Decision No:  C46/99-00(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 22 June 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Tribunal Chairman, by the claimant (on behalf of her daughter, a child born on 6th February 1997) against a decision dated 22nd June 1999 of a Disability Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against a decision of an Adjudication Officer on a renewal claim for Disability Living Allowance.  The Adjudication Officer had decided that the child did not satisfy the requirements for any rate of either component of Disability Living Allowance.  The Adjudication Officer had reviewed an earlier decision to the same effect on 7th November 1998.  He considered that he was unable to revise that earlier decision so as to award benefit, not being satisfied that the child fulfilled the statutory criteria.

2.	The claimant appealed, her grounds of appeal being set out in an OSSC1 (NI) form dated 2nd December 1999.  Observations on the appeal were made by Mrs Gunning of the Decision Making and Appeals Unit by letter of 19th May 2000 and further observations made by letter dated 20th June 2000 from Mr Stockman of the Law Centre (NI) (representing the claimant).  I held a hearing of the appeal which was attended by Mrs Gunning and Mr Stockman.  I am grateful to both for their assistance in this matter.

3.	My decision is that the Tribunal’s decision is set aside as in error of law.  The matter is remitted to a differently constituted Tribunal with the directions given later in this decision.

4.	Mr Stockman put forward four grounds of appeal the last two of which were linked.  These grounds were as follows:-

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.

5.	Mrs Gunning opposed the appeal.  She stated that the legislative conditions for entitlement to Disability Living Allowance included a condition that the person concerned must be so severely disabled physically or mentally.  Here the child had certain needs and the correct approach was therefore first of all to consider whether the child was disabled physically or mentally and if so to test whether the child was so severely disabled as to require the relevant level of supervision attention etc.  She agreed that the Tribunal did refer to the child’s problems not resulting from a severe physical or mental disability and accepted that it would have been incorrect to disallow the appeal solely on that basis.  However she stated that the reasons for the decision also stated that the Tribunal found no mental or physical health explanation for the child’s behaviour and submitted that when the complete decision was read it was clear that the Tribunal applied the correct criteria.  In this connection she referred to determination A136/96(DLA) paragraph 6 – a decision of the former Chief Commissioner (Northern Ireland).

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.

6.	A “side issue” was also raised by Mr Stockman in relation to the precedent value if any of determinations of Commissioners.  Both parties were agreed that the decisions of Great Britain Commissioners are of persuasive authority only in Northern Ireland and I accept this view.

7.	I will deal first with the grounds 2, 3 and 4 as they are linked.  Before I do so I think it is necessary that I give some indication of the material, which the Tribunal considered.  The claimant attended with her representative at the hearing before the Tribunal and at that hearing the representative informed the Tribunal that the claimant wished to concentrate more on the child’s night time needs than on anything else.  The Tribunal also had before it General Practitioner records which included a report from Dr T... dated 7th October 1998.  The claimant gave considerable evidence as to the child’s wakefulness at night and as to her behaviour.  She stated that the child did not ever sleep through the night, would cry and call for her mother who would go in and give her a drink. If she did not do this the child would throw a tantrum and could bang her head.  Evidence was given as to how the child had been up playing for three hours the previous night and that she repeatedly did this during the night when her mother played with her and sang nursery rhymes.  The mother gave evidence that the child banged her head in temper tantrums and had head butted glass in the living room and bit her mother and that she would not occupy herself with toys etc but wanted her mother to play with her.   She also resisted the medication which she had to take. 

8.	The Tribunal was also informed that the child had been tested for epilepsy on the previous Wednesday but everything was normal and that she had two convulsions in 1998 one being temperature related and two in 1999 both being temperature related.  The Tribunal also had medical reports dated 29th May 1999 from the claimant’s GP and dated 23rd April 1999 from Dr S... Consultant Paediatrician at the Royal Hospital for sick children.  Dr S... stated that it was possible that the child’s asthma medication was contributing to her hyper-activity but stated, “I could not say that I am aware of any underlying medical condition that would be causing the child to be hyper- active.”  

9.	The Tribunal also had the submission of the Adjudication Officer, which included a copy of decision C1/97(DLA) that set out at paragraph 8 the issues, which the Tribunal in dealing with a claim for Disability Living Allowance for children may have to consider.  The first of these was whether the child had a physical or mental disability and the second was the level of the child’s requirements.

10. 	The Tribunal made the following findings of fact: -

“[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.”

11. 	In the reasons for its decision the Tribunal (which made a majority decision) recorded as follows: -

“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.”

12. 	The dissenting member’s reasons were recorded as follows: -

“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.”

