Decision No: C74/96(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

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Belfast Disability Appeal Tribunal
dated 1 July 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal brought by J W in respect of his son M arising out of a claim for disability living allowance (DLA) which was originally made on 24 October 1994.  M suffers from asthma and was born on 21 May 1990.  The claim was not allowed but following a request for a review and further information supplied by Mr W, a different Adjudication Officer revised that decision and awarded the middle rate care component from 24 October 1994 to 20 May 1996.

2.	When the boy became 5, a self-assessment review application was received in respect of the mobility component.  A further letter in February 1996 from the father asked for a review of the care component and claimed that because of M...'s deterioration he was entitled to the higher rate care.  Following further requests for reviews, different Adjudication Officers did not revise the award and did not award the mobility component.

3.	An appeal was then lodged in respect of the mobility component and in the letter of appeal it stated, "I accept the decision relating to the personal care component".

4.	A submission was made by the Adjudication Officer to the Disability Appeal Tribunal (DAT), and that submission raised the question of the entitlement to the care component as follows:-

		"As the Adjudication Officer now concerned with the case I would
		submit that alternative grounds also existed to review the decision
		dated 8.2.95 namely 28(2)(d) ie that the decision dated 8.2.95
		was erroneous in point of law in that no person acting judicially
		and properly instructed as to the relevant law could have come
		to the decision in question.  The medical evidence (Tab No 3)
		indicates that M... requires help with his inhaler 4 times during
		the day and that his condition is controlled on medication.  
		Mr W has stated (Tab No 1) that M... requires his inhaler
		3 times during the day and that each administration takes
		2-3 minutes.

		Both Mr Wand the medical report indicated that M...'s 
		condition was variable with occasional episodes.  Mr W…
		has also stated that M... requires continual supervision during
		the day and some supervision during the night on account of his
		asthma (the award of the middle rate of the care component was
		given in respect of M...'s need for continual supervision 
		throughout the day).

		As the Adjudication Officer now concerned with the case I would
		submit that the attention which M... receives at night is 
		neither repeated or for a prolonged period nor is it required
		throughout the prescribed period.

		I would also submit that assistance associated with the 
		administration of inhalers 3-4 times during the day taking in
		total 6-9 minutes cannot be considered as frequent attention
		throughout the day (in the case of children this attention has
		also to be substantially in excess of that normally required)
		nor would the time taken amount to a significant portion of the
		day.  The Commissioner in his decision CDLA58/1993 held that 
		"I do not consider that anything more than the length of time
		in the day can be taken into account under the expression "a
		significant portion of the day" since the whole tenor of that
		phrase refers to time.  That is reinforced by the fact that it 
		is then followed by the words "(whether during a single period
		or a number of periods)". ..."

5.	The times quoted in that submission in respect of the attention with administering the child's medicine are the times recorded by the child's father: firstly in a claim form of 31 October 1994, and again in a claim form of 12 February 1996 in answer to the question:-

		"How many times a day do you need help with medical treatment?"

	answer:-

		"Three".

		"Roughly how many minutes do you need help for each time?"

	answer:-

		"Two to three."

6.	The DAT which heard the appeal made the following findings of fact and recorded decision in respect of each component as follows:-.

		Care Component

		Findings

		"He needs help with his inhalers 3 times a day for 3 minutes by
		day ie attention and supervision with this for 40 minutes,
		typically (asthma).

		Typically at night help is required only 1-2 nights per week
		(Asthma).

		He very rarely has flare ups (reference eczema).

		He has moderate asthma.  He only has occasional acute episodes.
		He does not have a home nebulizer or peak flow meter.  He has
		no emergency admissions or emergency attendance at Accident
		and Emergency.  (See General Practitioner 17 December 1994 and
		20 January 1996)."

		Reasons for the Decision

		"We do not accept that the attention with inhalers is either
		frequent throughout the day or substantially in excess of normal
		attention of a child of his age.  He needs 40 minutes extra
		supervision due to this but this is not either a significant
		portion of the day or substantially in excess of the supervision
		needs of a child of his age.

		He requires extra attention or supervision only 1-2 nights per 
		week.  This is not sufficiently enough to qualify for Disability
		Living Allowance.

		The original Adjudication Officer's decision see original DAT 8
		of 8 February 1995 was clearly erroneous in point of law in that no
		person acting judicially and properly instructed as to the relevant
		law could have come to that decision.

		The Tribunal is entitled to look at both components."

		Mobility Component

		Findings

		"We accept Mr W's evidence as to his son's walking ability.
		M... was 5 on 21 May 1995.  He can walk 3/4 mile in 20-30 minutes,
		perhaps with 1 or 2 breathers.  His gait and balance are normal.
		He has no more falls than anybody of his age.  He attends a
		normal primary school.  He can play in the school yard at break
		times.  He has flare ups of asthma when he would not be allowed
		to walk even the 300 yards to the shop which normally he can do.
		He has missed only a few days (5-12) off school due to 
		exacerbations of asthma and has been taken home from school once
		or twice since Christmas 1995."

		Reasons for the Decision

		"M... was 5 on 21 May 1995.  He can walk 3/4 mile in 20-30 minutes
		including one or two stops for breath.  He has normal gait and
		balance and no more trips and falls than a boy of this age.  He can
		play in the school yard at break time.  We accept the General
		Practitioner's evidence that he can walk at least 200 yards without
		severe discomfort.  The high rate of mobility is clearly 
		inappropriate as having regard to distance, time, manner,
		severe discomfort and the risk from the exertion of walking, we
		cannot reasonably hold he is virtually unable to walk.

