[2007] UKSSCSC CDLA_1880_2007 (21 September 2007)

CDLA/1880/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Birkenhead Appeal Tribunal held on 12 March 2007.  By their decision the tribunal upheld the decision of the decision maker made on 25 August 2006 that the claimant was not entitled to either component of disability living allowance.  The Secretary of State does not support the appeal.

2.	For the reasons given below, I have nevertheless concluded that the decision of the tribunal was erroneous in point of law and must be set aside.  The facts are not sufficiently clear for me to substitute a decision of my own and therefore the matter must be remitted for a further hearing by a new tribunal constituted, differently from the previous tribunal, under Part I of the Social Security Act 1998.  

3.	The claimant is a girl who was 14 at the date of the original decision.  She is acting by her mother as appointee.  It is not disputed that she suffers from nut allergy, asthma and eczema.  There is also evidence that at least for about six months before the hearing before the tribunal she had been depressed.  The question is whether the relevant statutory requirements were satisfied at 25 August 2006.  Section 12(8)(b) of the Social Security Act 1998 prohibits the tribunal from taking into account any circumstance which did not obtain then. 

4.	The claim was made by a claim form completed by the claimant’s mother and received on 17 August 2006.  It made no reference to any mental difficulties on the claimant’s part; indeed, it was said that she did not have difficulties because of the way she felt.  The basis of the claim was entirely that the claimant needed constant supervision because of the risks resulting from her nut allergy.  It was specifically stated that she did not need to be encouraged to get up, to wash or have a bath or shower, to dress or to attend to her toilet needs.  It was, however, stated that she needed help with eating, although the nature of that help was close monitoring.  It was also stated that she suffered from blackouts, fits, seizures or something similar, on the ground that excess exercise causes anaphylactic shock.  As it was also said that help was required in this connection all the time, I infer that again the help was by way of supervision.  It does not appear from any other evidence that the claimant frequently suffers anaphylactic shock from excess exercise.  

5.	The claim form was submitted under cover of a letter dated 16 August 2006 from a charity which provides advice and assistance to people experiencing mental health problems.  In view of the contents of the form, it seems that the person suffering the problems was understood to be the mother; I note that she confirmed to the tribunal that she does suffer such problems.  The charity has continued to represent the mother and the claimant 

6.	On 21 August 2006 the charity wrote further to the claim form saying that they had now received further instructions.  It was said that the claimant suffered from severe depression and required a lot of motivation in connection with her bodily functions such as getting out of bed, dressing, looking after her personal hygiene, washing and bathing, eating and taking part in day to day activities.  That letter is marked as received on 23 August 2006 and therefore was presumably before the decision maker when the decision of 25 August 2006 was made.  It did not, however, contain anything like the degree of detail which the claim pack seeks and was manifestly inconsistent with the contents of the claim pack, which contains the standard declaration that the information was correct and complete as far as the mother knew and believed.

7.	In the event, whether or not the decision maker saw the letter, the decision treated the claim as one made solely on the basis of a need for constant supervision.  The decision did not accept that there was any such need and did not refer to any need for encouragement with personal care.

8.	The claimant appealed against the decision refusing the claim by an appeal notice received on 21 September 2006.  It was submitted under cover of a letter dated 18 September 2006 from the charity.  The grounds of appeal relate solely to the alleged need for constant supervision resulting from the nut allergy.

9.	The appeal was originally listed for hearing on 24 January 2007 but was adjourned because the mother could not be present owing to illness in the family.  The tribunal took the opportunity to direct that further medical evidence should be obtained by the Tribunal Service from the claimant’s GP (an earlier report appears not to have been put on the file, an omission which was directed to be rectified) and that a report from the claimant’s school should similarly be obtained.

10.	The missing report from the GP surfaced and was dated 20 November 2006.  The GP had last seen the claimant on 2 May 2006.  Although the letter of request included severe depression as one of the claimant’s stated medical conditions, the GP did not include such a diagnosis, although reference was made to stress and anxiety.  Almost all the further information was contained in a computer print out.  To the extent that it contained anything about stress and anxiety, it appeared that in February 2005 the claimant had attended the GP with her mother having lost a lot of weight, and was said to be under a lot of stress with family problems.

