Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No:  C5/09-10(DLA)

 

 

 

 

(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 18 December 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal by the claimant, whose mother has been appointed by the Department to act on her behalf, leave having been granted by the legally qualified member on 30 March 2009, against the unanimous decision of the tribunal affirming the decision of the decision-maker to the effect that the claimant is not entitled to either the care component or the mobility component of disability living allowance (DLA) from and including 21 September 2006.

 

2.     Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing. 

 

3.     Mr Keith Hollywood of Newry Citizens Advice Bureau represents the claimant while Mr John Kirk of Decision Making Services represents the Department.

 

4.     On 21 September 2006 the claimant’s mother made a claim for DLA on behalf of the claimant stating that the claimant had attention deficit hyperactivity disorder.  The Department appointed the claimant’s mother to act on behalf of the claimant on 1 November 2006.  A report was completed by the principal of the claimant’s school on 28 November 2006.  On 30 November 2006 it was decided that the claimant’s claim should be disallowed from and including 21 September 2006.  After this decision was disputed by the claimant’s mother, further information was received from the claimant’s mother and a report was completed by the claimant’s general practitioner (GP), the decision of 30 November 2006 was reconsidered on 16 March 2007.  However it was not changed.  The claimant’s appeal was received on 11 April 2007.

 

5.     The tribunal heard the appeal on 16 August 2007 but it was adjourned when only part heard.  The tribunal resumed its hearing on 18 December 2008 and came to the decision set out in paragraph 1 herein.

 

6.     The grounds of appeal put forward on behalf of the claimant can be set out as follows:

 

(i)     the tribunal failed to attach sufficient weight to the school report, the pupil profile and the GP’s report;

 

(ii)   the tribunal erred in not accepting that the claimant’s shyness, lack of confidence and need for encouragement to participate in physical education and social situations was due to attention deficit hyperactivity disorder.

 

7.     In my view it is not even reasonably arguable that the tribunal failed to attach sufficient weight to the reports and profile as, in its carefully kept record of proceedings and well reasoned statement of reasons, it has clearly paid considerable attention to these documents.  Moreover, it is entirely a matter for the tribunal what weight it gives to this evidence and, in my view, the tribunal’s conclusions on these matters cannot be impugned.  In addition it seems to me clear that the tribunal has accepted that the claimant suffers from attention deficit hyperactivity disorder but it has concluded that the claimant’s need for encouragement and her shyness did not arise out of this condition.  This is a conclusion to which the tribunal was entitled to come.  Accordingly it has not erred in law in these respects.

 

8.     However, Mr Kirk has identified another issue which is capable of amounting to an error of law in the tribunal’s decision.  In my view, Mr Kirk was correct to bring these matters to my attention.  In the self-assessment forms the claimant’s mother had indicated that the claimant required encouragement to clean herself, to dress appropriately and to eat.  In particular, at question 5 of the GP’s report, the GP indicated that the claimant required encouragement and direction from her mother in relation to self-care.  Mr Kirk has pointed out that this would certainly support the contention that the claimant required encouragement to manage her personal care needs. 

 

9.     At paragraph 3 of the tribunal’s reasons for its decision, it stated:

 

“… is physically capable of undertaking her own practical care needs but her mother reports that she needs encouragement/reminding to undertake such tasks.”

 

10.   It is clear that the tribunal considered the stated needs for encouragement in the context of social interaction.  Nevertheless, there is nothing in the tribunal’s reasoning which would indicate that the stated needs for encouragement with personal care were ever considered by the tribunal.  As there was evidence from both the claimant’s mother and the GP in relation to this issue, one would have expected that the tribunal would have specifically considered this evidence and explained why it did not accept the contended needs.  In my view, in failing so to do, the tribunal has erred in law as, in circumstances such as these, it is necessary for a tribunal to state why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the case.

 

11.   In the circumstances, for the reasons set out in paragraphs 8 to 10 herein, I conclude that the tribunal’s decision was erroneous in point of law.  Accordingly I set the tribunal’s decision aside and, exercising the powers conferred on me by Article 15(8)(b) of the Social Security (Northern Ireland) Order 1998, I refer the case to a differently constituted tribunal for a rehearing on the merits.  I realise that it is a most unsatisfactory situation for this new tribunal to have to deal with issues that date back to pre-November 2006.  However, I have no alternative as I am unable to give the decision that the tribunal ought to have given because I cannot do so without making fresh or further findings of fact – see Article 15(8)(a).  The issues that still require to be dealt with are matters properly under the remit of a tribunal, not the remit of a Commissioner hearing an appeal on a point of law.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

25 November 2009