DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:	CDLA/4961/2001

1.	My decision is that the decision of the Appeal Tribunal was erroneous in point of law.  I set it aside and in pursuance of the powers in that behalf contained in s14(8)(a)(i) and/or (ii) SSA 1998 I substituted my own decision which is that for the period 3.10.98 to 2.9.2000 the claimant is entitled to the care component of DLA at the middle rate.

2.	This is an appeal with leave granted by me from the decision of an appeal tribunal dated 26.7.01.  When granting leave to appeal, I raised the question whether, in view of the glyco attacks, the need for supervision had been properly considered by the tribunal.  

3.	The claimant was born on3.10.86, and she is a diabetic.  She may also have hyperthyroidism and coeliac’s disease.  She had been in possession of an award of the lower rate mobility component and the middle rate of the care component until 2.10.98.  The tribunal of 26.7.01 made an award of the lower rate care component 3.10.98 to 29.5.00, the claim for the mobility component now no longer being pursued.  Since 30.5.00, an award of the care component at the middle rate has been reinstated.  I do not know the basis on which that was made that is to say whether it was in respect of frequent care or continual supervision.  In front of the tribunal, the claimant’s mother, the appointee; argued on the basis of frequent attention needs, but she is not a legally qualified person and the need for continual supervision, does not appear then to have been seriously argued.

4.	At the date of the decision of the AO (15.9.98), the claimant was 11, and at the date of the tribunal, 14.  The provisions of section 72(6)(b) SSC & BA therefore have to be satisfied.  While the tribunal did not appear in terms to make an express finding that she satisfied the condition, it is clearly implicit in that decision that they decided she did.

5.	The claimant is now represented by solicitors, who urge me to substitute my own decision pursuant to section 14(8)(a)(ii) of the 1998 Act.  This is an appeal, second time round, the decision on appeal of the first tribunal dated 15.5.99 having been set aside by the Commissioner under section 14(7).  Since this case has inevitably involved delay, and since the period involved is now limited 3.10.98 to 29.5.2000, it is clearly desirable that I should, if I can I must be satisfied that (a) the tribunal decision was in error of law and (b) there is sufficient evidence in the file to enable me to do so.  The Secretary of State submits that further evidence is necessary:  the solicitors submit otherwise.  I am satisfied on both counts and accordingly I have made the order as set out in para 1 above.

6.	The professional medical evidence was as follows:-

	(i)	The tick list dated 7.9.98 prepared by Ms Griffiths (55/57), the diabetic nurse.  In that, she ticked the ‘Yes’ Box to question 6, “can the patient manage their own therapy without help?” but added “But parents help”.  She added that the claimant had 2 hypo attacks a day on average and the occasional night time attack as well.  The tribunal had, I think,       reservations about this report, which the mother also criticised.

	(ii)	Dr. Lee’s report dated 15.9.98 (63).  He said:-

		“[The claimant] needs to do rather more tests.  We need to get a better picture of her overall diabetic control.”

And later in that letter:-

		“[The claimant] has few hypoglycaemic attack episodes.  She did however have 5 in one day because she had treated herself with fast acting sugar but did not take long‑acting carbohydrate afterwards.”

	(iii)	The new diabetic nurse’s report of 23.9.99 (81) in which she said:-

		“[The claimant] has type 1 diabetes that requires daily management, supervision and assessment.  She requires twice daily injections, regularly timed meals and snacks and 3‑4 daily blood tests.  
		
		“Although [the claimant] is capable of managing the practical side of her diabetes, her parents need to constantly supervise this to ensure injections and tests are performed correctly.  In order to avoid complications, they also need to evaluate results and make decisions on doses basis which, at present, are changing on a frequent basis as [the claimant] is in a growth phase which continually re‑defines her diabetes.  [The claimant] equally requires constant reminding and urging to eat meals and snacks and also, whenever leaving home, she needs reminding to carry treatment for hypoglycaemia.  This causes considerable strain on the family as they must inform other interested parties, i.e. teachers, of [the claimant’s] condition, treatment and management to ensure her safety.”

	(iv)	Dr. Thomas’s report of 9.8.99 (82) is as follows:-

		“[The claimant] has insulin dependent diabetes.  She requires twice daily doses of insulin for which she needs supervision.  In addition she requires regular blood tests and urine tests to make sure that her dose is correct and she remains well.  

		“[The claimant] is on a special diet.  Her mother is involved with supervising this diet to make sure that her blood sugars do not become too low and she becomes unwell.  

		“[The claimant] has recently been having some high blood sugar readings before tea time in the evenings.  This has meant that she has required additional monitoring to make sure that her insulin dosage is satisfactory.”

	(v)	Dr. Lee’s second report dated 15.2.2000 (98) is as follows:-

		“I note that a lot of weight was given at the tribunal to the report that was written by the Diabetes Nurse Urmilla Griffiths.  I have looked at a copy of that document.  I would disagree with the fact that so many of the tick boxes were filled in the way that they were.  My reasons are as follows:-

				‘Sister Griffiths has ticked the box saying yes that [the claimant’s] overall control was satisfactory.  I would strongly disagree.  In September 1998, when that document was filled in, [the claimant’s] HbA1 was 8.9% which is above average for our clinic and indicates that [the claimant’s] overall control is not satisfactory.’

		You will have also had a letter from Dr. Thomas, my clinical assistant, indicating specific problems with [the claimant’s] blood sugar control through the day.  I would concur with that report.”

That report is the report of 9.8.99 to which I have already referred.  I should add that Dr. Thomas is a Senior Clinical Medical Officer.  Dr. Lee was the consultant looking after the claimant, and the letter of 9.8.99 was written on the basis of Dr. Lee’s clinical notes.  Dr. Thomas stresses that he had no personal knowledge of the claimant.  

7.	In view of Dr. Lee’s second report that of Ms Griffiths would appear to be largely worthless.

8.	(i)	The claimant’s mother makes the point in her letter at p85 that the claimant was being discriminated against as other children who had the same condition and attended the same clinic had been granted the middle rate of the care component without reviews until they attained the age of 15.  As the tribunal rightly commented, those were different cases and did not affect this case.

	(ii)	The mother also kept a diary for the week 13.9.99‑17.9.99 (70-80).  It appears that, while at school, the claimant is strongly dependent on her friend Joanne, and also on her teachers.  The evidence shown in the diary is consistent with the medical evidence that the diabetes is not yet well controlled.  There was one recorded glyco attack and, once, at 12.30 am (Friday), the claimant required chocolate biscuits and a drink as her levels were well down.

9.	After considerable thought, I have come to the conclusion that continual supervision was required throughout the day.  I say this since it would appear that:

(a) the diabetes was not controlled.  Ms Griffith’s evidence appears to me to have been worthless.  The blood levels fluctuate, and a constant eye has to be kept on the insulin dosage required.  Further, I would add that it seems to me quite inappropriate that a girl of the claimant’s age, who understandably dislikes injections, should be expected to supervise the necessary monitoring, or indeed possibly, even to give the injections by herself.  This seems to me to be a Moran situation and the risks involved are certainly not too remote, since there appears to be evidence of quite frequent glyco attacks.

	(b)	It is clear that the claimant needs and receives supervision at school.

	(c)	The mid rate care component was in payment up to 2.10.98 and then again from 30.5.2000.  I cannot imagine that the claimant’s condition has been so inconstant over that period of time.  

10.	My decision is therefore as set out in paragraph 1 above.

					(Signed)	J M Henty
							Commissioner

					(Date)		13 May 2002