Legal victory for children who give evidence
Tribunal says ‘great care and caution’ should be exercised
17.05.05

A test case taken by a leading children’s charity has been successful in protecting children who give evidence to social security appeal tribunals.

A Tribunal of Social Security Commissioners delivered its decision in a test case taken by the Child Poverty Action Group on whether children should normally be compelled to give evidence to social security appeal tribunals. The case also considered whether in order to count as “disabled” a person has to have a diagnosed or recognised medical condition.

'This is a fantastic decision which protects the interests of children,' said Stewart Wright, CPAG’s Legal Officer.

'It is startling that there are no rules governing children giving evidence to social security appeal tribunals; all the more so given that DLA is a benefit available to children and so turns on assessing the disability of the child.

'Hopefully this decision will act as a strong counterweight to the many tribunal members who think that the child must appear in front of them if it is the child’s benefit that is in issue, and should cause all tribunal members to pause for thought before calling a child to appear before them,' he said.

Ruling in favour of the child on the appeal, the Tribunal of Commissioners has said ‘…a tribunal should exercise its discretion to call a child to give evidence before it with great care and caution, and it would be wholly exceptional for it to do so against advice that it would be harmful for the child to do so. They went on to give further guidance to tribunals in this matter, but said that it would be better addressed on a cross-tribunal basis, perhaps with the assistance of the Council on Tribunals…’

'The other aspect of the decision rightly puts the focus of the assessment of entitlement to DLA on what the person can or cannot do rather than what is medically wrong with her or him,' Stewart Wright added.

'Potentially it will bring into entitlement those people - such as those with what may loosely be described as behavioural problems - with obvious care needs but who have no medical label or diagnosis to attach to their condition: people who are often the most socially excluded.'

On this aspect the Tribunal of Commissioners has said that ‘…whether a person is disabled or not for the purposes of entitlement to Disability Living Allowance is not dependant on her or him being able to point to a defined or recognised medical condition. In this context, disability is not synonymous with a medical condition, and has to be equated with a lack of functional ability. …’

For further information or comment:
Stewart Wright
Legal Officer
Tel. 020-7812-5215

Ashley Riley
Press Officer
Tel. 020 7812 5216
Mobile 07811 324339
Email ariley@cpag.org.uk

Notes:

1. Given the nature of the case, the claimant is not available to be contacted.
2. A full copy of the Tribunal of Commissioner’s decision (ref: CDLA/1721/2004) can be obtained from CPAG.
3. The statutory tests for entitlement to DLA are set out in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992.