IN THE UPPER TRIBUNAL Case No. CDLA/373/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Judge of the Upper Tribunal Miss E. Ovey
Decision: The decision of the First-tier Tribunal given on 7th November 2011 contained an error on a point of law. Accordingly, I allow the claimant’s appeal and I set aside the tribunal’s decision. In exercise of the powers given by s.12(2)(b) and (3)(a) of the Tribunals, Courts and Enforcement Act 2007 I remit the case to the First-tier Tribunal and direct that it be heard by a differently constituted tribunal.
REASONS FOR DECISION
Background and original decision
1. This is an appeal by the claimant against the decision of the First-tier Tribunal given on 7th November 2011. By its decision, the tribunal dismissed the claimant’s appeal against the decision of the decision maker given on 15th December 2010 that the claimant was not entitled to either component of disability living allowance at any rate.
2. The claimant was born on 18th July 2000 and so was aged 10 years and 5 months at the time of the decision maker’s decision. His mother acts as his appointee in relation to his claim. The claim was made on the basis that the claimant suffers from severe behavioural problems, developmental delay and learning disability. There is no suggestion that the claimant suffers from any form of physical disability except in so far as it may underlie the problems which have been identified.
3. The claimant’s claim pack was received on 20th October 2010. In it, the claimant’s mother said that he needed someone with him when he was outdoors in places he did not know well. She described him as easily led, gullible, not understanding consequences, putting himself in danger, not understanding ulterior motives, would climb on high walls, roofs and trees, had no fear of danger and would run off in a tantrum. She also said that he needed someone with him constantly because he had no sense of danger, had extreme tantrums and became violent. As to his development, the claimant’s mother said that he needed things explained constantly because he did not understand, he could not generalise, he took things literally, he was selfish and had a problem with sharing, he had no stable friendships and he annoyed, bullied, controlled, interrupted and caused problems.
4. The claimant’s mother identified a number of problems with particular activities. First, the claimant had difficulties going to bed; he had tantrums when he was told it was bedtime, banged toys and furniture around, name called and challenged. She said it could take 1 to 2 hours to settle him down, 5 days a week. Secondly, someone had to encourage the claimant to wash and all sharp objects had to be removed. This could take 60 minutes, 3 days a week. Thirdly, someone had to encourage the claimant to get dressed, because he could be stubborn and refuse to do so. That could happen on 5 to 7 days a week, although no time estimate for each occasion was given. Fourthly, he had some communication difficulties, meaning that conversation had to be broken down and he had to be helped to tell something from the beginning. This could happen 2 or 3 times a day, for 30 to 45 minutes.
5. Finally, the claimant’s mother expressed mental health concerns, saying that he had a lot of severe tantrums whereby he could smash the house up on many occasions; that he had told her he felt like killing himself; and that he kicked his bed repeatedly, could get physically aggressive, threw items around, tried climbing out of his window and became dangerous. His tantrums could last 1-2 hours and he had at least one a day, sometimes more.
6. The claimant was referred to a clinical psychologist in September 2009, although the psychologist was not able to see the family until March 2010. In a letter of referral dated 4th October 2010 he described the parents’ predominant concern at that meeting as the claimant’s poor concentration and his difficulty within school. They also said that at home he never sat still, had to touch everything and was often quite destructive, breaking his toys. They reported significant behaviour difficulties when the claimant could not get his own way, particularly tantrums at bedtime, involving kicking and pulling the mattress and bedsheets on to the floor. The results of a psychometric assessment indicated that the claimant had a global learning difficulty and a particular weakness in his verbal abilities. The assessment was indicative of an IQ below average and bordering learning difficulties.
7. The Department for Work and Pensions then obtained a report dated 22nd November 2010 from the claimant’s class teacher. The report described him as of average achievement for speech and language and communication and below average for academic ability. He was having four 10 minute reading sessions a week. He was aware of common dangers, had no dangerous tendencies or behaviour problems, usually took part in all school activities and had road safety awareness appropriate to his age. Somewhat surprisingly, the report said that he could not dress and undress, eat and drink or attend to his own toilet needs safely and without help from another person. I confess it seems to me likely that the teacher was somehow confused by the form and meant to say that the claimant could do all those things.
