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[1997] UKSSCSC CDLA_1304_1995 (06 March 1997)

R(DLA) 1/99

Mr. J. M. Henty CDLA/1304/1995

6.3.97

Care and mobility components - child terminally ill - whether it is necessary that she has requirements substantially in excess of the normal requirements of persons of her age

The child claimant was terminally ill. A disability appeal tribunal awarded her the highest rate of the care component and the higher rate of the mobility component for a period of 6 months from the date of the hearing before them. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

the award of the care component should have been made from the date when it could first have been said with reasonable certainty that the claimant's death could be reasonably anticipated and should have been made until her death (paragraphs 10 and 11);

it was not necessary for a child claimant who was terminally ill to satisfy the condition of section 72(6) by showing that her care requirements were substantially in excess of the normal requirements of children of the same age (paragraph 14);

but, there being no special provision for terminally ill claimants in respect of the mobility component, it was necessary for a child claimant who was terminally ill to satisfy the similar condition of section 73(4) in respect of the lower rate of the mobility component (paragraph 15);

the tribunal had not made any findings justifying the award of the mobility component (paragraph 16).

The Commissioner remitted the case to a differently constituted tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the DAT was erroneous in point of law. I set it aside and remit the case for rehearing in front of a differently constituted tribunal.

This is an appeal from the decision of a DAT dated 12 July 1994 I myself granted leave to appeal. The claimant was born on 19 July 1979. She contracted acute myeloid leukaemia. Her father was appointed her Appointee under regulation 43 of the Claims and Payments Regulations and on 12 August 1993 made a claim for DLA on her behalf.

A form DS1500 report dated 20 August 1993 (T42) was obtained from the hospital. From that, it appeared that two further courses of chemotherapy were contemplated, to be followed, if successful to achieve remission, by an allogenic bone marrow transplant. Understandably from that, the BAMS doctor concluded that the claimant's prospects for survival exceeded six months and no claim could therefore be made out under the special rules. I would note, at this stage, that the definition of a person "terminally ill" is to be found in section 66(2)(a) SSC & BA.

"(a) A person is "terminally ill" at any time if at that time he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months."

The AO refused the claim both initially and on review. From that, the claimant appealed to the DAT who, on 12 July 1994, allowed her appeal. They held that the claimant was entitled to "higher rate care component and mobility component of disability living allowance for a period of 6 months from 12 July 1994".

In, the chairman's note of evidence, he records:

"Now, the hospital has issued a form DSS1500 indicating that an award of 6 months is appropriate."

And in their findings of fact, the tribunal record:

"The hospital has advised that chemotherapy should not be continued and has indicated on form DSS1500 that a 6 month award of benefit is appropriate."

It is quite clear that this form DSS1500 is a different one from that dated 20 August 1993, to which I have referred above. A copy of this later form does not appear to be in the file and should be produced. Its date may be of relevance. What had happened in the meantime since 20 August 1993 was that the claimant underwent a bone marrow transplant in, I think, December 1993, the results of which initially proved encouraging but, alas, in the end were not. The condition of the claimant deteriorated and eventually she died on 25 February 1995. Her death caused delay in the appeal procedure since the regulation 43 appointment lapsed and an appointment of the claimant's father under regulation 30(1) to continue the appeal was necessary and was not made until 9August 1996.

The grounds of appeal are set out at pps. 100/101, having been drafted by an Advice home visitor on the express instructions of the father. The appeal has the support of the AO, though for his own reasons.

The AO makes a preliminary point that the actual notice of appeal (105) was signed by the mother on 3 November 1994, who was not the regulation 43 Appointee, and the notice was, therefore, technically invalid. However, it, seems to me that I can properly infer that the mother signed as agent of the father. Furthermore, the grounds of appeal are signed by an agent expressly instructed by the father for that very purpose. In any event, following the claimant's death, the father was appointed under regulation 30 to proceed with the appeal which is what he is now doing. In the circumstances, I am entirely satisfied that the appeal is properly before me.

The first point made by the father is that he is not sure that the tribunal gave him a fair hearing. There was nothing whatever in the papers to suggest that the tribunal were not impartial and I reject that there was any breach of the rules of natural justice, the criteria of which were set out by Diplock LJ in R v. Dep Ins Com ex parte Moore 1962 1 QB 456. I need not refer to them in detail.

I must now turn to the relevant provisions in the SSC&BA for the purposes of this case.

Care component

Under section 72(2) a claimant has normally to satisfy one or more of the conditions in subsection (1)(a), (b) or (c) for the period of three months immediately preceding the date on which the award would begin, and also be likely to satisfy one or other of the conditions for another six months from that date or "(if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending in his death." But in the case of a person who is terminally ill, as defined, he is under ss(5) taken to have satisfied the conditions of paras. (b) and (c) of subsection (1), thus entitling him to the care component at the highest rate for the preceding three months period, and he is taken to satisfy, or to be likely to satisfy, those conditions for the remainder of his life.

