[2005] NISSCSC C41_03_04(DLA) (04 July 2005) 

Decision No:  C41/03-04(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 19 May 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 5 June 1989.  On her behalf her mother appeals against the decision of the Tribunal, affirming the decision of a decision maker, to the effect that the claimant is not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from and including 20 November 2002.  Leave to appeal was granted by a Commissioner on 1 March 2004.  The substantive reasons for granting leave to appeal were as follows: -

“It is arguable that the decision was wrong in law, because, applying the rationale of Commissioner’s decision C12/03-04(DLA), the Tribunal may have erred in law in treating the decision maker’s decision of 16 August 2002 as a valid decision.”

2.	A hearing of the appeal was arranged at which the claimant’s mother was present, while the Department was represented by Miss Fleming of the Decision Making Services Unit of the Department.  The claimant’s mother conducted her own appeal, though at an earlier stage in the appeal proceedings she had been represented by Ferguson & Co, Solicitors.  The Solicitors had provided the original grounds of appeal but had made it clear, by letter dated 17 May 2005, that they would not be attending the hearing.

3.	The claimant’s grounds of appeal can be summarised as follows: -

(1)	that the Tribunal erred in law by failing to give any weight to the General Practitioner’s report of 8 July 2002 which indicated that the appellant requires “continual supervision (24 hrs)”;

(2)	that the Tribunal erred in law by failing to apply the evidence available to determine which if any of the disability tests were satisfied or, alternatively, it failed to record its decision as to the satisfaction of these tests;

(3)	that the Tribunal erred in law by failing to apply the additional test set out in section 72(6)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 as to whether the child’s requirements are substantially in excess of the normal requirements of a person of her age.

4.	The claimant had been awarded the middle rate of the care component of DLA for a period up to and including 19 November 2002.  On 14 June 2002 a written claim on form DLA 580 child was received in the Department.  This was treated as a renewal claim from 20 November 2002 when the claimant would have been aged 13 years and 5 months.  Following the receipt of a General Practitioner’s factual report dated 8 July 2002, a decision maker of the Department decided on 16 August 2002 that the claimant was not entitled to DLA from and including 20 November 2002.  On 22 August 2002 a telephone call requesting a reconsideration of this decision was received from the claimant’s mother.  A letter providing further details of the claimant’s condition was received on 19 September 2002.  On 3 October 2002 a letter dated 27 September 2002 was received from the claimant’s General Practitioner.  On 5 November 2002 the Department reconsidered the decision of 16 August 2002 but did not change it.  The claimant’s mother requested and was given an oral explanation of the decision on 21 November 2002.  An appeal request was subsequently received on 29 November 2002.  A submission to the appeal tribunal on behalf of the Department was completed on 19 February 2003.  The claimant’s mother also forwarded information in relation to nut allergies, a letter from a dietician and a number of immunology reports for consideration by the Tribunal.  On 19 May 2003 the appeal tribunal upheld the Department’s decision to the effect that the claimant was not entitled to either rate of DLA from and including 20 November 2002.

5.	The Tribunal gave the following reasons for its decision in relation to both components:

“[The claimant], aged approximately 13 at the date of the Departmental decision on 16 August 2002 not to award Disability Living Allowance, developed a nut allergy at Easter 2000.  She was awarded the middle rate care component of Disability Living Allowance (on the basis of the need for daytime supervision) for the period from 20 November 2000 until 19 November 2002.  A renewal claim was submitted on 14 June 2002 and a report obtained from the General Practitioner on 8 July 2002.

[Mrs F…the claimant’s mother], [the claimant’s] appointee, appealed the disallowance decision.

The relevant date for assessment of [the claimant’s] entitlement is 16 August 2002.

Medical condition/medical records

[The claimant] attends the Immunology Clinic at Royal Victoria Hospital and is reviewed approximately every 6 months.

The report after review in November 2001 stated that [the claimant] was continuing to have allergic reactions after inhalation of nut dust in the atmosphere but that her symptoms had improved by avoiding E numbers and nut products in her food.

