[2005] UKSSCSC CDLA_1807_2005 (10 November 2005)

PLH                                                                      Commissioner's File:  CDLA 1807/05

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Disability Living Allowance
Appeal Tribunal: 	Durham 
Tribunal Case Ref:  
Tribunal date:	15 March 2005
Reasons issued:	21 April 2005

     1.     	The decision of the Durham appeal tribunal sitting on 15 March 2005 is conceded to have been erroneous in law for the reasons set out in the written submission of Ms T Hussain on behalf of the Secretary of State dated 10 August at pages 121-122, in particular that the tribunal appear to have regarded the absence of a formal diagnosis as conclusive in determining that this young claimant's behavioural problems did not amount to any disabling condition that could qualify him for disability living allowance, and thus failed to record sufficient findings and reasoning of their own on that issue. It is also agreed that the case has to be remitted to a fresh tribunal for redetermination, the claimant's representative Ms S Long of Macclesfield CAB having no objection or further comment to make.  
     2.     	I accept the concession on those grounds, set aside the tribunal decision, and in accordance with section 14(8)(b) Social Security Act 1998 remit the case to a freshly constituted tribunal for rehearing and redetermination.  I direct the new tribunal that the question to be answered under sections 72 and 73 Social Security Contributions and Benefits Act 1992 remains what it has always been, namely whether the claimant suffers from a disablement sufficiently severe to give rise to the prescribed need for attention, supervision, inability to walk and so forth: a person who does not suffer from a disabling condition or disorder but (short of that) is merely a wilful character who demands a lot of attention, does not get the benefit because he or she does not need it by reason of disablement.  Whether disablement exists is a factual, and predominantly medical, question for the tribunal to determine.  If they accept an existing diagnosis of a disabling condition the answer is straightforward and they can move at once to assessing the degree of severity and extent of the claimant's consequent needs.  Conversely if there is a clear medical opinion that the claimant does not suffer from any form of disabling condition and that his demands for attention stem not from need but mere personal inclination, that may be accepted as good evidence to show why he does not qualify for a benefit meant for the genuinely disabled.  If as in this case there is evidence of serious misbehaviour of a kind that might be due to some clinical disorder, but all the tribunal are told is that a paediatrician has said it is not ADHD and the child is likely to be referred to a psychiatrist before long (pages 56-57), it is not enough to say that as there is no diagnosis there is no mental or physical disability. That is a question the tribunal themselves must determine, making a reasoned judgment on such evidence as they have, or after asking for further evidence or assessment reports to be obtained if they consider this necesary before a fair view can be formed.   
     3.     	The appeal is allowed and the case remitted for rehearing accordingly.  This will give the claimant's mother and her advisers the opportunity of putting in any further medical evidence they wish in support of his claim, for example an assessment report from a psychiatrist or a clinical psychologist showing that his problems really are due to some condition or disorder that can be recognised as a disablement; and separately it will no doubt be helpful to the tribunal if the Secretary of State can also consider arranging for a medical examination and report on the claimant by one of his own examining doctors, which will of course be focused specifically on the statutory conditions for benefit, so that this too can be put in evidence in advance of the rehearing.  Whether the tribunal itself should direct such a report (if not otherwise obtained) is for it to determine. 

(Signed)
P L Howell
Commissioner
10 November 2005