CM -v- Department for Social Development (DLA) (Children's test)

Factual and Procedural Background

The Appellant, as mother and appointee of a five-year-old child, submitted a claim for Disability Living Allowance (DLA) on behalf of her son on 7 October 2014. The Department for Social Development (the Department) decided on 11 December 2014 to disallow the claim, denying entitlement to DLA from 29 September 2014. The Appellant appealed this decision on 28 January 2015. An appeal tribunal hearing was held on 18 June 2015, where the Appellant was present but no Departmental Presenting Officer appeared. The tribunal disallowed the appeal, confirming the Department's decision. An application for leave to appeal was refused by a Legally Qualified Panel Member on 18 November 2015. Subsequently, a further application for leave to appeal was received and granted by the Social Security Commissioner on 6 April 2016, who identified an arguable legal issue concerning the application of section 71(1A) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The Commissioner set aside the appeal tribunal's decision and referred the case to a differently constituted tribunal for re-determination.

Legal Issues Presented

1. Whether the appeal tribunal erred in law by failing to consider the provisions of section 72(1A)(b)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in assessing the Appellant's son's entitlement to DLA care component.
2. Whether the appeal tribunal properly applied the legal test concerning the substantiality of care needs in comparison to normally healthy children of the same age.
3. Whether the Appellant's son could be considered for the mobility component of DLA given his age at the time of the claim.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that her son requires attention for a significant portion of the day and night in connection with his bodily functions, including assistance with cleaning after bowel movements due to limited sight.
• She asserted that her son needs help with various daily activities such as getting in and out of bed, bathing, dressing, moving indoors, and requires supervision for safety and behavior at school.
• The Appellant argued that these needs satisfy the care conditions under section 72 of the 1992 Act and that the tribunal failed to properly apply the 'Children's Test' under section 72(1A) of the Act.
• The Appellant also sought consideration for the mobility component of DLA as her son had reached the age of five by the time of the application for leave to appeal.

Department for Social Development's Arguments

• In written observations, the Department supported the appeal on the ground that the appeal tribunal had erred in law by not considering the relevant subsection 72(1A)(b)(ii) of the 1992 Act.
• The Department submitted that at the time of the claim, the child was only four years old and thus not eligible for the lower rate mobility component of DLA, a fact acknowledged by both the tribunal and the Appellant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982	Examples of errors of law applicable to appellate tribunals, including failure to consider material facts or law.	The Commissioner applied the principles to identify the appeal tribunal's failure to consider relevant statutory provisions as an error of law.
BM v Secretary of State for Work and Pensions (DLA) [2015] UKUT 18 (AAC)	Interpretation of the 'Children's Test' under the equivalent Great Britain legislation, clarifying the sequential assessment of care needs.	The Commissioner endorsed this approach as authoritative and noted the appeal tribunal's failure to consider subsection 72(1A)(b)(ii) accordingly.
C20/04-05(DLA)	Principles governing consideration of evidence of subsequent claims to DLA in appeal tribunals.	The Commissioner directed the new tribunal to apply these principles when considering any subsequent claims evidence.

Court's Reasoning and Analysis

The Commissioner analyzed the appeal tribunal's decision in light of statutory provisions and relevant case law. It was found that the tribunal correctly identified that the child had care needs exceeding those of a child of normal health and age but erred by concluding these needs were not substantially in excess without considering both limbs of subsection 72(1A)(b). Specifically, the tribunal failed to address whether the child had substantial requirements which younger children in normal health may also have but which are not typical for children of the child's age, as required under subsection 72(1A)(b)(ii). The Commissioner highlighted the importance of considering both limbs of the statutory test, referencing the authoritative Great Britain decision in BM. Furthermore, the Commissioner noted that the tribunal was best placed to assess detailed medical evidence and make factual findings, particularly given the absence of a medically qualified panel member in the original hearing. Regarding the mobility component, the Commissioner found no error in the tribunal's conclusion that the child was not yet eligible at the time of the original decision due to age, but acknowledged that a new claim could be made now that the child had reached the qualifying age.

Holding and Implications

The Commissioner SET ASIDE the appeal tribunal's decision dated 18 June 2015 on the basis of an error of law. The case was referred to a differently constituted appeal tribunal for re-determination, with directions to consider all relevant legal and factual issues afresh, including subsequent claims and evidence. The decision leaves the substantive question of the child's entitlement to DLA unresolved, pending the new tribunal's determination. No new precedent was established; rather, the ruling emphasized adherence to established statutory interpretation and procedural fairness in appeals concerning disability benefits.