The Consultant recorded in May 2002 that [the claimant] was “having regular angioedematous type reactions both on Monday mornings and at weekends and that these appear to be associated with her being brought to the local hurling club and to dancing classes where peanuts are freely available.  [The claimant’s] reactions are somewhat unusual in that they appear to be localised angioedema occurring some hours after exposure to peanut …”.

In October 2002 the Specialist Registrar recorded that [the claimant] presented with “recurrent episodes of lip swelling” after exposure to nuts in her environment.  She had been prescribed Neo-clarityn 1 BID.  He recorded that the medication was controlling her symptoms moderately and that [the claimant] had had to cease attendance at dancing classes and a hurling club in order to avoid exposure to nuts.

An Epipen (to administer adrenalin in the event of a severe reaction such as an anaphylactic attack) had also been prescribed.  [Mrs F…the claimant’s mother] reports that, due to good management of [the claimant’s] condition, with co-operation by family, friends and school, [the claimant’s] allergic reaction has not advanced to such a state that administration of the Epipen has been necessary.

[Mrs F…the claimant’s mother] reports that [the claimant’s] reactions are much more frequent and more severe than the medical records would indicate.  She disagrees with the medical records which state that Neo-clarityn is controlling her symptoms moderately.  She states that, in addition to the usual preventative dose twice each day, she had to administer extra tablets to [the claimant] when she notices any lip swelling or when [the claimant] is in sleep mode (see below).  She reports giving an extra 1-2 tablets, 3-4 mornings a week to treat sleep mode and when she notices any lip swelling, for example during the night, 3-4 times a week when [the claimant] returns from school/if they go out for a meal/at school if older sister notices any lip swelling.  [Mrs F…the claimant’s mother] reports that up to 4 tablets may be used to treat a reaction.  She believes that, if she did not intervene and administer anti-histamine tablets, [the claimant’s] reaction would get worse and she would develop swelling of her nose and throat (has had a swollen throat about 5 times in total) and eventually suffer anaphylactic shock.

[Mrs F…the claimant’s mother] reports that [the claimant] is embarrassed about her allergy and upset by the restrictions it places on her lifestyle (and that of her family).  [The claimant] will not acknowledge that she is having a reaction (lip swelling) and would prefer to do nothing, suffering face swelling etc rather than take an anti-histamine tablet of her own volition.

[Mrs F…the claimant’s mother] reports that about 4 days per week [the claimant] has episodes where she is hard to wake in the morning (“sleep-mode”) and that she has to be carried downstairs and administered anti-histamine tablets until she becomes fully awake.  The immunologists in May 2001 noted this information from [Mrs F…the claimant’s mother] but thought that these episodes were not related to a nut allergy.  They did not provide any diagnosis.

Mobility Issues

[The claimant] has no physical difficulties walking so higher rate mobility is not in issue.

[Mrs F…the claimant’s mother] states that [the claimant] is unable to go out unless accompanied by her mother as mother needs to check where she can walk in order to avoid nuts/chocolate vending locations (though cannot prevent people passing near to [the claimant] who have eaten nuts or chocolate).  Also, [the claimant] needs to be accompanied in case she does suffer an allergic reaction, neglects to take a tablet voluntarily and needs her mother to administer one.

The tribunal does not accept that [the claimant] is so disabled physically that she cannot use unfamiliar routes out of doors without guidance or supervision from another person most of the time.  [The claimant] has no mental impairment and the tribunal considers that at age 13 she would be able to identify potential sales points for nuts/chocolate etc from a reasonable distance without her mother going ahead and identifying these for her.  The tribunal also considers that it is reasonable to expect [the claimant] at age 13 to recognise the symptoms of an allergic reaction and take an anti-histamine tablet of her own volition.  The tribunal does not accept [Mrs F…the claimant’s mother’s] statement that because [the claimant] does not wish to draw attention to herself by taking a tablet, she prefers to suffer an allergic reaction which involves lip/face swelling.

Care Issues

By day

[The claimant] does not have physical care needs.  She is capable of undertaking all personal care herself.  The tribunal does not accept, as explained above in ‘mobility’, that [the claimant] prefers to suffer a progressive allergic reaction with its consequences rather than take medication voluntarily herself.

