DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:	CDLA/3994/2001

1.	My decision is that the decision of the appeal tribunal was erroneous in point of law.  I set it aside and remit the case for re-hearing in front of a differently constituted tribunal.

2.	This is an appeal from the decision of an appeal tribunal dated 15.4.01 with leave granted by me.  When granting leave, I questioned whether the tribunal were right to dismiss Dr. Clow’s evidence in the way they did.  There had been an earlier appeal hearing on 25.4.2000, which had dismissed the claimant’s appeal, but which had since been set aside.  Since this claim for DLA on behalf of the claimant was made as long ago as 23.3.99, and the relevant decision made on 4.6.99, it is clearly desirable that I should, if I can, give the final decision, now, in pursuance of the powers contained in section 14(8)(a)(i) and/or (ii) of the 1998 Act.  However, to do that, I must satisfy myself that I have in the file papers, and from what I have gleaned at the oral hearing, sufficient evidence to enable me to do so.  I fear I do not think I have that evidence.  

3.	At the request of the claimant, I held an oral hearing of the appeal on 12.4.02, at which Mr Negishi, instructed by the Free Representation Unit, appeared for the claimant.  He provided me with a most helpful skeleton argument, a rare luxury for a Commissioner.  Mr Heath of the Solicitor’s Department appeared for the Secretary of State.  I am most grateful for the assistance which both of them afforded me.  

4.	The claimant was born on 5.6.92.  He suffers from a condition known as Attention Deficit Hyperactivity Disorder.  To be entitled to benefit at all, a claimant must first clear the hurdle that he is “so severely disabled mentally or physically” that he qualifies for benefit.  The necessary pre-condition is that he must be either mentally or physically disabled.  The point was raised by Mr Heath but, so far as I can see, that was the first time in the long history of this case that the point had been made.  There appears to be no physical disorder.  In CDLA/944/2001, I reviewed the cases on mental disorder and, disagreeing with CDLA/15892/96, but in accordance with the reported authorities, I concluded that there must first of all be some kind of recognised mental disorder.  I then listed the recognised kinds of mental disorder as set out in section 19 of the Second Edition of The Disability Handbook which includes personality disorders.  In Dorland’s Medical Dictionary 28th Edition “attention-deficit hyperactivity” is defined thus:-

	“A controversial childhood mental disorder with onset before age 7 characterised by fidgeting and squirming, difficulty in remaining seated, easy distractibility, difficulty awaiting one’s turn and refraining from blurting out answers to questions before they have been completed, and inability to follow instructions, excessive talking, and other disruptive behaviour.  Called also minimum brain dysfunction (based on the unproven assumption that brain damage causes the syndrome and the neurological abnormalities) …”

I acknowledge that the condition is termed “controversial” but, to some extent, that may be due to possible difficulties of diagnosis.  However, in this case in the letter dated 21.1.00 (77) from Mr Ferguson MSc (a family therapist at BHB Community Health Care Unit) contains a clear statement that the condition has been medically diagnosed.  “Personality disorder” is defined in Dorland (ibid) as:-

	“A category of mental disorders characterised by inflexible and mal-adapted personality traits that are self‑perpetuating, generate subjective distress, and result in significant impairment in social functioning.”

It seems to me, having regard to the clear diagnosis in the case, the condition is a personality disorder and thus a mental disorder – in other words, not just plain bad behaviour.  I, therefore, take the view that the claimant is for the purposes of section 72 mentally disabled and the question now is as to whether the mental disablement is so sufficiently severe that he satisfies any of the statutory conditions for benefit.  

5.	Mr Heath submitted to me that the tribunal’s decision was flawed in two respects:-

	(1)	The tribunal did not give any reasons for disallowing the lower rate of mobility component.  As I have already noted, the claimant has no physical disability and clearly he is not virtually unable to walk.  It may be that, at the hearing of the case, the lower rate of the mobility component was not pressed. I do, however, note the evidence given at the hearing:-

			(i)	At p141 it is recorded:-

					“He went out on his bike and shot out in front of a car – about a month ago? – Yes.  Had he used it before?  Not alone.  We live on a main road.”

				And at p145:-

					“Let him play in street – in our garden and 2 neighbours but I have to watch him in case he runs off.”

				But at p137, there is the clear submission by Mr Negishi to the tribunal that the claimant did satisfy the test in section 73(1)(d).  But I fear there is insufficient evidence for me to say whether he did or did not, and the new tribunal will have to consider the point expressly, the potentially disastrous consequences if the claimant ran out onto the road, which must be weighed against the likelihood and, if relevant, frequency of such occasions there may be – reference may be made to R(A) 1/81, R(S) 5/81.  

