Decision No: C22/01-02(DLA)

RE: E…(A CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABIITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the Tribunal’s decision 
dated 23 November 2000.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 15 February 1986.  On his behalf his mother appealed against the decision of the Tribunal to the effect that the claimant is not entitled to either the mobility component or the care component of Disability Living Allowance from and including 16 April 1999.  Leave to appeal was granted by a Commissioner on 27 March 2002.  Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

2.	The claimant was originally awarded the lower rate of Attendance Allowance from 4 April 1989 to 25 December 1989.  This was increased to the higher rate from 26 December 1989 to 5 April 1992 and, following the introduction of Disability Living Allowance, to the highest rate of care component from 6 April 1992 to 14 February 1996.  Apparently due to an administrative error this award was incorrectly labelled on a computer system as an indefinite award.  Accordingly the payment was made up until 8 April 1999.  The department chose that date to determine the renewal claim.  Therefore on 16 April 1999 the claimant’s mother made a claim for Disability Living Allowance on behalf of her son stating the he suffered from asthma, behavioural problems and bed wetting.  On 21 June 1999 an adjudication officer disallowed the claim from and including 16 April 1999.  After a request for a review was received on 3 August 1999, a different adjudication officer on 6 August 1999 reviewed the decision of 21 June 1999 but did not revise it.  The claimant then entered an appeal on 15 November 1999.  As this appeal was outside the relevant three month time limit it was referred to a legally qualified member who decided to admit the appeal on 18 February 2000.
3.	The Tribunal unanimously disallowed the appeal and decided that the claimant was not entitled to either component of Disability Living Allowance from and including 16 April 1999.

4.	The Tribunal gave the following reasons for its decision in relation to both the mobility and the care component:

“Having seen and heard [the claimant’s mother] today and considered all the available     evidence we are satisfied that [the claimant] (date of birth 15.2.86) does not come within any of the criteria for receipt of either component of Disability Living Allowance.

With regard to mobility component, while we accept that [the claimant’s] asthma will obviously have exercise related symptoms, none of the evidence would suggest that he is unable or virtually unable to walk.  His mother indicated (self assessment form) that he would be able to walk about 400 metres – 4 or 5 minutes without severe discomfort and confirms this assessment today.  We conclude on the basis of the above, that he is not unable or virtually unable to walk due to physical disability.

[The claimant’s mother] contends that [the claimant] needs guidance and supervision to walk outdoors because of a combination of a need for assistance to take medication, behavioural problems, and an innocent outlook on life which might make him vulnerable to approach by a stranger.  As the last of the these reasons is unconnected to any physical or mental disability it cannot give rise to Disability Living Allowance mobility needs.  Although [the claimant’s mother] referred extensively to behavioural problems.  The self assessment form, there is little or no other evidence to substantiate this, other than one passing release by Dr M H... (letter 13 September 99) to [the claimant’s] other behavioural problems.  In the absence of any other reference to behavioural problems in the course of a very extensive medical file and school assessment (including psychologist’s) reports, we feel it not unreasonable to conclude that behavioural problems have little or no impact on [the claimant’s] daily life.  We note, for example, that he is able to travel to school by public transport.

With regard to [the claimant’s mother’s] contentions that [the claimant] needs assistance to take his medication this is not substantiated by the report from his General Practitioner (which we prefer to [the claimant’s mother’s] evidence) who confirms that [the claimant] is able to self medicate except when actually ill (report 29.5.99) – we did not accept [the claimant’s mother’s] contentions that this General Practitioner would not be familiar with [the claimant’s] condition because he more frequently seen another General Practititoner.  Dr F... in his report clearly demonstrates familiarity with the amount and kind of help [the claimant] needs and his condition.  We are therefore satisfied on the basis of the above that [the claimant] does not need guidance or supervision most of the time to walk outdoors disregarding any ability he may have to use familiar routes on his own.

With regard to care needs, again, we felt [the claimant’s mother’s]contentions regarding the amount and type of help and supervision needed was not supported by medical evidence. 

We feel that Dr F...’s report (Ref: above) gives us a fairly clear picture of [the claimant’s] condition and needs and that this is confirmed by the evidence from the consultant paediatrician available in General Practitioner notes.  The picture we get from this evidence is that (a) [the claimant] can self medicate other than when ill, (b) he needs assisted to do so during acute episodes, (c) these occur less than once a month on average lasting a few days each (extrapolated from consultant paediatrician – letters of clinic attendance, 26 September 2000, 23 May 2000 and 25 January 2000 which refer to a total of 2-3 acute episodes in this period), (d) that other than during acute episodes, treatment is by way of inhaled rather than nebulised medication (we accept he would need some help setting up nebuliser) – on review on 25 January medication was Oxis via a turbohaler, Uniphythin tablets, Pulmicort via turbohaler and Bricanyl via turbohaler, no recommended nebuliser treatment.  This same medication was again recommended at clinic on 23 May 2000.

