skeleton argument that included argument by MBbHOp1

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									               THE SOCIAL SECURITY COMMISSIONERS


                                   Commissioner's Case No: CDLA/772/2005


   SOCIAL SOCIALITY CONTRIBUTIONS AND BENEFITS ACT 1992
                 SOCIAL SECURITY ACT 1998

        APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
                   ON A QUESTION OF LAW

        DECISION OF THE SOCIAL SECURITY COMMISSIONER


                    COMMISSIONER: MR J MESHER



Claimant:

Tribunal: Middlesbrough

Tribunal Case No:

Date of tribunal hearing: 6 October 2004


                            [ORAL HEARING]
                                                                               CDLA/722/2005



                DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.      The claimant's appeal to the Commissioner is allowed. The decision of the
Middlesbrough appeal tribunal dated 6 October 2004 is erroneous in point of law, for the
reasons given below, and I set it aside. The case is referred to a differently constituted appeal
tribunal for determination in accordance with the directions given in paragraphs 13 to 17
below (Social Security Act 1998, section 14(8)(b)). I draw the attention of the Secretary of
State and the Appeals Service to paragraph 15 in relation to action that needs to be taken
immediately.

2.       The appeal tribunal was concerned with the claim for disability living allowance
(DLA) made on behalf of L.... (dele of birth 2 July 1994) on 9 December 2003, with additional
evidence from a family support worker. L....'s mother is his appointee for DLA purposes.
Initially, information was obtained from a pediatrician who was treating him, with a probable
diagnosis of attention deficit hyperactivity disorder (ADHD) together with conduct disorder,
although the exact range of conditions was still under investigation. Information was also
obtained from the headteacher of L....'s primary school, who said that he was of average
attainment and academic ability, but that little progress had been made recently because of his
non-attendance, tendency to abscond and inclination to shut himself off mentally from
teaching input. The headteacher believed that in a domestic situation L.... could be highly
aggressive and disruptive. He ticked yes to the questions whether L.... was aware of common
dangers appropriate to his age (but with an asterisk) and whether he had any dangerous
tendencies or behaviour problems, writing: '

       “Behaviour problems (as above). In addition be have noted a range of manipulative
       and defiant tactics towards his mother during her efforts to bring him to school, inc
       struggling, flailing NFS, dashing off, ushering back, kicking. He puts himself at risk by
       absconding. On one occasion he was found standing in the open during a fierce
       hailstorm dreamily doodling with his foot on the hail-strewn paving.”

On indoor supervision needs, the headteacher wrote:

       ''L.... likes attention and milks this. He likes things on his own terms and his extreme
       reaction can be withdrawal or absconding.''

On outdoor supervision needs, he wrote:

“I anticipate circumstances where L.... could not be taken on school visits given the high risks
of severe moodiness or absconding.''

3.       On that evidence, the initial decision on 3 February 2004 was to disallow the claim.
L....'s mother asked for reconsideration. Her representatives, Stockton & District Advice &
Information Service (SDAIS), produced a good deal of further information from the sources
already mentioned. On 25 May 2004, there was a revision to award the middle rate of the care



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component for the period from 2 December 2003 to 1 June 2005 on the basis of a need for
frequent attention with bodily functions. On the lower rate of the mobility component, it was
said that all children of L....'s age required guidance or supervision when outdoors to ensure
their safety.

4.      On appeal, SDAIS provided a carefully reasoned written submission, together with a
comprehensive report on L.... from Stockton-on-Tees Educational Psychology Service. The
submission was that he qualified for the highest rate of the care component (day-time
supervision and night-time attention) and the lower rate of the mobility component (on the
basis that the level and nature of the supervision/guidance required outdoors substantially
exceeded that required by similar children) and that an award should be made until his 13th
birthday. L....'s mother attended the hearing on 13 October 2004 on her own. The appeal
tribunal allowed the appeal to the extent of awarding the highest rate of the care component
for the period from 2 December 2003 to 1 June 2005. The appeal tribunal summarised the
evidence mentioned above, describing the main problems as sleep problems and violence
when L.... did not get his own way. It then simply stated that it considered that he required
continual supervision throughout the day and prolonged or repeated attention at night and
reasoned written submission, together with a continued:

       ''There was no evidence to support an award of higher rate mobility and that was not
       contended for. There can be no question of the claimant being entitled to lower rate
       mobility on account of any physical disability. The claimant was of average
       intelligence. He has not been involved in any road traffic accident. We accept the
       evidence from [the headteacher] at page 55 of the schedule evidence that the claimant
       is aware of common dangers appropriate to his age which we take as including traffic
       hazards. Moreover given the claimant's age we consider that he would be accompanied
       if he was to exercise the faculty of walking out of doors in unfamiliar places most of
       the time and we, therefore, do not confider that the claimant is suffering from a severe
       mental disability such as gives rise to the need for guidance or supervision to exercise
       such a function which is substantially in excess of the requirements of a person of the
       claimant's age and we accordingly did not consider that the claimant satisfied the
       criteria for lower rate mobility.''

