MF-v-Department for Social Development (DLA) [2010] NICom 62

Decision No:  C40/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 6 January 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.    The decision of the appeal tribunal dated 6 January 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

3.    Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

4.    For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8) (a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

5.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

6.    It is imperative that the appointee notes that while the decision of the appeal tribunal has been set aside, the issue of his son’s entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

       Background

 

7.    On 7 July 2008 a decision-maker of the Department decided that the claimant (the appointee’s son) should not be entitled to DLA from and including 14 April 2008.  On 23 July 2008, following the receipt of a letter of dispute, the decision dated 7 July 2008 was reconsidered but was not changed.  The appeal was received in the Department on 1 August 2008.

 

8.    The appeal tribunal hearing took place on 6 January 2009.  The appointee was present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 7 July 2008.  An application, dated 16 March 2009 was made to set aside the decision of the appeal tribunal.  On 3 April 2009, the application to set aside was refused.

 

9.    On 5 May 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. On 12 May 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

       Proceedings before the Social Security Commissioner

 

10.   On 4 June 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

11.   Observations were sought from Decision Making Services (DMS) and these were received on 30 July 2009.  DMS supported the application on one of the grounds cited in the application for leave to appeal and on another identified ground.  Observations were shared with the appellant on 3 September 2009.

 

12.   On 21 October 2009 I directed an oral hearing of the application.  Following an adjournment of the first hearing of the application, an oral hearing took place on 25 March 2010.  At the oral hearing, the appellant was represented by Ms Kyne from the Citizens Advice Bureau, and the Department was represented by Mr Kirk of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

13.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

14.   In R (I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R (Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R (I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)      giving weight to immaterial matters;

 

(v)      making a material misdirection of law on any material matter;

 

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

15.   The only issue raised by the appeal to the appeal tribunal was whether the conditions of entitlement to the middle rate of the care component of DLA, as set out in section 72(1)(c)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. Section 72(1) (c) (i) provides that:

 

‘… a person shall be entitled to the care component of a disability living allowance for any period throughout which –

 

…

 

(c)      he is so severely disabled physically or mentally that, at night,—

 

(i)       he requires from another person prolonged or repeated attention in connection with his bodily functions;’

 

16.   In the statement of reasons for the appeal tribunal’s decision, it is recorded that:

 

‘Having weighed up all of the available pieces of evidence, the Tribunal concluded that the child did not suffer from enuresis, requiring assistance and care from either or both of his parents, most nights.’

 

17.   There are two aspects of that statement which are problematic.

 

18.   The first concerns the appeal tribunal’s finding that the child did not require assistance from either or both of his parents ‘most nights’.

 

19.   In C7/01-02(DLA), Commissioner Brown stated, at paragraphs 19 to 20:

 

‘19.  In situations where the needs vary, as here, the Tribunal has to make its findings based on what is the situation on most nights.  I can ascertain no fault in the Tribunal’s conclusion that at night the claimant does not require prolonged or repeated attention in connection with his bodily functions other than once per week or per fortnight.  The times when the claimant’s wife has to give him attention in connection with the bodily functions do not occur on most nights.  She does monitor him, however, and this monitoring can constitute supervision.  However it must be reasonably required.  It does not have to be medically required but obviously if there is no medical reason for the supervision being given the chances of it being reasonably required are somewhat lessened, though not necessarily eliminated.

 

20.  The Tribunal has reasoned that, even it was accepted that this monitoring of the claimant was necessary, it does not amount to the claimant’s wife being awake for a prolonged period or at frequent intervals for the purpose of watching over him.  On most nights it appears that she checks on him nearly every two hours relying on her wakening up spontaneously to do so and this checking involves asking him if he is alright and if he is, which is the situation on most nights, he will reply and she then goes back to sleep.  The Tribunal found and I consider that they were entitled to do so, that this would amount to the claimant’s wife being awake for approximately one minute three times per night.  This is obviously not her being awake for a prolonged period.  I also consider that the Tribunal was entitled to find that this was not being awake at frequent intervals.  In this connection I would refer to the obiter remarks in R2/99(DLA) as to what constitutes frequent intervals.  I can find no fault in the Tribunal’s conclusion in relation to this matter.’

