UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CDLA_267_1994 (05 January 1996)


 


CDLA/267/1994


Social Security and Child Support Commissioners

SOCIAL SECURITY ACTS 1975 TO 1990

SOCIAL SECURITY ADMINISTRATION ACT 1992

CLAIM FOR DISABILITY LIVING ALLOWANCE

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER M ROWLAND

Tribunal :
Tribunal Case No :

1. I allow the claimant's appeal against the decision of the Cambridge disability appeal tribunal dated 28 February 1994. That decision is erroneous in point of law. I set it aside and refer the case to a differently constituted tribunal for determination.

2. The issue before the tribunal was whether the claimant, who has very limited vision, was entitled to the care component of disability living allowance at the middle rate. The adjudication officer had awarded the care component at the lower rate and the claimant's representative conceded that it could not be awarded at the higher rate because the claimant did not satisfy either of the "night" conditions set out in section 72(1) (c) of the Social Security Contributions and Benefits Act 1992. It was argued on behalf of the claimant that he satisfied both the alternative limbs of section 72(1)(b) which provides that a person shall be entitled to the care component for any period throughout which:-

"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".

The tribunal confirmed the adjudication officer's decision, giving the following reasons:-

"1. The Tribunal decided that in order to be entitled for the middle or higher rate care component of Disability Living Allowance a claimant must meet the criteria set out in Section 72 of the Social Security Contributions and Benefits Act 1992.

2. [The claimant's] representative stated that they are not appealing for the higher rate which would be that [The claimant] would require the help with his bodily functions or supervision both day and night and that only the day requirement should be looked at. The Tribunal considered both aspects of the care component middle rate the frequent attention throughout the day in connection with his bodily functions (Section 72 (1) (b)). Bodily functions defined in R(A) 2/80. It is accepted that seeing, eating, using the toilet or dressing, getting in and out of bed are all bodily functions. [The claimant] can attend to all his bodily functions. He can dress himself, while it is nice for his mother to check that he has got his collar button done up properly the Tribunal can see no reason why [The claimant] could not check these matters himself or alternatively wear clothes which did not require intricate buttoning. [The claimant] does have some sight in the opinion of the Tribunal there was no evidence to suggest that [The claimant] required frequent attention throughout the day in connection with his bodily functions. He can go to the toilet himself, he can eat himself, feed himself, he can dress himself, get himself in and out of a bath and in and out of a chair.

3. The Tribunal then addressed the question of continual supervision throughout the day in order to avoid substantial danger to himself or others. The element of danger whereby [The claimant] could burn himself on the electric fire that he moved about is a danger which could easily be removed by [The claimant] leaving the fire in one position and a fire guard being put round it this would prevent [The claimant] sitting too close to the fire and burning himself or alternatively leaving an item of furnishing too close to the fire. The other question of whether there was a danger and therefore [The claimant] requires continual supervision if the house itself went on fire. The Tribunal's attention was directed to the commissioner's decision R(A) 2/89 however the Tribunal considered the case of [The claimant] and the case of tetraplegic and that decision was different. Mr Seal is completely ambulant there is a smoke detector in the house which would warn him of a fire. He has some residual sight and in the opinion of the Tribunal [The claimant] would be able to extricate himself from the house. It is a house he has lived in for 30 odd years and he is well familiar with the house and in the opinion of the Tribunal it was not to be compared with the teptraplegic who if in bed at night would need assistance to get into his wheelchair or in order to remove himself from the house. The Tribunal did not consider that the danger of a house going on fire was too remote as the houses do go on fire [and] they also accepted the fact that this was old and wooden."

The claimant now appeals against the tribunal's decision with the leave of the chairman.

3. Shortly after the tribunal gave their decision, the House of Lords gave judgment in Mallinson v Secretary of State for Social Security [1994] 1 WLR 630. Lord Woolf, with whom Lord Templeman and Lord Browne-Wilkinson agreed, suggested that there were four "simple questions" which needed to be answered when the "attention" conditions set out in section 72(1) (b) (i) was being considered:-

"(1) Has the claimant a serious disability? (2) If so, what bodily functions does it impair? (3) Does he reasonably require attention in connection with those functions? (4) Is that attention frequent?"

While the decision the tribunal reached in this case is one that might have been open to them, I think there is force in the submissions of both parties that it can now be seen, in the light of Mallinson, that the tribunal have not approached this case in the correct fashion. Although the tribunal recorded that they regarded seeing as being a bodily function, and although the matters to which the tribunal referred in their decision were relevant, I think they might well have identified other matters as being relevant had they considered carefully the third question identified by Lord Woolf. On that ground, I must allow this appeal.

