AA-v-Department for Social Development (DLA) [2013] NICom 45
Decision No:  C47/12-13(DLA)

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 12 December 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Strabane on 12 December 2011.

2.	I granted leave to appeal and I held an oral hearing of the appeal on 21 May 2013.

3.	For the reasons I give below, I disallow the appeal.

REASONS

	Background

4.	The claimant is a child born on 24 May 1997, who I will subsequently refer to as B.  B was awarded disability living allowance (DLA) by the Department for Social Development (the Department) from 22 September 2005 to 23 May 2011.  The award was at the low rate of the mobility component and the high rate of the care component.  On 25 May 2011, B’s mother, made a renewal claim for DLA on the basis of needs arising from hydrocephalus, migraine, acne and nosebleeds.  Evidence was obtained by the Department from B’s school and his consultant paediatrician.  On 28 June 2011 B’s claim was disallowed.  On 10 October 2011 B’s mother was appointed by the Department to act on behalf of B.  I will subsequently refer to her as the appointee.  She appealed.

5.	A tribunal heard and disallowed the appeal on 12 December 2011.  The appointee requested a statement of reasons for the tribunal decision.  This was issued on 20 February 2012.  On 20 March 2012 the appointee applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  Leave to appeal was refused on 26 March 2012.  On 26 April 2012 the appointee made an application to a Social Security Commissioner for leave to appeal.

	Submissions

6.	The appointee, through her representative Mr Mitchell of Citizens Advice, submitted that the tribunal has erred in law as:

(i)	the decision contains a misdirection of law – because it did not explain adequately why the renewal claim was refused;

(ii)	the tribunal gave inadequate regard to the question of the need for supervision to avoid substantial risk;

(iii)	the tribunal wrongly required corroboration of the appointee’s oral evidence;

(iv)	the tribunal failed to address low rate mobility component correctly;

(v)	the record of proceedings is extremely short and omitted consideration of certain descriptors.

7.	The Department was invited to make observations on the grounds of the application.  Mrs Hulbert replied for the Department.  She expressed support for the application on the basis that the tribunal has not applied the test for the low rate mobility component correctly in terms of its consideration of the evidence.  Taking into account the Department’s support for the application, I accepted that the appointee has made out an arguable case of error of law and I granted leave to appeal.

	The tribunal’s decision

8.	The tribunal in reaching its decision explains that it found the evidence given on behalf of the appellant to be unconvincing.  It attached more weight to the medical evidence and the school report and found that B no longer satisfied the conditions of entitlement to DLA at any rate.

	Relevant legislation

9.	The main discussion at the hearing centred on the low rate mobility component of DLA.  The relevant legal test appears at section 73(1)(d) of the Social Security (Contributions and Benefits) Act (Northern Ireland) 1992.  This reads:

‘73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

… (d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

… (4A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) above has effect subject to the modification that the condition mentioned in paragraph (d) of that subsection shall not be taken to be satisfied unless—

(a) he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require; or

(b) persons of his age in normal physical and mental health would not require such guidance or supervision.

(5) Circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a) or (d) or subsection (2)(a) above.

(5A) Subsection (4A) above has effect subject to regulations made under subsection (5) above (except as otherwise prescribed).
….’

10.	Further conditions are prescribed by regulations 12(7) and 12(8) of the Disability Living Allowance Regulations (Northern Ireland) 1992 (the DLA Regulations).  These read:

(7) For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

(8) Paragraph (7) shall not apply where the fear or anxiety is—

(a) a symptom of a mental disability; and

(b) so severe as to prevent the person from taking advantage of the faculty in such circumstances.

	The Hearing

11.	At the hearing of the appeal the appointee was represented by Ms Banks of Citizens Advice.  The Department was represented by Mr Kirk of Decision Making Services.

12.	Ms Banks advanced a number of grounds which had been drafted by her predecessor in post.  I do not consider that there was merit in any of those grounds.

13.	Unlike R(M)1/96 - the case relied on by Ms Banks - it is obvious from the circumstances of the present case why the tribunal might have taken a different view from the previous award.  That award was based on the needs of an eight year old, whereas the present claim is based on the needs of a fourteen year old.  No further comment is needed.

