Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C38/03-04(DLA)T (20 January 2004)


 


Decision No: C38/03-04(DLA)(T)

IRO J (A CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Application for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 28 November 2001 DECISION OF A TRIBUNAL OF COMMISSIONERS
1. This is an application, by the mother and appointee of J, a child, for leave to appeal against a decision dated 28 November 2001 of an Appeal Tribunal sitting at Ballymena. The mother is hereinafter referred to as the claimant. The Tribunal had dismissed the claimant's appeal against a decision of the Department that J. was not entitled to Disability Living Allowance (DLA), from and including 23 February 2001.
2. Leave to appeal is granted and, with the consent of Mrs Gunning of the Decision Making and Appeals Unit (representing the Department) and of Mr Mackle of the Children's Law Centre (representing the claimant), we proceed to treat the application as an appeal and to determine any questions arising thereon as though they arose on appeal. Our decision is given in the final two paragraphs.
3. The Chief Commissioner considered that the appeal raised questions of special difficulty. In exercise of his powers under Article 16(7) of the Social Security (Northern Ireland) Order 1998 he therefore directed a Tribunal of Commissioners to deal with the case.
4. Before we come to the facts, we should explain one matter. In this decision we shall use the abbreviations ADHD and ADD. These stand for attention deficit hyperactivity disorder and attention deficit disorder (also, apparently, known as hyperkinetic syndrome). ADHD and ADD appear to be used interchangeably in the papers. They may also be so used in medical literature but we do not have sufficient medical knowledge to say so with confidence. Whatever general use may be made of these expressions, it is important for everyone concerned to be certain that they are all speaking about the same subject. For the purposes of this decision, we assume that the two expressions mean the same thing. If we are incorrect, it would be helpful if the point were to be clarified by medical evidence produced by the mother for the new tribunal to whom we are remitting this appeal.
5. The facts are as follows. J. is a child. He was born on 20 July 1993. He was, accordingly, just under eight years old at the date of the decision which was appealed to the Tribunal (9 May 2001). He lives with his mother and father and his brothers and sisters. There are six or seven children altogether in the family. According to his mother, she and J's father had been experiencing difficulties with him for some considerable while. She says that they came under pressure from his teachers to do something about his behaviour. The family belongs to a church group and it appears that because of J's bad behaviour at church gatherings they also came under pressure from members of the group to do something about him. It appears that someone, possibly the minister's wife, expressed the view that J might be suffering from ADHD.
6. Part of the evidence consisted of three letters written by Doctor J N..., who is a consultant paediatrician at the hospital which J attended at the relevant time. It is convenient to make the following points. All three letters were addressed to J's general practitioner, with copies of all three being sent to a "Dr J P K... (B... PS). We assume that "PS" is a reference to the primary school which J is, or was, attending and that Doctor K... is connected with that school in some sort of official capacity (perhaps as headmaster). The first of these is dated 22 February 2001, and is written following a visit to Doctor N...'s clinic on 20 February. It reads as follows – the italics being ours. First, there is a heading "Current Problems" followed by two lines reading "E2Czz Disturbance of conduct NOS" and "E2F2 Other specific learning difficulty". The heading appears in all three letters. We comment on it below. Doctor N... then writes: -

"Thank you for referring this young man who has been causing crescendoing problems at home and at school. The teachers have been pleading with his mother to get something done for presumed attention deficit disorder and mum was also told by her Minister's wife that [J] almost certainly had attention deficit disorder because of the behaviour that he was exhibiting in public in Church circles.

[J's] concentration is poor, he is not getting on well now with other children in his class and he is very disruptive at home.

I have started [him] on Ritalin, 5mgs 3 times a day initially and asked mum to put that dose up to 10mgs 3 times a day in a week's time if there is no significant response. I have told her I have started him on a small dose deliberately and then will work it up if we need to."

Doctor N... ended by saying that he would see J again in six weeks time. The next letter is dated 3 April 2001. It contains the same reference to "Current Problems" followed by the lines already quoted: -

"This young man, with attention deficit disorder, seems to have responded very well to Ritalin. He needed the full 10mg tablet 3 times a day and on this his ability to concentrate at school and at home has been very marked. His behaviour is beginning to settle, although he still has his moments.

