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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [1999] NISSCSC C46/99-00(DLA) (10 October 2000) URL: http://www.bailii.org/nie/cases/NISSCSC/1999/C46_99-00(DLA).html Cite as: [1999] NISSCSC C46/99-00(DLA), [1999] NISSCSC C46/99-(DLA) |
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[1999] NISSCSC C46/99-00(DLA) (10 October 2000)
Decision No: C46/99-00(DLA)
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
1. That the Tribunal had erred in considering that the claimant had to show that the attention needs came from a severe physical or mental disablement. The needs had to come from a physical or mental disablement but the severity thereof was to be judged by the level of the attention or supervision needs.
2. That the Tribunal had said that it accepted that the child had behaviour problems but in the absence of medical diagnosis was not prepared to accept that these problems came from a physical or mental disablement. Mr Stockman contended that the Tribunal had considered itself obliged to conclude that the child did not suffer from physical or mental disability because no medical explanation for her behaviour had been found.
3 and 4. That there was insufficient evidence to determine that the child was not suffering from a physical or mental disablement. Mr Stockman accepted that the onus of establishing that there was a physical or mental disablement was on the claimant but contended that the Tribunal's decision was an unreasonable or irrational one in that the behavioural problems in themselves constituted or evidenced mental disablement. Mr Stockman submitted that where the child's needs emanated from disturbed patterns of behaviour, a decision that this did not constitute physical or mental disablement was an unreasonable one.
As regards ground 2 referring to decision CDLA/1659/1997 (a decision of Commissioner Levenson in Great Britain), to determination A64/96(DLA) (of the former Northern Ireland Chief Commissioner) and to decision CDLA835/97 (of Commissioner Howell in Great Britain), Mrs Gunning contended that the Tribunal had correctly approached the question of the child's entitlement to Disability Living Allowance. It had endeavoured to establish whether or not the child suffered from a physical or mental disablement and had taken into account all the relevant medical and other evidence.
As regards grounds 3 and 4 there was sufficient evidence before the Tribunal to support its decision on the question of whether or not the child was suffering from a physical or mental disablement and it's decision thereon was not an unreasonable one in light of the evidence of the child's behavioural problems.
"[The child] has had 4 seizures.
3 have been related to a pyrexial illness. One not so related.
She has severe behavioural problems but these do not arise out of any severe physical or mental disablement.
Her behaviour is very bad at night, her mother is often up playing with her or preventing her from injuring herself by head banging.
We accept that her care and supervisory needs are substantially in excess of that required by a child of a similar age in normal health.
Her asthma usually does not give rise to night time needs unless her chest is playing up."
"We are satisfied on the medical evidence available that today's seizures are not a result of a severe physical disablement.
We believe that they are febrile in nature and as such occur only when a raised temperature is present. We believe that they would only lead to increased care and supervisory needs when a temperature is present and all the evidence indicates that there was over 12 months lapsed between her first 2 seizures and her most recent 2 seizures at the mayday weekend of this year.
We accept that [the child] does have behavioural problems and these give rise to substantial care and supervisory needs at night but we do not believe that they arise out of any severe mental or physical health disability. We refer at this point to Dr T...'s report of 7.10.98 which, while being aware of [the child's] behaviour insists that it does not emanate from any organic source.
We are grateful for [the representative's] provision of Commissioner's decision DLA/1659/1997. We note the comments of the learned Commissioner in para 10 of the appendix to the decision regarding behavioural problems but we find that there is no mental or physical health explanation for [the child's] behaviour and we are entitled to conclude that she does not suffer from a severe physical or mental disability. We feel that we are permitted to reach this conclusion following the decision of the Northern Ireland Chief Commissioner's decision [sic] A64/96 DLA. We note night time needs regarding her asthma are not being raised as an issue giving rise to substantial night time needs as [the claimant] confirmed she only gives medication when there is a flare up."
"Feels relying on CDLA/1659/1997 that it could be said [the child's] behavioural problems are a severe mental disablement. Her care and supervisory needs at night are needs which are both prolonged and repeated and require another to be usually over her for repeated or prolonged periods of time in order to avoid substantial danger to [the child].
Feels it is self evident that if [the child] has these needs there is a severe disablement."
"It is also a question of fact for the tribunal to decide whether the claimant is feigning the effects of a disability or whether alleged manifestations are the result of freely willed decisions rather than of disability. These are difficult questions, especially perhaps in relation to children, but the legislation does not give the medical profession the exclusive task of answering them in relation to entitlement to these allowances, although medical evidence will often be important and valuable to the tribunal.
8. In order to decide whether a claimant is "disabled physically or mentally" the Tribunal must take into account all relevant medical and other evidence. It would be wrong to reach a conclusion on this without doing so or to treat it as a preliminary issue in the sense of disregarding the evidence as to the effect of the claimed difficulties or problems. … the Tribunal should consider the manifestations of a condition and the actions and abilities of the claimant together with any other evidence. The fact that no diagnosis has or has yet been made, or that no label has been given or has yet been invented for the condition, does not deprive the tribunal of its jurisdiction and responsibility to decide the issue. It is for the tribunal and not for an external expert, to decide whether the claimant is "disabled physically or mentally"".
1. Consider all the relevant evidence.
2. Consider what, if any, physical or mental disablement the child suffers and if it finds there is such disablement proceed to stage 3.
3. Determine any attention or supervision needs coming from any such disablement.
4. Consider whether, if the child does have any such attention or supervision needs, they meet the quantitative and other conditions in the legislation.
5. If so the Tribunal should apply the usual additional children's tests.
(Signed): M F BROWN
COMMISSIONER
10 OCTOBER 2000