14.	I do not accept that the tribunal did not address the question of whether supervision was reasonably required.  I further do not accepted that the tribunal merely rejected the appointee’s evidence solely on the basis that it was uncorroborated, contrary to R(SB)33/85.  It is clear that the supervision issue was addressed by the tribunal.  It is also clear that the appointee’s evidence was rejected because it was considered to be inconsistent with evidence from B’s school and consultant paediatrician.  This was far from a case of rejecting evidence simply because it was uncorroborated.  I further reject the contention that the tribunal proceedings were unfair and incompatible with Article 6 of the European Convention on Human Rights.

15.	Most discussion at hearing centred on the issue on which the Department had expressed support for the application for leave to appeal, namely whether the tribunal had erred in its approach to the low rate mobility component.

16.	Ms Banks submitted that the tribunal had heard evidence that B would panic when alone in unfamiliar surroundings.  She submitted that the tribunal had focussed on evidence of using routes familiar to B – such as the bus to school – or with journeys with a football team, which were not sufficient to ground a decision against B.  She further submitted that the tribunal had failed in its inquisitorial role and should have explored the appointee’s evidence further.

17.	Mr Kirk expressed support for the case advanced by the appointee.  He acknowledged that the tribunal referred to medical evidence when deciding against the appointee, but observed that the question addressed to B’s consultant in the Department’s DBD365 report form did not enquire about need for guidance or supervision.  He considered that the weight placed on the evidence concerning independent travel by bus and playing for a football team indicated an erroneous approach to the statutory test.

18.	I expressed the view that any “panic” as described by the appointee would be a manifestation of fear or anxiety.  I asked for submissions on whether there was evidence before the tribunal that any panic experienced by B was a symptom of a mental disability as required by regulation 12(8) of the DLA Regulations.  It was accepted that the medical evidence before the tribunal did not address that issue.

	Assessment

19.	It is clear to me that the tribunal based its decision on a rejection of the credibility of the appointee’s account of B’s needs.

20.	The tribunal found her account of the frequency and severity of B’s headaches to be contradicted by medical evidence.  The tribunal rejected the account of B having poor balance, leading to regular stumbles and falls at least once a day, having regard to the fact that he plays in a local football team.  Although viewing the school’s evidence with caution because of the controlled environment in which it is set, the tribunal found that it did not suggest the high level of disability claimed by the appointee.  The tribunal similarly found the appointee’s evidence to be inconsistent with the medical evidence.  Against this background, the appointee advanced the statement that if B was somewhere on his own and wasn’t familiar with the area he would panic.

21.	This statement is relied on by Ms Banks to submit that the tribunal did not address the test for the low rate mobility component correctly.  Ms Banks submits that in rejecting the evidence the tribunal has not addressed B’s difficulties on unfamiliar routes.  She submits that the tribunal has failed in its inquisitorial role.  Mr Kirk similarly submits that the tribunal did not address the aspect of unfamiliar routes.

22.	I accept that this is an arguable point.  It appears to me, however, that the tribunal did not address this issue in the detail which the parties might have anticipated simply because they rejected the evidence of the appointee that B would panic as claimed.  The tribunal says “Taking all matters into account we find the evidence given on behalf of the appellant to be unconvincing”.  In a context where the tribunal has rejected the appointee’s account of frequent headaches in the light of medical evidence of improvement, and has rejected the appointee’s account of lack of balance and daily falls in the context of membership of a football team, it was open to the tribunal to infer that the account of panic when alone was likely to be unreliable.  I do not consider that the tribunal failed in its inquisitorial duty by its approach to this issue.

23.	More fundamentally however, I consider that regulation 12(7) of the DLA Regulations presents an obstacle to this element of B’s case.  The consequence of regulations 12(7) and 12(8) is that a claimant is not to be taken as satisfying the requirements of the test for the low rate mobility component where he does not take advantage of the faculty of walking by reason or fear or anxiety, unless such fear or anxiety is a symptom of a mental disability.  Panic is a manifestation of fear or anxiety.  However, there is no evidence that B suffers from a mental disability – either in the form of evidence of diagnosis or of treatment.  The tribunal had evidence from medical professionals including B’s GP and his consultant paediatrician and no mental disability was referred to in their evidence.

24.	To the extent, therefore, that the tribunal may have erred in law by failing to investigate the contentions of the appointee regarding B’s inability to walk on unfamiliar routes without guidance or supervision due to his tendency to panic when alone, I conclude that this was not a material error of law.

25.	I disallow the appeal.

(signed):  O Stockman

Commissioner

19 June 2013