			(ii)	They made no adequate consideration of the lowest rate of the care component.  

6.	Mr Negishi submits to me that there were other errors.  In para 8 at page 221 he questions how did the tribunal come to the conclusion that the claimant was aware of common dangers, in view of the evidence of Dr. Clow at p71:-

	“I have advised his parents to keep a detailed diary of the amount of time they need to put in because [the claimant] has not yet learnt to guard against common dangers.  There is certainly a danger in burning the whole house down if he is unsupervised.  However, things are beginning to improve at school ..”

That improvement was of course noted at the date of the letter - viz. 6.3.2000 – whereas the cut-off date in this case is the date of the decision on 4.6.99.  

The possible fire risk and the resultant possible need for supervision - on the Moran principle – as well as possible supervision out of doors as well – were certainly in my mind when I gave leave to appeal.  At the hearing, the claimant’s mother told me that she had been advised that playing with fire was a characteristic of the claimant’s condition.  At a previous appointment with the doctors, she had mentioned the claimant’s fixation with fire.  There are however two other references to fire in the file.  At p67, the CAB in the letter of 6.4.2000, post-dating Dr. Clow’s letter, stated,

	“The origin [of] [the claimant’s] pre-occupation with fire, may lie with his father who is a fire fighter.  Nevertheless, it is a real and worrying aspect for their collective safety.  There are numerous incidents whereby [the claimant] has set alight to material within the house …”

In fact, according to the evidence given to the tribunal by the mother, there was only once such incident, and that was when the claimant was aged 7.  She is recorded as having stated (148/9):-

	“What has happened when he picked up lighter?  Went through his pocket and found a lighter he did nothing - was in his pocket for half a day.  We know for a fact he would set light to things – he did it once at age 7.”

And then at p71, the mother’s diary entry for 23.2.00 runs as follows:-

	“Whilst tidying I find lighter under his bed and a small area of singed carpet.  He picked up lighter in street.  I tell him off and Les has a word with him when he comes home.”

This was clearly the incident referred to by the mother in her evidence at the hearing.  The claimant was indeed then, seven.  There was also an occasion when he left the gas heater on about which there is no mention in the statement but I regard that as de minimis.  The incident about the toy saw, I regard, similarly, no more than childish mischief.

7.	The test for supervision is similar to that which the Commissioners have adopted in relation to the risks attendant on falling.  In order to be substantial the danger must be “considerable, solid or big” (R(A) 1/73) though, not necessarily, life threatening.  But there must be a real risk.  As to this the tribunal said:-

	“	16.	At page 71 [the mother] refers to the possibility that [the claimant] might ‘inadvertently’ set the house on fire.  She contends that [the claimant] will collect lighters if they are dropped on the pavement or in rubbish.  However, the only incident where there appears to have been a risk of harm was the occasion he singed a carpet with a lighter.  [The mother] told us of an occasion when he carried a lighter, which he had found, around in his pocket for a few days but there appeared to have been no other incidents when fires had been lit and we do not accept the risk of danger is great, we consider that it is not unusual that [the claimant] is interested in fire in view of his father’s occupation.”

The last remark is little more than an observation and, in my view, is of no very great significance.  

However, I am far from sure that the tribunal dealt satisfactorily with Dr. Clow’s evidence, especially since playing with fire may be a characteristic of the claimant’s condition.  The new tribunal should deal with this aspect of the matter specifically.  

8.	The tribunal submits Mr Negishi rejected Mr Ferguson’s evidence at p77 and when they commented “We do not consider that it adds greatly to the evidence concerning the degree of supervision which is required, the phrase “where his behaviour may place him at risk” is not further defined without giving satisfactory reasons.”  I myself do not however place very much on Mr Ferguson’s comment.  I agree it is far too general to be of any very real assistance.  

9.	Finally,. Mr Negishi criticises the findings in para 18, but it does seem clear that from the diary there had only been two or possibly three incidents that week although this is to be judged by reference to the circumstances obtaining as at 4.6.99 when there may have been as many incidents as seven a week.  He also criticises the finding in para 19, but the reasons for that conclusion are implicit in the earlier findings.  

10.	I accept Mr Heath’s two points and for that reason this case must be sent back for re-hearing.  But is a case in which many small points have been made.  However, as I have said before, the central point seems to me to be a possible question of supervision.  I would add that on the present evidence viewed overall, I probably would not myself be minded to accept the claimant’s arguments, but that is a matter for the new tribunal.  

					(Signed)	J M Henty
							Commissioner

					(Date)		1 May 2002