Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/2689/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant is one of twin sisters born on 15 August 1995 who have been diagnosed as having ADHD.  Their mother applied for DLA on their behalf on 14 July 2010, highlighting in relation to the claimant problems in connection with her behaviour, her lack of understanding of danger, her lack of concentration and her under-developed basic living skills.  However, although the claimant’s sister was awarded lower rate mobility component and middle rate care component, no award was made to the claimant.  The claimant’s mother therefore appealed on her behalf on 20 December 2010, but unfortunately by the time the appeal was heard on 22 November 2011 the family support worker had emigrated, leaving the claimant and her mother to attend the hearing alone.

2. The evidence before the tribunal included a psychiatrist’s report stating that the claimant was liable to be at risk as a vulnerable and impulsive young woman,  a school report describing the claimant’s behaviour as very challenging if she did not take her medication, a further letter from the school referring to a deterioration in the claimant’s behaviour as a result of exam pressures, and a letter from the support worker describing the claimant’s behaviour at home since the birth of a baby sister as “very demanding of attention and support”. 

3. The tribunal heard evidence from the claimant’s mother and from the claimant herself, although it is not clear why the tribunal regarded it as appropriate to hear evidence from a fifteen year old girl about her own care needs.  They came to the conclusion that the claimant’s condition had deteriorated since the date of the decision under appeal and found that the claimant was not entitled to either mobility or care component of DLA.  In doing so, the tribunal found that the claimant was not entitled to ‘cooking test’ lowest rate’ care component, although that was not in point because the claimant was under sixteen when her claim was made.

4. The application for permission to appeal challenged a number of the tribunal’s findings, but I gave permission to appeal on the more general ground that it was arguable that the tribunal had failed to conduct a sufficiently detailed analysis of the risks to the claimant if she were left unsupervised.  The Secretary of State has supported the appeal on that basis  in a written submission dated 5 December 2012.

5.  I am satisfied that the appeal must be allowed for the reason given in my grant of permission.  As I pointed out in CDLA/3779/2004, children of school age are generally supervised for much of the time, so that their behaviour in those conditions may not provide an accurate indication of the risks to the child if that supervision is not given.  In order to answer that question, the tribunal will need to consider the evidence available from all sources, including that of the school and those involved in caring for the child, for the purpose of assessing the risks to the claimant if continual supervision, or supervision when walking out of doors, were not provided.  If the tribunal is satisfied that supervision is required to the extent that an adult claimant would qualify either for care or lower rate mobility component, the tribunal will then have to make the comparison with the requirements of people of the same age as the claimant with normal physical or mental health required by section 72(1A) of the SSCBA 1992 in the case of care component and section 73(4A) in the case of lower rate mobility component in order to decide if a claimant who is under sixteen qualifies for benefit.

6.  The tribunal in this case failed to apply the approach which I have described and accordingly erred in law.  I set aside the tribunal’s decision and refer the case to the First-tier Tribunal for complete rehearing before a differently constituted tribunal.  Since the claimant has now received an award of lowest rate care component, the period in issue will be from 14 July 2010 to 16 May 2012.

E A L BANO

28 February 2013