8. On the basis of the material referred to above, the decision maker decided that the claimant ought not to need supervision outdoors in excess of another child of similar age, that the special reading programme at school was not significantly in excess of the attention other children his age required and it was not unusual for a child of his age to need to be encouraged to wash or dress or to be fussy about food. It was accepted that he had some problems, but the conclusion was that that was not enough to make an award of disability living allowance.
Reconsideration of the original decision
9. The claimant’s mother, with the assistance of the Citizens Advice Bureau, requested a reconsideration of the decision. She provided a report dated 6th December 2010 from a consultant community paediatrician and a report dated 19th October 2010 from the clinical psychologist. The report from the psychologist gave details of the outcome of assessments on 17th May and 23rd September 2010, supporting the summary given above, and described the claimant as initially quiet and reserved but gradually relaxing more and engaging in conversation. He was found to have a reading age, spelling age and pseudoword decoding age of under 7 in each case. The report from the paediatrician, which was addressed to the psychologist (with a copy to the claimant’s G.P.), referred to the family’s concern with challenging behaviour at home and difficulty in learning in school. The parents said the claimant could be quite argumentative and destructive when he got home from school, particularly if he could not get what he wanted. The claimant said himself that he found learning hard. When he came home from school with homework, he often refused to do it, which caused “another big stress” for the family. He was described as very co-operative in the clinic.
10. The paediatrician’s report included the following:
“In summary, it seems that [the claimant] has learning difficulties. It is clear that these have affected his self esteem and are probably behind some of his challenging behaviour at home. [The claimant] is well behaved at school and is highly likely to be stressed by the school environment causing a need to release this tension when he gets home. There was no evidence today in the clinic of any problems with attention or concentration but I appreciate that this is a singular assessment in a quiet environment.
There is a family history of learning difficulties and I think it is appropriate that we explore this further. [The claimant’s] parents have consented to me arranging further investigations to look to see if we can establish a cause for his learning difficulties.
The next step is then making sure [the claimant’s] learning needs are identified and addressed within the school environment to help him to get a sense of achievement and to improve his self esteem. I understand you will be giving ongoing behavioural advice to the family which clearly needs to be at the appropriate learning level.”
11. On 23rd February 2011 the Citizens Advice Bureau also provided a report from the claimant’s social worker. This was based on home visits on 22nd December 2010 and 6th, 14th, 19th and 21st January 2011, although the claimant himself seems to have been seen only on the first, third and fifth visits. The claimant was described as struggling with his emotions and often getting angry and frustrated very quickly, which had repercussions for every member of his family. It seems clear from the report that some form of intervention was taking place to help the claimant’s parents manage his behaviour better and that, according to what the social worker was told, the parents had a better understanding of the claimant’s behaviour and how to manage it and the claimant’s behaviour had also improved. The claimant’s mother reported that she had to prompt the claimant to take care of himself and he used to refuse to wash and brush his teeth, which could cause “a huge row” but by the end of January 2011 most of the time he was doing it for himself.
12. In the light of all this material, on 24th February 2011 the Department of Work and Pensions referred the claim to a health care professional for advice on whether the claimant’s condition gave rise to “significant care and mobility needs most of the time”. The advice given was:
“[The claimant] is a 10 year old boy who has behavioural problems. His academic ability, though below average, is not of a severe nature and he is able to partake in all school activities. There appear to be issues around the family dynamics that appear to be contributing to behavioural issues, as within a strict school environment [the claimant] is able to interact normally. Therefore I would advise that he does not have significant care or mobility problems.”
13. The decision was reconsidered on 1st March 2011 but was not changed. The reasons for that decision were virtually identical to the advice from the health care professional, with the omission of the sentence referring to issues around the family dynamics.
14. The claimant, by the Citizens Advice Bureau and his mother as his appointee, then appealed, stating that he should be awarded the middle rate of the care component and lowest rate of the mobility component “due to needing constant supervision”. Reliance was placed on the social worker’s report as confirming that the claimant had significant learning difficulties, struggled managing his emotions, got angry and frustrated very quickly and had to be prompted to look after himself.