I think with the progress [J] has made, I will arrange to see him routinely in 4 months' time …"

Finally, on 7 August 2001, Doctor N... wrote as follows: -

"[J] continues to respond well to his Ritalin treatment. On 10 mgs 3 times a day his behaviour has settled down and his schoolwork has improved out of all recognition.

Ritalin has, however, affected his appetite and his weight has remained static over the past few months.

I have asked the family if they could try and manoeuvre his treatment to coincide with mealtimes rather than after he has his tablets.

I will see [J] sooner rather than later and will see him in 2 month's time to keep a very close eye on his weight."

7. The three letters are unsatisfactory in at least one, important, respect. In saying so we make no criticism of Doctor N.... There is nothing wrong with his letters as letters from a consultant to a patient's general practitioner. It is only when they are used as evidence – something Doctor N... almost certainly did not envisage – that difficulties emerge. In the first letter, Doctor N... merely records that J's teachers had asked for something to be done "for presumed attention deficit disorder" and also that the Minister's wife had said that J "almost certainly had attention deficit disorder" because of his behaviour in church circles. Doctor N... is, we consider, careful not to commit himself to a diagnosis. He merely prescribes Ritalin and waits to see what the outcome would be. However, Ritalin could in any event have a calming effect whether or not J was suffering from ADHD. In his second letter he does say: "This young man, with attention deficit disorder, seems to have responded very well to Ritalin". There is no reference to any diagnosis in the third letter. The only point at which Doctor N... mentions any kind of diagnosis is in the middle letter when he does so in the words just quoted. No reasons or explanation are given. How Doctor N... arrived at a diagnosis, if indeed he did make such a diagnosis, is not revealed.
8. We are left with the strong impression that Doctor N... made no firm independent diagnosis at any time save, possibly, one which was based on the satisfactory response to Ritalin. On 22 February 2001, he simply proceeded on the basis that J might have ADHD and prescribed the drug. Since the drug appeared to work, he was thereafter prepared to go along with ADHD as a working diagnosis or hypothesis. So long as there was a marked improvement in J's condition, the precise label did not matter greatly from a medical viewpoint. Doctor N...'s evidence does not therefore appear to be of strong evidential value. The three letters contain no explanation, even of a limited kind, as to why J might be considered to suffer from ADHD. We consider that the conclusion could be drawn from these letters that ADHD is mentioned as a working hypothesis rather than as a firm diagnosis.
9. This is more apparent when the heading "Current Problems" is examined. It mentions "current problems" as being "E2Czz Disturbance of conduct, NOS E2F2. Other specific learning difficulty." In the final letter dated 7 August 2001 ADD is not mentioned by name but the E2Czz and E2F2 classifications are made. As we understand it the first of these refers to a disturbance (our underlining) of conduct not otherwise specified. The second refers to other specific learning difficulty (our underlining). Neither of those therefore, of itself necessarily constitutes a diagnosis of mental disablement. Rather, they support our view that Doctor N... had not made a firm diagnosis.
10. On 23 February 2001, J's mother, on his behalf, made a claim to a disability living allowance. In answer to the question about the illness or disability relied upon, she said J: -

"has A.D.H.D. (attention deficit hyperactive disorder) also known as A.D.D. (attention deficit disorder)."

She said that he was on Ritalin tablets and took 10 mgs three times a day. She said that he had been diagnosed as suffering from ADHD in February 2001: -

"following his teachers requesting that something be done and friends recognising that his behaviour wasn't similar to that of other children of his age. At present his school is waiting to see how his medication is helping this disorder with the view to allocating a classroom assistant to assist with [J's] school work."

On 5 March 2001, J's general practitioner filled in the relevant section of the claim form stating that J suffered from: -

"A.D.H.D. Hyperactive child. On Ritalin 10 mg tabs Learning difficulties."

11. In so stating, J's general practitioner, and the doctor referred to in the following paragraph, almost certainly must have been relying on Doctor N...'s letter to the former of 22 February 2001. However, as we have sought to demonstrate, that letter raises ADHD as a working diagnosis or hypothesis but does not, in fact, make a firm diagnosis of the condition. Consequently, in the absence of some indication that these two doctors had reached an independent conclusion – and there is no such indication evident – their evidence cannot add greatly to the consultant's letters.
12. On 20 March 2001, another doctor answered a questionnaire by saying that J suffered from: -

"Behavioural problems – learning difficulties – ADHD".