The tribunal acknowledges that [Mrs F…the claimant’s mother] and the family have been vigilant in minimising the risk of [the claimant’s] exposure to nuts but considers that [Mrs F…the claimant’s mother] has exaggerated the degree of supervision that is reasonably necessary for a 13 year old who has been living with this allergy for over 2 years and receives guidance from the immunology specialists, the dietician and the General Practitioner.  The tribunal does not accept that the hospital reports would record reasonable management of the condition if [the claimant] was having the number and severity of reactions that [Mrs F…the claimant’s mother] has reported in her evidence.  Also, at school, [the claimant] is not continually supervised.

By night

The tribunal does not accept [Mrs F…the claimant’s mother’s] evidence that she has to check [the claimant] 4-5 times per night to ensure that her lips are not swollen and that she does not need to be wakened and be administered anti-histamine tablets.  In the view of the Tribunal, if there were such a degree of risk each night, this would have been discussed with the immunologists and a note would have been made in the medical records.

The tribunal considers that the conditions are not satisfied for any care component of Disability Living Allowance.”

6.	The claimant’s mother sought leave on behalf of the claimant to appeal to a Commissioner.  However, on 30 September 2003, the legally qualified member of the Tribunal refused leave to appeal.  The claimant’s mother, by then represented by Ferguson and Company, Solicitors, on 23 October 2003, sought leave from a Commissioner to appeal.  In the meantime an issue had arisen as to whether the Department’s decision of 16 August 2002 was ultra vires and, as such, whether the Tribunal had erred in law in treating that decision as valid.  Accordingly, on 1 March 2004, a Commissioner granted leave to appeal for the following reasons:-

“It is arguable that the decision was wrong in law, because, applying the rationale of Commissioner’s decision C12/03-04(DLA), the Tribunal may have erred in law in treating the decision maker’s decision of 16 August 2002 as a valid decision.”

	However, on 25 February 2005, a Tribunal of Commissioners, following a Great Britain of Commissioners’ case – CDLA/2751/2003 et al, made it clear, in decision C37/03-04(DLA)(T) dated 25 February 2005, that there was no substance in the argument that the Department’s decision of 16 August 2002 was ultra vires.  The unfortunate consequence for the claimant and her mother was that the present appeal could not be decided until the issues in C37/03-04(DLA)(T) were resolved.

7.	Therefore the only issues that remain in the case are those set out on behalf of the claimant’s mother in the original application for leave to appeal and any further points made at the hearing.

8.	The further points made by the claimant’s mother can be summarised as follows:

(i)	the adjudication system was unfair because the decision maker in the case was not medically qualified and also because the medically qualified member of the Tribunal had no particular medical experience in relation to allergies;

(ii)	the Tribunal erred in law by not finding that the claimant was disabled by her medical condition;

(iii)	the Tribunal (and the decision maker) erred in law by coming to a different decision to the earlier one made for the period 20 November 2000 to 19 November 2002 (middle rate care DLA – day supervision); and

(iv)	the Tribunal erred in law by not dealing properly with the claimant’s asthma.

9.	The claimant’s mother also made it clear that, as far as she was concerned, the claimant was not entitled to the mobility component of DLA.  However, the Tribunal (very properly in light of the recent case in the Court of Appeal – Mongan v Department for Social Development [2005] NICA 16 a case decided on 13 April 2005, two years after the Tribunal decision) also dealt specifically with the mobility component.

10.	However, no issue in this appeal arises out of the Tribunal’s decision not to award mobility component.

11.	The relevant statute law relating to the care component of DLA is set out in section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (as amended) which is as follows:

	“The care component

72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

(a)	he is so severely disabled physically or mentally that—

(i)	he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients; or
  
(b)	he is so severely disabled physically or mentally that, by day, he requires from another person—

(i)	frequent attention throughout the day in connection with his bodily functions or

(ii)	continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c)	he is so severely disabled physically or mentally that, at night,—

(i)	he requires from another person prolonged or repeated attention in connection with his bodily functions, or

(ii)	in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

(a)	throughout—

(i)	the period of 3 months immediately preceding the date on which the award of that component would begin, or

(ii) 	such other period of 3 months as may be prescribed,

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

(b)	he is likely to continue to satisfy one or other of those conditions throughout—

(i)	a period of 6 months beginning with that date, or

(ii) 	(if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

(3) Three weekly rates of the care component shall be prescribed.

