The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"We have accepted that the claimant needs assistance twice per night for about 30 minutes to take his inhaler and to calm him down to sleep again. We held by a majority that neither by virtue of the time over which he requires attention, nor by the quality or degree of attention given does he have care needs by day or by night "substantially in excess of that normally required by a child of the same age and sex."
Mr McGregor submitted that the tribunal had not reached any conclusion as to whether the attention required by the claimant at night was prolonged or repeated. They had further not explained why they reached the conclusion that such attention as he did receive was not substantially in excess of that normally required by a child of the same age or sex.
"73. - (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the age of 5 and throughout which -
(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.
(4)For the purposes of this section in its application to a person for any period in which he is under the age of 16, the condition mentioned in subsection (1)(d) above shall not be taken to be satisfied unless -
(a) he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require; or
(b) persons of his age in normal physical and mental health would not require such guidance or supervision."
"1. The claimant has a serious disability in that he suffers from asthma, slow development and speech problems. He is 7 years old but has a social age of 3 to 4 years.
2. His speech problems affect his ability to communicate, making him difficult to understand.
4. The claimant has recently developed episodes of twitching and disorientation which have not yet been diagnosed.
5. The claimant is always supervised when playing outside or within the home; this is to prevent him wandering away and to provide attention in the event of an asthmatic attack.
6. The claimant has no awareness of the danger from traffic or other common hazards out of doors."
In their reasons the tribunal said:-
"5. We were asked to consider a claim for the lower rate of mobility component for the claimant. We entirely accept that the claimant "cannot take advantage of the faculty of walking out of doors without guidance or supervision from another person". However, we held by a majority that the claimant's need for supervision is not substantially in excess of that of most 7 year olds. We held that most 7 year olds require supervision or guidance when using unfamiliar routes. Mr McGarrity dissenting pointed out that this approach would mean that no 7 year old could qualify for lower rate mobility component."
The tribunal in the decision notice issued by them at the time when they reached their decision, also found that the claimant was unable to give his name and address if he is lost.
D. J. May QC
3 August 1998