When asked whether J's problems were psychiatric or purely behavioural in origin she answered: -

"combination of both".

Asked to describe J's behavioural problems she said that during the day: -

"… at school, mainly walking around the classroom shouting. Constant talking. Stubborn immature behaviour difficulty playing with other children."

At night his behavioural problems were a refusal to be go bed. She added that J slept very little. During the day J required: -

"Constant supervision … in class".

At night he required: -

"Extra supervision due to sleeping probs".

Outdoors he: -

"would ignore common dangers eg. traffic etc".

13. In contrast, the questionnaire which his class teacher completed on 26 April 2001, was much more optimistic. Incidentally, this particular class teacher was one of those from whom J's mother suggested that evidence be obtained when she completed the claim forms in February. It appears that by April 2001, J's behaviour in class had improved to the point where he was working well –

"at, and above the average level of his class."

His: -

"behaviour has improved, but he needs encouragement when interacting with peers, for example taking turns, and playing games".

"His "academic development is normal for an average primary three".

There were, however, references to earlier difficulties and the class teacher said that, in September, she had found his social skills undeveloped for his age.

14. The claim for benefit was investigated and, on 9 May 2001, a decision was given. That decision was that J was not entitled to either component from and including 23 February 2001. An appeal was brought on his behalf. In support of the appeal his mother lodged a document described as "a three-day diary of my son" setting out details of his behaviour over an unspecified period of three days though this period appears to have been in the summer following prescription of Ritalin and therefore after the date of decision on 9 May 2001. It appears to us that this may be more than a simple contemporaneous record of events as it contains comments on events. The mother also attended the hearing and gave oral evidence to the Tribunal.
15. Accordingly to the record of proceedings, J's mother, among other matters, mentioned the following: -

"… General Practitioner referred to Dr N..., … and was put on Ritalin. Teacher also wrote to General Practitioner. Referred January 2001. Seen February 2001. Put on Ritalin. It does help, has to have 4 – 5 tablets daily, ie every 3 hours. He is more controllable (crying now). Very hard to handle. I have 6 other children, 2 in high school, rest in primary school. Eldest son was borderline Attention Deficit Hyperactivity Disorder at 3 and avoids certain foods. [J] was on 3 inhalers for his asthma which made him difficult to work with, so off them until he has an attack. [J] is a very intelligent child, doing P5 work in P4. Behaviour has improved with Ritalin."

Pausing here, all the evidence suggests that after taking Ritalin J's academic performance greatly improved and he can be regarded as a bright little boy. Later in her evidence, she said: -

"… Child Education Psychologist did not want to see him as he causes little trouble in school. They are trying star charts, rewards, time out. Things we've tried before that don't work, denying privileges doesn't help. … so hard to deal with when medication runs out. With medication he is like a different child. Medication 10.00 am, 1.00 pm and morning and evening, calm and responsive. Like Jekyle (sic) and Hyde. Ritalin is suppressing appetite and he is skin and bone (tall and right height for age). No dietician referral … Bedtime 8.00 pm. He constantly comes down. Wakes others. I can give him only 5 tablets daily. It is after midnight before he goes into bedroom and stays there. He will then sleep through or he may get up, last night he went down and had television on. He can be difficult to get up or he can be up first. He has always been an awkward child, high. We muddled along until P3 teacher October/November 2000 – January 2001 complained and Minister's wife said Attention Deficit Hyperactivity Disorder.

Dr N... happy with response of Ritalin and to carry on. Eldest daughter tries to help. …"

16. The Tribunal had provided a full statement of the reasons for its decision. These reasons were very clear: -

"Disability Living Allowance is only available where the claimant is suffering from a physical or mental disablement. This is the first question to be asked especially where the claimant is a child – see the first test set out by Chief Commissioner Judge Chambers QC in paragraph 8 of C1/97(DLA), ie "A: Has the child a physical or mental disability?" (There is no separate requirement that any such disablement be "severe").

