PLH                                                                         Commissioner's File:  CDLA 1121/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Birmingham
Tribunal Case Ref:  	U/04/024/2000/03937
Tribunal date:		13 September 2000
Reasons issued:		14 December 2000

1.	This appeal on behalf of a 21 year old claimant suffering from autism and learning disability succeeds, as in my judgment there was a basic and obvious error of law in the decision of the tribunal sitting at Birmingham on 13 September 2000, when they confirmed the refusal of any review of his disability living allowance award on the ground that no reason to justify such a review under what was then section 30(2) Social Security Administration Act 1992 had been shown to exist.  
2.	The claimant, who was born on 21 December 1980, has suffered from autism, together with some physical difficulties, throughout his life.  Unhappily he also suffers from a significant learning disability, and was estimated by the visiting doctor who examined him on 30 April 1995 in connection with his original claim for disability living allowance to have a mental age some 5 to 6 years behind his chronological age.  On the basis of the findings of that report an adjudication officer on 2 May 1995 awarded the claimant the lower rate mobility and lowest rate care components of disability living allowance from the effective date of his claim, 25 January 1995, for life: see pages 73-75 of the appeal file.  
3.	That award, like all continuing awards of benefit extending to a future period, was of course made, in accordance with regulation 17(4) Social Security (Claims and Payments) Regulations 1987 SI No. 1968, subject to the condition that the claimant satisfied and would continue to satisfy the requirements for entitlement on which the award itself was based.  The statutory requirements on which this particular award had been based in May 1995 were of course those applicable to a disabled claimant under the age of 16, since this claimant was only just over 14 at the date of the claim made on his behalf, and 14¼ when the visiting doctor examined him and reported on the extent of his then current disability and needs.  
4.	The statutory requirements thus applicable to him, as a person under the age of 16, were different from those applying to people over that age suffering from similar disabilities: in particular under section 72(6) Social Security Contributions and Benefits Act 1992 the requirements applying to the lowest rate of the care component are modified, and those applicable to all three rates of the component are subject to an additional condition not imposed on people over 16, that the claimant’s requirements for attention or supervision as the case may be must be “substantially in excess of the normal requirements of persons of his age”, or such as a younger person might have, but a person of his age and in normal physical and mental health would not have at all.  
5.	That additional condition is of course highly relevant to a person suffering the kind of difficulty which this claimant has, particularly on the question of whether the condition as to needing daytime supervision is met for the purposes of the middle rate care component under section 72(1)(b).  It may well be surmised that the principal reason the objective needs for supervision, clearly demonstrated by the medical evidence in 1995, did not by themselves qualify the claimant for the care component at the middle rate was that the adjudication officer who awarded only the lowest rate took the view that the additional condition in section 72(6) was not satisfied: it could not be said that the claimant’s needs at that time were so substantially in excess of the supervision needed by any 14-year-old boy, with or without a disability, as to qualify him.  That may have been a hard judgment on the facts of this particular case, but it was obviously a judgment of degree made by the adjudication officer at the time and it does not appear to have been appealed or disputed, so that there is no question of it not being binding in the circumstances as they then stood.
6.	Those modified requirements being the basis of the original award made when the claimant was aged only 14, I do for my part find it surprising that when an application was made on his behalf for his circumstances to be reconsidered four years later when he was over the age of 18, the view was taken in the department that nothing materially affecting the original award had changed.  On that basis the adjudication officer on 17 August 1999 refused even to embark on the process of reconsideration by way of review under section 30(2) Social Security Administration Act 1992, or the process of reconsideration by way of “superseding” on similar grounds which has replaced it under the Social Security Act 1998 (there being no practical difference for the purposes of this case between the preconditions for reconsideration).
7.	I find it even more surprising that when that decision was taken on appeal to the tribunal, the tribunal also held that no material change of circumstances had been shown to have occurred such as to justify any reconsideration of the case.  
8.	Those decisions in my judgment embodied a plain error of law, in that they appear completely to have overlooked the fact that the conditions of entitlement applicable to the claimant and his care component of disability living allowance changed quite significantly as soon as he attained the age of 16.  In particular, the additional condition in section 72(6) requiring a comparison of his attention and supervision needs with those of another person of similar age ceased to apply; and the question relevant to whether he qualified for at least the middle rate of the care component became simply one of whether the disability (from which there is no possible dispute that he suffers) is, as a matter of objective fact, so severe that he requires frequent attention or continual supervision throughout the day within the terms of section 72(1)(b) looked at by itself.  