5.     The claimant now appeals against the appeal tribunal's decision with leave granted by
Mr Commissioner Howell QC. In the submission dated 19 April 2005 the representative of
the Secretary of State did not support the claimant's appeal, saying that L.... did not have a
physical or mental disability that prevented him from walking outdoors whether on familiar or
unfamiliar routes and relying on a recent Commissioner's decision in CDLA/4316/2004.
It was also noted that on a renewal claim L.... had been awarded the highest rate of the care
component on the same bases for the period from 2 June 2005 to 1 June 2010, but had not
been awarded the mobility component. In his reply dated 20 May 2005, Mr Robinson of
SDAIS requested an oral hearing, which was granted by Mr Commissioner Howell.

6.    The hearing took place before me at Doncaster County Court on 19 September 2005.
Mr Robinson attended on behalf of L.... and his mother, with two observers from SDAIS.
The Secretary of State was represented by Mr James, solicitor, instructed by the Office of the


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Solicitor to the Department for Work and Pensions. I thank both representatives for helpful
submissions.

7.      Shortly before the oral hearing, Mr Robinson put in a written skeleton argument that
included argument, backed by copies of scientific papers, that L.... qualified for the higher rate
of the mobility component under section 73(3) of the Social Security Contributions and
Benefits Act 1992, as ADHD should now be recognised as stemming from a site of arrested
development or incomplete physical development of the brain and the other conditions were
satisfied. Mr James indicated that if the Secretary of site was to be required to respond to that
argument, time would be needed to do so. That does not arise. I have no doubt that, on the
evidence before the appeal tribunal and the submissions made to it by Mr Robinson, it cannot
be faulted in law for not denting watts the higher rate of the mobility component or the
conditions in section 73(3) and in the Social Security (Disability Living Allowance)
Regulations 1991. However, as I have decided that the appeal tribunal erred in law in other
ways and that there must be a rehearing by a new appeal tribunal, Mr Robinson can pursue the
argument and put forward his additional evidence at the rehearing, in accordance with my
directions below.

8.        I have concluded that the appeal tribunal erred in law in essentially three ways. The
first is that its reasons for decision were not adequate to show that it had applied the right legal
test on the lower rate of the mobility component. I leave side for the moment the question of
whether it was right to rely on the headteacher's evidence that L.... was aware of common
dangers appropriate to his age in isolation from all the other elements of both the headteacher's
and other evidence about the kind of things that L.... might do if on his own out of doors and
of the level of supervision that would have been needed, for instance, on a school trip. Matters
are complicated in cases of children of an age at which they would usually be accompanied
when in unfamiliar places. But that need for being accompanied does not result from any
physical or mental disability, which connection must exist for qualification for the lower rate
of the mobility component. And it is necessary, as Mr Robinson submitted, to show that
without guidance or supervision of a particular nature and degree the child would not be able
most of the time to take advantage of the faculty of walking.

9.      Appeal tribunals stray into a danger area whenever they move away from the exact
statutory language to talk, say, of whether a claimant can ''exercise'' the faculty of walking
without guidance or supervision. Commissioners' decisions R(DLA) 4/01, R2/99(DLA) and
CDLA/3781/2003 show the impotence of the difference. I suspect that Mr Robinson went too
far in suggesting that in the case of children, the notion of the ability to get to a desired
destination whenever the claimant wants (paragraph 11(f) of R(DLA) 4/01) can be translated
into a notion of the ability of the claimant to get to the destination desired by a parent or
carer, by the route desired by that person. But I do not have to examine in detail what sorts
of detrimental consequences of an absence of supervision might be relevant. It is certainly the
case that physical dangers that children might get into, or cause to others, by exercising the
faculty of walking in way that seems like a good idea to them at the time, are relevant to the
question of whether there is an ability to take advantage of the faculty of walking without
guidance or supervision. There was evidence of such dangers in the present case and the
failure of the appeal tribunal to deal with it raises doubt whether the correct legal test was


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being applied.