The date of claim is 23.2.2001. The date of decision is 9.5.2001. The first mention of "behavioural" problems in the General Practitioner records is for 22 January 2001. The General Practitioner records nowhere mention mental or physical disablement. The General Practitioner rather describes his behaviour as "immature" on 20.3.2001. The evidence from the Class Teacher, 26.4.2001, which we accept as factual (it is not disputed) is that, "[J] is working at and above the average level of his class … [J] generally responds well in class … [Js'] academic development is normal for an average P3." (General Practitioner was wrong on 5.3.2001 to state "Learning difficulties").

[J] is not mentally disabled. He is not physically disabled. He is suffering from nothing more than attention-seeking behaviour and poor parental discipline. We are aware of course that suffering from a behavioural problem is not inconsistent with a finding that a person suffers from a physical or mental disablement and that indeed a mental disablement may well manifest itself by a behaviour problem. However, behaviour problems can show themselves without there being any mental disablement. They can be for example a manifestation of a defective character, or the result of can be a manifestation of mental disablement but that has not been proved in [Js'] case. (See C42/99-00(DLA) paragraph 14).

We are aware he has been put on Ritalin by Dr N..., Consultant Paediatrician and that he has responded well to this (see his reports of 3.4.2001, 7.8.2001 and 7.10.2001) and that his mother "is well used to both [J] and also the Ritalin" and she is able to work out how much to give him and at what times so that his behaviour has settled out of all recognition (7.8.2001). So that even if we accepted a mental disablement, he would not satisfy the 3 and 6 month qualifying periods.

However the Ritalin is being prescribed not for mental illness or disablement but for a diagnosis of "disturbance of conduct", see Dr N... 22.2.2001 and in order to help his mother cope with his behaviour.

As mental or physical disablement has not been proved, no element of the Care or Mobility Components can be awarded."

17. The claimant's grounds of appeal were contained in an OSSC1 form received in the Commissioners' Office on 18 February 2002. The grounds were: -

(1) that the Tribunal, not having referred to evidence from doctors in the practice which J attended to the effect that J suffered from Attention Deficit Hyperactivity Disorder (ADHD) had erred in law by rejecting that evidence;

(2) that the Tribunal had erred in law by finding that J did not suffer from a mental or physical disability. In that connection Mr Mackle referred to Great Britain decision CDLA 5153/97 as including some discussion on the nature of ADHD and in particular to the fact that impairment of academic development may not form part of the condition.

18. The Department opposed the appeal by letter dated 31 May 2002. Mrs Gunning submitted, relying on C46/99-00(DLA) paragraph 15, that to establish entitlement to DLA there had to be a physical or mental disability and the question of whether or not such physical or mental disability existed was one for the decision making authorities. Mrs Gunning submitted that the Tribunal had not rejected the evidence of the General Practitioners which referred to the presence of ADHD. It had considered the General Practitioner's (GP) records and stated that these records contained no mention of mental or physical disablement, that the GP had described J's behaviour as immature and that a consultant paediatrician Dr N... had prescribed Ritalin for a diagnosis of "disturbance of conduct" and not for a mental illness or disablement. The Tribunal had accepted that J had behavioural problems but such problems could be present without there being any mental disablement. Here Mrs Gunning relied on paragraph 14 of C42/99-00 (DLA) wherein it was stated that behavioural problems could show themselves without there being any mental disablement.
19. As regards Great Britain decision CDLA 5153/97 Mrs Gunning submitted that that case did concern a child with ADHD but this case could be distinguished from the present case in that there it had been accepted that the child in question was mentally disabled and the question at issue in the present appeal was whether J met the condition of being severely mentally impaired for the purposes of satisfying the provisions of section 73(3)(a) of the Social Security (Contributions and Benefits) (Northern Ireland) Act 1992.
20. There are several points which we wish to make at the outset of this case: -

1) Mrs Gunning is correct that in order for there to be entitlement to DLA there must be a physical or mental disablement. (In the case of the higher rate of the mobility component the disability must usually be a physical disability). This is now long term established law and is clearly set out in the statutory provisions. The matter has not been contested in this case.

