CDLA/4806/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Wigan Appeal Tribunal given following a hearing on 28th August 2002.  That decision was that the claimant was not entitled to either component of disability living allowance at any rate.  The appeal is supported by the Secretary of State, who submits that the matter should be referred back to a new tribunal to make further findings of fact.  For the reasons set out below, I accept that the decision of the tribunal was erroneous in point of law and that further findings of fact are required, which I cannot make on the evidence before me.  The decision of the tribunal must therefore be set aside and the matter will be remitted for hearing by a fresh tribunal constituted, differently from the previous tribunal, under Chapter I of the Social Security Act 1998.

2.	The claimant’s claim was made by a claim pack requested on 27th March 2002.  The claimant was born on 25th March 1994 and so was then two days past his eighth birthday.  He had previously had an award of the mobility component of disability living allowance at the lower rate and of the care component of disability living allowance at the highest rate from 25th March 1999, but that award expired on 24th March 2002.  The claim was therefore treated as a new claim rather than as an application for revision or supersession.  The claimant’s mother has been appointed to act for him.  

3.	The disability from which the claimant suffers is attention deficit disorder.  The claimant’s mother stated in the claim pack that in August 2001 the claimant had started to take Ritalin and that it helped him a lot.  She nevertheless also said, among other things, that he was not up to an eight year old’s standard, that he would wander off, that he did not understand that the road was dangerous, that she had to watch him if he was playing with his brothers because he would lash out at anyone, thinking he was playing, that he only slept about five hours a night and needed someone up with him when he was awake, that he was very much behind in school, that he found it hard to communicate with others, that he needed someone to play with most of the time because his attention span was low and (as I understand it) he would destroy things if left on his own and that he got very upset and frustrated when people did not understand him or would be aggressive.  Most of these difficulties the claimant’s mother said required constant help.  She summed up what she saw as the claimant’s needs by saying that wherever he went or was, she had to be with him.

4.	The claimant’s G.P. was asked to produce a report and did so on 22nd April 2002.  He confirmed that the claimant was taking Ritalin and said that there had been a good initial response and that the prognosis was good.  He also said that he was not aware of any restriction of the claimant’s ability to perform basic life-skills (such as washing, dressing and using the toilet) or of any developmental delay, but recorded that the claimant saw a paediatrician every six months and that he was likely to need “increased parental supervision at times”.

5.	A report dated 28th May 2002 was also obtained from the claimant’s school.  The report showed that he was on School Support (Stage 2) for Literacy and Numeracy, had an individual reading and spelling programme and was supported with additional literacy support in a small group.  His behaviour in school was controlled and no special arrangements were made for him, although the senior lunchtime supervisor ensured that he received his medication.  He normally took part in all school activities, including in particular the after school ju jitsu club.  The report suggests that the diagnosis of attention deficit disorder was contained, as far as the school at least was concerned, in a letter dated 26th February 2002 from the paediatrician.

6.	On the basis of that information, the claim was disallowed on 5th June 2002.  The claimant’s mother expressed her wish to appeal in a letter received on 24th June 2002, stressing the claimant’s supervision needs and his lack of awareness of danger.  The claim was reconsidered on 24th July 2002 but the decision was not revised and the appeal proceeded.  By letter dated 5th August 2002 the claimant’s mother gave the further information that she took the claimant to school in her car and brought him home or got someone else to do so, and that she went to the ju jitsu club after school to keep an eye on the claimant.

7.	The claimant’s mother consented to the appeal’s being dealt with on paper and that was the form the proceedings took.  Although the tribunal had power under regulation 39(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999 No. 991) to direct an oral hearing if satisfied that to do so was necessary, the tribunal took the view that it was not appropriate to adjourn the case for that purpose.  With hindsight, it may now be thought unfortunate that they came to such a decision, but this is not such an extreme case that it could be said that there was any error of law in their proceeding to deal with the case on paper.