10.     Second, the appeal tribunal erred in its approach to the comparison with a non-disabled
child of the same age and sex. As the decision of Mrs Commissioner Parker in
CSDLA/91/2003 shows, relying on the decision of Mr Commissioner Rowland in
CA/92/1992, the requirement in section 73(4) can be met if the supervision or guidance
needed is substantially in excess of what would be needed by a non-disabled child of the same
age and sex in terms of the time over which it is required or in terms of the quality or degree
of attention that is required. Thus it was not good enough here for the appeal tribunal simply
to say that a child of L....'s age would be accompanied most of the time when walking in
unfamiliar places. It needed to make specific findings about the nature and extent of the
supervision or guidance that L.... needed as a result of his disability to take advantage, in the
sense explained above, of the faculty of walking and to compare what was needed with the
nature and extent of the supervision or guidance needed by most non-disabled children of the
same age.

11. Perhaps another way of approaching those two points is this. The appeal tribunal, in
finding the day-time condition of entitlement for care component satisfied on the ground of
supervision, must have accepted both that L.... reasonably required continual supervision from
another person throughout the day in order to avoid substantial danger to himself or others and
that his requirements for supervision were substantially in excess of those of a non- disabled
child of the same age. Admittedly, the appeal tribunal's reasoning in support of its award was
thin and it is not the case that qualification for the care component on the ground of day-time
supervision necessarily carries with it qualification for the lower rate of the mobility
component. But in the face of its conclusion on the care component, some clear explanation
was needed of why the accepted need for continual supervision of the relevant nature and
extent was not present when L.... was walking out of doors, if that was the appeal tribunal’s
view. There was no such explanation. Mr James's submission for the Secretary of State had
been that on both the questions of taking advantage of the faculty of walking and of the
comparison with a non-disabled child the appeal tribunal had made a judgment on the
evidence that it was entitled to make and had given a broad indication of the nature of its
judgment that was sufficient in the circumstances. I would not have found that submission
persuasive in the absence of the point made in the present paragraph, but it cannot on any
footing cover the specific failure to explain the disparity between the decisions on the care
component and on the mobility component.

12.     The third error of law is the appeal tribunal's failure to say anything about the
submission for L.... that his award ought to run to his 13th birthday, instead of to 1 June 2005,
or about how it decided what the period of the award should be. In the light of the award now
made on the renewal claim from 2 June 2005, 1 would have been reluctant to set the appeal
tribunal's decision aside if this had been its only error of law, but it was not.

13.     Accordingly, I set the appeal tribunal's decision aside as erroneous in point of law.
The claimant's appeal against the decision of 3 February 2004 as revised on 25 May 2004 is
referred to a differently constituted appeal tribunal for determination in accordance with the
directions below. There must be a complete rehearing of the appeal against that decision on


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the evidence presented and submissions made to the new appeal tribunal, which will not be
bound by any findings made or conclusions expressed by the appeal tribunal of 6 October
2004. As the whole of the decision of the appeal tribunal of 6 October 2004 has been set
aside, the new appeal tribunal must consider what rate of the care component is properly to
be awarded from 2 December 2003 as well as whether any rate of the mobility component is
to be awarded.

14.     I should give only limited directions of law on the conditions of entitlement to DLA.
In relation to the higher rate of the mobility component, Mr Robinson’s argument under
section 73(3) of the Social Security Contributions and Benefits Act 1992 must be fully
considered. The decision of Mr Commissioner Howell QC in CDLA/5153/1997 does not
preclude a conclusion that aided and/or similar disorders can be or reflect a state of arrested
development or incomplete physical development of the brain, if the scientific and medical
evidence supports that conclusion. It was made clear in paragraph 18 of CDLA/5153/1997 that
the decision in that case was based on the then current state of medical knowledge and was
subject to change in the light of future developments. However, the point-made in paragraph
19 and the need for a finding of a severe impairment of intelligence and social functioning
must also be borne in mind.

15. The date for the rehearing in this case should not be fixed until the Secretary of State has
made a fresh written submission that includes a response to Mr Robinson's written skeleton
argument on the higher rate of the mobility component under section 73(3) of the Social
Security Contributions and Benefits Act 1992. I direct, subject to any further directions that
may be given by a district chairman of appeal tribunals, that that submission should be sent to
the Appeals Service by 1 November 2005.

16. In relation to the lower rate of the mobility component, the approach approved in
paragraphs 8 to 10 above must be applied. Mr James for the Secretary of State rightly did not
seek to rely on the decision of Mr Commissioner May QC in CDLA/4316/2004, attached to
the Secretary of State's written submission of 19 April 2005, as giving any guidance on
principles of law to be applied in other cases. It was a decision on the particular findings of
fact made by the Commissioner in paragraph 6 of that decision and should not be regarded as
having laid down any general principles in the difficult area of mental disablement and the
ability to take advantage of the faculty of walking.

17. The evaluation of all the evidence will be entirely a matter for the judgment of the
members of the new appeal tribunal. The decision on the facts in this case is still open.




                                                                        (Signed)     J Mesher

                                                                                Commissioner

                                                                     Date: 26 September 2005


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