Decision No:  C17/01-02(DLA)

IRO:  SHANNON    (A CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

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 Belfast Appeal Tribunal 
dated 27 November 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 22 March 1997.  On her behalf her mother seeks leave to appeal against the decision of the Tribunal to the effect that the claimant was not entitled to the care component of Disability Living Allowance from and including 14 April 1999.  I grant leave to appeal and with the consent of the parties treat the application as an appeal.  Having considered the circumstances of the case I am satisfied that the application (now the appeal) can properly be determined without a hearing.

2.	Disability Living Allowance was initially claimed by the claimant’s mother on the claimant’s behalf on 14 April 1999.  After the claimant’s mother was appointed to act on behalf of the claimant by the Department on 11 May 1999, an Adjudication Officer on 2 July 1999 decided to disallow the claim from and including 14 April 1999.  The only relevant component was the care component of Disability Living Allowance in the present case, as the claimant was not eligible for the mobility component because she was under the age of five at the relevant time.  On 2 February 2000 the decision of 2 July 1999 was reconsidered but was not changed.  After notification of this decision was issued on 8 February 2000, the claimant’s mother appealed on her daughter’s behalf.

3.	The unanimous decision of the Tribunal was in the following terms:-

“To disallow the appeal.  [The claimant] is not entitled to the care component of DLA from and including 14th April 1999.”

4.	The Tribunal gave the following reasons for its decision:-

“We do not accept the care needs of [the claimant] as outlined today to be reliable.  The medication outlined in the General Practitioner records, the lack of oral steroids, the lack of involvement of professionals during flare ups, do not indicate to us an asthmatic condition which is as severe as indicated by either [the claimant’s mother] or even Dr S... in her letter.  We find it strange that the time indicated by the mother for administering inhalers has increased substantially ie 10-15 minutes from the time indicated ie 6 months in the claim form.

At Cupar Street clinic it was indicated that all drugs would be used only twice a day with the exception of the ventolin inhaler which could be used as needed.

We found the evidence regarding night time symptoms to be indicating an improvement in [the claimant’s] situation – it was stated in the claims form that 7 nights a week [the claimant] needs help for 3-4 times.

We are now told that she would be up 3-4 nights a week for various different times.  We feel that the care needs indicated by night are excessive given the medication indicated and the 3 monthly referrals to the asthma clinic.”

5.	I do not have the record of proceedings in this case.  It seems that the record of proceedings was never applied for by the claimant as there is no record of such an application having been made to the Appeals Service.  The record of proceedings ought to have been applied for on behalf of the claimant within the statutory time limit of six months.  (Regulation 55(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 provides that an application for such a record must be received by the clerk to the Tribunal within six months of the date of the Tribunal decision.)  The decision was issued on 27 November 2000 so it is now not possible to make an application for the record of proceedings within the time limit.  I am not entitled to make any assumptions in favour of the claimant on the ground that there may have been supportive evidence in such a record as the lack of record is due to the claimant failing to comply with the statutory time limit.  However, in light of my findings, this unfortunate situation does not prevent me dealing with the appeal in an appropriate manner.

6.	The claimant’s appeal is set out in a generalised way to the effect that the claimant’s mother has stated that she explained her daughter’s condition honestly to the Tribunal and is unhappy that the Tribunal did not find her evidence, along with supportive evidence from Dr S... (contained in a letter), to be reliable. 

7.	I do not find that these grounds of appeal can support a finding that the Tribunal has erred in law.  

8.	However, Mrs Gunning of the Decision Making and Appeals Unit of the Department, has made a very relevant and succinct submission by letter dated 29 November 2001 in reply to an opportunity that was given to the Department to comment on the application for leave to appeal.  In particular she stated as follows:-

“… the reasons for decision indicate that the tribunal heard evidence from [the claimant’s mother] and considered the papers scheduled in evidence and [the claimant’s] records from her general practitioner (GP).  The tribunal decided that the medication as recorded in the GP records and the lack of professional involvement during flare-ups indicated that the asthma was not as severe as that claimed by [the claimant’s mother].  The decision suggests that the tribunal accepted that [the claimant] did suffer from a disability (asthma) but concluded that her care needs were not as great as her mother contended.  While a tribunal is not legally required to make a separate record of findings of fact relevant to the decision, the reasoning behind the decision must be reasonably clear.  The decision in this case gives no indication of the amount to care the tribunal accepted that [the claimant] did require, whether her care needs were sufficient to satisfy any of the criteria in section 72(1)(a), (b) or (c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and if so, whether she satisfied the provisions of section 72(6)(b)(i).  Accordingly I submit that the decision does not adequately explain why the claim failed and to that extent I support the application.”

9.	The reference to section 72(6)(b)(i) relates to the fact that entitlement to the care component of Disability Living Allowance may be satisfied if a child “has substantial requirements of any such description (the criteria set out in section 72(1)(a), (b) or (c) setting out the basic qualifications for the care component) which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”

10.	I accept that Mrs Gunning’s submission is correct.  The decision of the Tribunal does not indicate the amount of care that it accepted that the claimant did require nor did it deal specifically with the issue whether her care needs were sufficient to satisfy the criteria set out in section 72(1)(a), (b) or (c) and, if so, whether she was able to satisfy the provisions of section 72(6)(b)(i).

11.	In the circumstances I allow the claimant’s appeal against the decision of the Tribunal on the grounds that its decision is erroneous in point of law and I set it aside.  I refer the case to a differently constituted Tribunal for re-determination.  This Tribunal might find the decision R1/97(DLA) (a decision of Chief Commissioner Chambers) useful as it sets out in some detail the correct approach to be taken by a Tribunal when considering the application of section 72(1) and (6) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in circumstances similar to those relevant to the present case.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

15 JANUARY 2002