UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CSDLA_686_2002 (22 January 2002)

 


1. The decision of the disability living allowance appeal tribunal dated 22 October 2001 is erroneous in law. I set that decision aside and direct that the claimant's be heard again by a differently constituted tribunal.
2. The claimant is a child. His father is his appointee for the purposes of this claim for Disability Living Allowance. His appointee appeals, with my leave and the support in part of the Secretary of State's representative, against the tribunal's decision that the claimant is not entitled to Disability Living Allowance.
3. The claimant was born on 29 December 1995. On 28 September 2000 the appointee applied for an award of Disability Living Allowance for the claimant on account of the claimant's requirements for attention, in excess of what is normal for a child of his age, due to disturbed sleep (including possibly night time fitting), bedwetting, daytime incontinence and inability to cope with toileting, difficulties in feeding, difficulties in communication and in relating to others, inappropriate behaviour and daytime "absences". Also claimed was a requirement for supervision at all times to prevent wandering and supervision to enable the claimant to walk out of doors because of his tendency to wander or run off, difficulty in communication and the absences already mentioned. The cause of the claimant's disabilities was said to be foetal anti-convulsant syndrome. The Secretary of State's decision makers refused the claim for benefit and the appointee appealed to the tribunal.
4. The tribunal's reasons for dismissing the appeal were that the tribunal did not consider that the amount of care or supervision required by the claimant was substantially in excess of what is required by a child of the claimant's age in normal health. The bedwetting and inability to cope with toileting were not unusual in a five year old, the claimant was attending an ordinary school from which he was receiving satisfactory reports and the running off was no more than was to be expected from an adventurous and wilful child of the claimant's age.
5. The higher rate of the mobility component is not in issue in this case because there is no suggestion that the claimant cannot walk or is virtually unable to walk. The statutory provisions in issue in the appeal are therefore section 72(1) and (6) and section 73(1)(d) and (4) of the Social Security Contributions and Benefits Act 1992. So far as relevant to this appeal those provisions are in the following terms:-

"72. (1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a) He is so severely disabled physically and mentally that –

(i) He requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period of number of periods); or

(ii) - - - - - -; or

(b) He is so severely disabled physically and mentally that, by day, he requires from another person –

(i) Frequent attention throughout the day in connection with his bodily functions; or

(ii) Continual supervision throughout the day in order to avoid substantial danger to himself or others; or

c) He is so severely disabled physically or mentally that, at night –

i) He requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) In order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(2) to (5) - - - - - -

(6) For the purposes of this section in its application to a person for any period in which he is under the age of 16 –

(a) Sub-paragraph (ii) of sub-section (1)(a) above shall be omitted; and

(b) Neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in sub-section (1)(b) and (c) above shall be taken to be satisfied unless –

(i) He has requirements of a description mentioned in sub-section (1)(a), (b) or (c) above substantially in excess of the normal requirements of a person of his age or

(ii) He has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health do not have.

(7) and (8) - - - - - - - - -.", and

"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 relevant age and throughout which –

(a) to (c)-----------------; or

(d) he is able to walk but is so severely disabled physically and 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.

(1A) In subsection (1) above "the relevant age" means

(a) - - - - - -;

(b) In relation to the conditions mentioned in paragraph (d) of that subsection, the age of 5.

(2) - - - - - -.

(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.

(5) to (14) - - - - - - -.".

6. When I granted leave to appeal I observed:-

"It is arguable that the record of the tribunal's decision contains no findings in fact as to the extent of the claimant's requirements for attention and supervision and that there is therefore, no basis for a comparison with the requirements of a child in normal health. I see no clear finding that the claimant suffers from a diagnosed disabling physical and mental illness.".