 

20.   At first glance, therefore, there is judicial support for the appeal tribunal’s approach to the fluctuating nature of the child’s medical condition, and the varying nature of the resultant care and/or attention requirements.

 

21.   It is the case, however, that the legal principles relevant to the application of section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to fluctuating medical conditions moved on since Commissioner Brown made her remarks in 2002.  There is a useful summary of those advances to be found in the decision of the Chief Social Security Commissioner for Great Britain in R (DLA) 5/05.  At paragraphs 7 to 12, he stated:

 

‘The proper approach to the section 72(1) requirements

 

7.       Case No. CDLA/5465/2002 concerns the “day-time requirements” criteria of section 72(1) (b), and Case No CDLA/492/2004 concerns the “night-time requirements” criteria of section 72(1) (c).  However, in considering the proper approach to any section 72(1) requirements, the starting point must now be Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, R(DLA) 7/03.  That case concerned the so-called “cooking test” criteria of section 72(1) (a) (ii).  Having described the test as “a notional test, a thought-experiment, to calibrate the severity of the disability”, Lord Hoffmannn (with whom the rest of the House agreed) went on:

 

“18.    That leads on to the second point, which is that the test says nothing about how often the person should be able to cook.  It would have been easy for Parliament to say that a person should be able to cook daily or six times a week or whatever.  Instead, the statute approaches the question of frequency in a different way.  Section 72(2) contemplates that one should be able to say of someone throughout a nine month period [ie from three months before the effective date of the decision to six months after that date:  see paragraph 6 above] that he is a person whose disability is such that he cannot cook a main meal.  What does this mean?  One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so.  But the Secretary of State does not contend for this construction and I do not think that it would be right.  That is not because one occasion is de minimis but because the test does not in my opinion function at that day-to-day level.  It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal.  It is an exercise in judgment rather than an arithmetical calculation of frequency.

 

19.     I therefore agree with the Commissioner that the question involves taking ‘a broad view of the matter’ and making a judgment.  The standard of motor abilities required by the cooking test is not so precise as to allow calibration by arithmetical formula.  In the present case, I think that the Court of Appeal attached too much weight to the fact that in her claim form Mrs Moyna had ticked the box ‘1–3 days’ for the extent to which she needed help with heavy pans, cutting vegetables and so forth.  In answering the generalised question of whether Mrs Moyna could fairly be described as a person unable to cook, it may be relevant to consider not only the number of occasions on which she says she would need assistance but also the reasons why it would be needed.  The tribunal went into the matter in some detail.  It observed that she could cook for herself using lighter pans and cutting up smaller vegetables.  In addition, it had the opinion of the examining doctor and his record of Mrs Moyna’s own description of herself as a person who could cook a meal – a description which is, as I have said, not inconsistent with her not being able to do so all the time.  These are all items of evidence which go into the decision-making process.

 

20.     In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way:  see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, 815-816.  I respectfully think that it was unrealistic of Kay LJ to think that he was able to sharpen the test to produce only one right answer.  In my opinion the Commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law.”

 

8.       These comments of Lord Hoffmann echo those of Commissioners in earlier cases.  In R (A) 2/74, the Chief National Insurance Commissioner Sir Robert Micklethwait QC considered the night-time attention criteria found in section 2(1) of the National Insurance Act 1972 which was in similar terms to section 72(1) (c) (i).  He referred to the “composite question” posed by the relevant provisions, and then said (paragraph 35):

 

          “I think that the delegate should take a broad view of the matter, asking himself some such question as whether in the whole circumstances the words in the statute do or do not as a matter of the ordinary usage of the English language cover or apply to the facts.”

 

          This has been regularly reiterated by Commissioners.  For example, in CSA/8/1996 (paragraph 17), Mr Commissioner May QC said of the question raised by section 72(1) (b) (i):

 

          “… [It] is essentially a jury one relating to facts.  It is to be approached broadly.  If properly approached and recorded it will not be disturbed on appeal.”

