CDLA/3779/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.  My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and, since it is not expedient for me to make the findings of fact which are necessary to decide the claimant’s entitlement to benefit, I refer the case for rehearing before a differently constituted tribunals.

2.  This appeal arises out of a claim for disability living allowance made on 2 May 2004 on behalf of a boy aged 10 at the date of the claim who has albinism, asthma and partial sight.  A school report obtained on 31 January 2004 stated that the claimant needed help when walking over rough terrain, that he had been taught road safety awareness and did have more falls than other children of his age due to his visual impairment, but which otherwise identified no particular attention or supervision needs.  On the basis of that information, a decision was made on 5 February 2004 awarding the claimant lower rate mobility and  lowest rate care component.

3.  On 24 February 2004 the claimant’s appointee and mother asked for the decision to be reconsidered, stating that the claimant’s need for supervision and assistance with personal care tasks, although occasionally differing, remained consistently high.  Enclosed with her letter was a report from a Young Persons Inclusion Worker, stating that the claimant had difficulty recognising him and setting out tasks which the claimant was unable to do for himself, and a copy of a letter which the claimant’s mother had sent expressing concern about the number of injuries which the claimant was incurring at school.    However, the decision was not revised on reconsideration, and on 26 June 2004 the claimant appealed, with a view to securing a higher rate of care component.

4.  Prior to the hearing of the appeal the claimant’s mother submitted a letter dated 24 March 2004 from the consultant community paediatrician who was treating the claimant, setting out the effects of the claimant’s albinism, and stating that the claimant’s glasses did not totally correct his vision.  At the hearing, the claimant was represented by a citizens’ advice bureau worker, and the claimant’s mother gave detailed evidence about his needs.

5.  The tribunal warned the claimant’s representative that the award of lowest rate care component could be removed if the claimant pursued the appeal, but, after consulting the claimant’s representative, the claimant’s mother decided to proceed.  The tribunal confirmed the award of lower rate mobility component, but decided that the claimant was not entitled to any rate of care component.

6.  Having reviewed the evidence, the statement of reasons continues:

“The tribunal preferred the evidence of the school report to that of the GP, the claim form, the independent youth worker and the oral evidence.  The report was impartial and based on the observations of the appellant during a school day.  The report specifically requires the school to address help with physical functions.  the information in the school report was supported by the range of the claimant given in oral evidence.”

In relation to supervision needs, the tribunal concluded:

“The tribunal was not satisfied that the appellant required continual supervision throughout the day to avoid continual supervision to prevent falls.  The tribunal were not satisfied that the risk of an nature of the falls satisfied the criteria of substantial danger.”

7.  The claimant’s representative appealed on his behalf on a number of grounds, but I gave leave to appeal on 9 November 2004 because I took the view that the evidence of the school report was not necessarily inconsistent with the evidence which the tribunal rejected as being in conflict with the report.  In a submission dated 11 December 2004 the Secretary of State’s representative has supported the appeal on the ground that the tribunal failed to give adequate reasons for their finding that the claimant did not require continual supervision.

8.  The school report in this case was similar to school reports obtained in connection with disability living allowance claims in other cases such as this, in that it failed to identify any specific supervision needs.  Such reports are sometimes used by decision makers as a basis for rejecting the evidence of other professionals concerned with the care of a child, and in this case actually led the tribunal to say that they rejected the evidence of a consultant community paediatrician who was treating the claimant (wrongly described by the tribunal as the claimant’s general practitioner).

9.  Although a school report will very frequently contain valuable evidence in a claim for disability living allowance by a school-age claimant, it is necessary to have particular regard to the nature of the school environment when evaluating such evidence in relation to the evidence of other witnesses.  Young children at school have to be more or less continually supervised for the school to function properly, so that a child with a disability may not need supervision over and above that which is normally given to all other children while attending school.  However, children with disabilities may need supervision beyond that needed by other children when outside the school environment in order to avoid substantial danger to themselves or others, and it is that supervision which needs to be considered when deciding entitlement to care component.  Evidence from a school should therefore be considered along with all the other evidence concerning a child’s care needs in deciding whether the claimant can safely be left unsupervised and whether the child requires substantially more care from another person than children of their age would normally require.

10.  I do not regard the evidence from the school in this case as necessarily inconsistent with the evidence from other sources.  The evidence from the Young Persons Inclusion Worker dealt with the specific tasks of making toast and hot drinks, which were not tasks the claimant would perform at school.  The consultant community physician dealt with sensitivity to sunlight and impairment of the claimant’s vision, neither of which were dealt with in detail by the school.  The school confirmed that the claimant did have more falls than other children in the playground (perhaps suggesting a very significant degree of visual impairment), and the risk of such falls to the claimant needed to be evaluated in the light of the evidence of the claimant’s mother that more precautions needed to be taken by the school.  I can find nothing in the evidence given by the claimant’s mother at the hearing of the appeal which was necessarily inconsistent with the school report.  In rejecting the evidence of the claimant’s mother and the evidence which supported her for that reason, I  consider that the decision of the tribunal was erroneous in point of law.

11.  I therefore allow the appeal and set aside the tribunal’s decision.  It is clearly not possible for me to make the findings which are necessary to decide the claimant’s entitlement to benefit, and I therefore refer the case for rehearing before a differently constituted tribunal.

	(signed on the original)	E A L BANO
		Commissioner

		2 February 2005