[2006] NISSCSC C27_05_06(DLA) (11 May 2006)

Decision No:  C27/05-06(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 5 July 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 5 July 2005 of an appeal tribunal sitting at Belfast.  That decision disallowed the claimant’s appeal and was that she remained entitled to low rate care and low rate mobility components of disability living allowance (DLA).

2.	Both Mr Hatton of the Law Centre (Northern Ireland), representing the claimant and Mr Hinton of Decision Making Services Branch, representing the Department have expressed the view that the said decision was in error of law.  Both are of the view that the tribunal did not adequately explore the issue of whether or not the requirements for either the higher rate of the care component or the middle rate of the care component were satisfied on the basis of the supervision or watching over requirements.  In particular both referred to the issues raised by a letter dated 6 December 2004 from Dr Bonnar.  Both also expressed the view that the tribunal’s reasons were inadequate in not commenting in more detail on the said letter.

3.	I am in agreement with the representatives in relation to the above matters.  Dr Bonnar’s letter does indicate repeated attempts by the claimant at self-harm.  It is a matter for the tribunal to evaluate this evidence.  It is also a matter for the tribunal to decide whether (if accepted) these episodes of self-harm are productive of supervision needs so as to satisfy the statutory requirements.

4.	The tribunal in this present case has referred to there being no medical evidence of the claimant being suicidal.  Whether or not a claimant is suicidal is, of course, a matter which may be relevant to whether or not supervision is required.  As Mr Hatton says, it is not, however, a pre-requisite for supervision though the danger (to avoid which supervision is required) must be “substantial” (section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  The reference to there being no medical evidence of suicidal tendencies is not indicative of an error of law.  It is simply indicative that a relevant factor was considered. The tribunal has referred also to there being no medical evidence that supervision would be “helpful or effective”.  Obviously if supervision would be neither helpful nor effective, it is not reasonably required.

5.	However, there are issues raised by Dr Bonnar’s letter of 6 December 2004 which, as the representatives submit, should have been explored further by the tribunal.  The letter raises issues as to episodes of self-harm, two of which required admission to hospital.  The tribunal should have explored what provoked the various episodes of self-harm and their nature.  Its failure to adequately explore this matter of self-harm and to record its conclusions thereon renders the decision in error of law.

6.	I would, however, emphasise that the fact that there may be a tendency to self-harm from time to time, while obviously a relevant matter, does not automatically lead to satisfaction of the statutory conditions.  The question of the level of supervision, the question of whether it is reasonably required and the qualifying and prospective conditions are all relevant.  To give an example, if a disabled person is inclined to self-harm when under particular stress, there are obvious qualifying and prospective conditions questions that arise.  Also if the risk of self-harm would be avoided by someone else keeping and dispensing medication, while this degree of supervision can be taken into account, there may be questions as to whether the statutory level of supervision has been met.  These are all matters which are peculiar to individual cases.  The point is that a tendency to self-harm while relevant may or may not be productive of the required level of supervision needs.

7.	I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for rehearing and redetermination.  I direct that tribunal to consider the issues raised by Dr Bonnar’s letter of 6 December 2004 and the claimant’s evidence of episodes of self-harm and explore those issues adequately and record its conclusions thereon.

8.	The claimant, who now has the benefit of expert representation, should now be in a position to indicate to the tribunal what rate of the care component she is seeking.  She should also be in a position to present her best evidence in support of her contentions.  While it is a matter for the claimant whether or not she consents to the release of her general practitioner records to the tribunal, it appears to me that these records might be particularly helpful to the tribunal in this case.

9.	The claimant wins her appeal.

(signed):  M F Brown

Commissioner

11 May 2006