CSDLA/76/98

The Social Security and Child Support Commissioners 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the disability appeal tribunal given at Inverness on 12 June 1997 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a rehearing.

2. The claimant was born on 28 February 1990. The claimant made a claim for disability living allowance on 22 April 1996. An adverse decision was made in respect of that claim. Thereafter another adjudication officer reviewed that decision but decided that he could not revise it so as to award benefit.

3. The claimant appealed to a disability appeal tribunal. His appeal was heard on 12 June 1997. It was unsuccessful.

4. The claimant appealed to the Commissioner. I directed an oral hearing of the appeal. This hearing took place on 1 July 1998. The claimant was represented by Mr McGregor, Trainee Advocate instructed by the Free Representation Unit. The adjudication officer was represented by Mrs Sutherland of the Office of the Solicitor to the Secretary of State for Scotland.

5. Three grounds of appeal were advanced by Mr McGregor. The first was in respect of the care component. He submitted that the tribunal had failed to give adequate reasons why it was that they reached the conclusion that the claimant did not satisfy the night-time attention condition set out in section 72(1)(c)(i) as qualified by section 72(6)(c). What the tribunal said in their reasons having made finding in fact 3 which is recorded at page 87 was:-
"We have accepted that the claimant needs assistance twice per night for about 30 minutes to take his inhaler and to calm him down to sleep again. We held by a majority that neither by virtue of the time over which he requires attention, nor by the quality or degree of attention given does he have care needs by day or by night "substantially in excess of that normally required by a child of the same age and sex."
Mr McGregor submitted that the tribunal had not reached any conclusion as to whether the attention required by the claimant at night was prolonged or repeated. They had further not explained why they reached the conclusion that such attention as he did receive was not substantially in excess of that normally required by a child of the same age or sex.

6. In respect of the latter matter raised by Mr McGregor the adjudication officer in a written submission accepted that there was an error in law by virtue of a failure to explain why the requirements were not "substantially in excess". Mrs Sutherland reiterated that submission. I consider that there is substance in both the submission made by Mr McGregor and the support for it by Mrs Sutherland and the adjudication officer in the written submission. Accordingly I am satisfied that the decision of the tribunal errs in law and must be set aside.

7. The second ground of appeal advanced by Mr McGregor was to the effect that the tribunal had not adequately explained why it was that in reaching the decision they did in respect of the supervision element of the care component they preferred the evidence of the claimant’s general practitioner as opposed to Dr Livingston. I do not consider that there is any substance in that ground of appeal. This is on the basis that it is quite clear that the evidence of Dr McNamara was preferred by virtue of the fact that Dr McNamara was the child’s general practitioner whereas Dr Livingston had only had "some contact ... recently". Thus I am of the view that the tribunal gave sufficient and full reasons for preferring the evidence of Dr McNamara.
8. The third ground of appeal related to the lower rate of the mobility component.

9. The statutory provisions insofar as they relate to the lower rate of the mobility component for those under the age of 16 are as follows:-
"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 age of 5 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.
(4)For the purposes of this section in its application to a person for any period in which he is under the age of 16, the condition mentioned in subsection (1)(d) above 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."

10.The relevant findings in fact in respect of this component are as follows:-
"1. The claimant has a serious disability in that he suffers from asthma, slow development and speech problems. He is 7 years old but has a social age of 3 to 4 years.
2. His speech problems affect his ability to communicate, making him difficult to understand.
4. The claimant has recently developed episodes of twitching and disorientation which have not yet been diagnosed.
5. The claimant is always supervised when playing outside or within the home; this is to prevent him wandering away and to provide attention in the event of an asthmatic attack.
6. The claimant has no awareness of the danger from traffic or other common hazards out of doors."
In their reasons the tribunal said:-
"5. We were asked to consider a claim for the lower rate of mobility component for the claimant. We entirely accept that the claimant "cannot take advantage of the faculty of walking out of doors without guidance or supervision from another person". However, we held by a majority that the claimant’s need for supervision is not substantially in excess of that of most 7 year olds. We held that most 7 year olds require supervision or guidance when using unfamiliar routes. Mr McGarrity dissenting pointed out that this approach would mean that no 7 year old could qualify for lower rate mobility component."
The tribunal in the decision notice issued by them at the time when they reached their decision, also found that the claimant was unable to give his name and address if he is lost.