 

9.       Although the criteria in the various subsections of section 72(1) are discrete and very different, the comments of Lord Hoffmann inform the general approach to each.  In respect of each, an exercise in judgment has to be made taking “a broad view of the matter”, ie taking account of all relevant factors.  In respect of none can a determination be made upon an arithmetical formula or by reference to an invariable benchmark.

 

10.     It is therefore for a decision-maker (or, in a decision-maker’s shoes, an appeal tribunal) to make a judgment as to whether the relevant criteria are satisfied in any specific case.  In conventional legal language, one would ordinarily say that this is therefore primarily a matter of fact, unable to be attacked on an appeal to (eg) a Commissioner on a point of law only.  Lord Hoffmann dealt with the extent to which such matters are questions of law in paragraphs 21 and following of his judgment.  Whilst the ordinary meaning of a word is a matter of fact, the meaning which Parliament appears to have intended to convey by using that word in a statutory provision is a matter of law which “depends upon not only the conventional meanings of the words used but also upon syntax, context and background” (paragraph 24).  In this context, “it is seldom helpful to make additions or substitutions in the actual language he [the author] has used” (paragraph 24).  The law therefore draws the conceptual test line but, having done so, whether particular facts fall one side or the other of that line is a matter of fact (paragraph 25).

 

11.     Consequently, in the cases before me now, I cannot interfere if the relevant tribunal identified the correct legal line – but only if I consider it failed to recognise the correct line or, having recognised it, made a decision as to which side of the line the case fell that was “outside the bounds of reasonable judgment”.

 

12.     What matters of law affect where this line is drawn?  Of course, these cannot be dealt with comprehensively in this decision, nor do I purport to do so – but the following matters are particularly relevant to the cases before me.

 

12.1    As I indicate above, a determination as to whether a criterion has been satisfied cannot be made by reference to an inflexible benchmark.  Therefore, for example, in relation to whether the night-time criteria of section 72(1) (c) (ii) are satisfied, although no doubt the number of nights upon which a claimant requires “prolonged or repeated attention” is a relevant factor which a decision-maker must take into account, a claimant does not automatically fail to satisfy that condition merely because (eg) he does not satisfy the criteria for at least a majority of the nights of the week.  Similarly, a person may satisfy the requirements of a provision “throughout” a period, even if he does not satisfy the statutory criteria for a majority of the days of the week.  By way of further example, although “prolonged” may “seem to be accepted by decision-makers to mean 20 minutes or more” (Social Security Legislation 2003 Vol 1 paragraph 1.205), “prolonged attention” cannot be expressed in a given number of minutes (eg 20 minutes), beyond which attention is invariably “prolonged” and within which it is invariably not “prolonged”.

 

12.2    However, although the discretion of the decision-maker or tribunal must be actively exercised in each case, this does not mean that they cannot have cognisance of any sort of guideline.  For example, although it cannot be said that attention of less than X minutes cannot in any circumstances be “prolonged”, it is difficult to conceive of circumstances in which, say, 3 minutes attention could properly be considered “prolonged” (see R (A) 2/74, paragraph 35): and a guideline that attention of anything less than 20 minutes is unlikely to be “prolonged” may be at least a reasonable starting point (see CDLA/4024/2003, paragraph 5).  It is not wrong for decision-makers to have starting point guidance in mind when considering such determinations, so long as they consider each case on its own facts and look for factors which may lead to the guidance being inappropriate in that case (eg circumstances that may render attention of less than 20 minutes “prolonged” for the purposes of section 72(1) (c) (i)).

 

12.3       As identified by Lord Hoffmann, the subsections of section 72(1) require consideration of a “composite question”, and it is unhelpful to regard the test as comprising a number of stages.  For example, with regard to section 72(1)(b)(i), the Secretary of State submitted in his observations to me in Case No CDLA/5465/2002 that this provided for a two-stage test or a test involving two discrete questions, ie (i) is the attention required frequently and, if so, (ii) is it required throughout the day.  However, this approach is not helpful and may lead to error.  The real question is the composite one of whether, throughout the relevant period, the claimant was so severely disabled that, by day, he or she required from another person frequent attention throughout the day in connection with his or her bodily functions.

