Decision No:  C42/99-00(DLA)

RE: NICOLA (A CHILD)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from a Tribunal's decision
dated 14 July 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, against a decision dated 14th July 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Craigavon.  That Tribunal had disallowed the claimant's appeal in connection with Disability Living Allowance for her daughter and had decided that there was no entitlement to either component of the allowance from and including 15th December 1998.

2.	The claimant had requested an oral hearing of the appeal but having perused the papers in the case I am satisfied that I can properly decide same without such hearing.  The claimant's grounds of appeal were contained in an OSSC1 form dated 30th September 1999 and a letter dated 6th January 2000.  Observations on the appeal were made by Mrs Gunning of the Decision Making and Appeals Unit by letter of 21st February 2000.  These observations were sent to the claimant for comment but no comment was received.

3.	I withheld making a decision in the case pending the opinion of the Scottish Court of Session in the case of Stewart v the Advocate General for Scotland.  When that opinion issued a copy of it was sent to both parties to this appeal and each was given an opportunity to comment.  The claimant did not reply and Mrs Gunning replied by letter dated 4 July 2000.  Mrs Gunning expressed the view that that decision was not relevant to this case.  I agree with Mrs Gunning's view and comment no further on that decision.

4.	No error of law was revealed by the claimant's correspondence.  In essence the correspondence reiterated that the claimant's daughter had care and supervision needs and that the decision was therefore wrong.  It also stated that the claimant's daughter's condition had worsened since her previous award of Disability Living Allowance.

5.	In her observations Mrs Gunning opposed the appeal.  She commented, as I had requested her to do, on the question of whether there was a difference in a "psychological" origin and a "mental disablement" origin with regard to enuresis.  I had asked this question because of the terms in which the claimant's General Practitioner had been asked about the matter.  One question posed for him to answer was as follows:-

		"In your opinion, is there an underlying physical or psychological cause, if so, please give details?"

	The General Practitioner replied "psychological".  Replies to other questions revealed that the child was on no treatment and had not been referred to any other health care professional.  These questions and replies were contained in the report from the General Practitioner dated 23rd October 1998.  They contrasted with an earlier statement on the renewal claim form dated 7th September 1998 that the claimant's daughter suffered from kidney infections and was on treatment.

6.	The Tribunal, in its reasons for the decision stated:-

		"The problem in this case was in establishing a physical, or mental disablement.  Whilst the parent referred to a kidney problem the General Practitioner was of the view that the problem was probably psychological [my underlining] and that [the child] had nocturnal enuresis once a night and to the best of his knowledge did not have day time enuresis. ...

		We have no evidence of any learning difficulties or mental impairment/disablement. [my underlining]  There is no evidence to suggest any behaviour/management attendance, use of alarms or according to General Practitioner, treatments.  There is no General Practitioner records to suggest that, referrals or otherwise.

		We find no medical or other reason to indicate that [the child] could not change her own clothes and wash herself if needs be day or night or change bedding.

		If [the child] was wetting and needing as much help as suggested by the parent we would have expected the General Practitioner to know about this and we would have expected detailed tests and investigations to ascertain if due to a physical/mental disablement.  In the circumstances we have to accept the General Practitioner assessment that the problem is probably psychological and that bed wetting is once per night only and not day time.

		On the weight of evidence before us we are unable to find that [the child] is so severely disabled, physically/mentally as to satisfy any of the criteria in Section 72(1)(a)(i), (b)(i)/(ii), (c)(i)/(ii) within the meaning of Section 72(6)(b)(i) or (ii) of Social Security Claims and Benefits (Northern Ireland) Act 1992 and accordingly an award cannot be made."

7.	I had asked to be addressed on this matter as I was concerned as to whether there was a distinction between a psychological cause and a mental disablement in the terms in which those expressions were used in this case.  Mrs Gunning in her very thorough letter of 21st February so addressed me.  She was of the view that the terms "psychological" and "mental disablement" were interchangeable and synonymous. The term "mental disablement" is the one which is used in the legislation.  "Psychological" is not used.  

