Decision No: C7/02-03(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of the Appeal Tribunal
dated 5 April 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 12 June 1989.  On his behalf his mother appeals against the decision of the Tribunal to the effect that the claimant was not entitled to either rate of the mobility component or any rate of the care component of Disability Living Allowance from and including 16 May 2000.  Leave to appeal was granted by a Commissioner on 25 June 2002.

2.	A renewal claim on behalf of the claimant was received in the Department on 6 December 1999 indicating that the claimant suffered from severe asthma, severe learning difficulties and speech difficulties.  On 13 June 2000 it was decided that the claim should be disallowed from and including 16 May 2000.  After this decision was disputed the decision of 13 June 2000 was reconsidered on 23 June 2000.  However it was not changed.  Thereupon the claimant’s mother appealed on his behalf.  

3.	On appeal the Tribunal gave the following reasons for its decision on both the care and the mobility components:

“The claimant is 11 years old and has been asthmatic from the age of 4.

The Tribunal has perused his General Practitioner records and peak flow rate is quite good and there is nothing remarkable contained therein.

Re Mobility. Mother’s self assessment form stated mobility is severely restricted to 50 yards before severe discomfort.  On 2.5.00 she states that it is restricted to 10-15 yards with assistance.  In Dr Cupple’s first report he states 50-100 yards in 8-10 minutes, then second report 100 yards in 2/3 minutes.  Dr C… states claimant suffers from severe asthma.  The statement of special needs states moderately severe asthma which can be troublesome at times.  In evidence [the claimant’s mother] states that her son can use the inhalers but sometimes with difficulty but she could not state what the difficulty was.  Although the evidence is that his technique is good [the claimant’s mother] states that his difficulties are he can’t bend down to tie his laces but he does dress himself after PE and basically just has the same difficulty with dressing as any child his age has.  His mother advised that he could walk 300 yards without supervision which contradicts what she states about him always requiring supervision when out.  [The claimant]does PE at school and uses his inhalers when needed.

The Tribunal prefers to accept the contents of the statement of special educational needs which does not mention anxiety states.  There has been no evidence whatsoever of frequency of panic attacks or falling.  He does not reasonably require substantial more guidance or supervision than a healthy child most of the time while walking outdoors on unfamiliar routes.  [The claimant’s mother] gave evidence that he could walk unsupervised 300 yards and he can do PE at school.  The Tribunal in light of the evidence and relevant law contained in the presentation papers does not feel that [the claimant] satisfies the condition of entitlement to the mobility component of Disability Living Allowance.

Care  [The claimant] is 11 so the cooked main meal test is not applicable.  The claimant has not shown to the Tribunal that he has any requirements substantially in excess of those of a person of his age in normal physical and mental health nor has he substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age in normal physical and mental health would not have.  The Tribunal prefers to accept the contents of the statement of special needs which states he suffers from moderately severe exercised induced asthma which can be troublesome at times – he may become wheezy and needs to use his inhaler which he can manage.  The Disability Handbook states inter alia that children over 8 are expected to be proficient.  No evidence was adduced of daytime supervisory requirements and indeed the night time watch by [the claimant’s mother], the Tribunal felt was the action of an anxious parent and not really necessary for [the claimant] as he had never had to go into his mother at night nor indeed did [the claimant’s mother] state when she had to administer to or help [the claimant] in any way at night.  The time that [the claimant’s mother] checks [the claimant] or is required to check him cannot be considered as prolonged or repeated attention under legislation.  He does not satisfy the conditions for the care component of Disability Living Allowance.”

4.	The claimant’s mother sought leave to appeal to a Commissioner on behalf of her son.  A legally qualified member refused leave to appeal on 18 October 2001.  However, as stated at paragraph 1 herein, a Commissioner granted leave to appeal on 25 June 2002.  

5.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without such a hearing.

6.	The record of the Tribunal’s proceedings is not available as the claimant’s mother failed to apply for this record within the statutory time limit and therefore the record has not been produced by the legally qualified member.  (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 6 months of the date of the Tribunal decision.  The decision was issued on 5 April 2001 but the application for the record was not received until on or about 13 November 2001, a date outside the 6 month limit).  Accordingly I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as the lack of a record is due to the claimant’s mother failing to comply with the statutory time limit.  

7.	Leave to appeal was granted as there may have been an arguable issue as to whether the Tribunal was required in the circumstances to explain its preference for the evidence contained in the Special Educational Needs statement as opposed to evidence from the General Practitioner and the teacher, Miss G….  

8.	In coming to the present decision I had the benefit of, not only the papers available to the Tribunal, but also the application for leave to appeal form and various correspondence from the E…-… Partnership, solicitors, who act on behalf of the claimant, and written submissions from Mr Toner of the Decision Making and Appeals Unit of the Department (dated 13 February 2002 and a non-specific date in July 2002).  I also received a copy of a report from Ms J… S…-M…, social worker, of the Children’s Disability Team of the Newry and Mourne Health and Social Services Trust.

9.	A Tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate Tribunal on an appeal from a Tribunal on a point of law, may disagree with its views of the facts, that he or she is not able to upset the Tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the Tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the Tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

10.	An examination of the reasons for decision shows that there has been no mention of the report dated 21 March 2000 from Miss G….  Perhaps this report was referred to either by name or under the schedule of documents in the record of proceedings.  However, as stated earlier, this document is not available as it was not requested by the claimant’s mother within the prescribed time limit.

11.	The reasons for decision clearly show that the Tribunal considered the General Practitioner records and found specifically that “the peak flow rate” was quite good and that there was nothing remarkable contained in the records.  It is also clear that the Tribunal considered the evidence from the General Practitioner contained in the reports of 1 February 2000 and 19 April 2000 and also the evidence given by the claimant’s mother in the self assessment, in the statement of 2 May 2000 and the evidence at the hearing.  Also, as Mr Toner has pointed out, the Tribunal accepted the Special Education Needs statement, in relation to the diagnosis of the claimant’s condition, to the effect that the claimant had moderately severe asthma that could be troublesome at times.  

12.	The Tribunal has not spelt out specifically why it preferred the Special Education Needs statement but, in the circumstances, was this an error in law?  It seems to me that the Tribunal has clearly taken into account all the relevant evidence and in its careful reasoning has stated why it has come to the conclusion to which it came.  There is no doubt that the Tribunal’s conclusions are based on sufficient evidence and it seems to me that the assessment of the evidence was entirely reasonable and the primary facts that have been found justify the Tribunal’s conclusion.  

13.	In light of my conclusions I am satisfied that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss this appeal and confirm the decision of the appeal Tribunal.

(Signed):  J A H  Martin

CHIEF COMMISSIONER

12 December 2002