CDLA/4475/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal against the decision of the Plymouth appeal tribunal dated 28 July 2004 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	The claimant, who is now aged 11 and acts through his mother, claimed disability living allowance on 3 October 2003.  His claim was initially refused by the Secretary of State and that decision was not varied on reconsideration.  The claimant then appealed and his appeal was dismissed.  He now appeals against the decision of the tribunal with my leave.

3.	The tribunal’s reasoning is summarised in the last two paragraphs of the chairman’s statement of reasons.

“The picture the tribunal gained was of a child who has two younger brothers, both of whom have significant problems, and that when he has to share space with either or both of them, he can be difficult; but that there is nothing actually wrong with him.  He may be seeking more attention from his mother, who obviously has her hands full.

“The tribunal found there was no physical or mental disability from which Matthew was suffering at the date of the decision on 7/1/04 and in any event such needs as he had did not satisfy the criteria for disability living allowance.”

The claimant’s younger brothers had been diagnosed respectively as suffering from Asperger’s Syndrome and attention deficit hyperactivity disorder.  The tribunal noted that the claimant himself had been held by a consultant paediatrician not to be suffering from attention deficit hyperactivity disorder but to be “on spectrum of possible Asperger’s” and that he was to be reviewed in August 2004, within about a month after the hearing.

4.	It was subsequently decided that the claimant did in fact have Asperger’s syndrome and, when I granted leave to appeal, I gave the following reasons.

“On the evidence before it, which included evidence that no diagnosis had yet been made, that Matthew was not on medication and that his behaviour in school (or, at least, in the classroom) was markedly different from his behaviour at home, the tribunal was entitled to conclude that he was not suffering from mental disablement.  However, there is now a diagnosis.  E v. Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] Q.B. 531 suggests that a mistake of fact giving rise to unfairness can be a mistake of law (although I am aware that leave to appeal to the House of Lords against that decision has been granted).  I have some doubts about the tribunal’s reasons for finding that the claimant would not have been entitled to benefit even if they had found that he was suffering from mental disablement.  However, its conclusion may be correct because the mental disablement may not be a cause of all the behavioural problems.  My grant of leave is therefore given with some hesitation.”

5.	The Secretary of State supports the appeal, submitting, in effect, that the tribunal erred in failing to adjourn when the crucial question of diagnosis was to be considered at the review due to take place within the next few weeks.  Since that submission was made, it has been held by a Tribunal of Commissioners in CDLA/1721/2004 that a diagnosis is not a prerequisite for a finding that a claimant is disabled within the terms of section 72 of the Social Security Contributions and Benefits Act 1992 but that nonetheless a claimant must be disabled in order to qualify for benefit and that “behaviour cannot itself be a disability – but it may be a manifestation of a disability, namely an inability to control oneself within the accepted norms of behaviour”.  A diagnosis is therefore not essential as a matter of law but it remains important as a matter of evidence because a tribunal will more readily accept that difficult behaviour is a manifestation of a disability if there is a formal diagnosis than if there is not.  A formal diagnosis is also important evidentially in relation to a claimant’s needs.  Behaviour that is merely attention-seeking may often be modified relatively easily, without resorting for a period long enough to qualify for disability living allowance to levels of attention in connection with bodily functions or supervision that are significantly greater than most children of the claimant’s age require.  Evidence that a child behaves differently with some people than with others may also indicate that the behaviour can be modified by the behaviour of adults.  Behaviour due to a recognised and diagnosable condition may be less tractable.  Therefore, notwithstanding CDLA/1721/2004, a diagnosis in a case like the present may be important.

6.	The tribunal obviously regarded the lack of a diagnosis as being particularly significant.  It also regarded the lack of medication as significant but that, of course, is a different aspect of the same issue because medical practitioners will be careful about embarking on a course of treatment without knowing what it is that has to be treated.  I am told that after the diagnosis Risperdol was prescribed.  Given the importance attacked to the lack of a diagnosis, there is force in the Secretary of State’s submission that the tribunal should have adjourned to await the result of the review.  Furthermore, the conditions under which the Court of Appeal held in E v. Secretary of State for the Home Department that an error of fact might amount to an error of law appear to be satisfied in this case.  Those were –

“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.  Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable.  Thirdly, the appellant (or his advisors) must not have been responsible for the mistake.  Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

In particular, the fact that there has been a diagnosis is now uncontentious and the tribunal’s approach to the evidence about the claimant’s behaviour might have been different had it been aware of the diagnosis.

7.	Accordingly, I allow this appeal.  However, it does not necessarily follow from my decision that the claimant must be assumed to satisfy any of the conditions for entitlement to disability living allowance.  His case must be considered afresh by another tribunal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		12 July 2005