13.	Leaving aside the issue as to whether or not the Tribunal applied an additional test of a severe physical disablement I deal first with ground 2.  Both Mr Stockman and Mrs Gunning were in agreement that it was necessary that any needs come from a physical or mental disablement. 

14.	 Mr Stockman said that he supported Commissioner Levenson’s analysis in decision CDLA/1659/1997.  The Commissioner accepted that a claimant must be disabled “physically or mentally”.  He also stated at paragraph 7:-

“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””.

15.	I agree that the matter of deciding whether the claimant is disabled physically or mentally is for the Tribunal and not for a member of the medical profession as such.  I agree also that all relevant evidence must be taken into account.  The Tribunal whether with the benefit of medical diagnosis or not still has the responsibility (as Commissioner Levenson states) of deciding whether or not a claimant is physically or mentally disabled.  It may decide that in the absence of  medical evidence it is unable to reach a conclusion that the claimant is disabled physically or mentally.  Equally it may decide that it can reach that conclusion without such medical evidence.  It is all for the Tribunal to decide using its judgment and experience.

16.	Mr Stockman contended that were medical evidence to be required in any case this would be unduly onerous on a claimant.  I do not agree.  Where a claimant is suspected of having a physical or mental disablement I would normally expect there to have been medical investigation on the matter and for medical evidence to be available.  Indeed in this particular case there had been investigation but the medical evidence was not to the effect that there was any physical or mental disablement.  However, medical evidence is not a statutory requirement although a Tribunal would not necessarily be in error if it were not prepared, in a particular case, to accept the existence of a physical or mental disablement without such evidence.

17.	Mr Stockman referred to my own decision in C42/99-00(DLA) and stated that I had indicated that mental disablement could manifest itself by behavioural problems.  That is of course correct but as I also pointed out in that decision behavioural problems may exist without there being a mental disablement.

18.	The Tribunal is entitled to take into consideration all the evidence and to decide whether, on that evidence, it is satisfied that there is a physical or mental disablement.  The necessity remains for a claimant to suffer from a physical or mental disablement and for needs to come from such disablement before they can count towards satisfaction of the other statutory conditions.  If a Tribunal is not satisfied having taken into consideration all the evidence that there is a physical or mental disablement it is entitled to so conclude and need proceed no further in terms of consideration of needs.  

19.	I do not think that the Tribunal in this case decided that it must always have a medical explanation, rather it decided that in this particular case it was not satisfied that there was a physical or mental disablement producing the relevant needs.  Taking all the evidence into consideration I consider that it was entitled to so conclude and that it therefore did not err as stated by Mr Stockman.  I do not think that the Tribunal considered that it was obliged to have a medical explanation.  Rather it considered that in this particular case in the absence of such explanation it was not prepared to conclude that the child’s behaviour arose from a physical or mental disablement.  I consider that it was entitled to that view.  

20.	This in large measure also deals with grounds 3 and 4.  However, I do think it important to comment on two matters which arose from the contentions put forward to me.  Firstly Mr Stockman put forward the argument that the Tribunal had insufficient evidence to reach its conclusion that the condition did not arise from a severe physical or mental disablement.  It does seem to me that this was the conclusion which the Tribunal did reach.  Bearing in mind the nature of the problems indicated many of which would not be unusual for children in normal health, bearing in mind the fact that the child had passed all her developmental milestones and bearing in mind Dr T...’s report and Dr S... report, I am not prepared to conclude that the Tribunal erred in its very definite conclusion in this respect.  However all that was necessary for the Tribunal to conclude was that it was not satisfied that  there was a physical or mental disablement producing the behavioural problems.  The burden of proof lay on the claimant and if the Tribunal was left not knowing whether the behavioural problems came from a physical or mental disablement it was entitled to conclude that this burden was not discharged.

21.	Ground 4 was that the Tribunal’s conclusion that the child did not suffer from a physical or mental disability was an unreasonable one in the light of all the evidence of her behavioural problems.  As it will be apparent from my above comments I do not agree.  There was considerable evidence of investigations having been shown as normal and this evidence also the Tribunal had to take into account.  In addition much of the behaviour itself was not so outlandish for a child of that particular age where wakefulness tantrums and attention seeking behaviour are not uncommon.  Also there were indications in the evidence that certain aspects of the child’s behaviour could be the result of deliberate choice eg. the throwing of a tantrum when the child’s mother did not come into the room with a drink at night after the child had called her.  I am not of the view that the conclusion reached in this case was an unreasonable one.

