UK Social Security and Child Support Commissioners' Decisions

 


R(A) 1/96


Mr. D. G. Rice CA/233/1995
24.1.96

Supervision - claimant falling occasionally - whether requirement for supervision if there is no propensity to fall

The claimant claimed attendance allowance on 7 October 1993 when she was aged 85. She suffered from arthritis of the hips and legs with leg ulcers. A tribunal found that she fell occasionally but could get up slowly. They decided that she did not need continual supervision in order to avoid substantial danger to herself or others and upheld the adjudication officer's decision that she was not entitled to attendance allowance. The claimant appealed to a Commissioner on the ground that the tribunal should have considered whether she might not require continual supervision by reason of her falls. The adjudication officer supported the appeal.

Held that:

not every person who falls needs continual supervision to avoid danger to himself or others. It is only if the person has a propensity to fall by reason of his or her condition, so that this situation has to be catered for, that the possible need for continual supervision has to be considered.

The Commissioner dismissed the appeal as the tribunal had not erred in law.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. For the reasons set out below, the decision of the disability appeal tribunal ("DAT") given on 24 March 1994 is not erroneous in point of law, and accordingly this appeal fails.
2. This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the DAT of 24 March 1994.
3. The question for determination by the tribunal was whether the claimant was entitled to attendance allowance. In the event, the tribunal, upholding the decision of the adjudication officer, decided that she was not. The tribunal made the following findings of fact:

"The appellant (date of birth 28 January 1908) claimed attendance allowance on 7 October 1993. She suffers from arthritis of the hips and legs with leg ulcers. She also has migraine attacks. The medical evidence indicates she can get in and out of bed, dress and undress, and attend to her own toilet needs. The appellant falls occasionally, but can get up slowly. Her needs with help for domestic chores are not covered by attendance allowance."

The tribunal gave as the reasons for their decision the following:

"The appellant has listed no night needs, and she does not need frequent attention throughout the day for her bodily functions, nor does she need continual supervision in order to avoid substantial danger to herself or others.

As the conditions of the appropriate legislation are not satisfied she is not entitled to attendance allowance.

Section 35(a)(i), (ii) or (b)(i), (ii) of the Social Security Act 1975."

I see nothing wrong in the law with the tribunal's decision.

4. The claimant appeals on the ground that the tribunal should have considered whether she might not require continual supervision by reason of her falls. Moreover, the adjudication officer now concerned supports the appeal on this ground.
5. Not every person who falls needs continual supervision to avoid danger to himself or herself. Everyone is likely at some time or other to fall, but this does not mean that that person requires such supervision. However, if someone has a propensity to fall by reason of his or her condition, so that this situation has to be catered for, then, of course, consideration has to be given to the possible need for continual supervision to avoid substantial danger. But, in the claimant's case, there is no such propensity. She fell in 1986, and apparently again in 1993 "through hurrying to answer the phone". Anyone is likely to fall who hurries to answer the phone. The tribunal accepted that the claimant did fall occasionally, albeit they also found that she could get up slowly, but manifestly, they did not consider that this experience constituted a propensity to fall, bringing into account the need to consider the requirement of continual supervision. In those circumstances, it was unnecessary for them to consider this aspect of the case further, and, in my judgment, their decision cannot be criticised.
6. In short, I see no respect in which it could be said that the tribunal erred in point of law, and I have no hesitation in dismissing this appeal.

Date: 24 January 1996 (signed) Mr. D. G. Rice
Commissioner