2) That disablement must lead to care or mobility needs. Again there is no dispute about this. Despite the name of the benefit, DLA is not awarded on grounds of disability alone. Disability is a necessary condition but other, statutory criteria must be satisfied.

3) It is for the medical authorities to decide whether a particular physical or mental condition exists, how it is to be classified and how it is to be recognised. If there is general consensus among such authorities as to the existence of a particular condition it is not for a tribunal, however sceptical and even if containing a medical member, to deny its existence. To do so will normally amount to an error of law. However, the fact that the existence of a particular condition is generally accepted does not mean that the evidence of an appellant who says that he is suffering from it must be accepted. Further, even if he is suffering from such a condition, this does not automatically mean that he is entitled to DLA.

4) The decision as to whether or not a claimant suffers from a disablement is for the adjudicating authorities (including in particular tribunals which hear appeals against decisions) not for any doctor. Doctors, whether they be consultants, surgeons, general practitioners or examining medical practitioners give evidence. Tribunals make decisions on the basis of that evidence. In some cases the medical evidence will point in one direction only and the task of the tribunal will be light. On other occasions there will be a conflict of material medical evidence which the tribunal will be required to resolve. Where that conflict is acute, its task will not be an easy one. In such an event, the tribunal must explain how it has resolved the conflict and, where this is not already evident, why some parts of the evidence have been preferred to others.

5) Further, there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.

6) All that is required is that the reasons adequately explain the decision. Further, there are circumstances where it will not normally be necessary for a tribunal to refer to some parts of the medical evidence. First, DLA appeals often give rise to the peculiar feature that there is evidence before the tribunal that a person is suffering from a particular medical condition. The tribunal accepts the diagnosis but dismisses the appeal. No reference is made to the medical evidence in the tribunal's reasoning. From this it is assumed by the disappointed appellant that the medical evidence has been rejected and one of the grounds of appeal is that there has been a failure to explain why this was so. However, on investigation it turns out that there has been no rejection of the medical evidence and therefore no reasons were required. The tribunal has accepted the evidence and proceeded to the next question which is whether the statutory criteria for an award have been satisfied. Indeed, we can say that in the great majority of DLA cases what is in issue is not the diagnosis but whether the other statutory criteria are satisfied. For example, it is not whether a person suffers from osteo-arthritis but the extent of any disturbance of function or care or mobility needs arising therefrom. A precise diagnosis of what the disablement is is not therefore always needed. It will depend on the case and whether there is any issue that a disablement actually exists.

7) The care component conditions are framed in terms of a person being "so severely disabled physically or mentally" that he either requires the assistance set out in the statute or else he requires the degree of supervision to which the statute refers. For most people the higher rate of the mobility component is awarded because they are unable to walk or virtually unable to do so because of physical disablement. The lower rate is framed in terms of difficulties with walking consequent upon being "so severely disabled physically or mentally". If it is established that a person is disabled the care and mobility needs arising out of that disablement are considered to ascertain if they reach the relevant statutory levels.

8) In addition, appellants often submit evidence, in the form of letters or reports from doctors or other health care workers which are either irrelevant to the issues the tribunal is required to determine or else are of little evidential value. Examples of irrelevancy are letters or reports about medical conditions or problems which do not have an impact on the condition or problem that the tribunal is focusing on. Examples of the latter are letters or reports which are based after, and therefore secondary to, other more important evidence in the possession of the tribunal, such as a general practitioner merely repeating advice, already in evidence, given by a consultant. Again of little evidential value are letters from doctors which merely repeat the appellant's own evidence or letters which are too vague to be of assistance. A letter from a doctor who merely states that he or she supports the appeal without explaining why will rarely assist. The reason why little or no account has been taken of such evidence is usually all too obvious – it is not evidence that the conditions are satisfied. Nevertheless, where it is evident that the appellant attaches great significance to such a letter or report it may be prudent for a tribunal to say, briefly, that it has read the document but derived no assistance from it. A tribunal should usually say so where the relevance or value of the evidence is likely to be controversial.

