CDLA/2765/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Liverpool appeal tribunal dated 9 May 2001 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	This case rises out of an unsucessful renewal claim for disability living allowance on behalf of a boy named Matthew who was aged seven at the date of claim and who had been entitled to the lower rate of the mobility component and the middle rate of the care component for two years.  The tribunal determined the appeal before them without an oral hearing.  The statement of reasons for the decision is laconic but sets out their reasoning clearly enough.

“The claimant’s mother specifically requested a paper hearing on TAS 1.

She refused to allow school authorities to be approached for a report on Matthew; and did not provide any medical evidence in support of the appeal.

Matthew is said to have attention deficit hyperactivity disorder.

However, we did not consider that Matthew was severely disabled for the following reasons:

(i)	He is not on any medication;

(ii)	He is at a mainstream school;

(iii)	He is not receiving counselling or psychiatric support.

Since Matthew is not severely disabled he does not fall to be considered for an award of Disability Living Allowance.”

Matthew now appeals with my leave.

3.	The Secretary of State concedes that the tribunal’s decision is erroneous in point of law for breach of the rules of natural justice.  On reconsideration of the papers, it seems to me that the tribunal may have been led into error by the Secretary of State’s submission to them and the issue is a bit more complicated than I thought when I granted leave to appeal.  However, the fundamental point remains the same.

4.	It is well established that a claimant must be “severely disabled physically or mentally” in order to qualify for disability living allowance and that behavioural problems do not necessarily arise out of mental disablement.  However, once it is accepted that a person is disabled physically or mentally, the question whether he is “severely” disabled is to be judged solely by considering whether the claimant satisfies the conditions of paragraphs (a), (b) or (c) of section 72(1) of the Social Security Contributions and Benefits Act 1992 (see paragraph 12 of CSDLA/552/01) in the case of the care component or section 73(1)(d) in the case of the lower rate of the mobility component.  In the present case, the decision under appeal had been given on the basis that the claimant was disabled but did not require attention or supervision to the extent necessary to qualify for disability living allowance.  That the claimant was disabled had plainly also been accepted when benefit was previously awarded and the first page of the Secretary of State’s submission to the tribunal in the present case contained the statement that the claimant “has attention deficit hyperactivity disorder”, without any suggestion that that was not a form of mental disablement.  However, on the ninth page of the submission it is said:

“The evidence shows that at the time of the renewal [the claimant] was at a normal main stream school and was not receiving any psychiatric care.  The evidence also shows that he does not appear to be on any medication whatsoever.

Whilst it is accepted that [the claimant] has some behavioural problems and may require close supervision there is no evidence to suggest that these problems are as a result of any physical or mental disablement and therefore cannot qualify for an award of Disability Living Allowance.

Any prompting that he needs with personal care is also not substantially in excess of that normally required from a healthy child of the same age.”

If the Secretary of State there meant to suggest that the claimant was not suffering from attention deficit hyperactivity disorder, then the submission was inconsistent with what had been said earlier and I do not consider that the claimant was given an adequate opportunity to deal with the point.  It is no answer to say, as the tribunal did, that the claimant’s mother had not produced medical evidence in support of her contention that her son was suffering from the disorder.  She was entitled to assume that the point was not in issue and, in any event, it is the Secretary of State’s duty to investigate claims and not just to sit back and expect claimants to produce evidence on technical issues.  Despite the claimant’s lack of co-operation as regards the school, it had been open to the Secretary of State to approach her doctor.  If, on the other hand, the Secretary of State meant to suggest that, while the claimant might be suffering from the disorder, it was not a form of mental disablement, some evidence to that effect should have been produced or, at the very least, the point should have been spelt out so that the claimant’s mother could deal with it.  The Secretary of State was, however, on stronger ground in suggesting that there was a lack of evidence of a current requirement for substantially more attention or supervision than would normally be required for a boy of the claimant’s age.

4.	The tribunal simply decided that the claimant was not severely disabled and it is not clear what legal questions they asked themselves.  If, as seems probable, they decided that the claimant was not suffering from any mental disablement, that conclusion was, for the reasons I have indicated, given without the claimant’s mother having had a proper opportunity of dealing with the point.  Their decision is therefore erroneous in point of law.

5.	However, it seems to me that the tribunal would have been quite entitled, on the evidence before them, to decide that the claimant did not require sufficient attention or supervision to qualify for disability living allowance.  They did not deal with that issue in those terms and I cannot tell whether they dealt with it at all, but they could have done so and determined the point against the claimant without considering the question whether the claimant was suffering from mental disablement.  I could now give a decision to that effect.  I will not do so for two reasons.  Firstly, both the Secretary of State and the tribunal commented on the fact that the claimant was not undergoing psychiatric treatment.  However, there was evidence before the tribunal that he had been referred to a psychologist.  If they considered there to be some significance in the distinction between a psychiatrist and a psychologist, the tribunal did not mention it and, at the very least, the referral might be thought to suggest that the claimant had problems of some severity.  Secondly, the claimant’s mother may now realise how unwise she was to opt for a paper hearing so that she could explain her son’s difficulties.  I think this case should be considered afresh by another tribunal and that the claimant’s mother should opt for an oral hearing.  

6.	However, I wish to make it clear that the question of entitlement to disability living allowance depends, not simply on whether the claimant is suffering from mental disablement but also on the extent to which he requires attention or supervision in consequence of that disablement.  The precise conditions of entitlement are set out, at great length but not particularly clearly, in section 5 of the submission to the last tribunal (pages 1B to 1G of the bundle of documents).  At the moment, I do not consider that the claimant’s mother has supplied enough evidence to show entitlement.  She needs to produce more, which can, of course, simply be her own written or spoken explanation to the tribunal but which will be stronger if it comes from her doctor.  She needs to focus on the conditions of entitlement.  If the truth is that her son does not satisfy those conditions, she should consider withdrawing her appeal.  I do not know what evidence there might be so I must not be taken to be expressing any view one way or the other as to the strength of the claimant’s case.

7.	If the Secretary of State wishes to submit that the claimant is not suffering from mental disablement, he should make a submission to the tribunal explaining why he takes that view.  It may be necessary for him to make some further enquiries before doing so.

(signed)	M. ROWLAND
Commissioner
8 March 2002