RC-v-Department for Communities (DLA) [2018] NICom 7

Decision No:  C73/17-18(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 29 March 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Enniskillen.

2.	An oral hearing has not been requested. 

3.	For the reasons I give below, I grant leave to appeal. However, I disallow the appeal. 

	REASONS

	Background

4.	The appellant, born on 9 May 2016, through her mother (the appointee), claimed disability living allowance (DLA) from the Department for Communities (the Department) from 2 August 2016 on the basis of needs arising from phenylketonuria (PKU).  This is a metabolic condition which requires restriction of the intake of natural proteins in order to avoid brain damage and severe learning disabilities.  On 4 September 2016 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 2 August 2016. The appointee appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 29 March 2017 the tribunal disallowed the appeal.  The appointee then requested a statement of reasons for the tribunal’s decision and this was issued on 18 May 2017.  The appointee applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 13 June 2017.  On 6 July 2017 the appointee applied to a Social Security Commissioner for leave to appeal. 

	Grounds

6.	The appointee submits that the tribunal has erred in law on the basis that:

	(i) it failed to consider the appellant’s substantial care needs;

	(ii) it failed to consider the implications for the appellant’s health if a mistake was made;

	(iii) it failed to consider relevant case law provided.

7.	The Department was invited to make observations on the appellant’s grounds.  Ms Adams of Decision Making Services (DMS) responded on behalf of the Department.  Ms Adams submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

	The tribunal’s decision

8.	The LQM has prepared a statement of reasons for the tribunal’s decision. From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, containing the claim form and a factual report from the appellant’s GP.  It further had sight of the appellant’s medical records.  The appointee attended the hearing and gave oral evidence, accompanied by her representative.  The Department was also represented.  The tribunal noted that mobility was not claimed, as the appellant was a four-month old baby and therefore below the relevant age threshold of three years. 

9.	The tribunal observed that the appellant was born on 9 May 2016 and that DLA was claimed from 2 August 2016, with the decision to disallow being made on 4 December 2016.  The tribunal accepted that the appellant had a physical disablement, namely PKU.  It accepted that she had a requirement for frequent attention throughout the day in connection with bodily functions.  The tribunal referred to the appellant being 4 months old at the date of decision. (In fact she was just short of 3 months old at the date of claim and 6 months old at the date of decision, but I do not consider that anything turns on that.  It appears to me that the appellant’s level of care needs would have been relatively consistent between 3 to 6 months). 

10.	The tribunal took the view that the appellant required daily care, including making feeds, preparing food, monitoring food intake and generally ensuring that the child was not placed at risk by the actions of others.  It found that the needs of the appellant were in excess of – but not substantially in excess of - those a baby without her disability.  While recognising that this would change as the appellant grew older, it disallowed the appeal. 

	Relevant legislation

11.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992. This provides:

72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

		(a) he is so severely disabled physically or mentally that—

			(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

			(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

		(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

			(i) frequent attention throughout the day in connection with his bodily functions; or

			(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

		(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; or

			(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

	(1A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) above has effect subject to the following modifications— 
		(a) the condition mentioned in subsection (1)(a)(ii) above shall not apply, and 

		(b) none of the other conditions mentioned in subsection (1) above shall be taken to be satisfied unless— 

			(i) he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or 

			(ii) he has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.

	(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless— 

		(a) throughout— 

			(i) period of 3 months immediately preceding the date on which the award of that component would begin; or 

			(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and 

		(b) he is likely to continue to satisfy one or other of those conditions throughout— 

(i)	the period of 6 months beginning with that date; or 

			(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

	Assessment

12.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal. 

13.	Leave to appeal is a filter mechanism.  It ensures that only appellants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner. 

14.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach. 

15.	The appointee submits that the tribunal has erred as it has failed to consider the appellant’s substantial care needs and the implications to the child’s health if a mistake was made.  The appellant further submits that a Commissioner’s decision made available to the tribunal was not considered.  These are arguable points and I grant leave to appeal. 

16.	Taking the latter issue first, the appointee does not specify the particular interpretation of law by the Commissioner relied upon that the tribunal has failed to apply.  Her submission to the tribunal included an extract from the “NSPKU DLA Guide, Draft July 2004” and the decision of Commissioner Powell in CDLA/2188/2001.  That case concerned a child born in November 1995 who claimed DLA from May 1997, who was therefore 18 months old, and had been awarded the middle rate care component of DLA at that time until November 2005.  On a renewal claim from November 2005, a tribunal awarded low rate care component, when he was five years old.  The issue in the case was the extent of the requirement of supervision to prevent a child of five from eating anything outside the strict dietary program required by his PKU.  The Commissioner found that middle rate care was appropriate. 

17.	It does not appear to me that the case in question is of any assistance to a tribunal looking at the rather different care and supervision needs of a baby.  The appointee’s submission to the tribunal does not explain its relevance and her submission to me does not explain its relevance.  As the case was not directly relevant to the circumstances of the appellant, it does not surprise me that the tribunal has made no direct reference to it. I do not consider that it needed to make reference to an irrelevant decision and I find that it did not err in law by that omission. 

