[2008] NISSCSC C3_08_09(DLA) (30 June 2008) 

Decision No:  C3/08-09(DLA)

RE (A CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 15 August 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The applicant/appellant is represented by the Citizens Advice Bureau in Londonderry.

2.	I grant leave to appeal. The appellant has raised an argument that the tribunal misinterpreted the evidence of a social worker and in doing so, made an error of law. It is also argued that the finding of the tribunal on the issue of severe behavioural problems was unreasonable in law.

3.	I have considered the application of the appellant dated 13 December 2007, the submission of the Department dated 12 February 2008, the further submission of the applicant dated 20 February 2008, the response of the Department dated 28 March 2008 to the direction of the legal officer dated 29 February 2008 and the submission of the applicant to the direction dated 7 April 2008.

4.	The applicant did not request an oral hearing and both the Department and the applicant have consented to the leave application being dealt with as an appeal. I have decided that an oral hearing is not required.

5.	The appeal is dismissed for the reasons set out below.

	Facts of the Case

6.	The appellant is a child born on 5 January 1998. He is mentally disabled and was awarded high rate mobility component on the basis that he was virtually unable to walk together with, it appears, the highest rate of care component from 9 April 2001, when he was aged three years, to 8 April 2007.

7.	On a renewal claim, by a decision dated 30 January 2007, the award was reduced from 9 April 2007 to 4 January 2010 to low rate mobility component on the basis that the child was no longer virtually unable to walk but required supervision when walking out of doors on all routes.  It was also accepted that his need for supervision was substantially greater than for another child of the same age.  The highest rate of care component was confirmed and this part of the award is not disputed.

8.	It was not argued by the representative that the child is virtually unable to walk.  He is very active and walks and runs normally for the most part.  He occasionally refuses to continue walking, but the main problem when walking out of doors is to control him as he has no sense of danger and would run across the road unless restrained.

9.	The child has extensive care needs as is reflected in the award and he is disruptive at times if he cannot have what he wants.  He attends a special school and his mental capacity is far behind a normal child of the same age.  A detailed report from the school dated 22 January 2007 was before the tribunal.  His mental condition has not been accurately diagnosed, although there is a suggestion that he may be autistic.  The representative submitted a report at the hearing from a social worker attached to the learning disability team dated 8 May 2007.  She described the child’s condition and made comments about the report from the special school.  In particular she stated that “Under the Mental Health NI 1986 Order, the child is deemed as having a ‘severe mental handicap’ and therefore he is included on our trusts informal register of people with a severe Learning Disability so that he can avail of services of services [sic] from our specialist programme of care.” 

	The Law

10.	The legal rules of entitlement to the mobility component of disability living allowance were set out in the Departmental submission to the tribunal. Section 73(3) of the Social Security and Contributions (Northern Ireland) Act 1992 provides that there is entitlement to the mobility component if the claimant is:

(a)  severely mentally impaired

This expression is defined in regulation 12(5) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) and means a state of arrested or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning.

and

(b)  displays severe behavioural problems

This expression is defined in regulation 12(6) and means that the claimant exhibits disruptive behaviour which is

(a) extreme

(b) regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or to damage property

and

(c)  is so unpredictable that he requires another person to be present and watching over him whenever he is awake.

The legal test is therefore very restrictive.

11.	The record of the proceedings of the tribunal makes it clear that the representative argued that the child was entitled to the higher rate mobility component because he satisfied the conditions of section 72(3).  That issue is not addressed in the submission to the tribunal by the Department.  Surprisingly, it is stated that there is nothing in the school report to suggest that the child has any behavioural problems.  There was no presenting officer in attendance at the hearing.

	Role of the Commissioner in an appeal from a decision of a Tribunal

12.	It is the role of the Commissioner to satisfy himself that the correct legal rules have been applied, that the relevant findings of fact have been made in relation to those rules and that reasons have been given for the decision.  The detail of the findings and reasons must be seen in the context of the procedures of an appeal tribunal and the circumstances in which it functions.  The tribunal is an informal enabling body for which legal aid is not available and which is expected to deal with appeals quickly and expertly.  Unlike a Commissioner, it is not required to give guidance on the law.  The reasons for the decision should be simply stated so that the parties can ascertain why the tribunal made the decision it did.

13.	The tribunal is not required to rebut every conceivable argument that might arise in the appeal.  Nor is it required to deal with an argument which was not raised at the hearing by either of the parties and which is not an obvious point arising from the claim papers.  In Mongan v Department for Social Development [2005] NICA 16 Lord Chief Justice Kerr approved the decision of Commissioner Brown in C5/03-04(IB) in which she stated that a tribunal was not required to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it. He then added; “We accept that there must be limits to the tribunal’s responsibility to identify and examine issues that have not been expressly raised and we agree with the observation of Commissioner Brown.  But as she said in a later passage in the same case, issues “clearly apparent from the evidence” must be considered.”

14.	It is also essential in my view for the Commissioner to take account of the fact that the officer making the submission to him on behalf of the decision-maker was not present at the hearing of the appeal.  He will therefore be unaware of all the details of the hearing, including the totality of the evidence taken and all the associated exchanges between the tribunal members and the parties with regard to the evidence and procedural matters.  To impose a comprehensive recording requirement on tribunals would be an intolerable burden.  Regulation 55 of the Decision and Appeals Regulations merely provides that the chairman of the tribunal shall make a record which is sufficient to indicate the evidence taken.  It is not a verbatim record. In addition to recording the evidence taken, the tribunal records the main arguments advanced by the appellant and procedural rulings.