 

          The need to consider the requirements of section 72(1) in a composite way is well established in long-standing Commissioners’ jurisprudence.  Considering provisions of the National Insurance Act 1972 substantively similar to those of section 72(1) (c), in words resonant with those of Lord Hoffmann, Mr Commissioner Shewan said in CSA/2/1973 (paragraph 8):

 

          “… [T]he statutory condition could not, in my view, be held to be satisfied by evidence that on one solitary occasion the disabled person required prolonged or repeated attention during the night: nor, in my view, is it necessary, for satisfaction of the condition, to show that on every night he requires such attention.  The test must be something between these two extremes.  I respectfully agree with the statement, in Decision CA 2/73 (paragraph 13), that ‘in order to determine whether a condition is satisfied, or is likely to be satisfied, regard must be paid to evidence of the claimant’s requirements over a period of time …’.”

 

          This composite approach was expressly approved by the Chief Commissioner in R (A) 2/74, to which I have already referred.

 

12.4       In Lord Hoffmann’s words, “it is seldom helpful to make additions or substitutions in the actual language he [the author] has used”.  Earlier cases – of both the Commissioners and the courts – which seek to make such additions or substitutions need to be considered with very great caution.  It is likely that the propositions for which they have been cited in the past are no longer good.  For example, in relation to section 72(1)(b)(i), with respect I disagree with Mrs Commissioner Parker (in CSDLA/590/2000, paragraph 43) that the words “frequent … throughout the day” necessarily mean (and could usefully be replaced by) “very often over the course of the whole day”.  As Lord Hoffmann indicated, such attempts at clarification by manipulating the actual words used are unlikely to be helpful, and may lead to error.

 

          Again, if I might venture to say so, this is well established from earlier Commissioners’ cases.  In R (I) 2/74, the Chief Commissioner Sir Robert Micklethwait QC, having said that there can be no objection to discussion of the component parts of benefits conditions, went on:

 

          “When however the adjudicating authority comes to the point of actual decision of a statutory question, it is then essential for it to decide that question and not some other one.  This makes it dangerous for either an adjudicating authority or the forms supplied for its use to use, at the decision stage, language different from that of the statute, which may lead to doubt whether the authority has decided the correct question.”

 

12.5    Nor, in relation to the definitions of “frequent”, “prolonged” or “repeated” in section 72(1), do I consider the oft quoted words of the Master of the Rolls in R v National Insurance Commissioner ex parte Secretary of State for Social Services [1981] 1 WLR 1017 reported as Appendix to R (A) 2/80 to be of any substantial assistance. In that case, Lord Denning MR said:

 

          “‘Frequently’ connotes several times – not once or twice.  ‘Prolonged’ means some little time.  ‘Repeated’ means more than once at any rate.”

 

          In addition to Commissioners’ decisions, the learned authors of standard texts refer to these as definitions with apparent support (see, for example, “Social Security Legislation 2003” Vol 1 paragraph 1.205 and “The Law of Social Security”, 5th Edition, Wikeley, Ogus & Barendt, page 698).  However, although the case provides important authority upon the question of whether “cooking” comes within the words “attention in connection with [her] bodily functions” (which was the matter in issue), any comments on the meaning of “frequent” or these other words were obiter.  More importantly – because obiter dicta of the Court of Appeal are in any event persuasive – in my view, Lord Denning was not purporting to lay down definitions but only identify some obvious characteristics of these words as conventionally used.  To say that “repeated” connotes something occurring “more than once” is not only self-evident (as Lord Denning himself clearly appreciated from his addition of the words “at any rate”), but in most cases will not be particularly helpful.  “Frequent” clearly does require there to be several occurrences, but the characteristic of frequency is not simply the number of times something occurs, but the rate at which it occurs.  “Frequency” is a product of the number of times something occurs over a period of time.  “Frequent” does not mean “several”, either in conventional usage or in the specific context of section 72(1).

 

          In my view, with regard to section 72(1), the words of Lord Denning MR quoted above have attracted a definitional authority neither intended nor warranted.  The Master of the Rolls merely made some general and uncontentious comments in respect of the conventional usage of these words.  Whilst one can only have respect for the words of Lord Denning – who always used the tools of his trade carefully and skilfully – it is important that his every comment is not clothed with something akin to statutory force.  His comments in R v National Insurance Commissioner should not be treated as comprehensively defining these terms in the context of section 72(1).

