Lack of diagnosis of autism in a child and its treatment by a tribunal.
JT v Department for Communities (DLA) (2023) NI Comm 2 C5/22-23 (DLA)
The applicant was a five year old, applied for DLA on the basis of needs arising from asthma and possible autism. The claim was disallowed, and the decision was upheld on appeal. The tribunal found there was no diagnosis of autism though the child could become anxious, confused and display unpredictable behaviour requiring physical restraint. Moreover, a Special Educational Needs Individual Education Plan was submitted confirming the child had constant meltdowns, severe anxiety, poor sleep, poor concentration and that the child did not wash or dress himself.
The tribunal indicated on the balance of probabilities it did not accept that on the basis of the documents and evidence provided that there was an entitlement to the care component.
The Commissioner observed at para 17 that the ‘tribunal appeared to place weight on the lack of a diagnosis of autism but, as made clear by the Tribunal of Commissioners in R3/06 (DLA) at paragraphs 35 and 36, disability cannot be equated with medical condition’.
The Commissioner went onto hold that the appointee gave evidence on the child’s needs based on disability, but the tribunal did not specifically engage with that evidence, either accepting or rejecting it. At the very least, the tribunal should have addressed whether it accepted or rejected the appointees evidence and on what basis, see para 18.
Accordingly, an error in law was found.
For a full copy of the judgement, click here.