4. I have received lengthy submissions as to the sorts of matters a tribunal might take into account in cases of this nature. It is well established that all attention that is "reasonably required" is relevant when consideration is being given to section 72(1) (b) (i). The question of what is reasonable was considered recently by the Court of Appeal in Secretary of State for Social Security v Fairey (June 15, 1995) in which Glidewell L J said:-

"On the issue which does arise in this appeal - is attention required to enable Miss Fairey to live, as nearly as possible, a normal social life 'reasonably required', I cannot accept My Beloff's submission. There is nothing in section 72, or the statutory provisions generally, which leads to the conclusion that only attention which is necessary in order to maintain life itself is reasonably required. Once such a stark proposition is abandoned, it is difficult to draw a sensible line between what is and what is not reasonably required, short of the test adopted by Mr Commissioner Sanders. It was this which led him to conclude that:

'it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity.'

In my judgment, this conclusion was correct in law."

Swinton Thomas LJ reached the same conclusion but Hobhouse LJ dissented. The Secretary of State has now been given leave to appeal to the House of Lords, which suggests that this area of the law remains fraught with difficulty. However, I do not understand the Court of Appeal in Fairey to have said that a claimant must be placed as nearly as possible in the position of a person without disability. It is still necessary for a claimant to show that he or she reasonably requires the attention that is desired. In the present case, for instance, it is said that the claimant requires attention to help him find things that he has lost. That may well be so, but the tribunal to whom this case is now referred must consider whether that implies a requirement for frequent attention or whether, when the claimant has lost something, he could reasonably be expected to wait until infrequent attention was to hand.

5. The adjudication officer in the present case has placed much emphasis on the fact that the attention required must, for the purpose of section 72(1) (b) (i), be attention in connection with the claimant's bodily functions. I do not doubt that cooking for a claimant is not giving that claimant attention in connection with his or her bodily functions (see In re Woodling [1984] 1 WLR 348) but if a claimant reasonably requires to be able himself to cook and can do so if he has assistance with, for example, seeing or lifting, that seems to me to show a requirement for attention in connection with his bodily functions. I do not agree with paragraph 8 of the adjudication officer's submission dated 24 March 1995 on this point. Again, it seems to me that cases of this sort turn on what the claimant reasonably requires. Does he reasonably require attention in connection with bodily functions so that he can himself cook or can that requirement reasonably be obviated by having someone else do the cooking for him (for which purpose, as the adjudication officer points out, the lower rate of the care component has been awarded in this case)? The answer may vary from case to case and such questions of judgment are pre-eminently matters for tribunals who must include among their members a person "experienced in dealing with needs of disabled persons" (see sections 42(4) and 43(3) of the Social Security Administration Act 1992).

6. I do, however, accept the thrust of paragraph 10 of the adjudication officer's submission dated 24 March 1995. If it is alleged that a claimant does reasonably require assistance so that he or she can cook, it is necessary to consider carefully what sort of assistance is required. It may be that a claimant really only needs supervision and that intervention is required so rarely that attention cannot be said generally to be required by the claimant.

7. The claimant's representative does not challenge the tribunal's finding that the claimant did not require continual supervision throughout the day in order to avoid danger. In paragraphs 15 to 19 of the submission dated 3 October 1994, the adjudication officer argues that the tribunal chairman recorded inadequate findings of fact on this issue because there was some evidence that the claimant had occasionally fallen and had suffered serious injuries in 1956-7 (sic) and 1983 and the tribunal have not expressly dealt with the question of whether the claimant's liability to fall shows a requirement for supervision. I do not accept the adjudication officer's submission. It is perfectly clear from both the claim form and the evidence given to the tribunal that the risk of falling presented itself only when the claimant was walking outside and, indeed, he seems primarily to have been concerned about the risk of slipping when it was icy. That evidence was wholly insufficient to raise the suggestion that the claimant might require continual supervision throughout the day due to a liability to fall. The claimant's representative's main point in relation to the need for supervision was the risk to the claimant should his house catch fire. However, as the adjudication officer acknowledges, the tribunal gave full reasons for rejecting that submission.

8. Even more surprisingly, the adjudication officer submits that the tribunal should have dealt with the night "watching over" condition (section 72(1) (c) (ii) of the Social Security Contributions and Benefits Act 1992) despite the claimant's representative's concession that neither night condition could be met. This submission is made because, in his claim form, the claimant said he could not see a fire starting. The tribunal did in fact record a finding that there was a smoke detector in the house, which would seem to answer the point, but, in any event, I do not consider that a tribunal errs in law if a chairman does not record findings in respect of issues which a competent representative has conceded do not arise, unless the concession is clearly bad.

9. I therefore allow this appeal only on the ground identified in paragraph 3 above.

M. Rowland
Commissioner

5 January 1996