15.	It should also be taken into account that many of the issues arising before a tribunal can be reopened at a later date.  The claimant can make a further claim, or ask that his existing award be reconsidered again, with new or additional evidence.  Thus, if the claimant does not provide sufficient evidence in connection with a claim, or its renewal, or when requesting a higher rate of benefit, he, or she, may obtain more evidence and renew the claim or request. Thus, unlike litigation in the courts, the outcome of an appeal is not final in a great many cases.

16.	It may also be reasonable for the Commissioner to take into account that the decision in the appeal is very unlikely to be wrong, even if there is some technical defect in the recording.  It is unsatisfactory to give appellants false hope of a successful outcome solely on technical grounds.

	The Decision of the Tribunal and the Reasons

17.	Applying these principles to this appeal, it is clear that the correct legal rules were addressed by the tribunal.  The representative made it clear at the outset that the appellant was claiming the high rate of mobility component on the basis of severe mental problems.  He explained that the submission by the decision-maker dealt with the physical test in section 73(1)(a) only.  He added that he would not rely on that test but solely on the test in section 73(3).

18.	All of the evidence noted by the tribunal was directed to parts of that test including erratic behaviour, medical treatment by a neurologist and psychiatrist, the assessment of the social worker attached to the Learning and Disability Team, the issue of severe mental handicap and severe impairment of intelligence.  It was also noted that the child was not aggressive and the tribunal carefully considered a detailed report from his school as to his educational progress.

19.	No application was made for an adjournment so that additional evidence could be sought.

20.	In the reasons for the decision, the tribunal refers to the statutory test and cites it accurately.  The expression in the statute is severe mental impairment.  There is a reference in the report of the social worker to severe mental disablement and the definitions in the Mental Health Order (Northern Ireland) 1986.  I will return to this definition below.

21.	The tribunal addressed physical restrictions as it was on this basis that the previous award was made and despite the fact the representative did not argue the point.  This is in line with the guidance in the Mongon case in the Court of Appeal.

22.	There is also a reference to the report of a consultant paediatrician who diagnosed moderate learning difficulties.

23.	A further report from Dr … was noted in which he described the child as exceptionally nervous and timid.  No genetic abnormality was identified and there was no specific diagnosis.

24.	The child was seen by a psychiatrist.  He noted hyperactivity and reduced concentration and that the child caused havoc in his office.  This is consistent with the evidence of his mother that he will explore many things he sees for the first time in a new setting.  She also stated in evidence that he is not aggressive but if he sees something he wants, ‘he will hurl you down’.

25.	The tribunal refers to the letter from the social worker and her statement that the child is deemed as having a severe mental handicap.  The tribunal was obviously puzzled by this expression.  The social worker seemed to be stating that in the absence of a diagnosis, it was assumed for the purposes of giving the child access to services, that he was severely mentally handicapped.

26.	Section 3 of the Mental Health (Northern Ireland) Order 1986 distinguishes severe mental handicap and severe mental impairment.  It is obvious from the definitions that severe mental impairment is more serious.  It is defined as a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning (this part of the definition is the same as the definition of severe mental handicap) and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

27.	The expression in section 73(3) is severe mental impairment and, taking into account the further definition in regulation 12, it was intended by Parliament that only the most severe cases of mental disability were intended to be included in the definition.

28.	I note the terms of the direction issued by the legal officer dated 29 February 2008 and the response of the parties.

29.	It is submitted by the appellant and the Department that the tribunal gave insufficient reasons for concluding that the appellant did not suffer from a state of arrested or incomplete development of the brain.  With respect to both parties, that is a misunderstanding of the decision of the tribunal.  What the tribunal stated was that the evidence did not show that this was the case.  In other words, the tribunal simply concluded that the case was not proved on the evidence.  The social worker made an assumption about the development of the appellant’s brain for understandable reasons in the context of the care of the child.  However, such an assumption falls far short of proof for the purposes of the Act.  Furthermore, none of the other medical reports addresses the issue directly.  Should the tribunal have adjourned and sought further evidence on this point, as is argued by the appellant?  Taking into account the authorities mentioned above, in my view the tribunal was entitled to consider the appeal on the basis of the evidence presented to it.  The parents of the child are entitled to explore the matter further and they are entitled to ask that the award be reconsidered if additional evidence becomes available on this issue.

30.	The tribunal also addressed the issue of severe behavioural problems.  It took into account the problems identified by the psychiatrist and the parents and concluded that the statutory test was not satisfied.  The conclusion was not unreasonable.  I note that the statutory test refers to the need for restraint and intervention and extreme behaviour.  The child is described as friendly and with an engaging personality.  Whilst he is undoubtedly very handicapped and requires a great deal of attention from his parents and teachers, the tribunal concluded that he was not within that band of extreme behaviour as described in the regulations.  Whether I would agree with the conclusions is not relevant. I  am satisfied however, that the tribunal made reasonable findings on the evidence before it.

(signed) C MacLynn

Deputy Commissioner

30 June 2008