		Clearly no child of this age would be allowed out unsupervised on
		unfamiliar routes.  He would in any case have guidance or 
		supervision and we cannot say he receives any extra guidance or
		supervision due to his asthma, let alone supervision or guidance
		substantially in excess of normal.  So he is not entitled to the
		low rate of the mobility component."

7.	At that Tribunal Mr W objected to the care component being adjudicated upon as he had been told by the staff of the Independent Tribunal Service that the appeal only related to the mobility component and he had not come prepared to argue the care component of the claim.

8.	Being dissatisfied with the decision of the Tribunal, leave to appeal was sought on the grounds that the Tribunal erred in law in considering the care component at all, and also erred in law in not awarding the mobility component on the grounds that there was sufficient evidence to the child's entitlement.  Leave to appeal was refused by the Chairman but I granted leave to appeal and arranged an oral hearing of the appeal.  At the hearing M...'s father appeared and the Adjudication Officer was represented by Mrs Moffett.

9.	Mr W referred to various letters which he had written and raised a point in connection with the care component in that he was taken by surprise when the entitlement to the care component was raised.  As far as the mobility component was concerned, he argued that clearly the child needed much more guidance and supervision than a healthy child.  He also raised the question of him having consented to the Tribunal seeing the medical records, and because they were not available he argued that the Tribunal erred in law in proceeding without them.

10.	Mrs Moffett only concerned herself with the points of law which were raised and said that there were three areas in which there could be a possible error involved -

	(1)	jurisdiction to deal with care;
	(2)	grounds to take away care;
	(3)	whether claimant was disadvantaged without the medical evidence.

	She argued that the Tribunal merely recorded that the original decision was wrong in law without giving any reason why it came to that conclusion.  She also said that the Tribunal did not give any grounds for considering the care component at all and certainly gave no grounds for taking it away, other than the comment that the original decision was clearly erroneous in point of law.  She then said that the submission by the Adjudication Officer (which was supplied to Mr W) clearly set out that the validity of the award of the care component would be questioned at the Tribunal hearing, but accepted that Mr W had been told that only the mobility component would be considered.

11.	As far as the mobility component was concerned, Mrs Moffett said that there was no evidence which would justify the award of the mobility component because it was admitted that the child could walk at least 200 yards.  Consequently he could not be considered either unable to walk or virtually unable to walk.

12.	Mr W had argued that the child needed supervision at all times when out walking and that he would always need someone there to supervise him continually.

13.	I have considered all that has been said and the large volume of correspondence, particularly from Mr W, but the matter boils down to two points -

	(1)	Care Component

	As far as the Care component is concerned clearly the Adjudication Officer who submitted to the Tribunal that the original decision was erroneous in point of law did so on the basis of the answers given in two claim forms by Mr W which I have referred to above.  However, that evidence was contradicted many times in letters from Mr W… in which he clearly set out the time spent in administering medicine to the child.  This total amounted to 138 minutes per day.  In very helpful memorandum submitted before the hearing of the appeal, Mr Shaw (on behalf of the Adjudication Officer) drew attention to GB Commissioner's decision CA/092/92 in which it was held that the quality or degree of supervision may be taken into account in assessing the substantially in excess test.  Mr Shaw accepted that in making the original award on 8 February 1995 the Adjudication Officer had taken into account the quality of the supervision required by M... because of his asthma.  At that time the Adjudication Officer accepted that the supervision he required was substantially in excess of that required by a normal 4 year old child.  I am satisfied that the Tribunal was mislead by the submission of the Adjudication Officer then dealing with the matter, who submitted that M... required his inhaler 3 times during the day taking 2-3 minutes each time.  I am satisfied that the Tribunal erred in not recording reasons why it considered the original decision to be an error in law and also erred in not spelling out grounds why it considered it was entitled to examine the care component.

	(2)  Mobility Component

	The evidence here from the child's father is that he can walk at least 200 yards without discomfort.  The Tribunal accepted Mr W's evidence as to his son's walking ability.  Taking into account the child's age, I am satisfied that the Tribunal was correct in its decision.  I am satisfied that the child is not so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.  I am also satisfied that whatever guidance or supervision the child requires, it is not substantially more than persons of his age in normal physical and mental health would require or; that persons of his age in normal physical or mental health would not require such guidance or supervision.  I am satisfied therefore that claimant is not entitled to the mobility component.  The guidance and supervision mentioned in Dr S's letter of 2 September 1996 would not be sufficient to merit an award.

14.	As I have found that the Tribunal erred in law in regard to the care component I allow the appeal and set aside the decision which the Tribunal gave.  I am satisfied that this is a proper case in which I should give the decision which the Tribunal should have given.  The care component at the middle rate had been awarded from October 1994 and that matter had been subsequently reviewed by two different Adjudication Officers in February 1996 and in April 1996 both of whom found nothing wrong with the decision.  The evidence now, which I accept is that the administration of the medicine takes over 2 hours per day.  Clearly the entitlement to the middle rate care component exists and did exist from 24 October 1994.  Therefore my decision is that claimant is entitled to the middle rate care component from 24 October 1994 to 20 May 1998.  I am also satisfied that there is no entitlement to the mobility component.

15.	I have not made any decision on two points raised by Mr W, (1) relating to the absence of medical reports and (2) as to whether or not he was disadvantaged by the Tribunal reopening the award of the care component whenever he was of the opinion that the Tribunal would merely concern itself with the mobility component.  In the light of the fact that the care component award has now been reinstated I find it unnecessary to make either a comment or a finding on these two matters.

(Signed):  C C G McNally

COMMISSIONER

28 July 1997