15. The Citizens Advice Bureau prepared on 6th June 2011 written submissions for the appeal which may be summarised as follows:
(1) in the light of Commissioner’s decision CDLA/3779/2004, the other evidence provided should be relied upon in preference to the school report;
(2) the claimant satisfied the conditions of entitlement for the middle rate of the care component and the lower rate of the mobility component by virtue of his supervision needs, because:
(a) of the account given in the claim form;
(b) the consultant community paediatrician confirmed that his learning difficulties were behind his challenging behaviour at home;
(c) the clinical psychologist confirmed that tasks presented to the claimant needed clear explanations and expectations, he might need instructions to be repeated and might require more time and support to complete tasks;
(d) the social worker confirmed the points already made in the appeal form.
16. The decision was further reconsidered on 1st July 2011 but not revised. The decision maker’s further response to the appeal accepted that the claimant needed some extra help but submitted that it was not substantially in excess of the help any child of his age would need. Reference was made to Commissioner’s decision CA/92/1992 and R(DLA) 1/05.
The appeal to the tribunal
17. The appeal was originally listed for hearing on 13th September 2011. The claimant’s mother’s partner (who is generally referred to as the claimant’s stepfather and who apparently moved into the family home in 2007, although his relationship with the mother started in about 2001 or 2002) attended and explained that the mother unfortunately had a medical appointment and could not attend. He said they would both come if the case was adjourned and explained, first, that the claimant’s mother does not normally go out and about but would come to the hearing with him, and, secondly, that he was at home during the day, as he had ended up losing his job because of having so much time off to help the mother look after the claimant. The hearing was adjourned with a view to the mother’s attending on the next occasion, possibly with a representative from the Youth Intervention Team.
18. In the autumn of 2011 the claimant moved from his primary school to secondary school. On 12th October 2011 an initial assessment report was prepared by a speech and language therapist and in due course was added to the tribunal papers. It underlines the claimant’s difficulties with vocabulary, remembering and responding to verbal information and verbal reasoning skills.
19. When the appeal was heard on 7th November 2011, the claimant’s mother, stepfather and a representative from the Youth Offending Service were all present, although no representative from the Citizens Advice Bureau was able to attend. I should make clear that the Youth Offending Service was involved as part of a preventative intervention strategy, not because the claimant had committed offences of any kind. The claimant’s mother gave oral evidence. She referred to the claimant’s footballing skills and said that his primary school teacher always said he was a normal child; his behavioural problems were all at home. She went on to say that he could eat, drink and play normally at school, that he had always come home from school on his own and had to cross roads, that he walked to and from school with a schoolfriend, that when he came in he would have a drink and something to eat, that about twice a week he would then smash things in his bedroom, that he was OK at weekends because he was playing football and he was in and out of doors playing with friends nearby. She also said that he was a lot better at the date of the hearing because he was getting support at his secondary school.
20. As I said at the outset, the tribunal dismissed the appeal. Its statement of reasons is as follows, so far as material:
“2. The tribunal found as a fact that the appellant, who was born on 19 July 2000, has no physical disability. He can, before the onset of severe discomfort, walk a normal distance at a normal pace, with a normal gait and normal balance. [The tribunal summarised the evidence about playing football, walking to and from school, taking part in school activities and what the claimant’s teacher said about road safety awareness.] On this evidence, the tribunal were satisfied that the appellant cannot satisfy the conditions for either rate of the mobility component and in particular the tribunal took the view that the appellant does not require guidance or supervision when out walking on unfamiliar routes which is substantially in excess of that required by any other child of his age.
3. The appellant’s mother told the tribunal that he experiences behavioural problems which occur only at home. She told us that on about two occasions each week he may smash things in his bedroom but she did not describe any other behavioural problems. In her report dated 6 December 2010, the appellant’s Consultant Paediatrician … describes the appellant as having learning difficulties which have affected his self-esteem and are probably behind some of his challenging behaviour at home. However, the appellant’s school teacher in her report describes a child with below average academic ability who nevertheless is aware of common dangers appropriate to his age, does not have any dangerous tendencies or behavioural problems and can dress and undress, eat and drink and attend to his own toilet needs. This is confirmed by the Core Assessment Record dated 23 December 2010 in which it is recorded that the teacher has advised the Social Worker that the appellant responds well to boundaries and there is no disruptive behaviour by him. A very substantial part of that Assessment Record appears to be a record made by the Social Worker of statements by the appellant’s parents, but we preferred the oral evidence given by the appellant’s mother directly to us at the hearing. The tribunal also heard oral evidence from [the representative] from the … Youth Offending Service. [The representative] indicated to us that his organisation deals only with young people who are at risk of offending but despite this he does not work at all with the appellant and works only with the appellant’s parents. The report by … [the ] Clinical Psychologist dated 19 October 2010 indicates that the appellant remained very quiet throughout the assessment but that he relaxed as the assessment progressed and completed all the tasks willingly, articulated well and responded well to prompts when more detail was needed. We accepted and found as fact the whole of this evidence. Taking the whole of the evidence into account, we concluded that the appellant does not have care needs which are substantially in excess of any other child of the same age in normal physical and mental health.”