11.	A letter dated 24 May 2005 which is also in the file shows that the claimant was then referred to the Child and Family Service.  She did not take up the offer of an appointment on 9 April 2005, but was seen at a family meeting concerning her younger brother on 17 May 2005.  The claimant’s mother said the claimant no longer wanted an appointment, the author of the letter did not have any concerns about her weight and it was agreed that she should be discharged.

12.	The further medical evidence required by the tribunal was duly obtained and shows that after the first request for medical evidence was received, on 1 November 2006, but before the report was written, one of the doctors at the practice saw the mother who said, in summary, that the nut allergy was making the claimant feel depressed because of the restrictions it imposed.  It was agreed that the mother would talk to the claimant and bring her in for an appointment.  That seems eventually to have occurred on 13 February 2007, just before the request for the second report arrived.  In that second report she is described as suffering from acute stress and panic attacks due to fear of the nut allergy.

13.	School reports were also obtained.  The first one is dated 16 February 2007 and indicates that no special arrangements of any kind are made for the claimant and that she does not need help, although one of the staff has been trained in administering the Epipen if the claimant does suffer anaphylactic shock.  It appears that the mother thought the report was insufficiently detailed and a further one was obtained, by means of adding further comments onto a copy of the first report.  The revised version is dated 27 February 2007.  It explains that special steps may be taken in relation to science experiments, but generally states that no special arrangements are required because of the claimant’s mature attitude to her condition and her common sense and awareness.

14.	There is also a record of the claimant’s admission to hospital following an incident on 22 October 2004 when she experienced a probable allergic reaction to eating a curry.  This seems to have been the first occasion on which her accepted nut allergy was recognised.

15.	At the hearing the claimant’s case was put on two bases;

(1)	she required supervision owing to the nut allergy;

(2)	she had attention needs owing to her depression.

The record of proceedings shows that it was accepted that depression had not been diagnosed when the claim pack was completed, but reference was made to the letter dated 21 August 2006.

16.	The mother gave oral evidence.  She stated that the claimant had had depression for six months, or at least six months, and that she had reported it to the GP.  The claimant had now been referred for counselling.  Her mother had seen her cutting her arm with a razor.  The main problem was to encourage her to get out of bed, dress and eat.  The claimant understood that she should not eat cashew nuts but her mother had to check all the food.  She could cope with an allergic reaction if use of Piriton syrup was sufficient, but her mother was not sure she could cope with the Epipen, although she had had training.  The claimant was never left alone at home.

17.	The tribunal made clear in their reasons that they had considered all the evidence before them, including in particular the GP’s reports and the school reports.  Their reasons for dismissing the appeal, after a careful consideration of the evidence, can be seen from the following paragraphs:

“11.	The tribunal preferred to accept the school report.  This seemed to be corroborated by the lack of intervention which had actually occurred in [the claimant’s] case.  Whilst there had been the one incident when she was taken to hospital having consumed a curry she was able to deal with her condition for herself for most of the time.  She knew that if she had something to which she was allergic she could take Piriton and carried this with her.  She also carried an Epi-pen and had been trained in its use but had never actually used it.  The tribunal concluded that the risk of danger to [the claimant] was very slight.  In looking at the school report and what actually happened the tribunal concluded that she did have common sense and awareness and that if faced with a situation in which she suffered an allergic reaction she would be able to cope alone and indeed had done so in the past.

12.	It was also apparent that although there were reports that [the claimant] did not go out alone she did on occasions walk to and from school herself.  Whilst these could be classed as familiar routes, for the reasons as stated in connection with supervision needs generally, the tribunal took the view that she was not in any danger and that if she did suffer an allergic reaction when outdoors she would be able to cope with it.  The tribunal considered also what [the mother] had said about depression and self-harm but from perusal of the GP reports and from hearing [the mother] today the tribunal concluded that any such difficulties had arisen following the date of the decision and therefore could not be taken into account.”

18.	In her original grounds of appeal the claimant did not pursue the question of supervision.  In my view that was a sensible decision.  Instead it was said that incoming to their conclusion on depression, as quoted above, the tribunal had not fully taken into account the facts of the case.  Specifically:

(1)	the letter of 21 August 2006 had not been included in the papers by the Secretary of State;

(2)	the fact that the claimant had not taken up the referral to the Child and Family Service, which the representative attributed to “fear and stigma, being a scared teenager,” did not mean that she did not then have a mental health problem.

