Decision No:  C35/03-04(DLA)

IRO: KARLIE (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 27 November 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.The claimant in this case is a child born on 9 April 1999.  On her behalf her mother appeals against the unanimous decision of the Tribunal, affirming the decision of a decision maker, to the effect that the claimant is not entitled to the care component of Disability Living Allowance (DLA) at any rate from and including 10 December 2001.  Leave to appeal was granted by a Commissioner on 16 December 2003.

2.	Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

3.	In this appeal the claimant is represented by Ms. B..., family officer of the National Deaf Children’s Society, while the Department is represented by Mrs Gunning of the Decision Making and Appeals Unit.

4.	As the claimant at the relevant time was under the age of three, she was below the lower age limit for consideration of the mobility component of DLA – see section 73(1) of the Social Security Contributions and Benefits Act  (Northern Ireland) 1992 as amended.  Therefore that component was not relevant in the current proceedings.

5.	On 10 December 2001 the claimant’s mother made a claim for DLA on behalf of the claimant stating that the claimant suffered from 40 db bi-lateral hearing loss.  A report was completed by the claimant’s General Practitioner and the Department appointed the claimant’s mother to act on the claimant’s behalf.  After considering the relevant evidence, on 21 March 2002 it was decided that the claimant’s claim should be disallowed from and including 10 December 2001.  A letter of appeal from the claimant’s mother was received on 9 May 2002.  As this was outside the prescribed time limit it was referred to a decision maker who decided to admit the appeal on 17 July 2002.

6.	The Tribunal hearing the appeal gave the following reasons for its decision: -

“This appeal was for High Rate Care Component for day and night care.  [The claimant] has 40 decibels hearing loss with hearing aids.  Her Consultant states her hearing loss is not severe although it is described as severe by her General Practitioner.  A letter from Mr Hall dated 08/10/01 to her General Practitioner gave a threshold of 40 decibels in both ears which he suggested was slight hearing loss.  She was given a hearing aid although in longer term this may not be completely necessary.  There was no other physical or mental disability.  [The claimant] is at main stream school.  She commenced peripatetic teaching and speech therapy after the decision date before the tribunal.

Taking all these factors into account the tribunal did not find that the condition was such that [the claimant] should reasonable require frequent attention throughout the day in relation to her bodily functions substantially in excess of that required by a child of her age without her problem.  Her mother agreed that she had to be constantly in the same room but we found no reason why this should be so given the level of hearing loss, lack of other conditions and use of hearing aids.  [the claimant’s] mother stated that part of the problem was coping with 2 hearing impaired children.  Unfortunately the tribunal were unable to take into account the factors relating to her other child when considering [the claimant’s] care needs.

In respect of night care we saw no reason why [the claimant] should require any attention in respect of bodily functions or supervision at night time and above the level of care normally expected for a child of this age.  [The claimant] does not require prolonged or repeated attention or correction with bodily functions at night nor is someone required to be awake for a prolonged period or at regular intervals to watch over her.

The appeal was therefore disallowed”

7.	The record of proceedings made by the legally qualified member included the following in the list of documents considered: -

“1.	General Practitioner records shown to parties and Dr T...’s AT16 of 14/11/02.
  2.		Report from S. McM... of Moy Resource Centre.
  3.		Letter from M.P. B..., peripatetic teacher.
4.	Letter from health visitor dated 24/09/02.
5.	Scheduled documents.
6.	Submission of mother handed in and read.”

8.	Leave to appeal was refused by the Legally Qualified Member on 3 April 2003.  The claimant’s mother then made a late claim to a Commissioner for leave to appeal. A Commissioner, on 12 August 2003 accepted the late application for special reasons.  Then, as stated in paragraph 1 herein, a Commissioner granted leave to appeal on 16 December 2003.

9.	The contentions made on behalf of the claimant can be summarised as follows:-

That the Tribunal erred in law by failing to make sufficient findings or facts on the key questions at issue so as to enable it properly to come to a decision and, in particular, the Tribunal’s decision was erroneous in law as it contained no mention of the report from the social worker.