8.	I have some concern at the views expressed in Mrs Gunning's letter.  It appears to me that while psychological does indeed mean of, or pertaining to the mind, that is very far from meaning the same thing as does mental disablement.  To be disabled means to lack power or to be impaired.  Quite obviously many conditions pertaining to the mind (e.g. reaction to an abnormal situation) do not necessarily involve any such impairment.  The legislation relating to Disability Living Allowance is to the effect that only care and supervision needs coming from a mental or physical disablement can be taken into consideration.  It is not therefore accurate to state that the terms "psychological" and "mental disablement" are interchangeable or are synonymous.  

9.	I give examples, some hypothetical, not related to this case which illustrate the difference.  A person may suffer grief reaction leading for a time to lack of interest in normal activities.  The person's condition is psychological but it does not necessarily involve any impairment of mental faculties.  It is a reaction to a stressful event.  No actual disablement is involved. Similarly, a child if being bullied at school may become anxious and behave in an unusual manner.  Again no impairment of faculties is necessarily involved.  The child perceives a threat (possibly correctly) and responds to it by becoming anxious.  This state is, in the words of the DMA handbook "a normal and appropriate response to stress".  It is psychological.  However, as that handbook also states it "becomes a recognisable illness when it is disproportionate to the severity of the stress, continues after the stressor has gone or occurs in the absence of any stressful event."  To know, therefore that a condition has a "psychological" origin is not enough to satisfy the statutory conditions.  It is care needs from mental disablement which qualify.

10.	Secondly, having read the Tribunals decision in full I am unable to agree with Mrs Gunning that the Tribunal viewed the two terms as synonymous.  It appears to me that the Tribunal's reasoning is very readily understandable as indicating a distinction between a purely psychological cause and a mental disablement.  Indeed it is difficult to read the underlined parts of the decision extracted above without reaching the conclusion that the Tribunal distinguished them.  It is also worthy of note that the General Practitioner, to whom the inquiry about psychological or physical cause was addressed, did not give any details of the said psychological cause. 

11.	This case does indicate that inquiries to General Practitioner's would be better phrased so far as possible in terms of the statutory language so that any ambiguities can be avoided.  

12.	I would wish to comment on one further matter.  In her letter Mrs Gunning stated:-

		"Personally I would suggest that for children of 10 years of age, still to be suffering from Nocturnal Enuresis must constitute a disability, and in light of the Medicine Net explanation of the breakdown of communication between the bladder and brain, that disability could equally and rationally be described as either mental or physical.  I would also suggest that it is not necessarily inconsistent with a finding that a person suffers from a physical or mental disablement that they also suffer from a behavioural problem.  The two concepts are not necessarily mutually exclusive.  In other words enuresis may be a behavioural problem which also constitutes a mental or physical disablement."

13.	Firstly I would comment that in this particular case it was not established that the nocturnal enuresis was of a primary nature ie that the child had never been dry so that the Medicine Net explanation mentioned by Mrs Gunning may not be relevant.   Secondly other authorities may not agree with Mrs Gunning (see DLA/926/94 paragraph 3).  More importantly it is for the relevant decision making authority on the accepted evidence before it to make the decision whether or not enuresis comes from or constitutes a mental or physical disablement in each case.  Part of the problem may come from the fact that some medical literature lists enuresis to mean simply bed-wetting without indication of reason (see the Penguin Medical Encyclopedia).  Others use it to indicate an inability to control the passage of urine either by night or by day and night, others (the Disability Handbook for example), use it in both senses.  The decision must therefore be left to the decision making body in each case.  Full information as to the cause of the bed-wetting would obviously be helpful.  As already stated it seems to me that enquiries should relate as closely as possible to the statutory language.