(4) The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be—

(a) 	the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;

(b) 	the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and

(c) 	the lowest rate in any other case.

(5) For the purposes of this section, a person who is terminally ill, as defined in section 66(2) above, and makes a claim expressly on the ground that he is such a person, shall be taken—

(a) 	to have satisfied the conditions mentioned in subsection (1)(b) and (c) above for the period of 3 months immediately preceding the date of the claim, or, if later, the first date on which he is terminally ill (so however that the care component shall not be payable by virtue of this paragraph for any period preceding that date); and

(b) 	to satisfy or to be likely to satisfy those conditions for so much of the period for which he is terminally ill as does not fall before the date of the claim.

(6) For the purpose of this section in its application to a person or any period in which he is under the age of 16—

(a) 	sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and

(b) 	neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless—

(i) 	he has requirements of a description mentioned by subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age, or

(ii) 	he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.

(7) Subject to subsections (5) and (6) above, circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy such of the conditions mentioned in subsection (1)(a) to (c) above as may be prescribed.

(8)	Regulations may provide that a person shall not be paid any amount in respect of a disability living allowance which is attributable to entitlement to the care component for a period when he is a person for whom accommodation is provided—

(a)	in pursuance of Article 5, 7, 15 or 36 of the Health and Personnel Social Services (Northern Ireland) Order 1972; or

(b)	in circumstances in which the cost is, or may be, borne wholly or partly out of public or local funds, in pursuance of those enactments or of any other enactment relating to persons under disability or to young persons or to education or training.”

12.	Accordingly, the effect of this convoluted legislation is that a person will be entitled to the care component of DLA if he satisfies one of the following conditions:

he is so severely disabled physically or mentally that he requires by day:

(a)	in connection with his bodily functions, attention from another person for a significant portion of the day (this attracts the lowest rate care component); or

(b)	he cannot prepare a cooked main meal for himself if he has all the ingredients (this attracts the lowest rate care component); or

(c)	he requires frequent attention throughout the day in connection with his bodily functions (this attracts the middle rate care component); or

(d)	continual supervision throughout the day in order to avoid substantial danger to himself or others (this attracts the middle rate care component);

or by night he requires:

(e)	from another person prolonged or repeated attention in connection with bodily functions; or

(f)	in order to avoid substantial danger to himself or others, another person needs to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

	The two qualifying requirements set out in (e) and (f) attract only the middle rate care component, unless the middle rate is already in payment, whereupon this additional requirement attracts the highest rate care component, instead of the middle rate for daytime care.

	In addition to satisfying one of the above conditions, a child under 16 must also show that either his needs are substantially in excess of the normal requirements of a child of the same age, or he has substantial care needs which a younger child may have but which a non-disabled child of the same age would not have – section 72(6)(b).

	The ‘cooking test’ does not apply to people under 16 and is only in respect of the preparing of a cooked meal for one person – section 72(6)(a).

	There may be anything up to four further issues arising out of the additional tests in section 72(6)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act.  Chief Commissioner Chambers QC in decision R1/97(DLA) has suggested that in such cases, depending upon the facts, the following issues may require consideration:

A.	Has the child a physical or mental disability?

B.	If so, is the disability such that the child has requirements:

(a)	as in section 72(1)(a)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (attention in connection with bodily functions for a significant portion of the day);

(b)	as in section 72(1)(b)? (frequent attention or continual supervision throughout the day);

(c)	as in section 72(1)(c)? (prolonged or repeated attention or a need to be watched over at night)

C.	If the child has any requirements of the description mentioned at B(a), (b) or (c) above, are those substantially in excess of the normal requirements of persons of his age?  This is the first test as laid down in section 72(6)(b)(i) of the Act, and requirements of each description which are established will require to be considered.  In order to make the necessary comparisons, the tribunal will have to consider what the requirements of a normal child would be, and it would be at this stage that the totality of the claimant’s needs – both disability-related and normal – would be taken into account.

D.	If the requirements would not apply to a normal child of the claimant’s age; but would apply to a younger child, are they substantial requirements?  This is the second test in section 72(6)(b)(ii).