22.	In addition in certain cases it may be very difficult for a Tribunal to ascertain the explanation for a child’s behaviour e.g. whether it comes from a disablement or from external circumstances.  The Tribunal is entitled to take into account all the evidence, including whether or not medical professionals have been involved and the outcome of any investigations and the extent of any investigations and reach its own conclusions on the disablement issue.

23.	Mr Stockman also contended in relation to grounds 3 and 4 that the Tribunal had failed in its inquisitorial role in that it should have sought psychiatric evidence as to whether or not the child suffered from mental disablement.  It is for a person seeking to satisfy the conditions for Disability Living Allowance to produce such evidence as will satisfy the conditions.  The Tribunal is under no general duty to obtain this evidence.  Mr Stockman contended that the evidence relating to the child’s problems was such as to indicate an ongoing disablement.  He contended that the claimant would not have discharged the onus on the balance of probabilities but had gone some way to establish a disablement and that the Tribunal could have sought further evidence and had failed in its inquisitorial role in not doing so.  I again disagree.  None of the child’s medical advisors had seen fit to refer her to a psychiatrist and, as Mr Stockman was prepared to concede, a referral to a psychiatrist of a child of that age might not be appropriate. The Tribunal might possibly find itself in the same situation.  An adjournment for such evidence was not sought.  The Tribunal also had the benefit of Dr T...’s report and the report of Dr S..., the latter being a consultant paediatrician.  I can find no error on the Tribunal’s part in this respect and as I said previously the duty of producing evidence falls on a claimant.  I do not, as I mentioned above consider that this is an overly onerous requirement.  Where a claimant is alleging that there is a disablement one would normally expect there to be medical evidence already available in relation to it so that no unduly onerous burden is thereby placed on a claimant. 

24.	I come now to deal with ground one i.e. the issue of whether or not the Tribunal applied an additional test of severe mental or physical disablement.  I should say at the outset that to do so is an error of law.  The test is whether or not a claimant’s needs come from a mental or physical disablement.  The severity of the disablement is to be determined by the extent of the needs to which it gives rise.  

25.	The Tribunal has used the expression severe physical or mental disablement on numerous occasions through its findings of fact and its reasons.  That of itself need not be fatal to the decision.  The Tribunal would be in error if it has applied the incorrect test of severe physical or mental disablement and what I have to do is to read the decision as a whole and decide whether or not such a wrong additional test was applied.  The decision must, of course, be read against the background of the evidence and the submission. 

26.	Reading the decision as a whole I am of the view that the Tribunal did use the incorrect test.  It has repeatedly recited an incorrect test of severe mental or physical disability.  Mrs Gunning is correct in that the Tribunal has concluded that there is no physical or mental health explanation for the child’s behaviour and there is reference to Dr T...’s report which expresses the opinion that the child’s behaviour does not emanate from any organic source.  Had the Tribunal drawn from that that it was not prepared to conclude that the child suffered from any mental or physical disablement I would not have quarrelled with that conclusion.  It appears to me that on the evidence before the Tribunal it was quite entitled to conclude that the burden of proof of mental or physical disablement had not been satisfied.  However the Tribunal did not do this.  Instead it concluded that the child did not suffer from a severe physical or mental disability.  The Tribunal may well be right in that conclusion but that is not the statutory requirement.  

27.	It does appear that the Tribunal did not pose the correct initial statutory question i.e. does the child suffer from a physical or mental disablement?

28.	I set the Tribunal’s decision aside for that reason alone and direct the new Tribunal to approach the matter in stages as follows: -

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.

29. 	I would emphasise that it is only needs coming from disablement which can qualify.

30.	I would also wish to comment on two additional matters.  The first is the use of the term hyperactive.  It appears it was used by Dr S... in this case.  This term might not be of any great assistance to a Tribunal in determining the cause of certain behaviour.   It can be used simply to describe over activity.  That is how it appears Dr S... used the term.  This carries no indication of causation and over active behaviour in itself is not a disablement.  For there to be a disablement  there must be some diminution of faculty,  some impairment of mind or body.  Over active behaviour is not per se the impairment.  The term hyperactivity, without further clarification, is not therefore particularly helpful. 

31.	I was also asked about the status of Commissioner’s determinations.  These are obviously not decisions because, as Mr Stockman said, there will not necessarily be any argument put forward by the non-applicant.  While expressing no concluded view therefore it appears to me that the precedent value of these determinations, if any, is limited and certainly would not be binding in the way that a full decision would be.  

32.	That matter is, however, academic as I am setting the decision aside for the reason set out above.

(Signed):  M F BROWN

COMMISSIONER

10 OCTOBER 2000