14.	More generally however I do agree with Mrs Gunning that suffering from a behavioural problem is not inconsistent with a finding that a person suffers from a physical or mental disablement.  Indeed a mental disablement may well manifest itself by a behaviour problem.  The point is, however, that behaviour problems can show themselves without there being any mental disablement.  The need to establish a mental disablement is long term settled law as the decisions in R(A)2/92, CA/123/91 and Re H (a minor) (on appeal from CA/648/91) reveal.  Behavioural problems can of course be a manifestation of mental illness.  However they can also be a temporary response, short of illness, to an abnormal situation.  They can be a manifestation of defective character not of mental illness.  They can be a result of taking a stimulant, drugs or alcohol.  They may be a result of deliberate choice to gain an end or be a result of poor discipline.  Again of course, I am not in any way stating that any of those is the situation in this particular case. The examples do, however, indicate the danger of departing from the statutory language.  In ordinary speech problems being behavioural do not necessarily mean that the person who behaves oddly is mentally disabled.  Nor does a condition being "psychological".   

15.	Decision CDLA/926/94 (a decision of a Great Britain Commissioner) dealt with a case where nocturnal enuresis was found to be behavioural in origin and was taken into account for an award.  The Adjudication Officer appealed and the appeal was upheld.  At paragraph 12 thereof the Commissioner stated:-

		"On that test, the appeal tribunal's reasoning was inadequate, in that it simply failed to identify what was the physical or mental disablement which affected the claimant.  The statement that the claimant's incontinence had "behavioural origins" did little more than to restate the problem to be resolved."  

16.	At paragraph 16 he directed the new Tribunal to "determine whether or not the claimant is suffering from a physical or mental disablement and explain the reasons for its conclusion one way or the other."  

17.	That was against a background where it was disputed that nocturnal enuresis constituted or was a manifestation of a physical or mental disablement and where it was obviously not concluded that the enuresis was itself a disablement.   A lesser standard could be perhaps adopted where the origin of the enuresis was beyond dispute.  The medical advice in that case was:-

		"He has nocturnal enuresis - This is an extremely common problem and not due to a severe physical/mental disability."

18.	After dealing at some length with how severity was to be determined the Commissioner made directions, including the above to the new Tribunal to which he remitted the case.

19.	Because of the potential for ambiguity therefore I do consider that inquiries to General Practitioners would be better phrased as much as possible in the statutory language.  The reasons for departure from it are not clear.  The matter is, of course, one for the Department.

20.	In this case, however, while I do think that the term "psychological" origin may have been considered by the Tribunal and indeed by the General Practitioner to have a different meaning than Mrs Gunning contends, it is not central to my decision.  It is, as Mrs Gunning stated, quite apparent that the Tribunal did not accept the evidence from the child's parent as to the extent of the problem and accepted the General Practitioner's evidence of bedwetting once per night.  This it was quite entitled to do.  It has also found that there was no medical or other reason to indicate that the child could not change her own clothes and wash herself if needs be by day or night and change bedding.  The Tribunal concluded that the child did not reasonably require attention to the extent necessary to satisfy the conditions for the allowance.  In light of the child's age, she was 10 years of age at the time, I consider that this conclusion was one which the Tribunal was entitled to come to.  I do not say it is one I would necessarily have reached myself but it was within the bounds of reasonableness and that is all the law requires.  

21.	I am not convinced that the Tribunal's conclusions as regards whether or not there was a physical or mental disablement were as Mrs Gunning contends, and I would not necessarily consider that it had erred in a conclusion that there was no such disablement.  However, the other reasons given do, as Mrs Gunning has stated, adequately explain the decision.  Even if the child in this case was accepted to suffer from mental disablement any care needs produced by same were in the Tribunal's view not so extensive as to satisfy the conditions for Disability Living Allowance.

22.	In this particular case, as I indicated above I can find no error in the decision.  The reasons do adequately explain it and the conclusions reached by the Tribunal are those which it was entitled to reach on the accepted evidence.  The appeal is therefore dismissed.

	(Signed):  M F Brown
	
	COMMISSIONER

	21 AUGUST 2000