Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC C4/02-03(DLA) (25 June 2002)

 


Decision No: C4/02-03(DLA)

IRO: PAUL (A CHILD)
SOCIAL SECURITY ADMINSTRATION ( NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY ( NORTHERN IRELAND ) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to the Social Security Commissioner on a question of law from the decision of an Appeal Tribunal dated 8 August 2001 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant in this case is a child born on 19 March 1991. On his behalf his father appeals against the decision of the Tribunal to the effect that the claimant was not entitled to either rate of the mobility component of any rate of the care component of Disability Living Allowance from and including 25 July 2000. Leave to appeal to a Commissioner was granted by a Commissioner on 27 May 2002.
2. A renewal claim on behalf of the claimant was received in the Department on 27 July 2000 indicating that the claimant suffered from speech, walking, learning and behavioural problems. It was also stated that the claimant did not have a sense of danger. As the previous award had expired on 22 July 2000, this claim was treated as a fresh claim. After the receipt of a report from an education officer (special) and various correspondence from the claimant's father, as well as a factual report from the claimant's school principal, on 19 November 2000 it was decided that the claimant's claim should be disallowed from and including 25 July 2000. An appeal was entered on behalf of the claimant on 12 January 2001. A report from a senior occupational therapist, as well as various correspondence from the claimant's father along with a report from the designated Medical Officer, were all received by the Department. As the claimant's appeal was received outside the prescribed time limit, the matter was referred to the Appeals Service. A legally qualified member decided to admit the appeal on 11 May 2001.
3. On appeal the Tribunal gave the following reasons for its decision on both the care and the mobility component:

"The Tribunal must look at Paul's needs and requirements as at 19 November 2000, the date of the Department's decision. He is clearly a child with special educational needs and associated behavioural problems. He is clearly not unable nor virtually unable to walk. He is 9 years old (at the date of claim). There is no doubt that all 9 year olds require guidance or supervision when walking out of doors on unfamiliar routes. We do not consider that Paul requires any more guidance or supervision that any other child of his age. They are, we feel, those which a child without Paul's problems would normally require. So far as the care component is concerned there is clearly a conflict in terms of views expressed by the parents and some of the specialists. The parents present a picture of a child who requires constant supervision, care and attention because of his difficulties. On the other hand he presents as a pleasant co-operative boy who reads fluently from familiar books.

His headmaster indicates that his attendance at school is good and that he is biddable. He behaved well when seen by Mrs McK… (Senior Occupational Therapist) on 30 October 2000. However we are satisfied that his behavioural problems are as a direct result of a mental disablement i.e. his hearing and speech difficulties are can therefore be considered.

He clearly has difficulties in terms of communication. However the Speech Therapist on 29 January 2001 states that his errors on phonology do not significantly affect the intelligibility of his speech and his vocabulary is functional for his present needs. There is no evidence that he requires help on a daily basis in terms of communication and certainly none is mentioned by his headmaster other than occasional input from his Speech Therapist. We accept that his motor skills are reduced however the evidence indicates that he requires help only in terms of dressing and eating. There is no other evidence of any physical help needed and although we accept that there will be a element of encouragement involved we do not feel that it is any different from that of any other child of Paul's age. The attention required is not frequent throughout the day or prolonged or repeated at night. It does not in our view amount to a significant portion of the day in that we estimate the time spent as being somewhere in the region of 30 minutes a day.

So far as supervision is concerned we do not feel that Paul requires this of indeed watching over at night in order to prevent a substantial danger to himself or others. He clearly has behavioural problems. However there is no evidence to substantiate the level of misbehaviour outlined by Paul's parents in the papers and at hearing. On the contrary his behaviour at school appears to be quite good up to and including November 2000. The Special Educational Needs Statement of 22 May 2000 refers to problems at home. However there is no mention of absconding, lighting fires or vandalism. If further supervision is required we are not satisfied that it is substantially in excess of that required for any other child of Paul's age".

