File no:  CDLA 3831 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The appellant is appealing, by her appointee, and with permission of a chairman, against the decision of the  Harlow appeal tribunal on 18 March 2002 . 

3	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside.  With the consent of both parties, I replace that decision with the decision that the tribunal should have made. This is:

The appellant is entitled to the higher rate of the mobility component from and including 24 June 2001. This is because she suffers from congenital central hypoventilation syndrome, a permanent condition. 

For the avoidance of doubt, this decision does not affect the previous award of the highest rate of the care component to the claimant up to 24 June 2003.  There was clearly some muddle about the operative dates for the decision on the care component, and there have been a number of corrections to it. I take these dates as the correct dates for the care component without considering them further, as only the decision on the mobility component was under appeal to the tribunal.  

4	In granting the permission, the chairman commented: “Commissioner’s
guidance on this particular area of law useful.” I take that to be a reference to the ground of appeal. The tribunal agreed to a two year award only at the higher rate of mobility component. The claimant’s representative objected strongly to this limitation of the award.

The facts

5	The claimant  was born in June 1998. A claim was made for the higher rate of the mobility component when she was two, under the new rules. It could take effect on her third birthday. She suffers since birth, and on the medical evidence will always suffer, a rare but dangerously serious breathing problem, congenital central hypoventilation syndrome. The exertion required to walk can constitute a danger to her life.

6	There is what I can only describe as a graphic letter of support for the claimant’s claim from the claimant’s Consultant Paediatrician at the Princess Alexandra Hospital in Essex.  The claimant needs a ventilator and suction equipment wherever she goes. The consultant adds: “You will understand that all this equipment is very heavy and cumbersome and needs to be transported with [the claimant] everywhere.” There is further detailed evidence of why the claimant needs this backup in written statements from another consultant, this time at Great Ormond Street, which is of course a leading children’s hospital. 

The tribunal decision 

7	In a full statement the tribunal makes it clear that it has studied, and has accepted, the evidence from the consultants. The conditions of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 were met. The exertion required by the claimant to walk would constitute a danger to her life or would be likely to lead to a serious deterioration in her health.  I add that, given the evidence before the tribunal, I can see no basis on which that finding might be challenged, and no attempt has been made to challenge it.  It is entirely consistent with the view of the Commissioner about this regulation in R(M) 3/78. 

8	Having found that, however, the tribunal went on to state:

“It is the view of this Tribunal that for someone so young it is quite wrong to make a long award. At this stage the outcome of this problem is unknown. Further as she grows up [the claimant] will gain an understanding of her problems and the need for her to use the ventilator. The award should coincide with that for the care component but in any event the tribunal think this is the right date since by that age she may well have the necessary understanding. In any event the matter can of course be looked at again after that date.”

The reference to the care component award was to the award ending in 2003.  

The limitation on the awards

9	This appeal straddled the date on which the minimum age for claiming higher rate of the mobility component was lowered from 5 to 3.  The claim for the care component was made before that date. The decision to award the care component appears to have been ended on the claimant’s fifth birthday. That would have been a very sensible practical decision if the claimant could not claim mobility component until that date. It would remind everyone that the claim could be rebased on a wider basis from that date. And the fact that mobility component could be claimed at that age is a predictable change of circumstances. But that reason no longer applied when the tribunal heard the case.

10	The tribunal had the option of making a life award of the higher rate of the mobility component, of making an award limited to the existing award of the care component, or of extending both components to the same later date. I do not consider that the tribunal were precluded from lengthening both awards simply because only one was in issue. Did the tribunal make the right choice? 

11	If the tribunal was stating what it saw to be a rule of law in claiming that it is quite wrong to make long term award for the very young, then in my view the tribunal was quite wrong. It is all a question of fact. The tribunal is required to decide on the facts and circumstances obtaining at the date of the original decision on the claim (Social Security Act 1998, section 8(2)(b)). If the circumstances change, then the Act provides that either the claimant or the Secretary of State can seek a supersession to change the basis on which the decision is made. It must consider the issue of any limitation on those facts only.     

12	The tribunal had, and accepted, what appears to be the best evidence available about the need of the claimant in connection with walking. It had, and accepted, that her problem was permanent. There is nothing in that evidence to show that she will get better. Further, the danger occurs to the claimant when she goes to sleep, not when she is actually walking, so is at least in part outside her control. The tribunal itself also finds that “at this stage the outcome of this problem is unknown”. It then assumes that she will be able to handle her situation better when she gets older. 

13	The tribunal has clearly erred in imposing a two year limit on these facts. The original time limit on the care award was put on for a sensible reason, and one compatible with the 1998 Act, but one that no longer applied when the tribunal looked at the matter. The tribunal specifically found that it could not predict future circumstances. That being so, it should not have made assumptions. If it cannot say on the balance of probabilities what will happen to the claimant in the future,  then it should not attempt to do so. It should leave future changes to be dealt with in the future as the Social Security Act 1998 clearly intends, and not engage in speculation. 

14	I can see no evidence as at the date of the original decision that limits the claimant’s risk from walking, and it would be wrong of me to start guessing about the future for this claimant. She is suffering a chronic and life threatening condition. To limit an award for such a claimant, particularly to a short period, merely adds to the financial and other worries of the parents and medical team helping her without any public benefit I can see.  If she does get better – as I am sure we all hope she will – then her benefit should be ended at that time.  There is a duty on all claimants and their appointees to report any change of circumstances that might reasonably be expected to affect entitlement to benefit (Social Security (Claims and Payments) Regulations 1987, regulation 32). If the claimant gets better enough to walk without the risk to her health that now applies then her appointees (or if she is then old enough, she herself) must tell the Department. Tribunals should not assume that claimants will fail to fulfil that duty. I can see no other reason for making a short term decision in this case.    

								David Williams
								Commissioner

								02 December 2002
[Signed on the original on the date shown]