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Neutral Citation Number:
Reported Number: R(DLA)3/06
File Number: CDLA 1721 2004
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 29/04/2005
Date Added: 16/05/2005
Main Category: DLA, AA, MA: general
Main Subcategory: other
Secondary Category: Tribunal procedure and practice (including UT)
Secondary Subcategory: tribunal practice
Notes: Care component and lower rate mobility component – meaning of “so severely disabled physically or mentally” Tribunal practice – evidence of children The claimant, who was 12 years old, made a claim through her appointee for disability living allowance, identifying her disabilities as learning difficulties and behavioural problems. The claim was refused and she appealed. The appeal tribunal adjourned the hearing and gave a direction requiring the claimant to attend. Representations were made in response to the direction, supported by evidence from a clinical psychologist, stating that it would be inappropriate and potentially damaging for the claimant to attend the tribunal and that the Director of Social Services would be unlikely to give permission for her to attend. The child did not attend the adjourned hearing. The tribunal considered evidence from the claimant’s foster carer, her school and a clinical psychologist, and found that she did not need substantially more supervision than another child of her age. They dismissed the appeal. The claimant appealed to the Commissioner. The Secretary of State supported the appeal on the basis that the tribunal had failed to establish whether the claimant had a disability since there was no medical diagnosis of general or specific learning difficulties. Both section 72(1) (care component) and section 73(1)(d) (lower rate mobility component) of the Social Security Contributions and Benefits Act 1992 require the claimant to be “so severely disabled physically or mentally” that certain consequences follow. A Tribunal of Commissioners was directed to consider the meaning of that phrase, particularly as applied to children with learning difficulties, and also the proper approach to children giving evidence in proceedings before appeal tribunals. Held, allowing the appeal, that: 1. conceptually and in ordinary language “disability” is distinct from “medical condition” and is entirely concerned with a deficiency in functional ability, ie the physical and mental power to do things (paragraph 35); 2. the provisions of sections 72 and 73(1)(d) cannot require that “so severely disabled” means “having a serious medical condition” since otherwise they could not achieve their purpose of correlating entitlement to care needs (paragraph 36); 3. if there had been an intention to require proof of a diagnosed or diagnosable medical condition, then the provisions could have made this clear, as they do in other benefit contexts (paragraph 37); 4. for the relevant provisions to apply, the claimant must lack the physical or mental power to perform or control the relevant function and where it is not in the claimant’s power to avoid certain behaviour he will be “disabled” within the terms of sections 72 and 73(1)(d) (paragraphs 38 to 39); 5. it is clearly apparent from the language of the provisions itself that the severity of the disability is to be measured solely by reference to the prescribed consequences, and that there is no room for any free-standing test of severity (paragraph 41); 6. the tribunal’s power to require the attendance of a child to give evidence should be exercised with great care and caution having regard to the welfare of the child and the possible unreliability of the child’s evidence (tribunal Benchbook commended and additional guidance given) (paragraphs 52 to 58); 7. in the present case the approach of the tribunal in summonsing the child to give evidence and then in drawing an adverse inference from the fact that she did not attend was inappropriate and unlawful as breaching the claimant’s right to a fair hearing (paragraphs 59 and 60). The Commissioners remitted the case for rehearing by a differently constituted tribunal.
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