9) There must be some reduction in physical or mental ability. Not paying attention or not concentrating is not of itself enough. Neither is impairment of social or educational functioning resulting from lack of attention or concentration. Mere abnormal conduct or disturbance of conduct does not of itself necessarily result from a mental disablement. Of course all these matters may well result from such a disablement. Equally, however, they may not result from a disablement but may be a result of voluntary conduct perhaps to gain an end. It is up to a tribunal, on the evidence before it, to reach its own conclusion as to whether or not such disablement exists. This is essentially a factual matter and as such the conclusion is not to be disturbed by an appellate body unless that conclusion is one that no reasonable tribunal could have reached on the evidence.

10) In another class of cases the tribunal may accept the medical evidence but not find that evidence to be of great assistance in dealing with the questions which the tribunal has to answer. It may, for example, accept a diagnosis but find it questionable that such diagnosis amounts to a diagnosis of mental or physical disablement. This is perhaps most likely in cases where the diagnosis is of a somewhat vague and generalised nature and does not delineate impairment of ability either physical or mental. Such medical evidence will simply not be of significant probative value. For example, it may be very vague or a mere recital of what the doctor has been told or very brief and without examination findings.

11) The weight to be attached to medical evidence and the preference of one medical report to another is a matter for the tribunal. In assessing such evidence it is simply carrying out the duty imposed on it as the fact finding body.

12) However, a tribunal should give adequate reasons for its decision. Where material medical evidence is being rejected or where little weight is being placed on medical evidence which a claimant has put forward as a central part of his or her appeal, the provision of adequate reasons will usually involve indicating the tribunal's assessment of that evidence. This need not be lengthy – just sufficient to indicate to a reasonable person why the tribunal did not rely on that evidence. To be adequate, reasons should be of a standard such that a reasonable person, reading them, could understand why the tribunal decided as it did.

