UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CDLA_1797_2007 (08 April 2008)

CDLA/1797/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the appeal tribunal (the tribunal) erred in law in its decision given on 20 February 2007 under registration No. 010/07/00082. Under section 14(8) of the Social Security Act 1998, I set aside the tribunal's decision, and remit this case for rehearing by a differently constituted tribunal.

The claimant is a girl born on 2 September 1999. It is accepted that she has attention deficit hyperactivity disorder (ADHD) and her mother, her appointee, applied for disability living allowance. The Department obtained a report from the claimant's class teacher dated 4 October 2006 in which he described the claimant as being "a middle ability child [who] is making steady progress in [speech/language, communication and academic ability]" and "friendly, hard working and likes to please. She can call out rather a lot but she is always on task and I feel it is due to enthusiasm rather than any underlying problem." In response to a standard question on attitudes to road safety he described the claimant as "very sensible and reliable when taking part in trips out of school activities" (sic). The decision maker duly refused the claim.

The claimant's mother sought representation from the Citizens Advice Bureau (the CAB) who wrote to the Department asking for the decision to be reconsidered, noting that the claimant had been diagnosed with ADHD, for which she was prescribed medication which had a limited effect, and that she had regular consultations with a child psychiatrist.

The letter requesting the consideration added that:

"[The claimant's] mother has described in detail the problems which her daughter is experiencing. Most difficult is her lack of concentration and impulsiveness. She routinely breaks and smashes things up. She fights and causes injury to her younger siblings. She is unable to respond to even simple requests and instructions. She has no sense of danger or fear and cannot be trusted to complete even the most simplest [sic] and straightforward of tasks without an argument or intensive one to one support."

The letter referred to further evidence being obtained, but this was not supplied. The decision was reconsidered but not revised, the decision maker accepting that the report from the school "where [the claimant] spends a great deal of her time indicates no additional supervision needs and road safety awareness appropriate for her age".

The claimant's mother asked for a paper hearing, and there was no representation by either party at the tribunal, which heard and dismissed the appeal. The statement of reasons recorded the stated difficulties set out in the claim form, the class teacher's report and the letter from the CAB (page 53) mentioned above.

The tribunal observed:

"Having read all these papers, one would think that the CAB were describing an entirely different child to that described in [the teacher's] report. We are satisfied that [the teacher] will know [the claimant] very well; he is her class teacher; she will be under his care for may be 5 hours a day and he has not a single adverse comment to make. We are satisfied that his account is correct and accurately describes [the claimant] whilst at school. It is difficult to know what to make [of] the CAB's account because [the claimant's] mother has not attended the Tribunal and so an assessment of the credibility of her statement is difficult….."

It concluded that it appeared that the claim had been substantially exaggerated, and that the claimant would require the help and attention that any normal seven year old would require but not more than that.

The claimant then appealed through her representatives, who submitted that the tribunal had addressed the question of the claimant's behaviour in relation to her care and supervision needs whilst at school and acknowledged that this dealt with her needs for approximately 5 hours during the day. However it had failed to take into account the points made by Mr Commissioner Bano in decision CDLA/3779/2004 and had failed to address the issue of the claimant's needs in relation to disability living allowance whilst not at school.

In granting leave to appeal I observed:

"As the tribunal commented, on reading the papers one would think that the CAB was describing an entirely different child from that described by her class teacher. That does not appear to be an unknown phenomenon with ADHD. As the tribunal notes, the teacher sees the claimant for maybe 5 hours a day, not the whole day. Given the great disparity in the evidence, should the tribunal have considered an adjournment to give the claimant's appointee, her mother, an opportunity to attend and explain her assertions as to the claimant's behaviour?"

The Secretary of State supports the appeal and that the tribunal should have adjourned, observing:

"4. When faced with wildly conflicting evidence, it is often the case that a tribunal will find that part of the evidence it has rejected unconvincing and, in this instance, exaggerated. Granted this tribunal was given two sides to the story that on the face of it could not be reconciled, but, from just a paper hearing, was this line of thinking justified? Was there enough in the evidence to justify the tribunal in coming to the decision it did? Why was the claimant's mother's evidence considered to be exaggerated? On the one hand we have a teacher's report that describes almost exemplary behaviour by the claimant and on the other we have evidence from the claimant's mother and the Citizens Advice Bureau (CAB) describing a particularly disruptive child. In preferring the evidence of her school teacher, the tribunal reasoned that as the child was under his care for 5 hours per day and that he knew the child well then his account was correct. This, of course, is not a totally convincing argument, and such circumstances could equally be true of the claimant's mother. Outside of a school day too, there was sufficient hours left for other care and mobility needs (see pages 3 to 42) to reach the required threshold."

