Decision No:  C1/01-02(DLA)

 

IRO: CONALL (A CHILD)

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 4 May 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, by the claimant, leave having been granted by myself, against a decision dated 4th May 2000 of a Tribunal sitting at Newry.  That Tribunal had disallowed the appeal made by the claimant on behalf of his son in relation to Disability Living Allowance, the effective date of disallowance being 20th February 1999.  It appears that the disallowance related to a renewal claim.

2.	The appeal to me was made on an OSSC1 form dated 25th September 2000 and the grounds of appeal were set out therein as follows: -

1.	That the Tribunal erred in law in that it determined that the claimant’s son, who suffered from peanut allergy, could be expected to detect peanuts or its traces in products which did not say that they contained peanuts and which did not have to so state under the law.

2.	That the Tribunal had no evidence or not enough evidence to support its decision and that it had only used its opinion as evidence.

3.	The Tribunal did not observe the rules of natural justice in that the Chairperson got into personal conflict with the claimant and continually interrupted him while he made his submission.  

3.	Observations on the appeal were made by the Decision Making and Appeals Unit of the Department by letter dated 4th June 2001.  The Department opposed the appeal.  As regards the first ground of appeal the Department submitted that the Tribunal found that while the allergy to peanuts was potentially life threatening the claimant’s son only required care or supervision in connection with shopping and when consuming food not prepared at home.  Mr Toner submitted that the Tribunal was entitled to this conclusion on the evidence.  The Tribunal had also concluded on the evidence that the claimant’s son was of normal intelligence and aware of his condition and its potential dangers.  It had cited as an example an occasion when he, not being in the presence of an adult and feeling he might be having a reaction had made his way to his grandmother’s house to seek help.  

4.	Mr Toner submitted that on the evidence before the Tribunal it was entitled to come to the conclusion it did and therefore opposed the first ground of appeal.

5.	As regards the second ground of appeal Mr Toner stated that it was clear that the Tribunal had considered all the evidence before it and he opposed this ground of appeal.

6.	As regards the final ground of appeal Mr Toner stated that he was not in a position to offer any observation on this ground of appeal.

7.	I had stated as my reason for granting leave to appeal that I wished to be addressed as on whether or not the Tribunal’s conclusion that continual supervision through out the day was not reasonably required was open to it on the facts of the case.  In relation to this Mr Toner submitted that the Tribunal, based on the evidence, found that the claimant’s son was of normal intelligence and was aware of his conditions and potential dangers.  He again referred to the example which the Tribunal had given of the claimant’s son having made his way to his grandmother’s house to seek help when he felt he might be having a reaction.  He submitted that the Tribunal had stated that apart from care in shopping and care or supervision when food not prepared at home was being consumed it did not consider that the continual supervision would be of significant benefit to the claimant’s son.  He therefore submitted that on the evidence the conclusion that continual supervision through out the day was not reasonably required was open to the Tribunal on the facts of the case.

8.	The claimant commented on these observations by letter dated 3rd July 2001.  He submitted that while his son was undoubtedly of normal intelligence he was nonetheless still only a child with a child’s level of normal intelligence.  As regards the example of proceeding to his grandmother’s house the claimant submitted that had the child not been close to his grandmother’s house he would have very quickly gone into the full rigors of anaphylactic shock and its well documented effects.  

9.	The claimant further submitted that there was no evidence produced at the appeal or even sought and that all that was considered were the opinions of the people present which were not based on any facts and that the information which he had provided i.e. official British Medical Journal evidence and advice on the disorder and which Mr Brady had raised were not explored.  At no time was the hearing suspended to afford that avenue.

10.	As regards his ground three he felt that he was unable to deliver his submission in a fair and uninterrupted manner as virtually every pointed he raised was questioned or challenged and this was not left to the end as would be normal and fair to allow him to deliver his presentation.  He again submitted that no one could be aware of the potential dangers of consuming products because peanuts and peanut oil were in many cases not put on the ingredients list of a product and did not have to be unless there were at least 25% of the products ingredients so composed.  He also referred to the dangers of cross contamination of kitchen equipment etc.

11.	It is worthy of note that the claimant was represented at the hearing by Mr Brady, a very experienced Welfare Rights Representative.  There is no indication in the record of proceedings of any complaint being made at the time as to how the proceedings were handled.  I further note that at the end of the record of proceedings it is stated “No one had anything to add”.  It is also obvious from the record of proceedings that the claimant and his representative did give accounts as to how the claimant’s son was affected by his various health problems.

12.	I am unable to ascertain any manner in which the claimant was prejudiced in giving his evidence in the case.  Nor am I able to ascertain any manner in which the claimant’s representative was prejudiced in making his submission.  A Tribunal does have an inquisitorial role and as such the members of the Tribunal will usually play a more active part in the hearing than would a judge in a Court.  This will often involve detailed questioning (which is often necessary to ascertain whether or not a person fulfils the very detailed conditions for Disability Living Allowance) and the raising of possible inconsistencies and other issues.  So doing the Tribunal is not in breach of the rules of natural justice.  I am unable to ascertain any such breach in this case though I regret that the claimant feels a sense of grievance with the manner in which the hearing was conducted.  It might be helpful if claimants were more generally aware of the Tribunal’s inquisitorial role.  In this case it has not been alleged there was any omission from the record of proceedings and that record does indicate a full investigation as to whether or not the conditions were satisfied.  It also indicates that the claimant and his representative put their case fully. 

