Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2007] NISSCSC C35_06_07(DLA) (04 July 2007)

Decision No: C35/06-07(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 20 June 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant in this case is a child born on 23 November 1992. On his behalf his mother appeals against a majority decision dated 20 June 2006 of an appeal tribunal sitting at Belfast. The claimant's mother was claiming disability living allowance (DLA) in respect of her son. The Department disallowed the claim. The claimant's mother appealed to the tribunal on her son's behalf and it allowed the appeal in respect of the lower rate of the mobility component which it awarded from 18 October 2005 until 23 November 2008. The tribunal disallowed the care component.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant's grounds of appeal were as follows:

(1) that the reasons in relation to the dissenting member's views were inadequate;

(2) that, relying on Great Britain Tribunal of Commissioners' decision R(DLA)3/06, there was a possible breach of the rules of natural justice.

The claimant had given evidence but there was no indication that he had been given "proper regard and advised" thereon. Mr Huddleson, of Lisburn Citizens Advice Bureau, represented the claimant.

4. The Department was represented by Mr Kirk of its Decision Making Services Branch. In his observations of 16 January 2007 Mr Kirk recited the tribunal's reasoning, including that of the dissenting member, and submitted that it adequately explained the decision. I agree. It is quite clear from the reasoning that the majority considered the claimant's mother to have overstated her son's needs and the tribunal's assessment, not being perverse or unreasonable, cannot be disturbed on appeal. It is also apparent that the dissenting member accepted certain needs as existing, while the majority of the tribunal did not. That is an adequate explanation of that member's views. The reasons adequately explain the decision. Accordingly, there is no merit in the first ground.
5. As regards the second ground, this was also opposed by Mr Kirk in his observations. Commenting on R (DLA) 3/06, a decision of a Tribunal of Commissioners in Great Britain, Mr Kirk contrasted the sharply different background facts of that case with this present one. In R(DLA)3/06 the child in question had learning difficulties and behavioural problems, the tribunal directed her attendance, a clinical psychologist gave advice as to the potentially damaging effect of attending and that the Director of Social Services would be unlikely to give permission for her attendance. She did not attend and the tribunal drew an adverse inference against her. However, in the present case the child attended voluntarily with his mother, was of normal mental ability and was able to answer questions of a factual nature about his day-to-day life.
6. Mr Kirk considered there was no breach of the rules of natural justice and alluded to the fact that no-one had raised any concerns in relation to the tribunal's questions. He referred to paragraph 58 of R (DLA) 3/06 where the Tribunal of Commissioners states that a tribunal hearing a first tier appeal should have proper regard to the wishes of a child of sufficiently mature years and understanding. Here, in Mr Kirk's submission, the tribunal was endeavouring to establish the level of the child's needs and did have regard to the child's age and, in these circumstances, was entitled to ask him questions in order to assist it in reaching its decision.
7. In my view the decision in R (DLA) 3/06 does not purport to state that a tribunal is unable to require a child to give evidence. It merely gives guidance as to the approach to be accepted in reaching a decision on the matter. In the present case the child was brought by his mother and appeared willing and able to respond to questions. In addition, the tribunal obviously considered his responses helpful on reaching a decision. The matters being considered were straightforward factual issues of which the child was well aware. The situation was very different to that in the decision in R (DLA) 3/06 and I can see no error in what was done. The guidance set out in R (DLA) 3/06 is guidance. It indicates approaches and factors to be considered but for there to be an error there must be a breach of the right to a fair trial. The error identified in R (DLA) 3/06 case was that the tribunal was wrong to draw an adverse inference from the child's non-attendance after requiring the child, despite the views of the local authority, her carer and a clinical psychologist as to adverse effect on her. In that case the Tribunal of Commissioners held that the tribunal's approach was wrong and breached the child's right to a fair trial. That is very different to what has taken place in the present proceedings, where the child was not summoned, but rather attended voluntarily with his mother, was willing and was fit to answer straightforward questions. In addition the tribunal in fact allowed the appeal, albeit not to the extent wished for by the claimant's mother. The tribunal was undoubtedly assisted by the child's answers. In my view there was no breach of the right to a fair trial in this case. Therefore, I consider there to be no merit in this ground.
8. The reason why a Commissioner granted leave was that put forward by Mr Kirk, namely, the start date of the award. There was in my view an error in relation to that start date of the award. In this case claim forms were requested on 19 September 2005 and received on 18 October 2005, which is within the six week period. Regulation 6(8) and (9) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 provides that where a claim form for DLA is received within six weeks of the date it was requested, that request date shall be the date the forms are taken to be received. In this case the tribunal should have applied that and started the award from 19 September 2005, there being no dispute that the qualifying period was satisfied on that date.
9. I set the tribunal's decision aside for that reason only. I consider that this is a case where it is expedient that I give the decision which the tribunal should have given. My decision is that the claimant is entitled to the lower rate of the mobility component of DLA from and including 19 September 2005 until 23 November 2008. The claimant is not entitled to any rate of the care component of DLA from and including 19 September 2005. The claimant succeeds in the appeal but only to the limited extent set out above.

(signed): J A H Martin QC

Chief Commissioner

4 July 2007