Social Security Case Law

KR v Department for Communities (DLA) (2022) NI Com 11

Background

The applicant was the mother of a five year old with autism, speech and language delay, Tourette’s syndrome and restrictive eating. The child would refuse to hold an adult’s hand and was likely to run off, had very limited awareness of danger and was fascinated by the wheels of moving vehicles. The Tribunal accepted the child required substantial guidance or supervision from another person most of the time out of doors, but that he did not require substantially more guidance or supervision than a healthy child of the same age.

Legal Issue

The applicant was represented by the Law Centre who argued the Tribunal had failed to give adequate reasons for its decisions and had made clear findings as to how it reached the decision.

Decision

The Commissioner accepted there was an error of law in that clear findings were not made. In particular, the relevant test is set out in BM v SSWP reported as (2015) AACR 29 as endorsed in the NI Chief Commissioner in CM v DSD (2016) NI Comm 36 at paragraph 13. The relevant passages in BM include at para 43 that:

‘The starting point for the Tribunal should have been to identify what relevant assistance BM required when walking out of doors. This may not have been limited to crossing the road… the Tribunal should then have identified the nature and degree of any guidance or supervision that was required and whether it was substantially more than the requirement for guidance or supervision of 6 year olds in normal physical and mental health or whether 6 year olds in normal physical and mental health would not require such guidance or supervision.’

The Commissioner held that in order to assess entitlement, the legislation requires the decision maker to carry out an exercise to sift out the needs of a child her due to disablement from the needs that a child has due simply to age.

The Commissioner observed that the failure of the Tribunal to follow the helpful framework in para 43 of BM v SSWP which has been accepted as good law in NI meant it was not possible to understand the Tribunal’s findings. Accordingly, an error of law has occurred, and the case was sent back to a freshly constituted Tribunal to consider again.

For a full copy of the judgement, click here.