He then sets out Mr Commissioner Bano's decision in CDLA/3779/2004 where he said:

"9. Although a school report will very frequently contain valuable evidence in a claim for disability living allowance by a school-age claimant, it is necessary to have particular regard to the nature of the school environment when evaluating such evidence in relation to the evidence of other witnesses. Young children at school have to be more or less continually supervised for the school to function properly, so that a child with a disability may not need supervision over and above that which is normally given to all other children while attending school. However, children with disabilities may need supervision beyond that needed by other children when outside the school environment in order to avoid substantial danger to themselves or others, and it is that supervision which needs to be considered when deciding entitlement to care component. Evidence from a school should therefore be considered along with all the other evidence concerning a child's care needs in deciding whether the claimant can safely be left unsupervised and whether the child requires substantially more care from another person than children of their age would normally require".

The Secretary of State also submits that whilst it may be true that the claimant has no specific supervisory or care needs at school, the additional attention that is said to be required getting the claimant in and out of bed and taking her medication might itself equate to sufficient periods during the day to qualify for the lowest rate of the care component. He also notes that the tribunal made no reference to the claimant's medication, although it could be inferred from page 20 that she was under medication whilst at school (in the claim form it is indicated the claimant has both day- and night-time medication). He posits that the question as to why the child's medication worked so well in school but maybe not at home would have been worthy of the tribunal's investigation, and, he submits, this could not have been answered without the direct input of the claimant's mother. I accept that it is not unknown for the effects of medication to wear off as the day proceeds. It is then a question of fact as to the claimant's behaviour later in the day when she is released from the confines of school to cope with the normal extra curricular activities, and whether she has attention or supervision needs which fall within the legislation, and if so, whether they arise from disablement. Without the mother's presence it was not possible to examine this aspect, which had been raised before the tribunal separately by both the mother and her representative.

As it was so contradictory, it was not sufficient for the tribunal simply to say that the teacher sees the child for 5 hours a day, and his evidence is therefore to be preferred to that of the mother whose claim was dismissed as "substantially exaggerated" without any reason for this being given, particularly in the light of the claimant having been diagnosed as ADHD, being on medication and seeing a psychiatrist quarterly. Whilst it is not the diagnosis itself of a medical condition which will satisfy the criteria of an award of disability living allowance, when such aspects are present, there does need to be some reasoned explanation as to why the evidence submitted of problems is not accepted. For instance this may well be that although a child may have problems and needs substantially in excess of the normal requirements of persons of his/her age or that s/he has substantial requirements which younger persons in normal physical and mental health may also have but which persons of his/her age and in normal physical and mental health would not have, nonetheless these do not reasonably require attention from another person, or supervision, for a sufficient period of time during the day or night to enable him/her to satisfy the criteria for any award of either component of disability living allowance.

Given the stark contrast in the evidence, it would therefore have been proper for the tribunal to adjourn to allow the claimant's mother an opportunity to attend with or without the further evidence that had previously been suggested, to put her case. Even apart from that, the tribunal's reasons for accepting the teacher's evidence rather than that of the mother and her representatives, were not adequate, as they were simply not given.

The tribunal must hold an oral hearing and conduct a complete rehearing of the issues that arise for decision in this appeal on both components of disability living allowance, together with any other issues which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998. It must make and record full findings of fact on all necessary points, with reasons for its acceptance of the evidence which is preferred and why the other evidence is rejected, and taking into consideration the Secretary of State's observations set out in paragraph 8 above and those of the Commissioner in CDLA/3779/2004 set out in paragraph 9.

It must not take account of circumstances which did not obtain at the date of the decision appealed against, 9 October 2006, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date. If the claimant's mother is minded to submit further evidence, for example from the psychiatrist who is stated to see the claimant quarterly, she will appreciate that this must relate to the extent of the claimant's disablement at 9 October 2006, not at the date any report is given.

The claimant's mother is advised to attend the new hearing if at all possible, failing which she should endeavour to be represented.

The claimant's mother will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it, and the outcome may not be different or more helpful to the claimant.

For the reasons stated, the claimant's appeal succeeds; my decision is set out in paragraph 1, and my guidance in paragraphs 13 to 16 above.

(Signed) E A Jupp

Commissioner

(Date) 8 April 2008