Northern Ireland - Social Security and Child Support Commissioners' Decisions

MMcV v Department for Social Development (DLA) [2010] NICom 30

Decision No:  C8/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 30 April 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The claimant in this case is a child born on 13 November 1999.  On his behalf his mother appeals, with the leave of a Commissioner, against the decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant was entitled only to the middle rate of the care component of disability living allowance (DLA) from and including 13 November 2007 until 12 November 20011 and is not entitled to either rate of the mobility component of DLA from and including 13 November 2007.

 

2.     Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

 

3.     The claimant was in receipt of DLA, high rate care component, from 3 September 2003 to 12 November 2007.  A renewal claim, in respect of the period from 13 November 2007, was received in the Department on 21 August 2007 indicating that the claimant had ADHD, dyslexia and learning difficulties.  On 12 September 2007 the Department appointed the claimant’s mother to act on his behalf.  On 12 September 2007 it was decided that the claimant satisfied the conditions of entitlement for middle rate care component from 13 November 2007 to 12 November 2011.  The claimant’s mother then appealed this decision on behalf of her son on 28 September 2007.

 

4.     On appeal the tribunal gave the following reasons for its decision in relation to the care component:

 

“The Appellant, who was born on 13.11.1999, had been receiving the highest rate of the care component of Disability Living Allowance from 03.09.2003 to 12.11.2007.  By Decision dated 12.09.2007 his award was reduced to the middle rate of the care component from 13.11.2007 to 121.11.2011.  The Appellant appeals against that decision.

 

This appeal was heard as a Paper Hearing and the Appellant’s General Practitioner notes were available to the Tribunal.  The middle rate of the care component for day attention was not disputed and the Tribunal looked specifically at the Appellant’s night needs.

 

The Tribunal tracked the Appellant’s treatment under the care of Dr N…., Consultant Paediatrician.  The Appellant has been diagnosed with Attention Deficit Hyperactive Disorder with behavioural problems and sleep difficulty.

 

Dr N…… prescribed Melatonin to enhance the claimant’s sleep and increased the dose of Melatonin to 9mg in June 2007.  In November 2007 Dr N…..’s Senior House Officer noted that (“the claimant’s) sleep is good when he takes his Melatonin”.

 

At review in September 2008 Dr N….. did not increase (the claimant’s) Melatonin stating: “at least the Melatonin is doing the job required of it and (the claimant) and his Mum get a good night’s sleep”.

 

The Tribunal finds on the above evidence that it is likely that the Appellant has no need for prolonged or repeated attention at night and that it is likely that he does not need to be watched over at night within Disability Living Allowance.  The Tribunal, so finding, does not consider it necessary to make a further finding as to whether or not any such requirements are substantially in excess of the normal requirements of persons of his age.  Accordingly the Tribunal affirmed the Department’s Decision and dismissed the appeal.”

 

5.     In addition the tribunal gave the following reasons for its decision in relation to the mobility component:

 

“The Appellant, who was born on 13.11.1999, had been receiving the highest rate of the care component of Disability Living Allowance from 03.09.2003 to 12.11.2007.  By Decision dated 12.09.2007 his award was reduced to the middle rate of the care component from 13.11.2007 to 12.11.2011.  The Appellant appeals against that Decision.

 

This appeal was heard as a Paper Hearing and the Appellant’s General Practitioner notes were available to the Tribunal.  The Appellant’s mother, (…), is his appointee.  In (the claimant’s) renewal claim form his mother stated that he has no problems walking but that he required to be restrained when walking outdoors because of his severe behavioural problems and lack of awareness of danger.  (The claimant) has been diagnosed as having Attention Deficit Hyperactive Disorder with behavioural and sleep difficulty.

 

The Tribunal prefers the evidence of the Principal of G…… Primary School which states that (the claimant) is aware of common dangers appropriate to his age and that he does not have any dangerous tendencies or behaviour problems.  Further the Principal stated that (the claimant) had road safety awareness appropriate to his age and did not have any supervision needs either indoors or outdoors not appropriate to his age.  Accordingly, the Tribunal finds that (the claimant) does not require substantially more guidance or supervision out of doors on unfamiliar routes than a normal child of his age or otherwise within Disability Living Allowance.  The Tribunal affirms the Department’s Decision and dismisses this appeal.”

 

6.     The claimant’s mother sought leave from the legally qualified member (LQM) to appeal to a Commissioner.  Leave was refused by the LQM on 12 August 2009.  However, leave was then sought from a Commissioner.  On 10 February 2010 a Commissioner granted leave for the following reasons:

 

“It is arguable that the decision was wrong in law, because –

 

(i)         the tribunal did not deal with the issue of bowel incontinence and, in particular Dr N……’s evidence in this respect; and

 

(ii)        the tribunal did not deal with the issue of sleepwalking in relation to whether the claimant needed attention or supervision by night.”

 

7.     The claimant is represented by his mother while the Department is represented by Mr John Kirk of Decision Making Services (DMS).

 

8.     The claimant’s mother has submitted, without more, that the tribunal erred in law because ‘I have strong proof my child has bad sleeping patterns and has to be assessed at all times during night and it [sic] incontinent.’  Mr Kirk has made an extensive written submission dated 8 December 2009 and in it he agrees that the decision of the tribunal dated 30 April 2009 is erroneous in law.  In Northern Ireland the Commissioners are fortunate that, in every relevant case, officers of DMS are prepared to make helpful and objective submissions, especially in cases where claimants are not professionally represented.  This case is no exception.

