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[2005] UKSSCSC CDLA_2699_2005 (07 November 2005)

CDLA 2699 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal for rehearing. I give directions for the rehearing below.

Mrs A, the mother and appointee of L, a four year old, is appealing with my permission. Her appeal is against the decision of the Middlesbrough appeal tribunal on 22 03 2005 under reference U 44 227 2004 04010.

DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The appointee is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appointee has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

Mrs A claimed applied for disability living allowance for L because of "behavioural problems, very disruptive" and severe learning difficulties. The claim form showed day, night and mobility problems. There was also a statement from L's childminder. Mrs A later added comments on L's asthma. The Secretary of State rejected the claim after obtaining a report from a consultant psychiatrist. The reason was that the claimant was not suffering physical or mental disablement. Solicitors for Mrs A secured a further medical report from a consultant community physician for child health at the local specialist hospital as evidence for the tribunal. This was submitted to the tribunal together with a submission from L's solicitors.

The tribunal held an oral hearing. Mrs A attended and gave evidence. There is a record of evidence and proceedings and a short full statement of reasons. The tribunal confirmed the decision of the Secretary of State. The operative part of the decision (in full) as issued is:

"Section 72 of the SSCBA provides for the award of disability living allowance for persons who are severely disabled physically or mentally. These words have been the subject of judicial explanation. The claimant's condition must arise from some disordered mental condition and not just a defect of character. There must be a diagnosable disease or medical condition and problems which are behavioural in origin do not amount to mental disability. The authorities are set out at page 138 of Volume 1 of Bonner, Hooker and White.

Having considered the medical evidence in this case we have reached the conclusion that L suffers from behavioural problems but she has not been diagnosed as suffering from a recognisable medical condition. In particular we reject the claim in the submission by [the solicitors] that she suffers from attention deficit hyperactivity disorder. Because we are unable to accept that L suffers from a severe physical or mental disability we reject the appeal for disability living allowance."

The grounds of appeal alleged that the tribunal failed adequately to explain its decision. I granted permission to appeal because the tribunal's decision was reached before the issue of a decision of a Tribunal of Commissioners in CDLA 1721 2004 about the absence of a specific diagnosis. I suggested that the case should be reheard with that guidance. The solicitors accepted that suggestion for L. The secretary of state's representative objected.

In a reasoned objection, the secretary of state's representative submitted, in effect, that there was no medical evidence that made CDLA 1721 2004 relevant to this case, and that therefore the appeal should be dismissed. I directed a submission from L's solicitors in reply. They argued that a tribunal should consider the award of the allowance in the absence of any specific diagnosis. I reconsidered the case fully in the light of both submissions.

Disability living allowance and young children

This appeal puts in the starkest form the problem confronted by the Tribunal of Commissioners in CDLA 1721 2004. The Tribunal was confronted with a claim of disability living allowance for a 12 year old with alleged learning difficulties, behavioural problems and attention deficit disorder. The original focus of the Tribunal was on the extent to which a child claimant could and should give evidence. That aspect of the case clearly cannot apply where the claimant is aged 4. The Tribunal also considered the issue of "learning difficulties" and the meaning of "disability" in the key phrase "so severely disabled physically or mentally". It considered how that test from section 72 of the Social Security Contributions and Benefits Act 1992 applied to children with behavioural problems. That is directly relevant here.

In its discussion of past Commissioners' decisions about the meaning of the phrase and its constituent parts, the Tribunal stated:

"For the relevant provisions to apply, the claimant must be disabled, i.e. have some functional incapacity or impairment. She must lack the physical or mental power to perform or control the relevant function … It will be apparent from what we have said that, in our judgment, behaviour cannot itself be a disability – but it may be a manifestation of a disability, namely an inability to control oneself within the accepted norms of behaviour. Therefore, in our view, in R(A) 2/92 the correct approach was not to have sought a specific diagnosis of a serious mental illness but to have asked whether it was in the claimant's power to avoid behaving as he did. If it was not in his power to avoid that behaviour, he would be "disabled" within the terms of sections 72 and 73(1)(d) …" (paragraphs 39, 40).

