UK Social Security and Child Support Commissioners' Decisions

R(A) 4/94
(Miller v. Chief Adjudication Officer)

CA (Staughton, Waite and Peter Gibson LJJ) CA/608/1990
27.4.94

Watching over - couple both with disabilities - whether requirements arising from claimant's need to watch over another to whom attendance allowance is payable are relevant

The claimant was severely disabled and in receipt of the lower rate of attendance allowance, as she satisfied the day-time supervision provisions of section 35(1) of the Social Security Act 1975 as amended. Her husband was also severely disabled and had been awarded the higher rate of attendance allowance under that section. The claimant applied for the higher rate for herself, claiming that she required watching over at night because she had a tendency to fall when she had to get up to attend to her husband. Her application for review resulted only in an award of the lower rate for life because the delegated medical practitioner decided that only one of the day conditions and neither of the night conditions under section 35(1) was satisfied. Her appeal to a Commissioner was dismissed. The claimant appealed to the Court of Appeal.

Held, dismissing the appeal, that:

section 35(1) was concerned with the needs of the claimant, not those of her husband who already received the higher rate of attendance allowance for his night time needs;

the night attendance on the husband who was himself disabled did not permit a further claim for attendance allowance by the claimant, which would result in a double recovery for the needs of the husband, or an aggregation of his needs with those of the claimant;

it was unnecessary to decide whether the position would be different if the claimant had to care at night for her child, who was not in receipt of attendance allowance;

the reasons given by the delegated medical practitioner for his decision were adequate; (per Peter Gibson and Waite LJJ) the reasons were not to be judged by the standards expected of a judge or lawyer; (per Staughton LJ) there was no obligation on decision makers to refer to every point made to them or to every piece of evidence that had been brought to their attention, although it might be wise to do so.

DECISION OF THE COURT OF APPEAL

Miss H. Mountfield (instructed by the Child Poverty Action Group, 105 Bath Street, London EC1V 9PY) appeared on behalf of the Appellant.

Mr. J. R. McManus (instructed by the Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Respondent.

LORD JUSTICE STAUGHTON: Lord Justice Peter Gibson will give the first judgment.

LORD JUSTICE PETER GIBSON: This appeal relates to a claim for an attendance allowance. This is a non-contributory benefit which is not means-tested, and at the relevant time was payable under the provisions of section 35(1) of the Social Security Act 1975 as amended by section 1(1) of the Social Security Act 1988. That sub-section as so amended provides:

"A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence in Great Britain and either

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

(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

(b) 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."

Prior to 15 March 1988 the day supervision condition of section 35(1)(a)(ii) was matched in section 35(1)(b)(ii) by a night supervision condition in the same terms; but the amendment introduced the stricter watching-over condition. The result was that in place of the concept of supervision, which is more passive than that of attention and merely requires a reasonably close but not necessarily alert presence of an attendant so as to be able to intervene in an emergency, the stricter watching-over condition, now found in section 35(1)(b)(ii), was substituted. If a claimant only satisfies one of the day-time conditions or one of the night-time conditions he gets an attendance allowance at a lower rate than if he satisfies both a day-time and a night-time condition.

A detailed system is laid down for claiming an attendance allowance and for challenging decisions relating thereto. A claimant applying for the allowance is examined by an examining medical practitioner ("EMP") who reports to the Attendance Allowance Board. That Board has the function of determining whether the claimant satisfies the conditions set out in section 35(1) (see section 105(3) of the 1975 Act), and it has the power to review any of its decisions (section 106(1)). But by paragraph 5 of Schedule 11 to the 1975 Act, it can delegate any of its functions to a medical practitioner, and in practice most decisions of the Board are made by a delegated medical practitioner ("DMP"). By section 106(2) and the regulations made thereunder, appeals against a determination by the Board on any question of law arising out of a review lie to a social security Commissioner.

The appellant, Mrs. Miller, was born on 17 May 1955. She contracted poliomyelitis at the age of two. This has left her with severe disabilities. She has permanent partial paralysis of her left leg and more severe paralysis affecting the right side of her body and limbs and scoliosis of the spine. She has had an ephiphysiodesis; she has limited lung capacity, back and muscle pain and weakness and poor circulation in her legs. She is unsteady on her feet and has a tendency to fall when walking, the main problem being that if she falls she needs assistance to get up again.

Despite these disabilities she was an infant school teacher for eleven years, she married in 1975 and had a child in 1986. Her husband is also severely disabled. He suffers from spastic diplegia and hypertension. Unlike the appellant, he is wheelchair bound. He receives an attendance allowance in respect of his needs at the higher rate. The appellant has described the disabilities of her husband and herself as complementary in the sense that their abilities enable them to help each other. They live with their son in a purpose-built bungalow. She is able to walk with a stick, but her walking ability was sufficiently impaired for her to have been awarded a mobility allowance in 1981.