21. In this present case, and in the light of the matters to which we have already drawn attention, the Tribunal was entitled to accept or reject the diagnosis of ADD. It was also entitled to find that the Consultant Paediatrician had made no such firm diagnosis. However it was required to make clear its views on the medical evidence that the claimant was suffering from ADD and give an explanation for those views. Quite apart from other matters any appellant body which reviews a tribunal decision is entitled to know why the tribunal rejected a particular piece of material evidence. In this case the Tribunal has not adequately explained its views on the medical evidence relating to ADD.
22. Equally, the Tribunal was entitled to find that there was or was not a physical or mental disablement. The Tribunal did not err in taking on the role of deciding whether there was or was not such disablement. Indeed that was part of its function. In this case the Tribunal has clearly concluded that J suffered from no such disablement. On the evidence before it we cannot say that that conclusion was unsustainable.
23. In this case there was a somewhat ambiguous and elliptical mention by the consultant paediatrician of J having ADD. Even though not expressly stated, does the diagnosis of ADD in this particular case imply that there is a mental disablement within the terms of the legislation? There is certainly no indication of impairment of intelligence and no indication that any physical examination of J's brain, or indeed any other form of objective testing, was ever carried out to ascertain whether or not he had some physical abnormality of the brain. We are unable to state, on the basis of the evidence before us, that the mentions of ADD in the medical evidence indicate any mental disablement. We do not have the diagnostic criteria which the paediatrician used, we do not know the evidence upon which he based his (presumed) conclusion that any such diagnostic criteria were present. For example, if it was largely on history as opposed to objective observation and examination he would obviously have relied heavily on the accuracy of that history. The Tribunal might not consider that history to be accurate and it is entitled to its view in that respect. If it rejects the history, it may well reject the diagnosis and is entitled to do so.
24. However the references to ADD were obviously being relied on by the claimant to found the contention that J satisfied the conditions for DLA (including that he had a mental disablement). We must, therefore, ask ourselves whether the Tribunal in its reasons dealt adequately with that contention.
25. The Tribunal has certainly dealt fully with whether or not J has a mental disablement. It concluded he had not and it has set out clearly the reasons for this conclusion. We consider it was entitled to that conclusion. There were, on the basis of the teacher's report and J's academic progress, obviously no learning difficulties and J's behaviour itself was open to different views as to its origin. Doctor N...'s letters were, for evidential although not medical purposes, unsatisfactory for the reasons indicated. On the evidence, the Tribunal was entitled to conclude that J's behaviour was not the result of a mental disablement. It must be remembered that the onus of proof of mental disablement is on the claimant. If the Tribunal is unable to conclude on the balance of probabilities that J suffers from a mental disablement it must conclude that that requirement has not been satisfied. We do not say that the Tribunal was not entitled to its conclusion in that respect.
26. As regards the consultant paediatrician's evidence the Tribunal has concluded that Ritalin was being prescribed for "disturbance of conduct" and referred to the report of 22 February 2001. Certainly Ritalin was prescribed at that stage and there was no mention of a diagnosis of ADD at that stage by the consultant paediatrician. The mere fact that Ritalin appears to have worked also does not in our view indicate that there was such a disablement. Behaviour, whatever its origin, can be altered by medication.
27. The Tribunal was, as we have stated, entitled to its view that there was no mental disablement in the case. The claimant, however, obviously thought that such disablement existed and indeed she had based her appeal on ADHD being mentioned by the G.P. It may be worthy of note that ADD is the term mentioned by the consultant paediatrician, see the opening words of his letter of 3 April 2001. As mentioned earlier we suspect that the two terms ADD and ADHD are being used interchangeably. The term "hyperactivity" may be being used to describe overactive conduct, as opposed to any hyperactivity of the brain. We have, as mentioned above, no evidence that there has been any testing of the brain or any diagnosis of actual physical brain overactivity so it appears likely that hyperactivity is being used to describe the conduct.
28. It was however, quite clear that the claimant regarded the reference to ADHD or ADD, as sufficient to qualify J as suffering from a mental disablement. The Tribunal, of course did not have to accept that J was suffering from ADD or ADHD. It did, however, have to deal with the basis of the claimant's appeal and this alleged diagnosis was central to the appeal.
29. Did it adequately deal with this matter? In our view it did not. The Tribunal did not reject the alleged diagnosis. It could have done in light of the somewhat elliptical nature of the alleged diagnosis and of the evidence of J's behaviour and his obvious intellectual capability (evidenced by the school report). Equally it did not accept the alleged diagnosis and then proceed to differentiate between such a diagnosis and the establishment (on the balance of probability) of a mental disablement. The alleged diagnosis appears to have been ignored. That, in our view, was insufficient to deal with the main point of the claimant's argument and is an error of law.
30. We then come to the question of whether that error is such as to vitiate the decision. Not every error will do so. The Tribunal has concluded and on the face of the evidence, correctly, that J's behaviour has settled out of all recognition. The date of claim is 23 February 2001 and his class teacher's report dated 26 April 2001 indicates no attention or supervision needs, but some stubbornness and need for encouragement interacting with peers in taking turns and such matters. It is stated that J generally responds well in class and he is stated to have normal academic development. The claimant also told the Tribunal that J's behaviour had greatly improved but that his behaviour when walking outdoors had not been affected by Ritalin and that he still caused problems in the evening. Had the Tribunal accepted that he suffered mental disablement and that those needs remained after Ritalin took effect there could have been issues as to satisfaction of the lower rate of the mobility component. For the above reasons we consider that the error is such as to vitiate the decision. We therefore set the decision aside.
31. We do not consider that we should substitute our own decision for that which the Tribunal should have given. To begin with we have not seen J nor do we have any note of any findings on medical examination of J. We are not in a position to reach a conclusion as to the existence or not of a mental disablement nor as to whether the taking of Ritalin has removed any or all resultant care or mobility needs should such disability be found. We therefore remit the matter to a differently constituted Tribunal for rehearing. That Tribunal should decide whether, and if so what, mental disablement exists and should deal with the references to ADD and ADHD. If it decides there is no disablement, that is an end to the matter. If it decides that disablement exists, it must decide if there were any resulting care or mobility needs at the time of the decision under appeal, and, if so, whether same were such as to satisfy the statutory requirements. As mentioned earlier it may be appropriate for the mother to produce evidence clarifying the meaning of ADD and ADHD if these terms are not being used interchangeably in the medical evidence on which she relies.

(signed): J A H Martin QC

Chief Commissioner

(signed): M F Brown

Commissioner

(signed): J P P Powell

Deputy Commissioner

20 January 2004