The Tribunal concluded that part of its analysis (in paragraph 42) by noting that a claim for the care component of disability living allowance raises two questions. The first is:

"Does the claimant have a disability, i.e. does he have a functional deficiency, physical or mental?"

If the answer is "yes" then the next question (or, rather, series of questions) is whether any specific statutory test for the award of disability living allowance is met. The Tribunal emphasises that the test of "severely" is not part of the test of "physically or mentally disabled". It is instead part of each specific statutory test for the levels of disablement that lead to entitlement to specific levels of allowance.

In putting the first question in this way, the Tribunal expressly avoided putting it in terms of the requirement of a "medical condition". It positively affirmed (in paragraph 35) that:

"'Disability' is conceptually distinct from 'medical condition'. …

Conceptually and in ordinary language usage, 'disability' cannot be equated with 'medical condition'."

Did the tribunal apply the correct tests to the evidence about L?

Using – in part - the hindsight of new precedent authority, I consider the tribunal's reasons to be wrong in law on several counts. That comment must also apply to a lesser extent to the quoted passage from the standard work. (It has now been revised. Reference should now be made to pages 129 – 130 of Volume 1 of Social Security Legislation 2005, ed. Bonner, Hooker and White, Sweet & Maxwell – traditionally referred to as Bonner). The tribunal was quoting (without identifying it) the decision of Commissioner Skinner in R(A) 2/92 when referring to "disordered mental condition", a decision and passage cited in Bonner. CDLA 1721 2004 (wrongly cited as 72 2004 in Bonner) now makes it clear that no medical diagnosis is needed.

The tribunal's first error was to look only to the medical evidence. "Disability" is not a medical question. The tribunal had evidence not only from various medical experts but also from the mother and the childminder. It could have had direct evidence (available indirectly as it was seen by one of the consultants but not forwarded to the tribunal) from a social worker. It should have taken all the evidence into account. That error may have arisen from another error. The appeal tribunal was looking for "a diagnosable disease or medical condition". CDLA 1721 2004 makes it clear that this is the wrong test. It should have been looking for "physical or mental disability".

A third error links with this. The tribunal adopted part of the test from R(A) 2/92 out of its context. The test in context (cited both in CDLA 1721 2004 and Bonner) is: "where a person indulges in aggressive or seriously irresponsible conduct the Board [now the Secretary of State] has to consider whether that arises from some recognised disordered mental condition or whether it merely arises from a defective character." Even aside from the comments of the Tribunal of Commissioners I take the view that this does not apply to a 4 year old. "Indulges", "irresponsible", and "defective character" indicate a starting point not relevant at the age of 4. Even in context, R(A) 2/92 must now be read subject to the criticism in CDLA 1721 2004. A fourth error was to assess the evidence by reference to a "severe physical or mental disability." The test is whether there is a disability (or more than one), not that the disability is in some way "severe". Severity is to be tested when considering whether a claimant is entitled to a specific level of allowance.

Guidance to the tribunal

Because of its decision, the tribunal did not go on to consider the specific tests for claims for young claimants, including the test in section 72(6) of the Social Security Contributions and Benefits Act 1992. This is whether the child "has requirements … substantially in excess of the normal requirements of persons of his or her age": s 72(6)(b)(i). (The alternative test in s 72(6)(b)(ii) of substantial requirements that younger children may have, but not children of the claimant 's age, will I suspect rarely assist with pre-school children.). That test was subject to detailed consideration in R(DLA) 1/05. I echo here my agreement with that decision in my decision CDLA 3525 2004.

