparently related to bodily functions and concerns relating to the effect of stressful home circumstances on the child. These, while understandable, are not what the Tribunal had to assess. What the Tribunal had to do in this case was to determine the disability or disabilities from which the child suffered and the relevant needs which came there from. This matter was referred to in the Adjudication Officer's submission to the Tribunal and by an earlier Tribunal which adjourned the matter but alluded specifically to the lack of evidence of enuresis being due to a physical or mental disablement.
16. Behavioural problems and enuresis have both been referred to and there is an obvious issue in this case as to whether these came from or constituted a physical or mental disablement. It is only attention in connection with bodily functions and supervision which comes from such disablement which can count towards the satisfaction of conditions for the care component of Disability Living Allowance. The statutory condition is "so severely disabled physically or mentally". The onus is on the claimant to establish that needs came from or constituted a disablement. If a Tribunal is left unsatisfied as to this, it must disregard any such care needs or supervision.
17. In this case the Tribunal does appear to have given consideration to this issue. It has alluded to the absence of treatment for enuresis, and to the fact that there was no referral to a specialist. It has alluded to the good behaviour in school. It has said that it accepts that there is "a disability i.e. asthma". [my underlining] It has correctly stated that it is only attention coming from the child's disability that it can consider. In addition it had the claimant's evidence that the child's behavioural problems and enuresis were related to disturbed family circumstances.
18. In light of this and despite the fact that it has given some consideration to evidence relating to such needs, it does appear to me relatively clear that the Tribunal did not accept that there was any disablement other than asthma.
19. The Tribunal was the fact finding body and I can interfere with its conclusions of fact only if they are unreasonable on the accepted evidence. Excluding, as it was entitled to do needs coming from behavioural problems and enuresis, the Tribunal reached the conclusion that any attention at night was not prolonged or repeated. The evidence in the claim form of 14^th September 1999 was that attention was required (not solely for asthma) 7 nights per week for periods of a few minutes to an hour. In another submission it is stated that attention (not solely for asthma) could take up to 2-3 hours and could be up 4-5 times per night. The G.P. evidence states that the asthma varies and that it is "moderately severe" and that medication other than in exacerbation and via inhaler was recommended once per night and 2-4 times per day. The evidence of the child's school as to his attendance in the period 1^st September 1997 until 19^th September 1998 was of attendance at school for 338 days out of a possible 380 and of absences attributed to illness or medical or dental treatment for 13 days. The child's mother had stated that if the child was very chesty she kept him off school.
20. Against that background I can understand why the Tribunal reached the conclusion that the attention required was not prolonged or repeated. So doing it was not rejecting evidence. Rather it was appraising that evidence and ascertaining the usual situation most of the time in question. This it was obliged to do to ascertain if the statutory conditions were satisfied for the statutory periods. The claimant, in her grounds of appeal, has correctly referred to the Tribunal having "accepted the veracity" of her evidence. The Tribunal has also stated, however, that it felt that neither the claimant's evidence nor the medical evidence supported the relevant degree of need. It has not rejected the evidence but has obviously correctly separated the attention produced by the disability of asthma from the other attention and the attention reasonably required (which is the legal standard) from that given (which may not necessarily be reasonably required).
21. With variable conditions, such as asthma, evidence relating to periods of exacerbation may, while truthful, not be reflective of the situation which pertains most of the time. For this child to be entitled to either component of Disability Living Allowance the conditions would have to be satisfied or be likely to be satisfied for three months before the start of the award and be likely to continue to be satisfied for six months thereafter. The Tribunal in this case had therefore to try to ascertain whether those qualifying and prospective periods were satisfied at any time during the period before it. (S.72 of the Contribution and Benefits (N.I.) Act 1992) Evidence as to the situation during exacerbations, while not necessarily irrelevant, would not therefore necessarily satisfy those conditions.
22. The Tribunal has said that it accepted the veracity of the claimant's evidence and it obviously considered the claimant to be honest and not intending to deceive. However, because of the conditions for Disability Living Allowance and the variability of the asthmatic condition the Tribunal having appraised the evidence considered that the degree of need established was insufficient to satisfy the requirements for Disability Living Allowance. It was, in my view, entitled to that conclusion on the evidence before it.
23. While the reasoning could, perhaps, have been clearer and better phrased it is, in my view, just adequate to explain the decision and certainly reflective of the correct legal tests being applied. There are some minor confusions in it but they are insufficient to vitiate the decision which is sustainable on the evidence and reflective of the proper application of the statutory conditions.
24. For the above reasons I consider that the decision of the Tribunal is not in error of law and I dismiss the appeal.

(Signed): M F BROWN

COMMISSIONER

15 May 2001