Decision No:  C42/03-04(DLA)

IRO: M (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 28 November 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the mother and appointee of the child in respect of whom disability living allowance (DLA) was claimed.  The appointee is hereinafter referred to as the mother and the said child as the child or her son.  The appeal is against the decision dated 28 November 2002 of an Appeal Tribunal sitting at Londonderry.  That Tribunal disallowed the mother’s appeal against a departmental decision dated 24 July 2001 disallowing DLA in respect of her son from and including 29 April 2001.  The child’s date of birth was 15 September 1998.  He was therefore less than 3 years old at the time of the decision under appeal to the Tribunal.

2.	The mother appealed on the basis that the Tribunal had not taken fully into consideration the report of her son’s General Practitioner and the report of Doctor K… (Community Paediatrician) outlining her son’s overall state of mind and lack of social skills.  I granted leave on a different but somewhat related ground as follows: -

that an arguable issue arose as to whether the Tribunal had adequately dealt with the issue of whether, as a result of foetal alcohol syndrome, the child suffered any disablement and if the Tribunal did find that foetal alcohol syndrome had produced disablement, the supervision needs produced by that disablement and whether those needs fulfilled the extra condition in Section 72(6)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

3.	In letters dated 17 November 2003 and 31 March 2004 the Department opposed the appeal.  The first letter was from Mr Toner of the Decision Making and Appeals Unit and the second was from Miss Fleming of that unit.  I am grateful to both for their assistance.  In relation to the claimant’s grounds Mr Toner submitted that an examination of the Record of Proceedings and reasons for decision showed that the Tribunal considered the evidence of the child’s GP and of Dr K….  The reasons also showed that the Tribunal extensively assessed the evidence.

4.	In relation to the grounds on which I had granted leave Miss Fleming submitted that the Tribunal had to consider whether the child suffered a physical or mental disablement producing attention or supervision needs to the level required to satisfy the statutory conditions for entitlement to the care component of DLA.  She submitted that the mobility component was not in issue as at the relevant date the child was below the lower age limit for consideration of that component.  The child being under age 3 at the date of the decision under appeal, Miss Fleming is correct in her submission that the mobility component was not in issue and I proceed on that basis.  

5.	Miss Fleming further submitted that, in addressing the issue of the physical aspect of the child’s condition, the Tribunal had recorded: -

“… it is clear, that the foetal alcohol syndrome has resulted in limited physical problems for the appellant.  All of the medical reports confirm, however, that these physical problems, mainly concerned with physical stature, are very well managed and do not give rise to day to day concerns.”

6.	Miss Fleming submitted that this would indicate that the Tribunal accepted that the child’s condition did produce some physical disablement but that this physical disablement did not result in any significant problems.  Again I consider this to be correct.

7.	As regards the child’s behavioural problems, Miss Fleming submitted that this was a more difficult issue for the Tribunal to decide.  She referred to the Tribunal’s reasons wherein it was stated: -

“It is clear to the appeal tribunal that the appellant does suffer from behavioural problems.  It is unclear whether the appellant’s behaviour problems are as a result of his foetal alcohol syndrome, …”

8.	Miss Fleming submitted that it was not apparent from the Tribunal’s reasons whether or not it accepted that the child’s behavioural problems were due to a disablement.  Miss Fleming accepted that the Tribunal should have explicitly made a finding on this point but submitted that this omission was not fatal to its decision.  This, she submitted was because the Tribunal had concluded that the child’s behavioural problems could be and were well managed and it was obvious that in the correct and appropriate supervised environment behavioural issues did not arise.  The Tribunal concluded that the requirements for care and or supervision described by the mother resulted from a failure to manage behavioural problems rather than arising from behavioural problems per se.  Accordingly Miss Fleming submitted that the Tribunal’s reasons showed that it did not accept that the need for care and support as claimed by the mother as arising from the behavioural problems resulted from the disablement. Rather the Tribunal concluded that they were due to the mother’s inability to manage the child.  Miss Fleming submitted that, given the medical evidence cited by the Tribunal in its reasons, this was a conclusion that the Tribunal was entitled to reach.  Miss Fleming submitted that, the Tribunal having concluded that the needs stated to be due to behavioural problems resulted from ineffective management rather than disablement, it would follow that such needs could not result in an award of DLA.

9.	Miss Fleming submitted finally that the Tribunal had concluded that the degree of attention given to the child in connection with his bodily functions was co-extensive with that given to any child of his age.  She submitted further that the Tribunal reached a decision it was entitled to reach on the evidence and that the reasons adequately explained the decision and consequently she opposed the appeal.

10.	The mother was given an opportunity to respond to these observations but did not do so.

11.	The Tribunal has obviously reviewed the evidence in considerable detail.  It does not appear to me that it failed to take into consideration any part of the evidence.  It is quite apparent that the Tribunal has taken all of the evidence on board, including that relating to the child’s state of mind and lack of social skills.  The Tribunal has clearly concluded that the child suffers from foetal alcohol syndrome.  It has also stated that it is unclear whether the behavioural problems result from the foetal alcohol syndrome.  It has also concluded that it is not generally accepted by all of those responsible for the child’s medical management that behaviour is an issue for him.  It has concluded that the evidence overall confirms that the child’s behavioural problems can be and are well managed and that when he finds himself to be in the correct and appropriately supervised environment, behaviour issues do not arise.  It appears to me that the Tribunal was entitled, on the evidence, to these conclusions.  I can find no indication that the Tribunal erred in the manner described by the mother and I therefore reject this ground. 	

