CDLA 3525 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the decision of the tribunal is not wrong in law.

2	The claimant and appellant is appealing with my permission against the decision of the Leeds appeal tribunal on 9 August 2004 under reference U 01 013 2004 00852.

REASONS FOR THIS DECISION

3	The claimant, A, was born on 15 October 2003. She has maple syrup urine disease and reflux. Her mother, Mrs R, is her appointee. Mrs R claimed disability living allowance for A on 13 January 2004 when she was only a few weeks old. The claim was for both daytime and nighttime needs, but only daytime needs were pursued on the appeal.  The Outreach nurse from the local hospital with responsibility for A commented on the claim form:

“A has maple syrup urine disease, a metabolic condition which requires very strict dietary control. She requires twice weekly blood tests. She has special feeds that are necessary to maintain growth. A requires regular hospital appointments. The monitoring is important as even a normal childhood disease can have serious consequences.” 

4	The claim was rejected by the Secretary of State on the ground that although A needed some extra help it was not considered substantially in excess of the help any child of a similar age would require.  	

The tribunal decision

5	The nurse later gave a detailed written statement to the tribunal, explaining the nature of the disease and the attention needed. The tribunal heard from Mrs R and a representative.

6	The tribunal was unable to agree its decision unanimously. The majority decision was that:

1	A was just over 3 months old when the adverse decision was taken. The tribunal finds that at that age a very considerable amount of care and attention has to be given to a young child.

2	It is accepted that there was an arduous feeding regime for A but the tribunal bore in mind the guidance given in Commissioner’s Decision CDLA 92 1992 that the 
test imposed by section 72(6) is a stringent one.
The learned author in Medical and Disability Tribunals: The Legislation comments that “obviously the younger a child is, the more difficult it is for him or her to satisfy the additional conditions.”

3	The tribunal accepts that much longer time was taken in actually feeding, but it found that there is more to the care of a young baby than just the feeding activity. It is a task which requires close attention throughout the day and possibly the night.”

One of the three members of the tribunal dissented on the ground that, as a matter of judgment, the attention given to A was substantially in excess of that given to other children. 

Views of the parties

7	For Mrs R it was contended that the tribunal had before it clear evidence that A did need substantially more care than other children of her age, and that the majority of the tribunal had not interpreted the wording “substantially in excess” correctly. I granted permission to appeal so that this could be explored further.

8	The Secretary of State did not support the appeal. The tribunal was right to rely on the authority of CA 92 1992. The tribunal had considered all the evidence. It had set out its reasons for concluding as it did on attention needs, and, read as a whole, the decision also dealt with supervision needs. In summary, the law was such that it would be very difficult for such a young child to satisfy the stringent criteria for the care or continual supervision needs.
Mrs R’s representative had no comments on this submission. 

My decision

9	Commissioner Rowland, who decided CA 92 1992, recently revisited the issue in CDLA 4149 2003. The case concerned a child aged 6 with continence problems. He reaffirmed his general views about the context in which, and the standard against which, the test of “substantially in excess” is to be applied. I respectfully agree with that reaffirmation and adopt his reasoning as part of this decision. A copy of CDLA 4149 2003 is to be issued with this decision. The tribunal used the right approach. 

10	How is it to be applied to a child born just weeks before the claim is made? The general guidance offered by the Department for Work and Pensions’ medical advisers in The Disability Handbook, second edition 1998, (see www.dwp.gov.uk/medical/dhb)  is:

	33.3.1	The non-disabled infant

An infant for the purposes of this text is taken to be a child aged less than one year old. Healthy infants require a great deal of attention in connection with their bodily functions. They must be fed, winded, changed and bathed frequently. In addition, if emotional development is to proceed normally, an infant must be handled, cuddled, talked to and played with regularly. Furthermore, during the time when the infant is sleeping periodic checks are made to ensure all is well.

33.3.2	The infant with disabilities

Because of the amount of care and supervision/watching over required by a healthy infant, that required by an infant with disabilities may not usually be much greater
Than that needed by a healthy child. The kind of attention given may differ: for example, instead of being handled in the ordinary manner, the infant with disabilities may need more specific stimulation or formal passive movements of the limbs in the form of physiotherapy, but the amount of care or supervision/watching over may not be greater than that given to a health infant. 

I am not sure how far the needs of an infant are a question of medical expertise as against general experience. The above appears to be something of both, but is a clear and practical statement of the approach to the needs of very young claimants. There is further guidance in chapter 43 of that guide on metabolic disorders in children, but it adds nothing of assistance in this case. The commentary to which the tribunal refers is currently in Social Security Legislation 2004, Volume I, Non-Means Tested Benefits, paragraph 1.212. This sets out the short passage quoted by the tribunal and also part of decision CA 92 1992, but takes things no further. 

11	There are a few cases with somewhat similar facts. R(A) 1/87 is about a child a little under 2 with phenylketonuria (PKU), another metabolic disease. Commissioner Mitchell commented about the refusal of the claim in that case on attention grounds that “that was an assessment of the degree of excess with which I do not necessarily agree but which I cannot say the [decision maker] was not entitled to reach.” The Commissioner found that the decision was inadequate in terms of supervision needs, but they do not arise in this case. I see nothing of further assistance here in that decision. That decision and others were reviewed in Commissioner May’s decision R(DLA) 1/98 (CSDLA 126 1996), concerning a 10 year old with diabetes. On section 72(6) he cites his own earlier decision CSDLA 160 95 about a 12 year old with PKU. Both cases concern the attention needs of children of those ages with metabolic disorders, and focus mainly on how attention needs are to be assessed in such cases. They do not assist with cases of infants too young to feed themselves in any event. 

12	The test of “substantially in excess” in section 72(6) is essentially “ a matter of fact and judgment in each case” to quote the tribunal and to paraphrase R(A) 1/87. It must be applied against the benchmark set in CA 92 1992 and CDLA 4149 2003, and by reference to the age of the claimant and a “normal child” of that age. In that context what is “substantially in excess” is partly a matter of general experience and partly a matter on which medical expertise is of particular relevance. But that makes it a question which a disability appeal tribunal is admirably equipped to decide. At the margins there will be difficult decisions, as in this case. But if the tribunal considers and evaluates all the available evidence, applies the statutory test against the proper benchmark, and properly explains how it reaches its conclusion in doing so, then its decision cannot be attacked as in error of law. In particular, there is no basis on which the representative can challenge this tribunal for making an error of law, rather than fact, in its interpretation of “substantially in excess”. The tribunal correctly understood that these are ordinary English words not open to further definition. As the House of Lords emphasised in Secretary of State v Moyna  [2003] UKHL 44, R(DLA) 7/03, “there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way”. 

									David Williams
									Commissioner

									09 December 2004
[Signed on the original on the date shown]