In CSDLA 829 2004 the Commissioner discussed the correct route for deciding a disability living allowance claim for a child (in that case aged 7). Commissioner Parker set out three necessary stages for decision: first, whether there is a physical or mental disablement; second, whether any of the regular statutory criteria for attention and supervision are met; third, whether the additional test in section 72(6) is met. The Commissioner emphasised that the tribunal must decide each of the steps in turn. I agree that there are three operative tests in cases involving young claimants, each requiring decision. The Tribunal of Commissioners has followed the Commissioner in emphasising that a finding of disability is a precondition for a specific level of claim. But I am not sure that the three questions can be severed from each other and determined exclusively in a set order in the practical context of evidence taking at a hearing.

The problem of concern here is that of deciding entitlement of a claimant aged over 3 months (so meeting the test in s 72(2)(a)(i) of the 1992 Act) until the claimant is 5 (when the lower rate of the mobility component may first be claimed: s 73 (1) and (1A)). This covers claims for pre-school children. I commented on official guidance about claimants under one year old in CDLA 3525 2004. But there are also inherent difficulties in applying the statutory tests to a claim for allowance to any claimant under 5. Given the robust but misplaced defence of the tribunal's decision by the secretary of state's representative and the difficulty of the issue, I suggest the following guidance:

(1) The decision is for the whole tribunal, drawing on the combined insights of all its members, including their personal knowledge of the abilities of young children. It is an exercise in "drawing the line" which the tribunal, with three members drawn from differing backgrounds, is uniquely qualified to perform.

(2) The tribunal's first concern is to consider if the young child has a physical or mental disablement. As the Commissioner stated in R(DLA) 1/05, a young child's inability to perform functions due to immaturity is not disablement. Where there is evidence that a young child has disruptive behaviour, the tribunal must consider whether the child's behaviour evidences some underlying physical or mental disablement – some functional physical or mental impairment or incapacity. If, on the balance of probabilities, there is no impairment or incapacity, then the claim must fail. In practice, this question may overlap with the question of a young claimant's needs as compared with those of other children of the same age. The tribunal may need to look at all the issues and evidence before returning to decide whether this fundamental requirement for a claim is met.

(3) The issue of disablement is one of fact to be decided in the light of all the evidence. It should take into account any medical diagnosis or evidence that a specific disability is not present. But it is not limited to that. It should also take into account evidence of parents or others responsible for the child (noting any comparative insights that they can offer about the claimant and other children). And there may be evidence about incapacity or impairment available from a social worker, or the staff of a nursery or nursery school, or a childminder with care of the claimant. Evidence from those sources is also valuable when the tribunal has to decide on the needs of the claimant as against needs of other children of the same age.

(4) If there is disablement present (and also where the matter is one of doubt), the tribunal must consider whether any of the specific tests for the allowance are met. This will need separate consideration of care needs and of supervision needs if both are in issue. (Mobility is not usually in issue for children under 5, and never for children under 3). The tribunal must decide if the evidence shows that the disablement (or alleged disablement) is so severe that it meets one of the relevant criteria for payment of the care component.

(5) The tribunal must also consider whether the child "has requirements … substantially in excess of the normal requirements of persons of his or her age". Is the attention or supervision needed "outside the whole range of attention [or supervision] that would normally be required by the average child": R(DLA) 1/05 and CSDLA 829 2004. Although this is put as a separate test, it will in many cases overlap with deciding about the specific statutory tests and in some cases also with the question of the presence of disability. In difficult cases where there is no clear diagnosis or there are other doubts that the statutory requirements are met, it may be useful to deal with the evidential issues by (a) identifying the actual (as against claimed) needs of the child claimant for personal care and supervision, (b) considering if those needs are substantially in excess of those to be expected for a child of that age, (c) considering whether the excess is evidence of an underlying disablement and, if so, (d) considering whether those needs meet one or more of the statutory tests. But the tribunal must address the statutory questions in making its decision.

(6) The tribunal must take a broad view of the application of the tests as emphasised by the House of Lords in Moyna v Secretary of State, R(DLA) 7/03, and applied to all decisions on disability living allowance by R(DLA) 5/05.

David Williams

Commissioner

07 November 2005

[Signed on the original on the date shown]