9.	I do not for my part see how on facts such as those shown by the evidence in this case it could possibly be said that the claimant having attained the age of 16, and the applicable conditions for disability living allowance having thus changed in relation to him, did not amount to a “relevant change of circumstances” for the purposes of section 30(2)(b) Social Security Administration Act 1992 since the original decision in 1995 had been given.  In my judgment therefore the tribunal who dealt with the case on 13 September 2000 clearly misdirected themselves in law in holding that as they said, 
“The burden of showing that there are grounds for review rests on the person seeking review.  That ground has not been satisfied in this case, and accordingly the appeal fails.” 
No reasonable tribunal properly directing themselves as the relevant law could have so concluded, and for that reason I set their decision aside.  
10.	That makes it unnecessary for me to consider the more detailed criticisms made in support of the appeal on the way the tribunal dealt with the medical evidence giving details of the claimant’s up-to-date condition and obviously severe difficulties; though these might in themselves, I should have thought, have been sufficient to justify at least a reconsideration of the case quite apart from the need which existed anyway following the change in the statutory requirements applying to the claimant.  
11.	As both the claimant’s solicitors and the Secretary of State agree, not only cannot the tribunal’s decision be allowed to stand, but its existing findings of fact do not provide a safe or sufficient basis for a final decision on the claimant’s true entitlement to be given.  That leaves the unsatisfactory position that as the Secretary of State’s submission dated 16 May 2002 at pages 159-160 points out, further findings of fact are necessary in order correctly to determine the claimant’s continuing entitlement from the date the review was applied for; but as the claimant’s solicitors with equal force point out in their reply observations dated 5 June 2002, whoever does that now will be faced with attempting to give a determination on the facts as they stood over a period which stretches back quite some time in the past.  That carries at least some risk of unfairness because this young claimant’s condition is not of course static, and the only further evidence that can now be produced would be bound to be based more on his condition as it now is, rather than as it used to be.
12.	I accept that there is force in the points made by the claimant’s solicitor, but it appears to me that the difficulties of making what to some extent has inevitably to be a retrospective decision must exist whoever is attempting to make that decision on the facts in this case.  It does not provide a sufficient reason for me to take what on this kind of issue would be the unusual course of substituting my own decision on primarily medical matters for that of a tribunal, whose composition will include a medically qualified member and a person with special experience of such cases so as to give the parties the benefit of a special expertise I do not have.  Accordingly I have concluded that despite the extra time this will take (which I hope can be made reasonably short) the right course having set aside the decision of the original tribunal is to remit the case to a differently constituted tribunal, for an entirely fresh consideration of the appeal against the adjudication officer’s refusal to reconsider the claimant’s entitlement for the period from and after the application for review made on 22 March 1999 (page 76).  
13.	I direct the new tribunal that as explained above they may take as the starting point the fact that the claimant had by then attained the age of 16 as constituting a relevant change of circumstances to call for a reconsideration by way of review, or, as the case may be, “supersession”.  The question for them to consider is whether the (adult) statutory conditions for an award of the care component at either the middle or higher rates are shown by the evidence before them to have been met over all or any part of that period.  It will of course be open to those acting on behalf of the claimant to submit any further medical or other evidence they think fit on his behalf to assist his claim to an increased level of benefit.  In any event, in view of the fact that there has been no medical reconsideration or advice given to the department since April 1995 on what is obviously a difficult case, it seems to me that it would also be advantageous to the tribunal as well as the parties if a further objective report by an examining doctor could be obtained by the department in advance of the rehearing.  
14.	The appeal is allowed and the case remitted accordingly.  For the sake of completeness I record that although questions were raised at an earlier stage of this appeal as to the status and authority of the claimant’s present appointee to bring it, those have been resolved by the production of the formal appointment at page 165, and the confirmation of the solicitors now acting for the claimant that the notice of appeal was signed by the appointee and that they have been duly instructed on his behalf.

(Signed)
P L Howell
Commissioner
17 July 2002