Decision No: C30/95(DLA)

RE: G… D... (CHILD)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	DISABILITY LIVING ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Omagh Disability Appeal Tribunal
	dated 25 April 1994

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a late application made on behalf of G... D... a child now aged 14 years, for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer who reviewed a previous decision to award disability living allowance (DLA) at the lowest rate care component for 2 years and to withdraw the award.

2.	I arranged an oral hearing at which claimant was represented by Mr McL... and the Adjudication Officer was represented by Mr Shaw.  At that hearing I accepted the late application for special reasons, granted leave to appeal and with the consent of both parties treated the application as the appeal.  I allow the appeal for the reasons set out below.

3.	The facts are that this child when the application was made was 12 years old and suffered from severe asthma.  In the application form of August 1993 his father said:- 
		"G... needs a lot of supervision and attention during the day 
		to make sure his condition does not get any worse.  He is unable 
		to do the things a normal child of his age can do.  At night we 
		are constantly awake either supervising, helping him or comforting 
		him."  

	The claim form was also signed by the child's GP in which he said:-

		"He suffers from unstable asthma with recurring chest infections,
		coughs and shortness of breath.  Gets worse during exercise and needs 
		help and supervision by his parents."

	In the medical report signed by the GP the doctor records that the child needs help administering his medication 4 times per day and once at night and concluded his report by saying:-

		"This child also suffers from allergic rhinitis - these episodes
		occur frequent and precipital-acute asthmatic attacks."

4.	After an Adjudication Officer decided to award the care component at the lower rate a letter was written asking the Adjudication Officer to review his decision.  A different Adjudication Officer reviewed the decision and withdrew the benefit altogether.  In the decision on review the Adjudication Officer recorded:-

		"My revised decision is that G... D... is not entitled to the
		care component of Disability Living Allowance from and including
		27 July 1993.  This is because Mr D... states his son G... D...,
		aged 12, suffers from chronic asthma and becomes breathless after 
		walking a short distance.  He can walk approximately 75 yards in 4 to
		5 minutes.  One to 3 days a week, G... requires help getting out
		of bed, getting washed, bathed and getting dressed.  Help is also
		required getting out of a chair, walking around indoors and using 
		the stairs.  G... D... requires help with medication 3 times a
		day when using 2 inhalers and a nose spray.  Assistance is required
		when going to bed, when undressing and getting into bed.  He needs 
		help when using inhalers once or twice at night, 4 to 5 nights a 
		week.  G... D... would bed wet 3 to 4 times a month and this would
		occur when his asthma is bad.

		His General Practitioner states G... D... suffers very severe
		asthma with periodic acute episodes which occur twice a month and
		normally last 20 to 25 minutes.  Occasionally, symptoms would awaken
		him at night.  The General Practitioner states G... can walk well.

		On examining all the evidence and facts of the case, I find that
		G... D..., aged 12, suffers severe asthma.  In my opinion a child
		of 12 should be able to administer his own medication including an
		inhaler.  He would suffer 2 attacks a month and each would last
		20 to 25 minutes.  I would accept that during an attack he would 
		require some help with personal care needs but the attack would only
		last for a very short length of time, ie 20-25 minutes.  Therefore 
		the amount of attention provided during these periods does not amount
		to frequent attention during the day or repeated or prolonged 
		attention at night.

		Also, taking into consideration that G... would wet the bed 3 to
		4 times a month, again, I am not satisfied that this amounts to
		repeated or prolonged attention at night.  Looking at his ability
		to walk, I would accept that his ability to walk during an attack 
		would be quite limited but again, an asthma attack only lasts for
		20-25 minutes and I find that G... D... is able to walk most of
		the time without the onset of severe discomfort.  His General
		Practitioner confirms that he walks well."

5.	The letter of appeal to the Disability Appeal Tribunal to which claimant appealed against that decision sets out:-

		"... During the night G... gets very little sleep; he can get 
		very frightened and when he has an attack this gets worse.  He has
		had three acute attacks in a month and he has to be very careful
		not to aggravate this condition.  This is why he needs frequent
		attention throughout the day and night to help him deal with his
		condition and with bedwetting as this happens quite often.

		It is G...'s parents belief that their son's condition requires
		him to have constant supervision to prevent him from getting 
		into difficulties that he is unable to cope with and that would
		cause further aggravation of his condition.  This is why they
		would like to appeal the Adjudication Officer's decision."

6.	The Disability Appeal Tribunal in relation to the care component upheld the decision of the Adjudication Officer and recorded in their findings of fact:-

		"... Father and teacher help with inhalers but although this help
		is given the tribunal finds that this help is not necessarily
		required. ..."

	and gave reasons for dismissing the appeal as:-

		"Although Mr D... advises that he helps to get G... out of bed
		in the morning and to wash and dress him we do not accept that the
		child requires this help or that his coughing is so debilitating
		during the night time as to necessitate such assistance.  Whilst
		this help may be required during an acute attack the acute attacks
		are not considered frequent as to necessitate frequent attention
		during the day time with bodily functions or prolonged or repeated
		attention with such functions by night.  Neither is someone required
		to be awake for prolonged periods at night to avoid substantial
		danger or at frequent intervals.  Given the child's age we are of the
		opinion that he should be able to self medicate and we can find no
		reason why he should not do so himself.  We do not accept that he
		would get his inhalers mixed up.  We do not accept that continual
		supervision is required by day time as G... can self medicate
		and use his inhalers and indeed he always has his inhalers with him.
		Even during an acute attack we believe that G... could use his
		inhalers and summon help if necessary.  Attention is not required
		for a significant portion of the day with bodily functions.  The
		attention G... may require is not substantially in excess of that
		required for a child of comparable years."

7.	At the hearing before me Mr McL... argued that the Tribunal did not give any or sufficient weight to Dr S…'s report nor did it give any consideration to the attention which the child required and received in connection with the fact that he panics at night and needs to be comforted.  The only things which the Tribunal considered was whether or not he could use the medication himself.

8.	Mr Shaw began by apologising for the poor quality of the submission which was made to the DAT and said that it did not mention the lower rate at all.  He said that the first Adjudication Officer who awarded the benefit accepted that the child had severe asthma and in fact no-one has disputed the fact that he has severe asthma.  What the Tribunal did was to argue from the general to the particular by saying that a child of 12 should be able to administer his own medication, therefore this child must be able to do so.   That is a completely false argument because it is wrong for them to say that they were of the opinion he should be able to self-medicate and they could see no reason for him not being able to do so.  In fact it should have made a finding not what a child of 12 can do but what this particular child can do.  He also argued that it only took into account the actual medication and not whether or not the child needed comforting and said that the Mallinson case would be relevant to this and accepted that Dr S… had said that the child needed help 4 times per day with his medication and could not understand why the Tribunal rejected, as it appeared to do, the evidence of Dr S….

9.	I accept that the Tribunal erred in arguing from the general to the particular.  It made no findings in relation to this particular child but based its findings on what in its opinion contrary to what a child of 12 should be able to do.  It rejected the medical evidence, which it is entitled to do but in doing so it is obliged to give a reason.  It only said he should be able to self-medicate and said it could find no reason why he should not be able to do so.

10.	For that reason I am satisfied that the Tribunal erred in law.  I therefore set the decision aside and refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal.

	(Signed):  C.C.G. McNally 

	COMMISSIONER

	26 July 1995