7. In a written submission of 28 March 2002 the Secretary of State's representative agrees with my observation that the tribunal had not made a finding in fact as to whether or not the claimant was suffering from a diagnosed medical condition but she does not recommend that the case be remitted for the rehearing to a new tribunal because she considers that I could make my own findings in fact and a decision to the effect that the claimant is not entitled to benefit. The evidence as to whether or not there is a diagnosable medical condition is, she argues, to be found in documents 54 – 69 of the bundle (the examining medical practitioner's report), documents 89 – 90 (the report of the, I think, consultant paediatrician investigating the claimant's condition) and documents 92 – 93 (the report from the claimant's school). The tribunal has, argues the representative, made sufficient findings on the matter of the claimant's epilepsy, school attendance, infrequency of fits and lack of medication for epilepsy in relation to the claimant's requirement for supervision and sufficient findings on the claimant's attendance at a main stream school, his playing out habits and his ability to communicate in relation to his need for attention.
8. I do not accept the argument for the Secretary of State that I can make my own decision in this case or that the tribunal has made sufficient findings in fact in relation to the claimant's requirements for attendance or supervision. The factor which determines whether or not a claimant qualifies for the care component of Disability Living Allowance is the amount of time which he reasonably requires another person to spend in providing care or supervision for him and the distribution of that time throughout the day and throughout the night. In this case the tribunal has made no findings as to the time which has to be spent in providing care or supervision for the claimant and there is, therefore, no basis for a comparison with the needs of a child in normal health.
9. The difficulty which I see with the question of whether or not there is a disabling medical condition in the claimant's case is this. As I read the appointee's evidence he seems to think that the claimant's main disabling medical problem is foetal anti-convulsant syndrome and, possibly, epilepsy or some other illness which causes the night time fitting and the day time absences. However, the paediatrician's response on document 90 to the question "does the claimant suffer from FACS" is –

"People do not suffer from FACS (or any other syndrome). They may have it to explain a disability. [The claimant] has some features of FACS. His difficulties may have other underlying genetic causes.".

Blacks Medical Dictionary defines "syndrome" as a:-

"term applied to a group of symptoms occurring together regularly and thus constituting a disease to which some particular name is given: e.g. Cushing Syndrome comprising of obesity, hypertension, purple striae and osteoporosis; - - - - -.".

Nevertheless, the only medical evidence in relation to FACS before the tribunal was to the effect that the doctor providing that evidence was not prepared to say that the claimant is suffering from a medical condition known as FACS and thinks that the claimant's "difficulties", which I take to mean the features of FACS which the doctor accepts the claimant exhibits, may have other underlying genetic causes. The tribunal has made no finding in fact as to whether the claimant suffers from any medical condition. It has concluded that the claimant's bedwetting, inadequate toileting etc are not generally regarded as the result of severe physical or mental disability.

10. The validity of a tribunal's decision stands or falls on the expression of the decision in the notice thereof and on the expression of the reasons for decision in the written statement of those reasons. As the reasons for decision are expressed in paragraph 8 of the statement in this case the tribunal has taken the wrong approach to the determination of a question of entitlement to Disability Living Allowance. It has been explained by several Commissioners in their decisions that the correct approach is to determine whether or not there is a medical condition and then determine whether or not the disabilities which arise from that condition are so severe that the claimant needs the amount of care or supervision specified in sections 72(1) and 73(1)(d) of the 1992 Act. The tribunal has not done that in this case and there was to my mind insufficient medical evidence before the tribunal to enable it to do so. The examining medical practitioner's examination was directed mainly to the assessment of disability, not to diagnosis. He doubted the presence of epilepsy. The diagnosis of foetal anti-convulsant syndrome was not made by the examiner or accepted by him on the basis of any medical evidence. It was recorded as reported to him by the appointee as a diagnosis made by a genetic specialist. On the other hand, there was evidence before the tribunal that the question of epilepsy was being investigated by those having the medical care of the claimant and that the claimant was awaiting psychological assessment. As the case had already been adjourned for a medical report I can understand that the tribunal would be reluctant to adjourn again but in this case I think that it should have done so to await the outcome of the tests for epilepsy and of the psychological assessment. I have no doubt that the results of those tests and the assessment will be available for the new tribunal.

10. For the foregoing reasons the appointee's appeal succeeds, in as much as I have set the tribunal's decision aside, and my decision and direction are in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 9 December 2002