18.	Section 72(1A) of the 1992 Act lays down some relevant requirements. As a child, in order for the appellant to qualify for DLA, it would have to be shown that she has attention or supervision requirements which are substantially in excess of the normal requirements of persons of her age. Alternatively, it would have to be shown that she has substantial attention or supervision requirements which younger persons in normal physical and mental health may also have but which persons of her age and in normal physical and mental health would not have.  It seems to me that the latter category cannot assist the appellant.  The key question is whether her needs are substantially in excess of the normal requirements of other babies of her age in normal physical and mental health. 

19.	The appointee submits that the tribunal has failed to consider the appellant’s substantial care needs.  She had submitted a list of additional activities relating to the appellant’s PKU. These included:

	1.	Learning about PKU;
	2.	Teaching others about PKU;
3.	Weekly blood monitoring;
4.	Posting blood to RVH;
5.	Liaising with dieticians;
6.	Ordering prescriptions;
7.	Collecting prescriptions;
8.	Taking home deliveries or collecting them at post office;
9.	Learning how to use new products;
10.	Learning/researching recipes;
11.	Making daily feeding plans;
12.	Preparing meals/back-up meals;
13.	Cooking food in batches;
14.	Washing/sterilising extra containers;
15.	Packing meals and supplements if away from home;
16.	Supervision;
17.	Recording daily feeds;
18.	Preparing supplements;
19.	Weighing food eaten or not eaten;
20.	Feeding the appellant;
21.	Shopping;
22.	Attending hospital appointments;
23.	Attending NSPKU NI support group;
24.	Attending pharmaceutical events/workshops;
25.	Preparing for the future;
26.	Contacting other parents;
27.	Filling in forms;
28.	Expense of “free from” products;
29.	Emotional impact;
30.	Feeling isolated;
31.	Experiencing stress on leaving home; 
32.	Examples of other DLA claims;
33.	Cost of mental retardation of appellant not given the care and attention required. 

20.	These are matters which take up the appointee’s time and which cause her stress.  They are not activities that she would have to undertake, but for the appellant’s condition.  However, it is not all aspects of caring for another that count towards entitlement to DLA.  The key issue under the legislation governing entitlement is whether the appellant reasonably requires attention in connection with bodily functions.  The appointee herself, in her submission to the tribunal, had cited the judgment given by Lord Denning in Woodling, reported as R(A)2/80.  In that case, Lord Denning had given guidance on what was meant by bodily functions.  He said that:

"'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself”. 

21.	It is well established by the relevant jurisprudence that attention has to be of an intimate character to qualify for the purposes of the care component.  Actions such as collecting prescriptions or going to the post office are not attention in connection with bodily functions.  In terms of the list advanced to the tribunal by the appointee, it appears to me that only items 3 and 20 have the necessary qualities to be attention in connection with bodily functions, namely taking blood and feeding. 

22.	The tribunal accepted that the appellant had care needs in the area of feeding, and that her needs were in excess of a baby who did not suffer from PKU.  Its logic in disallowing the appeal was that those needs were not substantially in excess.  Substantial is an ordinary word of the English language.  In order to succeed in this application, the appointee would need to show that the tribunal had understood that term in an irrational or perverse way, and thereby reached a decision that no reasonable tribunal could reach.  Whereas the tribunal considered the aspect of the appellant’s dietary regime that required special carefully measured feeds, its finding that it did not involve substantially greater care than that of a baby taking non-specialised feeds cannot be held to be irrational. 

23.	One area which amounts to attention in connection with bodily functions which was not referred to by the tribunal was the issue of weekly blood monitoring.  It appears to me that the taking of a blood sample would involve attention for a matter of minutes.  While the tribunal did not address that aspect of care, it does not seem to me that the additional attention resulting would have made a material difference to the outcome of the appeal. 

24.	The appointee further submits that the tribunal had failed to consider the consequences for the appellant if a mistake was made.  The legal question in relation to the appellant’s supervision requirements was whether she needed continual supervision throughout the day in order to avoid substantial danger to herself.  This legal test focuses on avoiding danger.  The degree of danger is certainly relevant to assessing the reasonableness of the requirement of supervision.  However, it is a hypothetical test which does not question the quality of the supervision which might be given, rather it is addressed to need. I consider that the particular consequences for the appellant of a mistake in her feeding routine do not increase the amount or quality of supervision she requires over that of another baby of the same age. 

25.	As the appellant becomes older, the level of her needs will most likely begin to exceed those of all other babies in need of attention with bodily functions by a substantial margin. However, on the circumstances of the appellant at the relevant time, I do not consider that the appointee demonstrates that the tribunal has erred in law.  It follows that I must disallow the appeal. 

	(signed) O Stockman

	Commissioner

	14 March 2018