The appeal to the Upper Tribunal
21. Permission to appeal to the Upper Tribunal was refused by the tribunal judge. When the application came to the Upper Tribunal, Judge Pacey directed the Secretary of State to provide a submission on the merits. In a submission dated 18th May 2012 the Secretary of State supported the appeal, in so far as it was based on failure to make findings of fact about the claimant’s disability, on the ground that the tribunal had indeed failed to make findings of fact as to whether the claimant’s global learning difficulties were a disability and whether any disability was severe by determination by reference to the care needs arising within the scope of s.72 of the Social Security Contributions and Benefits Act 1992 (the section which governs the care component of disability living allowance). The Secretary of State cited R(DLA) 3/06 as holding that the statutory phrase “so severely disabled physically or mentally” referred to the severity of the consequences of the condition, not of the condition itself, and also as holding that although behaviour cannot itself be a disability, it may be a manifestation of a disability, namely, an inability to control oneself within the accepted norms of behaviour.
22. The Citizens Advice Bureau on behalf of the claimant agreed with those submissions and further requested the Upper Tribunal to make its own decision on the basis of the available evidence. Judge Pacey granted permission to appeal on 9th July 2012, but did not accede to the claimant’s submission, since the original grounds of appeal had raised a number of further points which he wished to see addressed in a full submission by the Secretary of State.
23. The original grounds of appeal were, in summary:
(1) that the tribunal had not referred to CDLA/3779/2004 and might have failed to consider it;
(2) the tribunal had made insufficient findings of fact on:
(a) whether the claimant was severely disabled owing to learning difficulties or mental health problems;
(b) whether he needed continual supervision during the day;
(c) what support the claimant needed during the day;
(3) the tribunal had given inadequate reasons because:
(a) it did not explain why the oral evidence of the claimant’s mother was preferred over the other evidence or which aspects of the oral evidence were relied on;
(b) it did not explain why such reliance had been placed on the school report despite the case law;
(c) there was no adequate reason for not relying on the report of the social worker, who would have used her professional judgment when completing the assessment.
24. After Judge Pacey had given his direction for a full submission, the appeal was stayed for a time pending the decision in Secretary of State for Work and Pensions v. MG [2012] UKUT 429 (AAC), which it was thought might be of relevance to the point raised in CDLA/3779/2004. The Secretary of State’s full submission was eventually made on 21st December 2012 and was very largely supportive of the appeal. No further submissions were made on behalf of the claimant thereafter.
My conclusions
25. I am in agreement with much of what appears in the grounds of appeal and in the Secretary of State’s submissions, which I do not need to set out in further detail. My reasons are as follows.
The mobility component
26. Under s.73(1) and (11) of the Social Security Contributions and Benefits Act 1992 a person is entitled to the higher rate of the mobility component if he suffers from certain physical disabilities or if he is severely mentally impaired and has care needs falling within s.72(1) of the Act both during the day and during the night. It has rightly never been suggested that the claimant satisfies these conditions. The question is whether he satisfies the conditions of entitlement to the lower rate of the mobility component.
27. The basic condition for such entitlement is set out in s.73(1)(d) and is that the claimant:
“is able to walk but is so severely disabled physically or 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.”
28. Because the claimant is under the age of 16, he has also to satisfy the further condition set out in subs. (4A) that:
“(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.”