11. Mr McGregor said that it was difficult to reconcile the findings in fact made by the tribunal with the decision which the tribunal reached in respect of the lower rate of the mobility component. It was also his submission that in the context of the claimant’s disablement the tribunal had to determine whether the claimant required guidance or supervision to take advantage of the faculty of walking out of doors for most of the time and that once findings had been made in respect of that matter the tribunal had in determining whether the allowance was satisfied to disregard any ability that the claimant may have to use routes which are familiar to him on his own. The matter then had to be put in context of the provisions in respect of section 73(4) in relation to children under the age of 16. The tribunal had in the event accepted that the claimant could not take advantage of the faculty of walking out of doors without guidance or supervision from another person but then had simply indicated that most 7 year olds require supervision or guidance when using unfamiliar routes. It was his position that in these circumstances the tribunal had not approached the appeal properly and erred in law.

12. Mrs Sutherland did not accept Mr McGregor’s principal argument. Her submission was that the tribunal had to look at the ability to walk along unfamiliar routes. She did however accept that the tribunal had erred in law in respect of giving reasons in relation to the qualification contained in section 73(4) in respect that there was evidence noted in the chairman’s note of evidence at page 81 where comparison was made with the claimant’s cousin who is in normal health.

13. I am satisfied that in their treatment of the lower rate of the mobility component the tribunal have erred in law and their decision must be set aside.
14. I did not understand it to be disputed that the tribunal were entitled to come to the conclusion that most 7 year olds require supervision or guidance when using unfamiliar routes out of doors. Indeed I would have been surprised if any other conclusion had been reached. It is almost an inevitable conclusion. The question which really required to be determined was the nature and extent of the guidance and supervision required by the claimant and make a comparison with a 7 year old in normal health. It is a defect in the tribunal’s decision that no such comparison was made though there were indicators in the findings in fact, reasons and the decision notice which would point to there being a difference being accepted by the tribunal. First there is the acceptance that the claimant has developed episodes of disorientation. Secondly there is the finding that he has no awareness of the danger from traffic and other common hazards out of doors. Thirdly there was the finding that he could not supply his name and address if he got lost. Fourthly there was a finding that he had what is described as a "social age of 3 to 4 years". All these factors appear to me to be ones which may give rise to a need for guidance or supervision which are beyond those which could be expected in relation to a normal 7 year old. The tribunal have made no attempt to explain why these requirements are not "substantially more" than most required by a 7 year old and thus satisfy the condition for the allowance. I am therefore satisfied that in respect of the lower rate of the mobility component the tribunal have erred in law and their decision must be set aside.

15. The case now goes to a freshly constituted tribunal for a rehearing. In respect of the care component the tribunal should have regard to the content of this decision. They will require to apply the test for the care component in the context of section 72(6). The claimant should make it clear whether the comparison sought to be made in respect of that section is the one contained in section 72(6)(c)(i) or in (ii) or both. In that connection and in respect of the lower rate of the mobility component it may well be that up to date medical reports will be required addressing more fully the statutory conditions for both components and the comparisons with other children without disabilities envisaged in section 72(6) and section 73(4). The freshly constituted tribunal will of course require to consider the appeal before them from the date of the claim down to the date of the hearing. In these circumstances it must be noted the claimant is now older and over 8 years of age. The starting point for the further tribunal must be to determine the extent of the requirements in guidance and supervision of any children born in the same year as the claimant in normal physical and mental health or whether they require guidance and supervision at all over the relevant period taking into account the increase in his age during that time. Once that has been established the claimant’s requirements will have to be the subject of findings over the same period. The statutory disregard contained in section 73(1)(d) of "any ability he may have to use routes which are familiar to him on his own" will require to be made both in respect of children in normal physical and mental health, if they are found to require guidance and supervision, and the claimant. Then the comparison will need to be made as to whether the claimant’s requirements are "substantially more" or that of children of his age in normal health do not require guidance or supervision. The freshly constituted tribunal are directed that the statutory conditions related to what claimant can do as opposed to will do and that the object of this element of the mobility component is to remedy the incapacity. In these regards I agree with what was said by Mr Commissioner Rice in CDLA/757/94. Thus for the case he was deciding Mr Commissioner Rice considered that looking after a claimant when she fell would be too remote and I adopted that position in CSDLA/591/97 in respect of the rendering of aid to a claimant who had a migraine attack. In this case however if the fresh tribunal accepted, as the tribunal whose decision I have set aside did, that the claimant had no awareness of danger from traffic or other common hazards any requirement for supervision arising from this is of an entirely different nature. It is directly related to the faculty of walking and is also related to keeping the claimant metaphorically on a tight rein and to remedy the incapacity of unawareness of traffic dangers and other hazards. Guidance I consider should be approached on the basis that it is related to in respect of the ability to find one’s way about in unfamiliar surroundings.

16. The appeal succeeds.

(Signed)
D. J. May QC
Commissioner 
3 August 1998