Application No: A98/96(DLA)

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
to the Social Security Commissioner
on a question of law from the decision of the
Disability Appeal Tribunal
dated 29 January 1996

	DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child of 8 who suffers from asthma and eczema.  On his behalf his mother seeks leave to appeal against the decision of the Disability Appeal Tribunal sitting at Ballymena, whereby it was held that he was entitled to the middle rate of the care component of disability living allowance for the period from 15 October 1995 to 2 February 2001; but that he was not entitled to the mobility component.

2.	The claimant was in receipt of the care component of disability living allowance at the middle rate for day needs from 24 September 1992 to 14 October 1995.  Following receipt of a renewal claim, a factual report was obtained from the claimant's General Practitioner and on 21 June 1995 the Adjudication Officer decided that, from and including 15 October 1995, the claimant was not entitled to either of the components of the allowance.  A review was requested, and on 13 September 1995 a different Adjudication Officer refused to revise the decision of 21 June 1995; stating that, for the reasons given, she did not consider that the claimant satisfied the criteria for an award of disability living allowance.

3.	At the hearing before the Appeal Tribunal it was submitted that the claimant was entitled to both the care and the mobility components of disability living allowance, and evidence was given of his needs for attention and supervision throughout the day and at night.  The appeal was successful to the extent that the claimant was awarded the middle rate of the care component of disability living allowance for the period from 15 October 1995 to 2 February 2001.  The award was for night needs; it being recorded that the Tribunal accepted that at night, due to asthma, the claimant required "substantially more attention and supervision than a healthy boy of his age."  So far as day needs were concerned it was not accepted that these were "substantially in excess of normal for a child of 6".  

	The Tribunal further held that the claimant was not entitled to the mobility component; the basis of their decision being that he was not unable or virtually unable to walk and did not require substantially more guidance or supervision when walking out of doors than a healthy child of his age.  

4.	The grounds of the claimant's application for leave to appeal are set out in a letter dated 10 May 1996 from Mrs R....  The Tribunal is said to have erred in law in its approach to the question of whether or not the claimant had care needs substantially in excess of normal requirements.  The evidence given at the Tribunal hearing is reviewed and it is argued that the claimant's care requirements were in excess of those of healthy child and were substantial.  As I understand it, the submission is that the Tribunal erred in law in reaching the conclusion that the claimant's needs were not "substantially in excess" of normal requirements, without in so doing recording their views on whether those needs amounted to frequent attention throughout the day.  

	In relation to the disallowance of the mobility component it is suggested that the Tribunal may have been under the impression that was necessary to establish that the purpose of the guidance or supervision which the claimant required for walking out of doors was the avoidance of danger or deterioration of health.  It is further submitted that the Tribunal's decision is not supported by the evidence and that it has not been made clear whether the evidence concerning the claimant's need for guidance or supervision when walking out of doors was accepted or rejected.  

5.	In response to an invitation to comment upon the application for leave to appeal Mr G L Shaw, the Adjudication Officer now concerned with the case, by letter dated 3 September 1996 expresses some doubt as to the adequacy of the Tribunal's findings.  As he has frequently done in the past, he explains his dislike of the "overall approach" to the additional children's tests set out in sections 72(6) and 73(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, (the Contributions and Benefits Act), and he suggests that I might wish to consider whether the Appeal Tribunal erred in law in failing to have regard to the claimant's ability to walk out of doors on unfamiliar territory without guidance or supervision.  Attention is also drawn to a number of recent decisions concerning children's claims for disability living allowance and to a possible conflict between them and the reported GB Decision R(A)3/78.  

6.	In addition to his comments upon this application, Mr Shaw on 3 February 1997 provided me with a detailed written submission on the subject of "The Children's Test" which I find most helpful.  Clearly the preparation of this document has involved much time and thought and I am very grateful to Mr Shaw for his assistance in this matter.  

7.	I held an oral hearing at which the claimant, who was not present, was represented by Mr O Stockman of Law Centre (NI) of 7 University Road, Belfast.  The Adjudication Officer in attendance was Mr G L Shaw.  