12.	I come now to the ground upon which I granted leave to appeal.  It relates only to the supervision element of the conditions for DLA.  The Tribunal appears to have dealt properly with the attention element and I can ascertain no error in its decision in that respect. Miss Fleming is correct in that the Tribunal stated that it was unclear as to whether the child suffered any disablement as a result of foetal alcohol syndrome.  The Tribunal has concluded that the child suffered from behavioural problems but I find it hard to ascertain whether it considered the behavioural problems in themselves to be a disablement.  There are portions of the reasoning which make me think that it did and portions which make me think that it did not.

13.	I find it difficult to determine whether the Tribunal was of the view that the child had a disability and if so what, if any, needs came from this disability.

14.	It is not always as a matter of law necessary for a tribunal to actually specify by name what (if any) is the mental or physical disablement from which a claimant suffers.  However, there must be an express or implicit finding as to whether or not a claimant suffers from a disablement.  This is because it is only needs coming from a disability which can be considered in determining if the conditions for DLA are met.

15.	The term “behavioural problems” is not altogether helpful in that it is not necessarily indicative of a disablement.  Behavioural problems may come from or amount to a disablement.  However the term is not necessarily indicative of a disablement.  It may also be used to indicate poor or bizarre behaviour without any indication of a cause. If used in that sense the term is unhelpful in determining whether there is a disability and the extent of needs arising therefrom.  It would be good practice, where the term “behavioural problems” or a similar term is used, for a Tribunal to indicate clearly whether or not it considers these behavioural problems or some of them amount to or arise from a disablement.

16.	On balance I am prepared to conclude that the Tribunal found there to have been some disablement.  Otherwise much of its reasoning would have been superfluous.  It has concluded that not all the child’s behavioural problems came from or amounted to disablement.  I proceed on that basis.  The Tribunal has recorded the mother’s evidence that the child’s behaviour problems are extreme and “lead to a constant requirement both by day and by night for care and/ or supervision”.  The reasons continue: -

“On the basis of its analysis of all of the available evidence, the appeal tribunal has concluded that the concerns and effects which are being described by the appellant’s appointee [the mother] and which, she states, lead to a requirement for care and/or supervision, result from a failure to manage and supervised [sic] the appellant’s [the child’s] behavioural problems, rather than arising from behavioural problems per se.  On balance the appeal tribunal is of the view that the appellant’s appointee [the mother] has failed to learn sufficient and appropriate management and supervision techniques which, if implemented, would eliminate the effects of behaviour which she describes.  As a result, the appeal tribunal concludes that the effects and concerns, described by the appellant’s appointee, do not arise directly from the appellant’s behavioural problems but rather result from the appointee’s failure to adequately manage and supervise those problems.”

17.	The Tribunal in this case made a distinction which it was quite entitled to make.  It distinguished those supervision needs which came from a failure to manage and supervise the child (that is from a problem with parenting) and those which came from a disability.  The legislation provides that to qualify for DLA there must be needs arising from disablement.  Where a parent fails to exercise appropriate supervision or to appropriately manage a child and as a result of that alone a child who suffers from no disability behaves in such a manner that he requires supervision a Tribunal would be quite entitled to conclude that such supervision needs could not be taken into account for purposes of DLA.

18.	Even where a disablement exists a Tribunal is quite entitled to distinguish those needs which result from disablement and those which do not.  That appears to be what the Tribunal has done here and I can ascertain no error of law in its so doing.  It is the former only which can lead to entitlement to DLA.  However, as indicated above, it does appear that, in this case, the Tribunal considered that sufficient and appropriate management and supervision techniques were required to deal with those of the child’s behavioural problems which amounted to or came from a disablement.  That being so there was no finding as to the extent and nature of those sufficient and appropriate management and supervision techniques.  Nor was there any consideration as to whether those sufficient and appropriate management and supervision techniques were such as to satisfy the conditions for an award of DLA.  That is an error of law and I set the Tribunal’s decision aside for that reason.

19.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore remit this matter to a differently constituted Tribunal for rehearing.  That Tribunal should bear in mind the views expressed above and therefore should: -

1.	Make a finding as to whether the child suffers from a disability.

2.	Determine the supervision and/or attention needs (if any) reasonably required as a result thereof.

3.	Decide if such needs are at such a level as to fall within section 72(1) of the Act.

4.	If so, decide if either of the further conditions applicable to children and set out in section 72(b) of the Act are met.  In that connection it may derive assistance from decision R1/97(DLA), a decision of the former Chief Commissioner in Northern Ireland.

20.	My having set this decision aside is not to be taken as an indication of the likely outcome of that future hearing.

(Signed):				M F Brown
	         					Commissioner

	21 July 2004