8.	As has already been indicated, the tribunal by their decision dismissed the appeal and confirmed that the claimant was not entitled to either component of disability living allowance.  The claimant’s mother applied for a statement of reasons, which was issued on 20th September 2002.  In the statement of reasons the tribunal set out a number of findings of fact which were in themselves clearly justified on the material before the tribunal but made no findings on the questions whether there was significant developmental delay, whether the claimant needed supervision when he was not in the school environment (in particular, whether he would damage things or wander off if left on his own and whether he could be left to play with his brothers) and whether he required significant supervision at night.  The tribunal then set out the reasons for their decision as follows:

“1.	In considering the lower rate of the mobility component the tribunal had to consider whether [the claimant] required substantially more supervision or guidance in order to walk out of doors in unfamiliar places than a child of the same age in normal physical and mental health.  In view of his age, the tribunal considered that it would be most inappropriate for [the claimant] to go unsupervised to any place that was unfamiliar and that when outdoors in unfamiliar places any child of [the claimant’s] age would be under either guidance or supervision.  There was no evidence that substantially more guidance or supervision was required of [the claimant] when outdoors than would be required for a child of [the claimant’s] age.  An award of the lower rate of the mobility component was therefore not appropriate. 
2.	The tribunal then considered supervision in the home.  The claim pack did not outline any more supervision needs than those required for a child of a similar age.  He is clearly a boisterous child but the situations described are not those that would require substantially more supervision than for a child of a similar age and boisterous disposition.  His behaviour at school does not cause any difficulties.
3.	[The claimant] is able to perform his bodily needs appropriate to his age.  He does require some supervision to ensure that these jobs have been performed satisfactorily but again no more than would be expected for a child of his age.
4.	There is a need for [the claimant’s] medication to be administered by an adult and there are occasions when he needs parental supervision but these are not sufficient to satisfy the conditions for entitlement to the care component and on this basis the appeal must fail.”

9.	At that point, the claimant’s mother instructed solicitors, who applied for leave to appeal by letter dated 11th October 2002.  The grounds of appeal were:
(1)	the tribunal had not investigated the facts fully bearing in mind what the claimant’s mother said about his problems while walking out of doors, including in particular the fact that he had no concept of danger to himself;
(2)	evidence needed to be given on what difficulties the claimant had when mixing with other children;
(3)	if the decision were to be set aside, expert evidence could be obtained from the paediatrician;
(4)	the tribunal did not properly consider attention deficit disorder.  It has an extremely serious effect where the sufferer can turn violent towards others at the drop of a hat.
There are obvious difficulties about the second, third and fourth grounds, bearing in mind that it is for the claimant to bring evidence in support of the claim and that the tribunal’s role is to decide on the evidence before it.  There is also a potential problem with the first ground, given that the tribunal accepted the mother’s evidence about the claimant’s lack of road sense and need to be taken to and from school, but decided that his relevant needs were not greater than those of any child of his age.

10.	The chairman nevertheless gave leave to appeal on 14th October 2002, stating:
“1.	I have granted leave because of the tribunal’s approach to lower rate mobility component.
 2.	There is a trend, developed by advocates and ‘encouraged’ by higher authority, for tribunals to focus only on an appellant’s ability to use unfamiliar routes.
3.	This approach leads to difficulties, exemplified perhaps when the appellant, as here, is under 16.
4.	An authoritative decision from the Commissioner would help tribunals.  For this reason I have declined to exercise my s.13(2) jurisdiction.”
The jurisdiction under section 13(2) of the Social Security Act 1998 enables a chairman to set aside a decision considered to be erroneous in point of law.  I take it, therefore, that the chairman thought that the tribunal’s approach to the lower rate of the mobility component was erroneous in point of law.