The medical evidence, we feel, presents a very different picture from that picture given by [the claimant’s mother] of [the claimant’s] condition and needs.  We accept and prefer the medical evidence and for this reason feel that [the claimant’s mother’s] evidence as regards [the claimant’s] day and night needs is less than accurate or reliable.  On the basis of the medical evidence we accept that at most [the claimant] needs supervised by day to ensure that he has taken the recommended medication which should occupy no more than a few minutes each day and that he only occasionally, during acute episodes, needs more help.  Also on the basis of Dr F...’s report we are satisfied that he has night time needs only during acute episodes i.e. for periods lasting a few days and occurring less than once a month.

We are not satisfied that he needs attention for a significant portion of the day, frequently throughout the day or on a prolonged or repeated basis at night.  Nor, given that we find [the claimant] can usually self medicate and would be aware of changes in his condition, do we accept a need for continual supervision by day or any watching over by night to avoid substantial danger.  We did not as explained above, accept [the claimant’s mother’s] evidence regarding [the claimant’s] need for attention, supervision or mobility by day or night.” 

5.	The claimant, who is represented by Mr McGlone, sought leave to appeal to a Commissioner.  The legally qualified panel member refused leave to appeal on 17 May 2001.  However, as already stated in paragraph 1, leave to appeal was granted by a Commissioner on 27 March 2002.

6.	No record of proceedings of the Tribunal hearing is available in this case.  The reason for this is that, whilst the Tribunal decision was issued to the claimant’s mother, on behalf of the claimant, on 4 December 2000, the record of proceedings was not requested until 29 June 2001.  Under regulation 55(2) of the Social Security and Child Support (Decisions and Appeals Regulations) (Northern Ireland) 1999 an application must be received by the clerk to the Tribunal within six months of the date of the Tribunal decision.  Accordingly the legally qualified panel member on 31 July 2001 did not accept the application for the record of proceedings of the Appeal Tribunal as it was received outside the absolute time limit.  I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence of such a record as the lack of record is due to the claimant’s mother, on behalf of the claimant, failing to comply with the statutory time limit.

7.	As well as various correspondence from the claimant’s mother, I also have the benefit of written submissions from Mr Toner, of the Decision Making and Appeals Unit of the Department, dated 4 December 2001 and 18 April 2002.

8.	The ground of appeal is that it is submitted on behalf of the claimant that the Tribunal erred in law by stating that the alleged care needs were unsupported by the medical evidence.  The claimant’s mother submits that this evidence supports the claimant’s case.  The relevant evidence appears to be as follows:

(1)	Dr B F... stated in writing on 12 April 1999 that continuing severe asthma had caused the claimant to have many hospitals admissions and required continuous and complicated phone monitoring and drug administrations by his mother by day and night, plus outpatient attendances.  He also mentioned that the claimant has limited exercise tolerance and requires home physiotherapy:

(2)	Dr G McI... stated in a letter dated 13 September 1999 that during the exacerbations of asthma the claimant’s condition detetoriates very rapidly, the change from apparently being well to being very seriously ill being the fastest that he has known. 
9.	It must be accepted that the Tribunal considered this evidence.  Whilst, as stated earlier, I do not have access to the record of proceedings, it is the custom to record such evidence under the heading “Documents considered” in the record of proceedings.  Moreover, it is recorded in the reasons for decisions that the Tribunal took account of all the available evidence and, in my view, this must have included Dr F...’s and Dr McI...’s written evidence.

10.	The Tribunal, in its very carefully reasoned decision, clearly has considered the medical evidence and in particular took special care in evaluating the general practitioner’s notes and evidence from a consultant paediatrician confirming the report of Dr F... dated 25 May 1999.  In light of all this evidence the Tribunal was obliged to make relevant findings regarding the claimant’s ability to self medicate, regarding the assistance he required to administer medication, regarding the frequency and duration of acute episodes and the type of treatment required.

11.	The Tribunal has concluded in light of the available evidence that, apart from periods of acute episodes, the claimant only needs supervision for a few minutes each day to ensure that he is taking the recommended medication.  This is a conclusion that the Tribunal was entitled to come to in light of the evidence before it.  A Commissioner, hearing an appeal on the point of law, is not entitled to substitute his view of the evidence in circumstances where the Tribunal, as in this case, has come to a rational and reasoned decision in light of all the evidence available.

12.	In light of my conclusions I am satisfied that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss this appeal and confirm the decision of the Appeal Tribunal.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

31 JULY 2002