Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 83 (AAC) (07 May 2009)
DLA, AA: personal care
supervision: children

 


THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal against the decision of the First-tier Tribunal given at Glasgow on 10 November 2008 is refused. It is dismissed.

REASONS FOR DECISION

1. The claimant, who is a child born on 17 August 2004 and whose appointee is his mother, has appealed to the Upper Tribunal against the decision of the tribunal which found that he was not entitled to either component of Disability Living Allowance with effect from 5 January 2004. The grounds of appeal are within short compass. They are as follows:

"The tribunal has stated in their reasons that "there has been no diagnosis of any physical or mental condition in respect of [the claimant]". I would submit that the question of diagnosis is not fatal to the statutory questions of entitlement to levels of Disability Living Allowances that were sought. The tribunal has error in law by making reason to it and I would therefore submit that this question has been clarified by R(DLA) 3/06 at paragraphs 35-41 where the Tribunal of Commissioners found that the question of diagnosis was not fatal to an appellant's claim for benefit.

The tribunal noted that evidence from [the appointee] that "she had difficulty when she was out shopping or taking [the claimant] out" and [the claimant] "would on occasions throw himself on the ground". I would submit that the tribunal has given insufficient reasons on the question of whether [the claimant] would require substantially more supervision from his mother outside in familiar or unfamiliar area than a child of similar age."

2. The Secretary of State has supported the appeal. In paragraph 4 of his submission he said:

"4. The claimant's representative cited R(DLA) 3/06 in support of their appeal to the Judge. R(DLA) 3/06 concerned a child aged 12 with learning difficulties and behavioural problems claimed DLA through her appointee. The claim was refused. The Tribunal concluded the claimant did not have substantially more supervision needs than a child of her age. The Secretary of State supported the appeal to the Commissioners, contending the Tribunal had failed to establish whether the claimant had a disability since there was no medical diagnosis of a general or specific learning difficulty. A Tribunal of Commissioners was directed to consider the meaning of the phrase "so severely disabled physically or mentally" particularly as applied to children with learning difficulties. The Tribunal of Commissioners concluded the following; a disability is distinct from a "medical condition" as it is entirely concerned with a deficiency in functional ability i.e. the physical or mental power to do things. The provisions of Sections 72 and 73(1)(d) of the Social Security Contributions and Benefits Act 1992 (SS C&B Act) cannot require that "so severely disabled" means that a person must have a serious medical condition. There is no need for the claimant to provide proof of a diagnosed or diagnosable medical condition. The claimant must lack the physical or mental power to perform or control the relevant function and where it is not within the claimant's power to avoid certain behaviour they will be "disabled" within the terms of Sections 72 and 73(1)(d) of the SS C&B Act. It is clear from the language of the provisions that the severity of a claimant's disability is to be measured only by the reference to the prescribed consequences and that there was no free-standing test of severity of the claimant's disabilities."

He also went on to support the appeal on the basis that the tribunal made an error in law in not fully explaining the weighing of the evidence and why they reached the decision which they did.

3. I do not consider that there is any merit in the grounds of appeal nor the support for them by the Secretary of State.
4. Before I deal with the decision of the Tribunal of Commissioners in R(DLA) 3/06 in the context of this appeal it is I consider necessary to set out in full the tribunal's findings in fact and reasons. They were as follows:

"Facts found

1. The appellant, [the claimant], was aged 3 at the date of the decision, 7.5.08. He has behavioural problems.

2. A report dated 27.3.08 was obtained from clinical psychologist Lorna Ferguson (pages 47 to 53 of the submission). She states that [the Claimant's] significant behavioural difficulties have been noticed since he was approximately 17 months old. He was discharged from follow up clinics at 2 years old as his development was viewed as age appropriate. Lorna Ferguson goes on to state that the assessment indicated that the most appropriate intervention was [the appointee's] attendance at the Webster-Stratton Parenting Programme run by Clinical Psychology Early Intervention Service.

3. Mr McCourt, representative of the appellant, moved the tribunal to consider lower rate mobility and lower rate care components. He stated that [the claimant] exhibited extreme behaviour and was aggressive.

4. [The appointee] described her difficulties with [the claimant] who she stated was fascinated by fire and had set her bed on fire.

5. [The appointee] was asked to attend parenting classes but could not do so as she has 2 other children and was trying to get settled in her new home as she had been staying with her mother for a year.

6. [The claimant] attends nursery and exhibits no behavioural problems there. He plays on his own. He loves cleaning up and washing the dishes. [The appointee] stated there had been a couple of incidents at nursery.

7. [The appointee] stated that she had difficulty when she was out shopping or taking [the claimant] out. He would on occasions throw himself on the ground.

8. Having carefully considered all of the written evidence and [the appointee's] oral evidence, the tribunal unanimously reached the decision outlined above.