The tribunal made an award for six months from 12 July 1994, the date on which they sat. In their reasons they said:

"From the evidence received, particularly form DSS1500 supplied by the hospital, the tribunal considered that an award of benefit for 6 months would be appropriate."

The legislation does not relate the award to a period of six months but, under subsection (5), for the remainder of a claimant's life. I agree in thinking that the award should not have been limited to a six months period but, until the claimant's death.

They continued:

"The award is made from 12 July 1994 because the tribunal did not have any other specific date on which to operate."

The second form DSS1500 - and possibly other documents constituted either the, or some of the, evidence for the conclusion that the claimant was terminally ill. By the time the appeal was heard, that melancholy fact must have been known for some little time. In these circumstances, the date of the hearing was quite inappropriate for the date of the award. The award should run from the date on which it could be said, with reasonable certainty, that the claimant was terminally ill and that is, under section 66(2)(a), the first date on which the claimant's death, in consequence of leukaemia, could be reasonably anticipated. I do not know when that date was, and it may be sensible to ask one of the consultant haematologists at the hospital, who were concerned, for his opinion. However, this is a point that the new tribunal must tackle to the best of their power and ability.

The AO makes another point. The claimant was under 16. Indeed she was only 15½ when she died. The point concerns the applicability of subsection (6) of section 72.

Subsection (6) provides:

"For the purpose of this section in its application to a person for any period in which he is under the age of 16 —

(a) ...

(b) neither the condition mentioned in sub-paragraph (i) of sub-section 1(a) nor any of the conditions mentioned in sub-section (1)(b)and (c) above shall be taken to be satisfied unless —

(i) he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age. ..."

The AO submits that a claimant under the age of 16 who is terminally ill, despite the deemed satisfaction of the conditions in paras. (b) and (c) of subsection (1), thereby entitling him to the care component at the highest rate, nevertheless has the further hurdle in subsection (6) to jump. I do not for one moment accept that submission, I find it a surprising one and I cannot think that the result it could produce was ever intended. Subsection (5) relates to a special class of persons - those who are terminally ill. That special class of persons - prima facie regardless of age for there is no age limitation in the subsection - are taken to have satisfied paras. (b) and (c) of subsection (1), in my view, for all purposes, thus entitling them to the care component at the highest rate by reason of, and solely by reason of, the fact that they are terminally ill. They do not need to show that they satisfied those paras: it is accepted that they did. The class of persons the subject of subsection (6) is a general class and the subsection is of general application only. It does not apply to a class of persons who are a special class, in a special situation. If it did, it would lead in my view to an absurd conclusion, for a claimant under 16 would have to prove not only care requirements, a task from which he had previously and unconditionally been absolved, but also that those care requirements were in excess of those of a normal child of his age. If a person is terminally ill, it cannot be predicated that he necessarily has the care requirements required for an ordinary award of benefit: it is accepted that he has. Moreover, I can see, so far as those who are terminally ill are concerned, no logical reason whatsoever why a person under the age of 16 should be treated in any different way from a person over the age of 16. Both are terminally ill, and it is by reason of that unfortunate fact, rather than anything else, that their entitlement to an award is due. The AO's submission would be tantamount to saying that a child under the age of 16 can never benefit from ss. (5). I reject the submission, producing as it would an unjust and, in my view, unintended result.

Mobility component

Different considerations apply, since the mere fact of being terminally ill does not, thereby, qualify a claimant to the mobility component. There is no equivalent in section 73 (mobility component) of subsection (5) of section 72 (care component). A claimant has to show that he is entitled to the mobility component under one of the paras. (a) to (d) of subsection (1). As soon as he can show that, by reason of the fact that he is terminally ill, he is, under ss. 12(1), absolved from showing that he satisfied the conditions of entitlement for the previous three months or if his death is expected within the period of six months, he need under ss. (9)(b)(ii) only show that he is likely to continue to satisfy one or other of the conditions for entitlement for the period ending with his death. On the other hand, because there is no equivalent in s. 73 of ss. (5) of s. 72, a claimant who is terminally ill does have to satisfy the "under 16" conditions in ss. (4) of s. 73, in the same way as he has to satisfy the conditions for the mobility component, a task from which he is absolved so far as the care component is concerned, but no so far as the mobility component is concerned.

It seems to me that the tribunal failed adequately to address the issue of whether in fact the claimant could satisfy any of the conditions in pares (a) to (d) of subsection (1). The new tribunal must therefore make a finding as to whether and, if so, when, the claimant satisfied the conditions for an award of the mobility component along the principles which are so well known that I do not have to restate them here. They will also have to satisfy themselves as to whether the "under 16" conditions in ss. (4) were satisfied and, if so, from when.

Accordingly the appeal is allowed.

(a) The new tribunal should make an award of the care component at the highest rate from the date on which it was first known that the claimant became terminally ill until her death.

(b) Similarly, the tribunal should make an award of the mobility component at the appropriate rate from the date, if at all, the claimant satisfied any of the conditions for the mobility component and the "under 16" conditions.

Date: 6 May 1997 (signed) Mr. J. M. Henty
Commisioner