13.	As regards the second ground of appeal, this to me indicates a fundamental misapprehension.  It is not for the Tribunal to produce evidence.  The Tribunal has to consider the evidence put before it (which it did in this case) and has to decide whether, on its own assessment of that evidence, the conditions for the benefit are satisfied.  In this case it is quite apparent that the Tribunal did take into detailed consideration the evidence which was given and that it did apply the correct legal provisions.  I am unable to ascertain any error in relation to its conclusions on the attention conditions and on the mobility component.

14.	As I mentioned above I had granted leave in order that the question of whether or not the Tribunal was justified in its conclusion in relation to the supervision conditions could be considered.  This relates to both grounds one and two raised by the claimant.

15.	The Tribunal’s reasoning with regard to this is detailed and is as follows: -

“With regard to the peanut allergy, we have carefully considered all the evidence presented to us concerning this condition and accept that with regard to attention with bodily functions, administering adrenaline would be required should a reaction occur, but fortunately it has not been necessary for the claimant, his parents or others to do this to date, and he has been treated in hospital, apparently on 2 occasions, for severe reactions.  In addition, we accept that attention when shopping for the family is reasonably required to ensure that items containing peanuts or derivations are avoided.  It would seen reasonable that with such lengthy experience of this problem the claimant’s parents are aware of which existing foods and products should be avoided, and extra time required for shopping would not be very substantial nor would it be required every day, or even on most days.  [The claimant’s father] has argued that because the family eat out a lot because of their domestic arrangements and because they tend to use take-away foods from outlets such as Chinese and Indian restaurants that extra attention is required when ordering or checking these foods, but we do not consider that a particular chosen lifestyle which may result in potential dangers, which could easily be avoided can give rise to care needs reasonably required.  We do accept that in the more usual family situations where meals may be taken on occasions in restaurants, extra attention and vigilance would be required for a few minutes.

We have considered carefully whether this condition gives rise to a need for continual supervision throughout the day to avoid substantial danger to the claimant, or whether it requires another person to be awake and watching over him at night and we conclude that it does not, nor is there any such need on the evidence relating to the asthma or eczema conditions.  We accept that this allergy is potentially life-threatening.

The claimant in fact attends normal school and no special supervisory arrangements are made for him except that the school is aware of his peanut allergy and an epi-pen containing adrenaline is kept in school.  At the date of renewal claim (20 February 1999) he was 12 years old, is of normal intelligence and is aware of his condition and its potential dangers.  In fact on an occasion in recent times when he was not with his parents or other adults but felt he may be having a reaction, he was able to go to his grandmother’s house and seek help.

While we note [the claimant’s father] comments in his letter of 12 December 1999, apart from care in shopping as noted, and care or supervision when food not prepared at home is being consumed, we do not consider that continual supervision would in fact be of significant benefit.  Continual supervision substantially in excess of that normally required by persons of his age is not in fact provided for the claimant, nor is it reasonably required.
The claimant also suffers from a condition affecting the muscles at the back of his legs, which does not give rise to care or supervision needs.  The claimant performs nightly exercises, without assistance.  We accept that he may need reminding to do this.”

16.	These conclusions were reached against an evidential background as noted by the Tribunal of the occasions when the child had had a reaction, of the fact that the epi-pen had never had to be used, of the fact that neither the claimant nor his son had been instructed in how to use the epi-pen, that the claimant sometimes eats sandwiches from the school canteen and that the family eat out at take-aways a lot.  There was further evidence that the school also kept an epi-pen but that there were no other supervisory arrangements at the school.

17.	It should be made clear that it is not for me to substitute my conclusion for that of the Tribunal.  If the Tribunal’s conclusion on the evidence is a reasonable one then it has not erred in law.  I have considered the evidence in the case and the Tribunal’s conclusion does appear to me to be sustainable and reasonable on that evidence.  The Tribunal is certainly entitled to the conclusion that the claimant’s son was aware of his condition and its potential dangers.  It is also entitled to the conclusion that continual supervision substantially in excess of that normally required by persons of this age was not provided.  The issue that had concerned me in the case was whether the Tribunal was entitled to its conclusion that continual supervision substantially in excess of that normally required by persons of the claimant’s son age was not reasonably required.  Having perused the evidence I consider that the Tribunal was entitled to its conclusion.  As I stated above it is not for me to substitute my conclusion for that of the Tribunal but only to determine whether or not the Tribunal’s conclusion was a reasonable one.  If it was then there is no error of law in that respect.

18.	The Tribunal considered the matter on the evidence.  It did not have to produce evidence to the contrary, it only had to decide whether or not the evidence, which it accepted, satisfied the conditions.  It appears to me that while the claimant asserted that continual supervision was reasonably required the Tribunal was entitled to the conclusion that the evidence did not so establish.  It has clearly explained the reasons for its conclusion.

19.	I am unable to ascertain any error of law in the Tribunal’s decision either as stated by the claimant or in any other manner and I therefore dismiss this appeal.

(Signed):  M F Brown

COMMISSIONER

24 August 2001