	Also, in decision C6/99(DLA), where I considered the meaning of the term “substantially in excess”, I stated: 

“…I conclude that attention or supervision should not be regarded as substantially in excess of that normally required unless it is considerably greater than the whole range of attention or supervision that would normally be required by the average child.”  

13.	In relation to the claimant’s additional points made in paragraph 8 herein, these can be dealt with fairly shortly.

14.	The adjudication system as set up by legislation requires the Department to make the initial decision.  While there will almost inevitably be considerable medical input to the decision making process, decisions are not made by members of the medical profession.  However, I do not consider that it can even be arguable that the Department, through an official who is not medically qualified, can be said to be acting unfairly by deciding the case in these circumstances.  In addition, the Tribunal that decided the case was properly constituted in accordance with the relevant statutory provision (regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999) which requires an appeal tribunal dealing with a DLA case to “consist of a legally qualified panel member, a medically qualified panel member and a panel member with a disability qualification.”  There is no requirement for the medically qualified member to be a specialist in the area of medicine most relevant to a claimant’s alleged condition.  In any event it is totally impracticable for a tribunal to include such a specialist as the medical member, because many claimants have conditions that could never be categorised under any particular medical speciality.  In addition it would be well nigh impossible for the Tribunal Service to set up a day’s hearings for any particularly qualified tribunal, as in these circumstances, all the relevant appellants would be required to have similar medical conditions.   Moreover, Mr Deputy Commissioner Powell (who is a Commissioner in Great Britain as well as a Deputy Commissioner in Northern Ireland) came to a similar conclusion in C24/04-05(DLA) where he stated at paragraph 8:

“… Although, in an ideal world, any tribunal which heard the claimant’s appeal might consist of persons with particular knowledge of rectal cancer and bowel surgery, it is simply not possible to provide such a tribunal. Tribunals have to deal with widely differing medical problems and are sometimes required to do so in quick succession. It is impractical to tailor their composition to the medical problems of different appellants.  The relevant regulations require a tribunal to consist of a legally qualified chairman sitting with a doctor and a member with experience of disability problems.  That means that tribunal will, in any event, have a broad spectrum of experience. …”

	These remarks by Mr Powell are just as applicable to allergy problems as to problems arising out of rectal cancer and bowel surgery.  Accordingly I conclude that the Tribunal in the present case was properly constituted to deal with the issues in the case.

15.	However, the Tribunal in the present case included a medical member who turned out to have some considerable experience of allergies although this was fortuitous.

16.	Undoubtedly the claimant has some difficulties arising out of her allergic reactions to certain substances.  However, the Tribunal is not involved in a decision making process to find out whether, accordingly, the claimant was or was not disabled.  The Tribunal, correctly, addressed its collective mind to the issue whether the claimant was entitled to the care component of DLA and, in so doing, directed its collective attention to the statutory provisions set out in section 72.  This was the correct approach and the Tribunal has not erred in law by taking it.

17.	With regard to the point that the Tribunal erred in law by coming to a different conclusion to that of the earlier decision maker, it is not surprising that, as a person gets older, there can be a change in the effect of a medical condition on a particular claimant, even though there is no change in the actual diagnosis of the condition.  The Tribunal in the present case was entitled on the renewal claim to look at matters afresh and cannot be said to have erred in law just because it came to a different decision to that of a previous decision maker.

18.	In relation to the claimant’s asthma, it is quite clear the condition of asthma was mentioned in the papers before the Tribunal but it is equally clear that the case being made on behalf of the claimant at the hearing concentrated on the allergy problem that the claimant has.  The Tribunal, in any event, is not so much concerned with diagnosis as with the effect of any medical condition on the claimant and, in my view, the Tribunal cannot be faulted in taking that approach.

19.	In respect of the main points of appeal, Miss Fleming made the following written submissions in the skeleton argument that was prepared prior to the hearing:

“Issue 1

I submit the weight to be given to any evidence is for the Tribunal to decide.  At paragraph 4 of decision R3/04(DLA) [a decision which was subject to and confirmed by the Court of Appeal in Quinn v Department for Social Development [2004] NICA 22] Commissioner Brown held:

“I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.”
	