29. The tribunal made no finding of fact as to whether or not the claimant had any physical or mental disability giving rise to learning or behavioural difficulties which might be relevant to entitlement to the lower rate of the mobility component. The tribunal did make clear that, on the evidence it referred to, in its view the subs. (4A) condition was not satisfied. The only part of the evidence referred to which seems to be relevant to lower rate mobility was the evidence that the claimant walked to and from school each day, crossing roads, and that his teacher said that he had road safety awareness appropriate to his age.
30. In R(DLA) 3/06, para. 42, the Tribunal of Commissioners expressed the view that s.73(1)(d) raises two questions:
(1) does the claimant have a functional deficiency, physical or mental?
(2) if so, do the mobility needs to which the functional deficiency gives rise satisfy the requirements of the paragraph?
(The questions were originally expressed in relation to s.72, but the Tribunal made clear that similar questions arose under s.73(1)(d) and I have therefore set out the questions as they fall to be considered in relation to that provision.)
31. The tribunal made no finding of fact as to whether the claimant had any mental functional deficiency, although in my view there was clear evidence in the reports of the clinical psychologist that he did. The reports of the consultant community paediatrician and the social worker, although based on the findings of the clinical psychologist, contain nothing to cast doubt on that view and generally support it. Even the primary school teacher’s assessment suggests some degree of learning difficulty. All this material dates from a period roughly contemporaneous with the original decision and was available on reconsideration. The tribunal ought to have addressed the material and made appropriate findings of fact, with reasons in support, in dealing with the mobility component. In failing to do so, it erred in law.
32. Further, it follows from the way the tribunal in fact dealt with the mobility component in paragraph 2 of the statement of reasons that it is not clear whether the rejection of the claim to the mobility component was based on the absence of a functional deficiency or on a finding that the functional deficiency did not give rise to a need for guidance or supervision on unfamiliar routes or on a finding that although there was such a need, the guidance or supervision was not substantially in excess of that required by any other child of his age. Even assuming, as appears from paragraph 3 of the statement of reasons probably to be the case, that the tribunal accepted that the claimant has learning difficulties, it was necessary to identify his consequent needs, if any, and to compare them with those of a normal child of his age. The evidence of the claimant’s ability to walk to and from school shed no light on his ability to use unfamiliar routes except in so far as it was consistent with his teacher’s assessment of his road safety awareness. The evidence was in any event given at the tribunal and the record of proceedings (p.104 of the bundle) does not show for how long the claimant had been walking to and from school with a friend. I note from the social worker’s report at p.73 that in January 2011 there seemed to be some doubt about the claimant’s ability to walk to school by himself, although other children did. It is not clear from that part of the report what was actually happening at the time. This uncertainty is material, since in the claim form the claimant’s mother described the claimant as having no fear or sense of danger and identified that as one element of why he needed guidance or supervision out of doors. Some further exploration of this with the claimant’s mother might have assisted the tribunal in considering whether it should accept the teacher’s assessment of the claimant’s road safety awareness without question, as it seems to have done.
33. In addition, however, the claimant’s mother referred in the claim form to his being easily led, gullible, not understanding consequences and climbing on high walls, roofs and trees. These factors, coupled with the fact that in December 2010 he was functioning intellectually at an age significantly below his own, might go some way to suggesting that he would be more at risk out of doors on his own, whether or not using familiar routes, than other children of his age. I note that in R(DLA) 3/06, which concerned a girl aged 12 with difficulties having some similarity to those of the claimant, the view expressed by a medical expert who was a member of the Department of Work and Pensions Corporate Medical Group was that although the tribunal was probably correct in deciding that the needs of the claimant were not in excess of those of an able-bodied child of the same age, it would not be unreasonable to conclude that the claimant was at least entitled to the lower rate of the mobility component.
34. The tribunal here in effect stated a conclusion on the mobility component without separating out the s.73(1)(d) and the s.73(4A) elements of its conclusion, making findings of fact in relation to those elements and giving reasons. There was sufficient evidence to require both elements to be considered. In failing to do so, the tribunal again erred in law.
The care component
35. Under s.72(1) and (4) of the 1992 Act, a person is entitled to the highest rate of the care component if he is so severely disabled physically or mentally that he has care needs both during the day and during the night. It has never been suggested that the claimant has night time care needs. The question is whether he is entitled to the care component at some other rate.