 

12.6    Phrases in section 72(1) such as “frequent … throughout the day” consist of ordinary words not used in any unusual sense (see CA/147/1984).  Although context is of course important – and I will return to it – the starting point in the construction of such phrases is the ordinary meaning of the words in conventional usage.

 

          Therefore, by way of example, as I have indicated, “frequent” requires consideration of, not just the number of occasions something occurs, but the time over which they occur:  the word having the characteristic of recurrence at intervals which are not long.  Whether intervals between occurrences are or are not “long” – and therefore whether occurrences can properly be said to be “frequent” – therefore depends upon a number of factors, particularly the number and pattern of those occurrences over time.  The nature of the occurrences themselves is also relevant.  For example, “frequent” ice ages properly so-called would be very different in number and pattern from a “frequent” train service properly so-called.  Indeed, because the nature of the occurrences is something relevant to the question of whether those occurrences are “frequent”, I do not quite agree with Mrs Commissioner Parker (in CSDLA/590/ 2000) that the proper approach to frequency can take no account of duration of the relevant occurrence (except to exclude instances of attention that are de minimis as she accepts).  Although it is often not illuminating to see how words are used in entirely different contexts, in common usage consideration of the frequency of a train service is affected by the length of the journey involved.  An hourly service from London to Birmingham may be spoken of as “frequent”, but an hourly short local service may not.  However, although in my view duration of individual occurrences is not necessarily irrelevant, in relation to periods of attention under section 72(1)(b)(i) the number and pattern of occurrences will usually be the most relevant – indeed, the overriding – factors in relation to the issue of “frequency”.

 

12.7    However, as well as the conventional usage of the words used, in construing the requirements of the various subsections of section 72 it is important also to take into account the context of the relevant provisions.  The subsections set out sets of criteria for each of three levels of the care component of DLA.  Because the tests for the different rates are separate and not logically progressive, there is no strict hierarchy whereby a claimant who does not satisfy the lowest rate criteria (of section 72(1) (a)) could not logically satisfy the requirements of one of the middle rate tests (see, eg, CDLA/12150/1996, paragraph 12).  It would also be simplistic to suggest that those with disabilities can easily be “graded” for DLA purposes, if only because it is difficult to compare the functional effects of dissimilar disabilities.  However, even with these caveats in mind, in construing the provisions of section 72(1)(b) or (c), it is proper to bear in mind that a person who satisfies those criteria is entitled to over twice the weekly benefit of someone who satisfies only the criteria of section 72(1)(a).  DLA is a benefit which is specifically designed to give different levels of financial assistance in response to different levels of functional disability.  It cannot have been Parliament’s intention that less disabled people should generally be awarded higher levels of DLA than those who are more disabled.  Similarly, although the requirements are clearly different in nature, in construing the requirement of section 72(1) (b) (i) (“frequent attention throughout the day in connection with his bodily functions”), it is proper to take into account that the same level of benefit is attached to this requirement as the requirement for “continual supervision throughout the day in order to avoid substantial danger to himself or others” (section 72(1) (b) (ii)).

          Therefore, the construction of each set of criteria within section 72(1) is to an extent informed by not only the DLA scheme as a whole, but also where it falls within the particular scheme of section 72(1).’

 

22.   As was noted above, the principles set out in R(DLA) 5/05 draw heavily on the analysis set out by the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, R(DLA) 7/03.  Certain of the principles set out by Commissioner Brown in C7/01-02(DLA) are inconsistent with what the House of Lords stated in Moyna, and as expanded on by the Chief Social Security Commissioner for Great Britain in R (DLA) 5/05.  To the extent that those principles are inconsistent, it is my view that, with respect, the decision in C7/01-02(DLA) should no longer be followed and I accept and adopt the principles in Moyna and R (DLA) 5/05 as properly representing the law in Northern Ireland.  I would myself prefer to describe the proper approach as taking a ‘common sense’ rather than a ‘broad’ view but that does not affect my support for the relevant principles.