In agreeing with the above view the Court referred to Court of Appeal decision Chief Constable of the RUC v Sergeant A [2001] NI 261 were [sic] it was held:

[Miss Fleming then further supported her argument with a quotation from the Court of Appeal decision Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f].

It is clear the Tribunal considered the GP’s report of 8 July 2002.  I submit that it is not necessary for a Tribunal to specifically comment on every piece of evidence.  It is also clear that [the claimant’s] medical records influenced the Tribunal’s decision and cast doubt on the severity of the condition as described by [Mrs F… the claimant’s mother].  The Tribunal also noted in its reasons that [the claimant] is not continually supervised at school. The Tribunal felt that the evidence given by [Mrs F… the claimant’s mother] was exaggerated and as such it rejected this evidence.  I would submit that the Tribunal was entitled to do so (see paragraph 22 of decision R3/01(IB)(T)).

Issue 2

I would not agree that the Tribunal failed to apply the evidence to determine if any of the disability tests were satisfied nor did it fail to record its decision as to the satisfaction of these tests.  In relation to the mobility component the Tribunal noted that [the claimant] had no physical difficulties walking so the higher rate of the mobility component was not in issue.  Having set out the medical evidence from the medical records and the evidence of [Mrs F… the claimant’s mother] the Tribunal reasons indicate that it did not accept the criteria for the lower rate of the mobility component was satisfied.  In relation to the care component the Tribunal recorded that [the claimant] did not have physical care needs.  It then considered the issue of supervisory needs and concluded that the conditions were not satisfied for any level of the care component of DLA.  It is therefore apparent that the Tribunal did not accept that any of the tests in Section 72(1) of the Social Security Contributions and Benefits (NI) Act 1992 were satisfied.

Issue 3

The additional test laid down in Section 72(6)(b)(i) of the Social Security Contributions and Benefits (NI) Act 1992 is only applicable if it is established that the child satisfies the criteria in either Section 72(1)(a)(i), 72(1)(b) or 72(1)(c).  As the Tribunal had found that [the claimant] did not satisfy Section 72(1)(a)(i), 72(1)(b) or 72(1)(c) then it could not go on to consider and apply Section 72(6)(b)(i).”

20.	In relation to the first issue, I accept Miss Fleming’s submission that in the present case the Tribunal was entitled to find that the claimant’s mother’s evidence was exaggerated and was entitled to reject certain parts of it.  

21.	It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

	This is now settled law – see Chief Constable of the RUC v Sergeant A [2000] NI 261, Fire Brigades Union v Fraser [1998] IRLR 697 at 699 and Edwards v Bairslow [1956] AC 14.

22.	In this case I neither express disagreement nor agreement with the Tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

23.	In addition, in relation to the second issue, the claimant’s mother is making a point that is not dissimilar to that set out in the first issue.  The Tribunal decided that the claimant did not have physical care needs.  That is a conclusion that the Tribunal was entitled to reach.  The Tribunal has carefully considered both the day and night conditions and while I entirely appreciate that the claimant’s mother is most unhappy about the Tribunal’s conclusion, the Tribunal has not erred in law in the respect alleged in coming to that conclusion.

24.	In relation to the third issue, there is no doubt that the legislation set out in section 72 is not easy to understand.  However, a careful perusal makes it entirely clear that the additional tests set out in section 72(6) are only applicable to a child under 16 if he or she has already satisfied the basic conditions set out at paragraph 12 herein.  Accordingly Miss Fleming is correct in her submission that the Tribunal had taken the correct approach by not considering and applying section 72(6)(b)(i) of the Act.

25.	Therefore, for the reasons stated, I disallow the claimant’s appeal. 

26.	However, I consider that it is appropriate to add that the claimant’s mother conducted the appeal with obvious concern for her daughter and, despite the lack of legal representation, made every point possible in favour of the claimant’s case.  I also reiterate a point that I made at the hearing – namely, that the Tribunal was not entitled to take into account any circumstances not obtaining at the time when the decision appealed against was made, namely 16 April 2002, by reason of the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 and the claimant’s general circumstances may well have changed since that date.

(Signed):  J A H Martin QC
Chief Commissioner

4 July 2005