Reasons

Although [the claimant] refuses to walk on occasion when he has a temper tantrum, he is physically able to walk and his refusal is not as a result of a physical disability.

There has been no diagnosis of any physical or mental condition in respect of [the claimant]. Follow up care was not deemed necessary by the Clinical Psychologist.

Although [the claimant] will need slightly more supervision by day and watching over a night than a child of similar age, this would not be substantially in excess of that required for a child of similar age. The extra supervision and watching over is not required as a result of a physical or mental disability.

For these reasons the tribunal found that the conditions for benefit were not satisfied."

5. In paragraph 29 of R(DLA) 3/06 the Tribunal of Commissioners note that in R(DLA) 2/00 I held that the establishment of a "medically recognised physical or mental condition" that caused a disability was "an essential pre-requisite" for an award of DLA. In doing so I followed Mr Commissioner Skinner in R(A)2/92. I remain unpersuaded that I was wrong in taking that view. However, I am required to follow R(DLA) 3/06 as it was the decision of a Tribunal of Commissioners. I note that in paragraph 39 the Tribunal of Commissioners accepted that the scope of Section 72 and 73(1)(d) is not unlimited. What they said was:

"For the relevant provisions to apply, the claimant must be disabled, i.e. has some functional incapacity or impairment. He must lack the physical or mental power to perform or control the relevant function. Therefore, excluded from the ambit of the provisions would be, for example attention needs resulting from religious beliefs or cultural habit."

The Tribunal of Commissioners went on to say:

"40. In a number of previous cases, the alleged disability was some form of behavioural difficulty (in R(A) 2/92, "irresponsible behaviour" in the form of violent and dishonest criminal acts). It will be apparent from what we have said that, in our judgement, 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), although it would be a separate question as to whether that disability was severe enough to entitle him to benefit."

6. It is apparent from what is said there that the Tribunal of Commissioners accepted that behaviour itself cannot be a disability. It is said that it can be the manifestation of a disability. However in my view in dealing with young children, such as the claimant, an inability to control oneself within the accepted norms of behaviour, which the Tribunal of Commissioners have appeared to use as a definition of a disability, does not of necessity demonstrate a disability. Young children whether disabled or not do not have the capacity to understand what constitutes, and confine their behaviour to, the "accepted norms of behaviour". The behaviour of any young child can go beyond what would be the "accepted norms of behaviour" in older people. A young child, due to a lack of capacity caused by age, does not have it within his power to avoid behaving as he does. It seems to me in these circumstances that the test of disability set out by the Tribunal of Commissioners in paragraph 40 cannot be applied in its terms to young children.
7. I am satisfied that in these circumstances it was quite legitimate for the tribunal to look to see whether or not there was a diagnosis of any physical or mental condition in relation to the claimant which could give rise to his behaviour as a starting point. They found that there was no such diagnosis. The tribunal then went on to find that follow up care was not deemed necessary by the clinical psychologist after he had been seen by her. The tribunal also made a specific finding in fact in relation to the claimant's behaviour at nursery. I refer to finding in fact 4. They also found that the appointee had been asked to attend parenting classes but had declined to do so. In the absence of any medically recognised physical or mental disablement the tribunal required to make a reasonable judgement as best it could, standing that the Tribunal of Commissioners' test has no application in its terms to young children but out of respect to their view that the test goes beyond what I said it did in R(DLA) 2/00, as to whether the claimant's behaviour was such as to demonstrate a clear manifestation of a disability.
8. The tribunal found in their reasons that whilst the claimant will need slightly more supervision by day and watching over at night than a child of a similar age, which was a conclusion which they were entitled to reach on the findings in fact made by them, they also concluded that the extra supervision of watching over is not required as a result of a physical or mental disability. Their finding in relation to the absence of disability was a reasonable judgement on the facts found by them having regard to findings 5 and 6 and the evidence that follow up was not required by the clinical psychologist. Findings 4 and 7 and the reference to tantrums and refusal to walk do not of necessity demonstrate a functional impairment or disability in a young child particularly when weighed against the other factors I have referred to. The tribunal in my view made a reasonable judgement of the type referred to in paragraph 7.
9. I do not consider there is any merit in the Secretary of State's submission in paragraphs 6 and 8. It is suggested that the tribunal made an error in law by not looking at the broader picture as outlined in R(DLA) 7/03, the Moyna decision, as to whether the claimant more often than not requires continual supervision/attention. However, if the conclusion is reached that the claimant's behaviour in the context of his age and lack of capacity due to his age, does not cross the threshold into the manifestation of a disability then there was no reason for the tribunal to get into this issue. The basis of the tribunal's decision was the absence of disablement. As I have reached the conclusion that they were entitled to reach that decision on their findings in fact it follows that no error in law arises on these grounds. I do not in the circumstances need to deal with the cases that the Secretary of State says "I may wish to consider".

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 7 May 2009