11.	As already mentioned, this appeal is supported on behalf of the Secretary of State.  The relevant submission summarises the grounds of appeal as being that the tribunal did not take into account the full facts of the case.  As I understand the submission, it is then said that the findings about the claimant’s road sense imply that the claimant in fact needs supervision in familiar as well as unfamiliar places and that the tribunal should have made findings whether he needed such supervision as a result of his disability and if so, whether the supervision required was substantially in excess of that needed by a child of the same age in normal physical and mental health.  The Secretary of State does not suggest that the findings were inadequate as respects supervision for the purposes of the care component.

12.	The claimant by his solicitors made observations on that submission which are dated 13th January 2003.  In that submission objection is taken to the chairman’s “plea for clarification on the regulations in cases dealing with claimants who are under the age of 16”, because “the regulations clearly state ‘substantially in excess’ and a comparison has to be made to a child of the same age of normal ability”.  It is said that if appeal chairman are attempting to seek guidance from Commissioners in this way, the practice ought to be discouraged.  Tribunal chairmen should be impartial and interpret the law as defined by higher authorities.  The claimant nevertheless wants the matter referred to a fresh tribunal to make fresh findings of fact, I think as to the type of supervision the claimant requires whilst out of doors and as to the difficulties which would be posed if he came across an unfamiliar route.

13.	I am not sure that I have fully understood the objection taken by the claimant’s solicitors, especially since they felt sufficiently strongly about it to request an oral hearing as a result of the chairman’s comments.  That request was refused.  I am equally not sure that I have fully understood the point on which the chairman wants clarification.  My understanding of the relevant provisions, however, is as follows.

14.	For present purposes, the effect of section 73(1)(d) and section 73(4) of the Social Security Contributions and Benefits Act 1992 is that the claimant will be entitled to the lower rate of the mobility component if, at the date of the decision refusing his claim:
(1)	he was able to walk but was so severely disabled physically or mentally that, disregarding any ability he might have had to use routes which were familiar to him on his own, he could not take advantage of the faculty out of doors without guidance or supervision from another person most of the time; and
(2)	either he required substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require, or persons of his age in normal physical and mental health would not require such guidance or supervision.

15.	It is not disputed that the claimant is able to walk and that he suffers from attention deficit disorder.  The first question which needs to be answered is therefore whether the result of his attention deficit disorder is that, at the material time, he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time.  When the question is first posed, it is not necessary to introduce into it any consideration of the familiarity or unfamiliarity of a hypothetical route.  That becomes an issue if a claimant asserting a need for guidance or supervision is met with the answer that he manages to get around perfectly well on his own.  If the claimant can respond that he can only manage when the route is familiar, then his ability to get round on his own is to be disregarded.  As a matter of fact, he will satisfy the statutory test by his need for guidance or supervision on unfamiliar routes, but that does not mean that it is part of the statutory test that the route should be unfamiliar.  

16.	The distinction may not be significant for an adult claimant, but it can be significant for a child claimant.  In the present case, I understand that the mother is saying that the claimant cannot walk out of doors without guidance or supervision whether the route is familiar or unfamiliar, because he does not recognise the risks.  His is not a case in which, but for the statutory disregard of familiar routes, he could be met with the answer that it is only on unfamiliar routes that he is in difficulty.  He needs guidance or supervision in any case.  It follows that when the comparison is made with a child of his age of normal physical and mental health, the question is not whether such a child would need guidance and supervision on unfamiliar routes, but whether he or she would need guidance and supervision on all routes, as the claimant’s mother says he does.  To put it more concretely, it might be asked, for example, whether a child in normal physical and mental health would be able to walk alone from the claimant’s home to the claimant’s school, once the route had become familiar.

17.	It seems to me clear that the test the tribunal applied was whether the claimant required substantially more supervision or guidance in unfamiliar places and that the question of his total need for guidance and supervision out of doors by comparison with that of a child in normal physical and mental health was not addressed.  It therefore follows that in my view the tribunal’s decision was erroneous in point of law, because the test applied was not the statutory test.  I hope that this is the point which the chairman had in mind when giving leave to appeal.  It is, at least, the point identified on behalf of the Secretary of State and, I think, by the claimant’s solicitors.