	Mr Stockman stated that he did not propose to pursue the appeal in relation to the refusal of the mobility component.  He also acknowledged that there were risks involved in seeking to disturb the award of the middle rate of the care component, in that another Tribunal might conceivably decide that neither the day nor the night conditions of entitlement were satisfied.  In his submission the evidence before the Tribunal had been sufficient to establish that the claimant had disability-related needs for attention or supervision which were sufficient in themselves to satisfy the conditions of entitlement to the care component.  The Tribunal had evidently accepted that the requirements for attention occupied a significant portion of the day or were frequent throughout the day; but had nevertheless decided that they were not substantially in excess of the needs of a normal child.  Mr Stockman argued that that was not the correct approach.  In his submission the position with regard to the requirement for attention in connection with bodily functions was that the Tribunal should have looked at the totality of the claimant's needs; both those of a normal child and those which were disability-related.  If after discounting the needs of a normal child the claimant's remaining disability-related needs were sufficient to bring him within the provisions of section 72(1) of the Contributions and Benefits Act in that they occupied a significant portion of the day or were frequent throughout the day, they should on that ground alone have been accepted as being substantially in excess of the normal requirements of a child of the same age.  In order to apply the test in that way it would have been necessary for the Tribunal to quantify the claimant's normal and disability-related requirements, and the Tribunal had erred in law in not doing so.  I expressed the view that the "child care tests" only came into operation after it had been established that the claimant had disability-related care requirements which brought him within the relevant provisions of section 72(1) of the Contributions and Benefits Act and that the test then was whether those requirements were substantially in excess of normal requirements.  I further suggested that Mr Stockman's approach paid no regard to the provision that disability-related requirements must be substantially in excess of normal requirements.  Mr Stockman was clearly not convinced, and continued to maintain that if a child's disability-related needs for attention occupied a significant portion of the day or were frequent throughout the day they should qualify as being substantially in excess of normal requirements.  In his submission there were insufficient findings of fact to apply the tests set out in sub-sections (1) and (6) of section 72 of the Contributions and Benefits Act.  Alternatively, the Tribunal's decision was unreasonable in that the evidence clearly demonstrated that the claimant's needs were substantially in excess of those of a normal child.

8.	As Mr Shaw had already given his detailed views on the children's tests in his written submission of 3 February 1997 he had little to add.  He suggested that the Tribunal might have explained why they had decided to change the basis of their award of the middle rate of the care component from day to night needs.  He also expressed the opinion, with which I would agree, that, generally speaking, the "substantially in excess" test would be more difficult to satisfy in the case of a young child who needed a great deal of attention and supervision than in the case of an older child.

9.	As I mentioned at the oral hearing, I have recently given two decisions on the subject of the additional children's tests in disability living allowance cases.  Those decisions are C1/97(DLA)	and C38/96(DLA), and in them I have sought to explain my views on the earlier cases to which Mr Shaw has referred in his comprehensive written submission of 3 February 1997.  This is a complicated subject and I am not altogether sure that my decisions will assist Tribunals in their deliberations in future cases.  On the whole, the conclusions which were reached independently of Mr Shaw, are in conformity with those expressed in his submission.  My one minor reservation is that I do not regard it as necessary to direct Tribunals on how they should deal with the type of case which Mr Shaw envisaged in paragraph 31 of his submission - where a disabled child has a requirement which neither a normal child of his age nor a younger child would have.  My own view is that the second additional test in section 72(6) of the Contributions and Benefits Act is probably unnecessary, and I have no doubt that Tribunals will have no difficulty in reaching a sensible and reasonable conclusion should they ever be required to decide a case of the type envisaged by Mr Shaw.  

10.	Turning to the facts of the present case I am unable to accept Mr Stockman's submission that if a child's residual disability-related care requirements, after discounting those of a normal child of his age, would satisfy the condition that they occupy a significant portion of the day or are frequent throughout the day, they must be taken to be substantially in excess of the needs of a normal child.  In my view the "substantially in excess" test is to be applied in the manner suggested in C1/97(DLA) and in paragraph 28 of Mr Shaw's written submission.  In this instance I accept that the Tribunal's findings are scanty; but in my opinion the relevant issues have been addressed.  All the essential material is there, and it is implicit in what has been recorded that the proper comparison has been made.  Altogether the conclusion which I have reached is that there is no valid ground for holding that the decision of the Disability Appeal Tribunal is or may be erroneous in point of law and leave to appeal is accordingly refused.

(Signed):  C C G McNally

CHIEF COMMISSIONER

15 April 1997