 

23.   The conclusion of the appeal tribunal that the claimant did not require assistance from either or both of his parents ‘most nights’ is redolent of the arithmetical approach which has been disapproved of in Moyna and R (DLA) 5/05.  By adopting such an approach, and not taking a ‘common sense’ approach, the appeal tribunal erred in law.

 

24.   As was noted above, there is a second problematic aspect to the appeal tribunal’s statement that ‘…that the child did not suffer from enuresis, requiring assistance and care from either or both of his parents, most nights.’  It is not clear to me whether the appeal tribunal was concluding that the child did not suffer from enuresis at all or whether the appeal tribunal accepted that the child did suffer from enuresis but that the manifestations of that disability, in the form of wetting the bed, with a consequent requirement for attention from either or both of the parents, did not occur on most nights.  If the true conclusion was the latter, then the appeal tribunal could have made this more explicit.

 

25.   If the appeal tribunal was concluding that the child did not have enuresis then that is more problematic, however. In R (DLA) 3/06, at paragraphs 35 to 37, a Tribunal of Commissioners in Great Britain stated:

 

35.           “Disability” is conceptually distinct from “medical condition”.  “Disability” is entirely concerned with a deficiency in functional ability, ie the physical and mental power to do things.  Of course, a diagnosable medical condition may give rise to a disability.  For example, a condition that inevitably involves the loss of a sense or a limb would give rise to an obvious diminution in functional capacity.  But entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.  Even if a person has a serious medical condition in the sense that his life is imminently threatened – perhaps some asymptomatic heart condition – that person is not entitled to either component of DLA if the condition has no adverse impact on his ability to care for himself and be mobile without assistance.  Conceptually and in ordinary language usage, “disability” cannot be equated with “medical condition”; and a “severe disability” is not the same as a “serious medical condition”.

 

36.           Contrary to this usage, do the statutory provisions of sections 72 and 73(1) (d) require “disability” to mean “medical condition”?  The requirement of these provisions is that the claimant is “so severely disabled … that” certain consequences follow.  This clearly does not and cannot mean “having a serious medical condition”.  If severity of disability is measured by reference to the seriousness of the medical condition, rather than to the effects in terms of care needs, the provisions could not achieve their purpose of correlating entitlement to care needs.  Furthermore, as the Chief Commissioner recognised in the formulation of his question in R (A) 2/92, in context the equation of “disability” with “medical condition” requires a severance of the statutory language, which would deprive the provision of any criteria by which “severity” could be assessed.  Indeed, the very use of the word “severe” is an indication that “disability” is a reference to some functional deficiency (see paragraph 41 below).

 

37.           Sections 72 and 73(1) (d) require a claimant to be “disabled physically or mentally”, and provide no further definitions or guidance.  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 (eg the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967).  We were also referred to section 1(1) of the Disability Discrimination Act 1995 which provides “[s]ubject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  Schedule 1 provides a number of detailed provisions that supplement section 1, including in paragraph 1 the following:  “Mental impairment’ includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness”.  As Mr Maurici submitted, had Parliament intended to adopt a similar restricted approach to the concept of “disability” in the 1992 Act, it could and no doubt would have done so.‘

 

26.   The key phrase in the extract cited above is ‘… entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.’  Accordingly, if reasoning of the appeal tribunal in the instant case, (and it is not clear that this was its reasoning) was that the claimant could not have an entitlement to DLA because there was no diagnosed medical condition then such reasoning is erroneous.

 

27.   In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS have noted that:

 

‘… I would submit that it has erred in that it has either failed to consider a letter from Dr L…. dated 18 July 2008 (…) which indicated that (the claimant) had to be changed at least twice per night or if did consider this evidence it has not giving [sic] any reasons for rejecting same.

 

At paragraph 54 of unreported decision C16/08-09(DLA) Commissioner Mullan stated:

 

“Nonetheless, there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”’

 

28.   Ms Kyne renewed a submission on this point, in the skeleton argument prepared for the oral hearing of the application and at the oral hearing itself.  I would agree that by failing to indicate what it made of evidence which was before it, and which, on the face of it, supported contentions being made on behalf of the appellant, the appeal tribunal erred in law.

