KG-v-Department for Social Development (DLA) [2012] NICom 332
Decision No:  C27/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 28 July 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of the tribunal sitting at Downpatrick on 28 July 2011.

2.	An oral hearing of the application has not been requested.

3.	I grant leave to appeal, but I disallow the appeal for the reasons given below.

	REASONS

	Background

4.	The applicant is a child born on 12 August 2005.  I will refer to her as “S”.  A claim for disability living allowance (DLA) was made on behalf of S on 5 July 2010, stating that she had nephrotic syndrome.  On 4 October 2010 the Department appointed the father of S (“the appointee”) to act on her behalf under regulation 42 of the Social Security (Claims and Payments) Regulations (NI) 1987.  On the same day the Department disallowed the claim.  The appointee appealed.

5.	The appeal was heard on 28 July 2011 but the tribunal disallowed the appeal.  The appointee requested a statement of reasons for the tribunal’s decision.  This was issued on 10 November 2011.  On 7 December 2011, the appointee, now represented by Ms Banks of the Citizens Advice Bureau, made an application for leave to appeal to the Social Security Commissioner.  The legally qualified member (LQM) of the tribunal refused the application in a determination notified to the appointee on 4 January 2012.

6.	On 2 February 2012 an application was made to a Social Security Commissioner for leave to appeal.

	Submissions

7.	The appointee submits that the tribunal erred in law by:

(i)	failing to consider all the elements of the test for high rate mobility component and/or making irrational findings on mobility;

(ii)	failing to resolve conflicting evidence by declining to accept the evidence of two doctors without adequate reasons and by failing to refer to a letter from one of the doctors.

8.	On 3 May 2012 the Department was invited to make observations on the grounds submitted.  Mrs Hulbert responded for the Department.  She does not support the application for leave to appeal.  The appointee had no further submission in response.

	Assessment

9.	It was accepted by the tribunal that S suffers from nephrotic syndrome.  The evidence before the tribunal shows that this condition leads to an excess of protein “leaking” from blood into urine in the affected person’s body.  Resulting symptoms include oedema (fluid retention), fatigue, poor appetite, diarrhoea and, in chronic cases, muscle wasting.  Treatment can include prescription of diuretics, steroids and immunosuppressant medicines.

10.	In the present case S was aged four years at the date of claim in July 2010 and had turned five when the decision to disallow the claim was made in October 2010.  Her claim was for high rate mobility component on the basis that she was virtually unable to walk, citing muscle cramps in her legs resulting from her treatment by way of prednisolone.  She claimed care component on the basis of her parents having to conduct urine tests, give her medication, to supervise her diet and to deal with S’s reaction to her medication, involving temper, violent outbursts and hyperactivity.  She also had the normal care needs associated with a child of her age.

11.	In evidence at the hearing it was clarified that S experienced episodes of nephrotic syndrome in which she responded to treatment.  A letter of April 2011 from Professor Savage, who was treating S, confirmed that she first presented with the condition in September 2009, with relapses in July 2010, October 2010 and January 2011.  She had experienced four relapses in two years followed by three relapses in seven months.

12.	In terms of the requirement of Article 13(8)(b) of the Social Security (NI) Order 1998, the tribunal correctly noted that the increasing frequency of relapses post-dated the decision it was concerned with.  At the date of decision there had been one relapse in July 2010.

13.	The tribunal noted that there would be walking problems during flare-ups and that behaviour would be affected.  On the basis of the pattern of flare ups the tribunal reasoned that mobility would not be affected most of the time.  In relation to care, the tribunal took the view that the amount of care which S required would not be sufficient to trigger entitlement to the care component, even in terms of the “significant portion of the day” test.

14.	The applicant submits that the tribunal has not made findings in relation to distance, speed, time and manner of walking – the elements relevant to regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992.  This is an arguable point and therefore I grant leave to appeal.  However, in a context where the tribunal has determined that any restrictions on mobility are episodic and not sufficient to bring her within the conditions of entitlement on a broad view of the situation, I consider that it is immaterial that precise findings have not been made in relation to walking restrictions during the episodes of flare-up.

15.	Secondly the applicant submits that the tribunal had no basis for a view taken of the evidence of S’s general practitioner (GP) in a letter dated 10 May 2011, which it says relates what the doctor has been told by S’s parent.  The applicant further submits that no mention was made of a letter from the GP’s colleague clarifying the period for which the remarks are relevant.  It is submitted that the tribunal thereby has not undertaken a rigorous assessment of the evidence.

16.	It is quite clear to me that the tribunal’s characterisation of the GP letter of 10 May 2011 is accurate.  It reflects what the GP has been told by S’s parents, relating matters which the GP could not have experienced at first hand, such as what S does if she wakes in the night.  However, the tribunal has accepted the evidence of the parents, and by implication that in the GP letter.  It does not matter that the tribunal has not specifically referred to the letter of the GP’s colleague regarding the period in respect of which the letter was written.  The tribunal accepts that S requires checking of her urine sample and administration of medication.  It simply does not accept that there is a sufficient level of attention, when S is not in a relapse, to qualify for any rate of the care component.  This was a reasonable conclusion for the tribunal to reach.  During relapses the tribunal accepts that care needs are greater, but on the same logic as applied to the mobility component, finds that S does not have those needs most of the time taking the broad view.

17.	I therefore disallow the appeal.

(signed):  O Stockman

Commissioner

9 October 2012