36. Leaving aside night time care needs, under s.72(1)(b) and (4) of the Act, the basic condition of entitlement to the middle rate of the care component is that the person is so severely disabled physically or mentally that, by day:
“he reasonably 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.”
37. Since the claimant is under 16, he also has to satisfy a further condition under s.72(1A)(b), namely, that:
“(i) he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or
(ii) he has substantial requirements of such a 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 would not have.”
38. Clearly the question whether the claimant has a functional deficiency is relevant here also. It seems to me that the tribunal intended in paragraph 3 of its reasons to find as a fact that, at least for the purposes of the care component, the claimant had the learning difficulties affecting his self esteem which were referred to by the consultant community paediatrician. I shall proceed on that basis.
39. Following R(DLA) 3/06, the next question is whether the requirements to which that deficiency gave rise satisfied the requirements of s.72(1)(b)(i) or s.72(1)(b)(ii). There is evidence relevant to both paragraphs. As explained in paragraph 4 above, the claimant’s mother referred in the claim form to difficulties with going to bed, washing and bathing, and getting dressed and undressed. Although the nature of the difficulties described arose from the claimant’s behaviour, the needs themselves, if accepted, were needs for attention. At first sight, the teacher’s report confirmed the existence of needs relating to dressing, although, as I have mentioned in paragraph 7, I suspect that the teacher completed the form wrongly. Even if that is assumed to be the case, however, there is no necessary inconsistency between the mother’s account and the teacher’s, because there was clear evidence that the behavioural problems did not occur at school. The tribunal did not explore this aspect with the claimant’s mother when she gave evidence and said nothing at all about problems with going to bed and washing and bathing. Other than the reference to the claimant’s ability to dress and undress, eat and drink and attend to his toilet needs, which the tribunal found as a fact without giving reasons, there are no findings of fact about the claimant’s attendance needs or their relationship to the claimant’s functional deficiency. This was an error of law.
40. As respects continual supervision, in the claim form the claimant’s mother said that he had no sense of danger, had extreme tantrums, became violent, threw items around and tried climbing out of his window. She also said that they had to remove sharp objects such as scissors or razors (I think from the bathroom) and that the claimant had told her he felt like killing himself, and described him as a “timebomb”. The consultant community paediatrician seems to have accepted that the claimant’s behaviour at home was challenging. The social worker referred to concerns that the claimant’s angry outbursts could put his siblings at risk (p.68) and to statements from the claimant’s mother that he had physically attacked her, had tried strangling himself, had tried to jump out of a window, had threatened to run away and once had run away, although without getting far.
41. The tribunal appears to have given little or no weight to most of this material because:
(1) the claimant gave only one example of behavioural problems at the tribunal;
(2) the claimant’s teacher said he did not have any dangerous tendencies or behavioural problems and in effect repeated that to the social worker;
(3) much of what appeared in the social worker’s assessment consisted of statements made by the mother and the tribunal preferred the mother’s oral evidence.
42. Unfortunately, this process of reasoning is not, in my view, adequate. It is true that the claimant’s mother said little at the hearing. The record of proceedings in fact seems to show that she began by saying she had nothing to add. That does not suggest that she was intending to depart in any way from what was said in the claim form. She then did add some information, presumably in response to questions, but it does not appear that she was asked about the difference between the claimant’s behaviour at home and at school, about incidents of aggression, about running away, about the need to hide sharp objects or about why official agencies had got a clinical psychologist, consultant community paediatrician, social worker and eventually Youth Offending Service involved. I note also that at the first hearing the claimant’s stepfather referred to having lost his job because of the amount of time he had to spend helping to look after the claimant. These matters ought to have been explored, as ought the evidence that the claimant’s behaviour and the family relationships generally had significantly improved. Further, there is a potential inconsistency between what the consultant community paediatrician said about challenging behaviour at home and what the teacher said about the claimant’s behaviour, although the evidence of both was accepted and found as fact by the tribunal. Finally, there is force in the point made by the Citizens Advice Bureau that the social worker would have exercised her professional judgment about the mother’s statements when making the assessment. That is borne out by the fact that the social worker felt a core assessment necessary (p.68).