10.	In granting leave to appeal I, as the relevant Commissioner, set out the following reasons for granting leave: -

“Having considered the circumstances of the case I am satisfied that the application can properly be determined without a hearing.

It is arguable that the decision was wrong in law, because – 

1.	the Tribunal might have failed properly to take into account the content of the Social Worker’s report (the report of Mrs McC… – Social Worker for Hearing Impaired People, Moy Resource Centre, Armagh and Dungannon Health and Social Services Trust);

2.	the Tribunal might have failed to resolve contradictions in the relevant evidence in relation to the severity of the claimant’s hearing loss; and

3.	the Tribunal might have failed to deal with the issues that arise from evidence from the Social Worker to the effect that substantial night care is needed.”

11.	Ms B... has made written submissions in a letter dated 2 February 2004 supporting the contention that the Tribunal erred in the respects as set out in the reasons for granting leave to appeal.  Mrs Gunning, by letter dated 6 January 2004 has contended that the Tribunal did not err in these respects and, in particular, the social worker’s report, which is at the heart of the submission made on behalf of the claimant, did not contain any new information regarding the claimant’s condition or needs.  In particular she has submitted that the report generally restates information contained in the claim form, the letter of appeal and the claimant’s written submission to the Tribunal.  Accordingly there  never was any need for the Tribunal to make specific mention of it in the reasons for its decision.  In relation to the hearing loss, she submitted that, in light of the opinion of the claimant’s ENT consultant that the hearing loss was slight, it was not unreasonable for the Tribunal to conclude as it did.  In relation to the night care issue Mrs Gunning submitted that it was clear that the Tribunal did not accept the claimant’s mother’s evidence about the claimant’s night needs (as it was entitled to do) and that the reasons for decision indicate this clearly.

12.	There is no doubt that Mrs McM...’s report is a substantial document consisting of over six pages of typescript.  It has been produced obviously with considerable care and has set out the claimant’s alleged need for attention and supervision with respect of the bodily functions of hearing.  In addition it contains references to the claimant’s requirements which are far in excess of the attention required of a child of the same age with normal hearing.

13.	I conclude that this document was a very important piece of evidence in the case although I do also appreciate that much of it is not only evidence but is also in the form of advocacy on behalf of the claimant.  Nevertheless, in my view, before the Tribunal can come to a decision in this case, it must take due account of this evidence and, where necessary, accept or reject the main contentions contained in the report.  Very reluctantly I come to the conclusion that on this occasion the Tribunal failed so to do and in the circumstances has erred in law as the Tribunal’s reasons do not appear to me to take its existence into account.

14	In light of my finding on this point perhaps the other issues in this case are somewhat academic.  In the circumstances the conclusion to which the Tribunal came in relation to the hearing loss does not appear to be unreasonable in light of all the evidence, as there appears to have been a great difference of opinion as to the nature and degree of the hearing loss and the Tribunal was entitled, in light of the evidence, to come to the decision to which it came in relation to the claimant’s hearing loss.

15.	Also, in relation to the substantial night care issue, I am not persuaded that the Tribunal erred in law in this respect, as it seems relatively clear from the Tribunal’s reasons that the Tribunal did not accept the claimant’s mother’s evidence in relation to night needs.  This it was entitled to do.

16.	Therefore, for the reasons stated in paragraph 13 I am satisfied that the Tribunal’s decision is erroneous in law.  Accordingly I allow the appeal and set aside the Tribunal’s decision.  Consequently I refer the case back to a differently constituted Tribunal for a rehearing.

17.	By way of addendum I note that the Commissioners’ office received audiograms and comments from an audiology specialist.  These documents were not relevant to me deciding an appeal on a point of law from the Tribunal’s decision.  In any event it was somewhat difficult to work out when these documents came into existence and for what period they related.  It must be borne in mind that the new Tribunal is not entitled to take into account any circumstances not obtaining at the time when the decision appealed against was made, namely 21 March 2002, by reason of the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 and this legal point ought to be taken into account by the claimant’s mother and her advisers when bringing evidence before the fresh Tribunal.

(signed):  J A H Martin QC

Chief Commissioner

20 April 2004