4. The claimant's father sought leave to appeal to a Commissioner on behalf of his son. A legally qualified member refused leave to appeal on 7 January 2002. However, a Commissioner granted leave to appeal on 27 May 2002.
5. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
6. In this appeal I had the benefit of submissions contained in a letter dated 17 April 2002 from Mrs Gunning, on behalf of the Decision Making and Appeals Unit of the Department, and also a letter from the claimant's father's solicitors, K… R W… & Co, dated 4 May 2002.
7. The primary ground of appeal set out in the papers is that the claimant's father's solicitors contended that the Tribunal's decision was wrong on the following grounds:

"I disagree with the decision of the Tribunal on the grounds that whenever Paul was first awarded DLA in 1997 none of the evidence that I have now submitted, and which was before the Tribunal, was available. Further, I believe that a doctor or EMP from DLA should have at least examined my son".

8. It is not entirely clear what the alleged error is. There is no specific requirement that a doctor should have examined the claimant, as entitlement is determined by assessing relevant needs. In the present case it is doubtful if a physical examination would have been of any assistance. Also the fact that the claimant was previously awarded Disability Living Allowance does not automatically point to a successful claim. Accordingly I do not find that the Tribunal has erred in law as alleged on behalf of the claimant.
9. However, Mrs Gunning has drawn my attention to another entirely separate matter. In the circumstances I consider that it is appropriate to quote the substance of Mrs Gunning's submissions as set out in her letter of 17 April 2002 in which she states as follows:

"…, I do consider that there are flaws in the tribunal decision. The reasons for decision state that the tribunal accepted [the claimant's] motor skills were reduced and that he required help dressing and eating and there was no other evidence of any physical help needed. This is not correct as in section 2 of form DLA580 completed on 24 July 2000 [the claimant's father] contended that [the claimant] wet the bed (page 21). There is no indication whether the tribunal considered this issue.

I also note that in assessing the need for supervision the tribunal stated there was no evidence to substantiate the level of misbehaviour outlined by [the claimant's] parents and that his behaviour at school appeared to be quite good. It is difficult to understand how the tribunal arrived at that conclusion. The tribunal seems to have placed considerable weight on the report dated 22 May 2000 from the Special Education Officer (…) which states that it was reported by the Educational Psychologist that [the claimant] presented as a pleasant and co-operative boy and concentrated well in the one to one setting. That report also states "[the claimant] mixes well with his peers often choosing to play with younger children". It is difficult to reconcile these comments because if he mixes well with his peers why would he often play with younger children? Also, the report recommended that [the claimant] should have access to pastoral care and counselling aimed at helping him to confront and resolve any emotional difficulties which may underlie his behaviour…, thereby indicating that there were behavioural problems. Furthermore [the claimant's father] submitted to the Tribunal copies of school reports stating [claimant's] behaviour was "improving all the time" and "His behaviour and attitude is the major problem for him to make real class progress". Having considered all the evidence in the case I find it difficult to understand why the tribunal decided as it did. The decision seems to be based on the evidence from the Education and Library Board and [the claimant's] school, yet when this evidence is examined closely there are inconsistencies. Accordingly it is my submission there is insufficient evidence to support the tribunal decision and to that extent I support the application".

10. The claimant's father's solicitor, by letter dated 4 May 2002, agreed with Mrs Gunning's submissions.
11. In my view Mrs Gunning's submissions which have been set out succinctly and to the point, are correct. The Tribunal seems to have overlooked the claimant's bed wetting problems. The Tribunal apparently has also failed to deal with the apparent inconsistency in the claimant's relationship with his peers and with younger children. It is also clear that there was evidence from the education psychologist that the claimant had some behavioural problems. This appears to have been confirmed, to some extent, by the school reports.
12. As Mrs Gunning has stated, the decision seems to have been based on the evidence from the Education and Library Board and the claimant's school, yet when this evidence is examined closely it does not appear to support the findings of the Tribunal. It is perhaps possible for the Tribunal to come to the conclusion that it did but, to do so, it had to give some explanation how it could do so in light of the evidence before it.
13. I therefore conclude that the conclusion that the Tribunal came to is not supported nor explained in the Tribunal's reasoning and, in the circumstances, I conclude that the decision is erroneous in law. Accordingly I allow the appeal, set aside the decision of the Tribunal and refer the matter back to a differently constituted Tribunal for a rehearing.

(Signed): J A H Martin QC

CHIEF COMMISSIONER

25 June 2002