On 14 December 1988 she applied for an attendance allowance, thereby commencing a chain of applications, decisions, reviews of decisions and appeals that I can only describe as showing quite astonishing tolerance of the grievances of dissatisfied claimants. It is unnecessary to rehearse these numerous steps. Suffice it to say that her case had been examined by two EMP's and three DMP's, before a fourth DMP on 14 August 1990, on a review of the third DMP's decision, which had allowed her, for a limited period, lower rate attendance allowance by reason of her satisfying the day time supervision provision, granted her lower rate attendance allowance for life, but like three previous DMP's, rejected her claim that the night-time condition was satisfied, and so refused her the higher rate attendance allowance.

The DMP, in giving his reasoned decision, dealt first with the night attention condition in section 35(1)(b)(i) . The DMP commented:

"3 ....I note from the medical report completed on 29 December 1988 that you said in your signed statement no attention was required at night. The examining doctor recorded that, in his opinion, no attention was needed during the night hours. I note from the later medical report completed on 5 May 1989 that you said you had considerable pain in your back at night, but there was no suggestion that you required any help because of this. The examining doctor recorded that in his opinion no attention was needed during the night hours. I note from your letter of 28 November 1989 that you say as well as having to cope with your own needs during the night, e.g. going to the toilet or fetching a drink, you also have to look after the needs of your husband and son. There is, however, no provision for aggregating the needs of separate individuals when a claim for attendance allowance is made, and I must have regard only to your attention needs as they relate to the medical requirements of the 1975 Social Security Act. I note that the examining doctor considered that you could use a commode unaided, and I also consider that you could prepare a drink for yourself and leave it placed at your bedside at night. After consideration of the evidence before me, therefore, I do not accept that you require, or have required, prolonged or repeated attention from another person in connection with your bodily functions and I do not accept that the right attention condition is satisfied".

The DMP then turned to the night watching-over condition and said:

"4. You are described as intelligent and both supplementary medical reports record that you are aware of common dangers indoors and outdoors and have no tendency to wander away from home during the night. The examining doctors considered that you could be left safely unsupervised all night and after consideration of the evidence before me I do not accept that in order to avoid substantial danger to yourself or others you require, or have required, another person to be awake for prolonged periods or at frequent intervals for the purpose of watching over you. Accordingly, I do not accept that this condition is satisfied."

The appellant was dissatisfied with this decision and applied for leave to appeal. She was given leave to appeal by way of written submissions rather than an oral hearing. First, full submissions in writing were made on behalf of the Secretary of State supporting the DMP's decision. In particular, he said this:

"Mrs. Miller in her grounds of appeal, strongly suggests that her requirement to look after her family's needs at night should have been considered by the DMP. This is refuted.

The DMP, in paragraph 3 of his determination, explained that there is no provision within the 1975 Social Security Act to aggregate the needs of separate individuals when deciding a claim for attendance allowance. He cannot have regard to needs that arise as a result of Mr. Miller's disablement, or her son's needs. He must only have regard to Mrs. Miller's needs that arise as a result of her disablement".

He also dealt with the question whether the DMP had given adequate reasons, and submitted that the DMP had given a logical and reasonable explanation for his conclusion that the appellant did not satisfy either of the conditions laid down in the Act.

The appellant then responded in writing, even more fully than the Secretary of State in his submission. She explained the attitude that she took to the satisfaction of the night watching-over condition. She said:

"I am awake and up on my feet during the night, going about my normal business which is looking after my son and husband. As my husband requires 'prolonged or repeated attention in connection with his bodily functions' during the night (already previously proved, he is in receipt of attendance allowance at the higher rate) which is still ongoing, and my son did require attention at night. It follows that I am up on my feet for the requisite 'prolonged period or at frequent intervals' and whilst I am up on my feet my husband is necessarily 'watching over me' in the event of my unpredictable falls".

She also complained that the DMP had not given a clear and reasonable explanation of why he concluded that she did not satisfy the conditions laid down in the Act. The social security Commissioner who considered the appeal, Mr. Rice, in a short decision on 1 June 1992 accepted all that the Secretary of State had said in his submission, and accordingly held that the DMP's decision was not erroneous in point of law.

The appellant then unsuccessfully sought leave to appeal from the Commissioner and subsequently from a single Lord Justice, Lord Justice Lloyd, who refused the application on paper. She then exercised her right to renew the application in open court when Lord Justice Glidewell granted leave.

Her case is that just as she satisfied the day supervision condition on the ground that she needed supervision because of her tendency to fall, so she should have been held to satisfy the night watching-over condition on the same ground. She says that she is in danger of falling over when she is reasonably required to get up to attend to her husband. I would point out that in the Notice of Appeal it is only her need to care for her husband that is referred to: her child is not mentioned. She claims that the DMP erred in law in one of two respects. He decided that any requirement for being watched over which arose out of the appellant's need to care for her husband was not to be taken into account in considering whether she satisfied the night watching over condition. Her case is that she reasonably required to be watched over because it was reasonable for her to attend to her husband, and the fact that she only had that requirement because she was attending to him does not alter the fact that it arose out of her own physical or mental disablement. Alternatively, she says that the DMP erred in law in that he was in breach of the duty to give reasons, which is imposed by regulation 39(2) of the Social Security (Adjudication) Regulations 1986. He failed to give any, or any adequate, reason for rejecting the appellant's contention that she satisfied the night watching-over condition.