18.	If this approach is right, findings of fact will be required as to:
(1)	what level of supervision or guidance the claimant required at the material time when taking advantage of the faculty of walking out of doors; and
(2)	whether the supervision or guidance required  was substantially more than that which would be required by a child of his age in normal physical and mental health.
In view of the way the matter has been put on behalf of the Secretary of State, I should perhaps say expressly that, although the question of the journey to school may be relevant, it is not the only journey which should be considered.  The claimant’s ability to use other possible routes such as a route to a friend or relative living nearby or to the local shops or recreation ground should also be considered as part of the whole picture.

19.	I then turn to consider the tribunal’s decision on the care component.  For the reasons already given, it does not appear to me that the grounds of appeal have identified any further errors of law on this aspect.  It does appear to me, however, that the tribunal dealt very briefly with the claimant’s supervision needs both during the day and at night.  I note the following points in the evidence:    
(1)	although the doctor was not aware of any developmental delay, there is evidence of some delay in the mother’s statement that the claimant is not up to an eight year old’s standard, which receives some confirmation from what is said about the special educational support he receives at school;
(2)	although no special arrangements are made for supervision of the claimant at school, the evidence of the special educational support and small group teaching may be relevant to the question whether his attention span is so short that he needs an unusual level of personal attention.  The absence of behavioural problems at school might be attributable at least in part to the fact that the claimant does receive a high level of attention and supervision;
(3)	there was evidence of some behaviour which might be regarded as rather more than boisterous, in that the mother says that the claimant becomes destructive and aggressive at times, as well as the potential problem of a tendency to wander off;
(4)	there is some evidence in what the mother says about the short period for which the claimant sleeps and his need for attention when awake at night of a high level of demand during the night;
(5)	the doctor said that the claimant was likely to need increased parental supervision at times, but gave no indication of why there might be such a need or how frequently it might occur.
In the light of those matters, I have come to the conclusion that the reasons given by the tribunal for its conclusion were inadequate in the absence of more detailed findings of fact.  As already noted, there are no findings about whether there is developmental delay or about the claimant’s need for supervision outside school apart from the findings relating to the performance of life skills.  There are no findings about what is involved in the school support he receives.  In particular, the tribunal concluded that the claimant’s need for medication to be administered by an adult and for parental supervision on “occasions” was not sufficient to satisfy the conditions for entitlement to the care component, without observing that the word “occasions” had been substituted for “times” and without any evidence about what was meant by that phrase.  On this ground also the tribunal’s decision was erroneous in point of law.  I accept that there is strong evidence that Ritalin has been helpful to the claimant and that it is likely that it has contributed to a significant decrease in his care needs, but the tribunal did not, in my view, deal adequately with the matter.

20.	In this connection, I comment that some of the tribunal’s difficulties might have been resolved if there had been an oral hearing, although that would still have left the significance of the doctor’s report unclear.  The claimant’s mother may wish to consider carefully whether she should attend the next tribunal hearing, so that she can explain to the tribunal exactly what the claimant’s condition was in June 2002, and whether she should obtain a further medical report, perhaps from the paediatrician referred to in the papers.  

21.	For the reasons given above, I set aside the decision of the tribunal and remit the matter to be heard by a new tribunal.  That tribunal should have regard to what is said above about the correct approach to the question whether the claimant is entitled to the mobility component at the lower rate and the necessary findings of fact in relation to that issue.  In relation to the care component, the tribunal must of course make appropriate findings of fact about the degree to which and the period for which the claimant requires supervision, in order to lay the groundwork for the necessary comparison with a child of his age in normal physical and mental health.  Whether or not that involves making specific findings on the particular matters referred to above will depend upon the nature of the evidence before the tribunal.

	
		Elizabeth Ovey
		Deputy Commissioner
		20 March 2003