 

9.     In the circumstances I consider it appropriate to quote Mr Kirk’s written comments, contained in a letter dated 8 December 2009, which are as follows:

 

“The documents considered by the tribunal dated 30 April 2009 consisted of the Department’s submission and the General Practitioner notes and records.  As the hearing of 30 April 2009 was a paper hearing the tribunal were reliant upon the evidence before it.  I note that paragraphs 8, 10 and 11 of the record of proceedings the tribunal stated:

 

 

“No mention of incontinence

13.11.2007; “his sleep is good when he takes his melatonin”

{Dr N…..’s Senior House Officer}

03.09.2008; Dr N.…. had not increased the Melatonin again and stated “At least the Melatonin is doing the job required of it and (the claimant) and his Mum get a good nights sleep”.”

 

         Furthermore at paragraphs 2 to 6 of the reasons for its decision relating to the personal care component the tribunal stated:

 

“… The middle rate of the care component for day attention was not disputed and the Tribunal looked specifically at the Appellant’s night needs.

 

The Tribunal tracked the Appellant’s treatment under the care of Dr N……, Consultant Paediatrician.  The Appellant has been diagnosed with Attention Deficit Hyperactive Disorder with behavioural problems and sleep difficulty.

 

Dr N…….. prescribed Melatonin to enhance (the claimant’s) sleep and increased the dose of melatonin to 9mg in June 2007.  In November 2007 Dr N…..’s Senior House Officer noted that (“the claimant’s”) sleep is good when he takes his Melatonin.”

 

At review in September 2008 Dr N……. did not increase (the claimant’s) Melatonin stating “at least the Melatonin is doing the job required of it and (the claimant) and his Mum get a good nights sleep”.

 

The tribunal finds on the above evidence that it is likely that the Appellant has no need for prolonged or repeated attention at night and that it is likely that he does not need to be watched over at night within Disability Living Allowance.  The Tribunal, so finding, does not consider it necessary to make a further finding as to whether or not any such requirements are substantially in excess of the normal requirements of persons of his age.  Accordingly the Tribunal affirmed the Department’s Decision and dismissed the appeal.”

 

         In this case the tribunal were specifically considering (the claimant’s) contended night time attention needs.  With regard to those needs I note that in the self assessment forms it had been stated that (the claimant) has to be wakened to go to toilet at night and that he would sleepwalk.  It was also stated that at times (the claimant) would wear a nappy in bed (Parts 10 and 13 of Tab no 1 of the scheduled documents).  In addition I note that in a letter dated 5 June 2008 Dr N……., the Consultant Paediatrician, had stated that R…. would suffer from bowel accidents on a regular basis.  Dr N….. did not indicate when those accidents occurred.  As Dr N….. did not specify when those accidents occurred there was in my opinion an onus upon the tribunal to consider if any of those incidents occurred at night.  Whilst the tribunal in the record of proceedings clearly state that there is no mention of incontinence (the claimant’s mother) in the self assessment forms had clearly indicated actions which could alleviate or reduce any incontinence.  In addition the tribunal has not made any reference to the evidence from Dr N…… in respect of bowel incontinence.  It may be that the tribunal had investigated this issue and found that the bowel incontinence occurred during the day only.  Alternatively in the absence of any explanation on this issue it may be reasonable to assume that the tribunal overlooked the evidence of Dr N……..

 

         Furthermore in the reasons for decision the tribunal clearly found Dr N…….’s evidence regarding medication and its effect upon (the claimant’s) sleep to be indicative of no need for attention or supervision at night.  I note that (the claimant’s mother) had indicated that (the claimant) could sleepwalk at night.  Whilst I accept that (the claimant’s mother’s) evidence indicated that she had taken steps to ensure that (the claimant) was not in any danger whilst sleep walking I would submit that it would not be unreasonable for (the claimant’s mother) to supervise (the claimant) during any episodes of sleepwalking.  There is nothing in the reasons for decision to indicate how the tribunal reached the conclusion that such supervision was not required.  In the absence of any explanation regarding either Dr N…..’s evidence of bowel problems or why night time supervision was not required I submit that the reasons for decision are clearly inadequate therefore the tribunal has erred in law.  In paragraph 60 of unreported decision C8/08-09(IB) Commissioner Mullan stated:

 

“… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.””

 

10.   I agree with Mr Kirk that the tribunal has failed to consider appropriately the issues of bowel incontinence.  Perhaps the tribunal did come to a conclusion in relation to this issue but it is not clear that it did so.  It may be that the tribunal concluded that the bowel incontinence occurred during the day only.  On the other hand, as Mr Kirk has stated, in the absence of any explanation on this issue, it might be appropriate to assume that the tribunal has, unfortunately, overlooked the evidence of Dr N……..

 

11.   In addition, in light of all the circumstances, one would have expected the tribunal to give reasons to indicate how it reached the conclusion that supervision of the claimant during sleep walking episodes was not required.

 

12.   It seems to me that the tribunal has erred by not explaining, or taking into account, the evidence from Dr N……. in relation to bowel problems or giving any explanation why night-time supervision was not required.  Accordingly I conclude that the tribunal has erred in law by not dealing with these issues explicitly.

 

13.   In light of my findings as set out in paragraphs 10 to 12 I conclude that the tribunal’s decision is erroneous in point of law.  Accordingly I allow the appeal.  In the circumstances I set the tribunal’s decision aside and refer the case to a differently constituted tribunal for a rehearing on the merits.  However, the fact that this appeal before the Commissioner has been successful should not be taken as an indication of ultimate success before the new tribunal.

 

 

(signed)  J A H Martin QC

 

Chief Commissioner

 

 

 

19 April 2010