Miss Mountfield, for the appellant, submits that the reference to a requirement in section 35(1)(b)(ii) is to what the claimant reasonably requires, and that is a test which is not as strict as an absolute need. She says that it is reasonable for a claimant to pursue a normal lifestyle within the confines of her disability. I do not dissent from that, but in my judgment the confines of a claimant's disability may not permit a claimant to do all that an able person would do. It is relevant whether or not she would be putting herself in danger by her actions. The section in question is concerned with a claimant's needs, and not the needs of others in the claimant's household, which are already catered for by an attendance allowance.

In this context it is relevant to recall the following description of the purpose of the statutory predecessor to section 35, that is to say, section 4(2) of National Insurance Act 1970:

"It provided, as part of the social security network, for the payment of allowances inter alia in respect of disabled people who required the attendance of others in order that they might perform the ordinary functions of life. The purpose behind this part of the Act undoubtedly is that people who require such attendance also require extra money in order to obtain such attendance".

(see Reg. v. National Insurance Commissioner, Ex parte Secretary of State for Social Services [1974] 1 WLR, 1290 at page 1292 per Lord Widgery, CJ).

The husband obtains an attendance allowance for his night-time needs. Thereby he is paid extra money; whilst realistically these days the amount paid would not in itself secure the attendance of others, the allowance can be said to be intended to assist him towards obtaining such attendance. I do not, of course, suggest that a claimant like the husband is not entitled to an allowance if no one in fact is paid to attend, but in my judgment Parliament cannot have intended that the attendant should be another disabled member of the household, such as a wife, who by attending to the needs of the husband thereby generates the need for attendance on herself, such as to qualify her also for an attendance allowance. That, as it seems to me, would permit a double recovery for the needs of the husband, or an aggregation of his needs with those of the appellant's needs. It is unnecessary to determine what would be the position if the appellant required an attendance allowance so as to be able to attend on, for example, an infant child not in receipt of attendance allowance.

Despite Miss Mountfield's persistent and well sustained argument, the point seems to me to be a short one and the answer perfectly clear. I cannot see that the DMP made any error of law in refusing to take account of the appellant's requirement to attend on her husband so as to minister to his needs, and of the danger that she might fall while doing so.

As for the alternative argument that the DMP failed in his duty to give reasons, Miss Mountfield submits that the duty is to give a clear and adequate statement explaining to the appellant why her claim has failed to satisfy him, and explaining the issues to which he addressed his mind. I accept that it is necessary to give adequate reasons, though the adequacy of such reasons is not to be judged by the standards of what may be expected of a judge or a lawyer. It has to be borne in mind that the person whose decision one is looking at is a practising doctor.

But for my part I cannot see that the DMP did fail to give adequate and clear reasons. In paragraph 3 he had explained why, for the purpose of the attendance allowance under the 1975 Act, it was not possible to aggregate the needs of the appellant and of her husband. He had explained why he thought the appellant was able to attend to her own needs by herself at night. These considerations seem to me to be plainly relevant to the night watching over condition, and in particular the point on non-aggregation was expressed to be one which was pertinent to the claim for an attendance allowance. It seems to me that sensibly one must read what is said in paragraph 4 in the light of what is contained in paragraph 3. The DMP added that the appellant was intelligent and sensible and would avoid dangers. He says that he considered all the evidence and he expressed his conclusion in accordance with the terms of the Act.

In my judgment those reasons were adequate, as the social security Commissioner also held. For these reasons therefore I would dismiss this appeal.

LORD JUSTICE WAITE: I agree.

LORD JUSTICE STAUGHTON: The Statute provides for the husband to receive an allowance because he is unable to look after himself at night. It is a modest amount, some might say meagre, and certainly would not provide full-time professional care or anything like it.

When we come to consider whether Mrs. Miller should have an allowance because of her disability, what night-time activities by her should be taken into account? Not, I think, activities rendered necessary by the disability of her husband. The consequences of that disability are, it is to be supposed by Parliament, dealt with by his claim; and the wife cannot rely on activities rendered necessary only by his disability. I say nothing about activities which might be required for an infant child. That will have to wait for another day.

Now the second point taken by Miss Mountfield was a reasons challenge. It seems to me that the reasons of the delegated medical practitioner were perfectly adequate; there was nothing remotely wrong with them, except that they were somewhat prolix. Prolixity is unfortunately a consequence these days of the growth of judicial review. Those who decide questions under this and other statutes seem to think that they are obliged to mention every point that has been made before them, and every piece of evidence that has been brought to their attention. I suppose maybe in the long run they are wise to do so, but I certainly would not say it was an obligation.

I see incidentally that this appeal was at one time being arranged by the Child Poverty Action Group; and that makes one wonder whether the child situation assumes some importance, but at all events I agree that it must be dismissed.

Order: Appeal dismissed. Leave to appeal to the House of Lords refused. Legal Aid granted.