Leave to appeal was refused by the district chairman.

19.	The claimant renewed her application for leave to the Commissioners and expanded her grounds of appeal by pointing out that it was not surprising if the claimant did not wish to discuss her mental health with her GP and so had not visited him, and that the presence of depression had been reported by the mother to the charity before 25 August 2006.  It was also said that the tribunal had misunderstood the school attendance record, which they regarded as inconsistent with the mother’s evidence about the claimant’s attendance.  It was said that “the claimant has been left in the dark as to why no award has been made when the statutory requirements for this benefit have been met”.   Leave was granted by Mr Commissioner Pacey on 27 June 2007.

20.	The Secretary of State has produced a submission dated 7 August 2007.  The point is correctly made that the letter of 21 August 2006 was included in the file and the tribunal was clearly aware of the argument being put.  It is then said that the tribunal formed their view that the claimant’s depression postdated the decision by reference to all the evidence.  It is pointed out that even if the claimant was reluctant to consult her GP, her mother could have done so, and that the school has said nothing to suggest mental health problems.  Attention is drawn to the absence of any such reference in the claim pack.  On the question of the attendance record, it is suggested that the explanation may be that the record was dealing with the past school year, which might mean the year September 2005-August 2006.  The mother was dealing with special attendance arrangements from October or November 2006.

21.	In response to that submission, the claimant’s representative submitted, as I understand it, that the letter dated 21 August (mistakenly said to be dated “21.6.06.”) was before the tribunal and was not a medical opinion, but the point was that there was evidence of depression before the date of the decision.  The assumption that the claimant’s mother would have raised the question of depression with the GP was also challenged.

22.	It is clear that the mother told the tribunal that the claimant had been suffering from depression for about, or at least six months.  An exact six month period would put the start of the depression at 12 September 2006.  The expression “at least” might reasonably encompass the backdating required to get to 21 August 2006.  In my view, there is material which suggests that the mother had consistently regarded the claimant as suffering from severe depression since before the date of the decision.

23.	It does not, of course, follow that the tribunal was bound to find that that was the case.  The tribunal clearly understood, however, that the claimant’s case was being put on that basis and it was therefore incumbent on the tribunal to give adequate reasons for rejecting the case put on her behalf.  If the letter had not been written, the points relied on by the tribunal would well have justified their conclusion.  The points made in the Secretary of State’s submission would also have been forceful ones.  As it is, however, nothing has been said about why the evidence of depression at an earlier stage carries little or no weight.  I have come to the conclusion that in failing to give reasons directed to that point, the tribunal erred in law.

24.	That is not to say that there were no reasons which could have been given.  I draw attention in particular to the discrepancy between the claim pack, completed a few days earlier, and the contents of the letter.  If the tribunal relied on that to discount the letter, however, the point ought in fairness to the mother to have been put to her so that she had an opportunity to answer it.  That does not appear to have been done.

25.	I am fortified in my conclusion by the point made about the attendance record.  In my view, the significance of this point is that the tribunal relied, in paragraph 9 of their reasoning, on the attendance record as casting doubt on some of the mother’s evidence.  This is in the context that the tribunal generally was hesitant about the mother’s evidence.  If the tribunal did indeed misunderstand the record, their view of the mother’s evidence may have been mistakenly affected in an adverse way.  It is not clear what the true position is and I do not treat this as an error of law, but it is a matter which can be clarified on the rehearing.

26.	Even if the claimant is subsequently successful in showing that she was suffering from depression at the date of the decision, it does not necessarily follow that a claim will succeed.  As I have already said, there is no clear evidence in the detail envisaged by the claim form about the extent of the claimant’ care needs.  The requirements of s.72(1) of the Social Security and Contributions Act 1992 may still not be satisfied.  Moreover, as the tribunal pointed out, it will be necessary under section 72(5) to show that the claimant requires substantially more attention than a child of her age in normal health.  It is not unknown for teenagers in normal health to require prompting to get up and get dressed.  Finally, section 72(3) requires that the statutory conditions should be satisfied for at least three months before the date on which the award would begin.  It is not necessary, however, for me to take those matters further.

27.	For those reasons I set aside the decision of the tribunal and remit the matter to be 
heard by a new tribunal, which will have regard to the points made above.  The parties may also find it useful to bear those points in mind in preparing for the hearing.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           21 September 2007