 

29.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has noted that:

 

‘The Tribunal also considered the issue of the steps taken by his parents in relation to the child’s enuresis, and in particular whether it was reasonable of them to change the child’s bedding on each occasion when enuresis occurred, as opposed to using “huggies” which would go a long way to alleviating the effects of any enuresis.  The Tribunal felt that, while the parents, no doubt would have some difficulty in persuading the child to use “huggies”, that was a reasonably available alternative and there was therefore a significant element of choice in how they dealt with the problem.  The Tribunals view was that changing the bedding and the child’s clothing every time was not “reasonably required” and therefore could not qualify as care needs.’

 

30.   In the written observations on the application for leave to appeal, DMS have submitted that:

 

‘In reported decision R(A)1/87 Commissioner Mitchell confirmed the view that adjudicating authorities may examine and propose alternative measures to limit or dispose of the need for attention or supervision.  This view was endorsed by a Tribunal of Scottish Commissioners in R (A) 3/90.  However the Commissioners held that the proposed practical measure must be reasonable and the consequences of the proposal must be examined.  In view of the fact that (the claimant’s father) highlighted the problems he had in getting (the claimant) to wear huggies and the potential problems this may have caused (the claimant) I would submit that the tribunal should have considered the possible consequences of their proposal and in failing to do so have erred in law.

 

Are Nappies / Pull Ups a reasonable aid?

 

In CA/96/84 Commissioner Monroe held that the term “required” means reasonably required and that “reasonably required” does not mean “medically required”.  In that case the claim for attendance allowance was disallowed on the basis that attention was not required.  In deciding this question Commissioner Monroe accepted that the delegated medical practitioner (DMP) did not err in determining that enuresis could be controlled to some extent by a suitable regime in respect of fluids, by incontinence pads and rubber sheets.

 

R (DLA) 1/05 concerned a six year old child who suffered from nocturnal enuresis.  Commissioner Rowland held that the need for attention at night could reasonably be avoided through the use of nappies.  Commissioner Rowland also accepted that the use of nappies may not be practical or expedient for an older child but suggested that it is a reasonable aid for a six year old.

 

In this case Ms Kyne has now produced general guidance issued by the Southern Health and Care Trust which advises that children should not wear nappies or pull-ups in bed because this means they would have no incentive to be dry and it would make them feel like babies.  This advice would indicate that the Trust has concerns that there may be psychological affects on children if they are forced to wear nappies/pull-ups.  Whilst there are no doubt circumstances when it will be appropriate for certain children to wear nappies/pull ups at night, I would submit that in the circumstances of the current case (and in light of the guidance issued by the Health Trust) it was not reasonable for the tribunal to conclude that the use of ‘huggies’ would go a long way to alleviate the effects of enuresis.  I would further submit that an aid would not be ‘reasonable’ if it could affect the future well being of the child.  As stated previously (the claimant’s father) had highlighted the problems he had in getting (the claimant) to wear the ‘huggies’.  These problems were such that both he and his wife gave up trying to force them on (the claimant).’

 

31.   I accept that the general guidance from the Southern Health and Care Trust was not before the appeal tribunal, and it cannot be faulted for failing to take account of evidence which was not before it.  Nonetheless, the appeal tribunal had before it the oral evidence of the claimant’s father who described the problems associated with his son’s rejection of ‘Huggies’ as a suitable alternative mechanism for managing the effects of the enuresis, and it could, in my view, have examined in more detail the reasonableness of this proposed alternative measure to limit or dispose of the need for attention or supervision.

 

       Disposal

 

32.   The decision of the appeal tribunal dated 6 January 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

33.   For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8) (a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

34.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)              the decision under appeal is a decision of the Department, dated 7 July 2008 in which a decision-maker of the Department decided that the claimant (the appointee’s son) should not be entitled to DLA from and including 14 April 2008;

 

(ii)             the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

 

(iii)            it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  In this regard, the appellant’s representative may wish to adduce the evidence from the Southern Health and Care Trust in the form of guidance on the suitability of ‘nappies’ or their equivalents for older children; and

 

(iv)           it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

(signed)  K Mullan

 

Commissioner

 

 

 

30 June 2010