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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2005] UKSSCSC CDLA_4475_2004 (12 July 2005) URL: https://www.bailii.org/uk/cases/UKSSCSC/2005/CDLA_4475_2004.html Cite as: [2005] UKSSCSC CDLA_4475_2004 |
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[2005] UKSSCSC CDLA_4475_2004 (12 July 2005)
CDLA/4475/2004
DECISION OF THE SOCIAL SECURITY COMMISSIONER
REASONS
"The picture the tribunal gained was of a child who has two younger brothers, both of whom have significant problems, and that when he has to share space with either or both of them, he can be difficult; but that there is nothing actually wrong with him. He may be seeking more attention from his mother, who obviously has her hands full.
"The tribunal found there was no physical or mental disability from which Matthew was suffering at the date of the decision on 7/1/04 and in any event such needs as he had did not satisfy the criteria for disability living allowance."
The claimant's younger brothers had been diagnosed respectively as suffering from Asperger's Syndrome and attention deficit hyperactivity disorder. The tribunal noted that the claimant himself had been held by a consultant paediatrician not to be suffering from attention deficit hyperactivity disorder but to be "on spectrum of possible Asperger's" and that he was to be reviewed in August 2004, within about a month after the hearing.
"On the evidence before it, which included evidence that no diagnosis had yet been made, that Matthew was not on medication and that his behaviour in school (or, at least, in the classroom) was markedly different from his behaviour at home, the tribunal was entitled to conclude that he was not suffering from mental disablement. However, there is now a diagnosis. E v. Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 531 suggests that a mistake of fact giving rise to unfairness can be a mistake of law (although I am aware that leave to appeal to the House of Lords against that decision has been granted). I have some doubts about the tribunal's reasons for finding that the claimant would not have been entitled to benefit even if they had found that he was suffering from mental disablement. However, its conclusion may be correct because the mental disablement may not be a cause of all the behavioural problems. My grant of leave is therefore given with some hesitation."
"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisors) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
In particular, the fact that there has been a diagnosis is now uncontentious and the tribunal's approach to the evidence about the claimant's behaviour might have been different had it been aware of the diagnosis.
(signed on the original) MARK ROWLAND
Commissioner
12 July 2005