43. Moreover, it is at this point that the decision relied on by the Citizens Advice Bureau, CDLA/3779/2004, is relevant. That was a case in which the tribunal preferred the evidence of the school report to the evidence of the G.P., the claim form, the evidence of an independent youth worker and the oral evidence. Mr. Commissioner Bano concluded that the evidence from the school report was not necessarily inconsistent with the evidence from other sources. He pointed out that young children at school (the claimant was aged 10) have to be more or less continually supervised for the school to function properly, so a child with a disability may not need supervision over and above that which is given to all children when attending school. What also needs to be considered is whether, outside the school environment, such a child continues to need supervision beyond that needed by other children in order to avoid substantial danger to themselves or others. The evidence from the school should be considered along with all the other evidence. The tribunal in this case did not refer to the amount of continual supervision necessarily involved while the claimant was at school or to the possibility that a child who was well behaved at school might release the tension by bad behaviour at home, meaning that there was no conflict with the mother’s evidence about the claimant’s behaviour away from the school environment.
43. It follows that if paragraph 3 of the statement of reasons is to be understood as containing findings of fact relevant to supervision needs, their link with the claimant’s functional deficiency was not considered and no adequate reasons for those findings of fact were given. This was an error of law.
44. There is therefore no adequate basis for the conclusion that the claimant does not have care needs falling within s.72(1(b) (whether for attention or supervision) which are substantially in excess of any other child of the same age in normal physical and mental health. Again, the tribunal has failed to separate the s.72(1)(b) and s.72(1A) elements of its conclusion. Incidentally, it appears to have applied part only of the s.72(1A) test, since it seems not to have considered para. (b)(ii), set out in paragraph 37 above.
45. Finally, I recognise that the claimant, by his mother and the Citizens Advice Bureau, asked for the middle rate of the care component. Under s.72(1)(a)(i) and (4), however, a person is entitled, subject to s.72(1A)(b), to the lowest rate of the care component if he is so severely disabled physically or mentally that:
“he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods)”.
In my view, given the attention needs referred to by the claimant’s mother in the claim form, the tribunal ought to have considered whether the claimant might be entitled to the lowest rate of the care component on this basis.
Overall
46. In the course of explaining where it seems to me the tribunal fell into error, I have referred to a number of points where not only further consideration was or further reasons were required having regard to the documentary material but also further exploration with the mother of points raised might have shed further light. I am also conscious that on any view this is not an easy case, given the material suggesting that the family dynamics may have contributed to the claimant’s behavioural problems and the hurdles arising from s.72(1A) and s.73(4)A). In those circumstances, it would not be appropriate for me to set aside the tribunal’s decision and to remake the decision myself. It is unfortunate that there will be further delay in a claim which has already been substantially delayed for a variety of reasons, but I take the view that the fair course is to remit the matter to a fresh tribunal.
47. As the Secretary of State suggests in the full submission, the decision in Secretary of State for Work and Pensions v. MG has turned out to be of little assistance in the present case. It was concerned with a claim to higher rate mobility on the ground of severe mental impairment, not with a claim such as the present. It correctly draws attention to the importance of careful fact finding, but it does not affect anything I have said about CDLA/3779/2004.
48. For the sake of completeness, I should say that the decision maker rightly referred to CA/92/1992 and R(DLA)1/05 as helpful authorities on the test under s.72(1A) and s.73(4A).
49. It must, of course, be remembered that the First-tier Tribunal is precluded by s.12(8)(b) of the Social Security Act 1998 from taking into account any circumstances not obtaining at the time when the decision appealed against was made. The new tribunal will therefore have to consider what the needs and abilities of the claimant were at 15th December 2010, not subsequently, although it can have regard to evidence which came into existence after that date for the purpose of making findings as to the state of affairs at that date. Subject to this point, the new tribunal will consider all the material before it and is not limited or constrained in any way to looking at matters of evidence to which I have specifically referred.
Summary
50. For the reasons set out above, the decision of the tribunal contained an error on a point of law. I set it aside and remit the matter to be determined by a new tribunal. I direct that the new tribunal should be constituted differently from the original tribunal. The new tribunal will, of course, have regard to what is said above in addressing the question whether the claimant satisfies the conditions for entitlement to either component of disability living allowance at any particular rate.
(Signed) E. Ovey
Judge of the Upper Tribunal
(Dated) 9th May 2013