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[1997] UKSSCSC CSDLA_126_1996 (24 March 1997)

R(DLA) 1/98

Mr. D. J. May QC CSDLA/126/1996

Attention - child suffering from diabetes mellitus requiring regime of care - whether regime to be considered as a whole notwithstanding that some elements do not involve close personal service

The claimant, who was under 16, applied for a disability living allowance on the grounds of attention with bodily functions arising from diabetes mellitus. A tribunal awarded the lowest rate care component. That decision was set aside by the Commissioner.

Held that:

in this case it is found that diabetes mellitus is a serious disability which impairs the "bodily function" of "metabolism" (paras. 11 and 12);

where the claimant requires to implement a regime, which is a delicate balancing act required to counteract the impairment of the relevant bodily function, the elements of that regime which do not have the connoted idea of service of a close and intimate nature and do not of themselves involve direct personal contact can be included in the calculation of the aggregate attention requirements from another person along with other requirements for the regime which fall within the definition, as the whole regime must be considered as a unity (paras. 18, 19 and 20);

a child with diabetes mellitus will require attention where an adult would not (paras. 8 and 9).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the disability appeal tribunal given at Irvine on 21 November 1995 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a rehearing.

This case came before me for an oral hearing on 12 March 1997. The claimant was represented by Mrs. Kelly of the North Ayrshire Council. The adjudication officer was represented by Mr. Neilson of the Office to the Solicitor to the Secretary of State for Scotland.

The claimant was born on 18 October 1983. She made a claim for disability living allowance, which was restricted to the care component, on 19 December 1994. An adverse decision was made in relation to her claim on 23 February 1995. Thereafter another adjudication officer reviewed that decision but decided that he could not revise it so as to award benefit.

The claimant appealed to a disability appeal tribunal. The claimant's appeal was partially successful in respect that the tribunal found that the claimant was entitled to the lowest rate of the care component from 19 March 1995 to 18 March 1997. The claimant has appealed against that decision. Her grounds of appeal are to be found at page 83 of the bundle. The claimant's appeal is supported by the adjudication officer and support for the appeal was maintained by Mr. Neilson in the course of the hearing.

It was common ground between the parties to the appeal that the findings in fact and the reasons given by the tribunal were not sufficient to meet the requirements set out by regulation 29(5) of the Social Security (Adjudication) Regulations 1995 and that accordingly the decision of the tribunal erred in law. I am persuaded in this regard. Accordingly I am satisfied that the tribunal erred in law and their decision must be set aside. Mr. Neilson had in his submission pointed out the lack of clarity in the tribunal's findings in fact which I accept. While I do not accept the written submission of the adjudication officer that, in respect of supervision, the tribunal made no findings at all I accept the remainder of the submission in paragraph 8 of that submission at page 91. Mr. Neilson also submitted that there was evidence in a letter from the claimant's appointee which is on pages 64 and 65 which had not been properly addressed by the tribunal. Perusal of that letter and the findings and reasons at page 67 persuade me of that given the support for the appeal by Mr. Neilson in his oral submission and the adjudication officer in her written submission I do not consider that it is necessary for me to expand further in relation to the flaws in the tribunal's decision and the reasons for setting it aside.

It is however I consider essential to give a fairly substantial direction to the tribunal who are now to hear the appeal as there are a number of important issues in this case which require to be addressed.

The tribunal will note the age of the claimant. She was born on 18 October 1983. They will also note the provisions of section 72(6) of the Social Security Contributions and Benefits Act 1992 which deal with the application of section 72 of the Act in respect of a person under the age of 16. That statutory provision can be found at page F of the bundle.

As will be seen later in this direction the position in this case is that if the claimant was an adult then the matters in respect of which there are attention requirements are ones which the claimant could manage for herself.

Mr. Neilson however accepted what I said in paragraph 19 of my decision in CSDLA/160/1995, starred decision 60/96. I said there:

"19. The difficulty for the claimant in this case is that the authorities do not effectively address this situation. On one view if the attention to what a fit man could do for himself then in relation to the claimant if he was an adult there would be nothing to stop him organising his diet in order to cope with the impairment to what are internal bodily functions. However as he is a child it is accepted that there are matters in connection with which adults can do for themselves which children cannot and the question which arises is whether there are requirements in connection with his bodily functions which are in excess of the normal requirements of persons of his age."

Against that background the statutory tests in respect of attention fall to be applied. The material ones in this case appear to be those set out in section 72(1)(a)(i) and (b)(i), the day time attention conditions. In order to provide the necessary factual foundation for the decision that requires to be made the questions posed by Lord Woolf in his speech in Mallinson v. The Secretary of State for Social Security [1994] All ER 295 at 307, require to be answered in the form of findings in fact. These were as follows:

"(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?"

The last question is directed to the condition set out in section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992"

The fourth question of course can be altered to meet the condition set out in section 72(1)(a)(i).

In this case there is no dispute that the claimant has a serious disability. The nature of that disability is diabetes mellitus. That is defined in Dorlands Illustrated Medical Dictionary as follows:

"diabetes ...

mellitus (DM), a chronic syndrome of impaired carbohydrate, protein, and fat metabolism owing to insufficient secretion of insulin or to target tissue insulin resistance."

The claimant's representative in the course of the hearing produced a booklet called "Stepping Out - A Quick Guide to Diabetes For People Starting on Insulin." This booklet explained the condition of diabetes in layman's language in the following simple way:

"What is Diabetes?

• "Your body uses a sugar called glucose for energy.

• Glucose comes from food, particularly from starchy and sugary food. It is a carbohydrate.

• Digestion turns sugar and starch into glucose which goes into your blood.

• The pancreas is a gland in your body which makes insulin.

• Insulin allows the glucose in your blood to move into your muscles where it can be used to make energy.

• Without insulin your body cannot use the glucose so it stays in your blood.

When you have diabetes you do not make enough insulin. That is why your blood glucose is high. (blood glucose and blood sugar are the same thing)".

It is clear from the definition in the medical dictionary, and I did not understand this to be disputed, that the bodily function which is impaired by the disability is that of metabolism. The definition of "metabolism" in Blaikstone's Medical Dictionary is as follows:

"me'tab'o'lism [metabole]. The phenomena of synthesizing foodstuffs into complex tissue elements (assimilation, anabolism) and complex substances into simple ones in the production of energy (disassimilation, catabolism)."

It is with regard to the third question posed by Lord Woolf that there was substantial argument addressed to me in respect of what constituted "attention" in connection with the bodily function of metabolism.

Mrs. Kelly in her submission to me listed six areas which were essential to the control of the claimant's condition. They were as follows:

the injection of insulin;

the testing of blood and urine;

analysis of test results;

the adjustment of insulin;

the adjustment of quantity and timing of food intake;

taking exercise.

There was evidence in respect of all these matters before the tribunal whose decision has been set aside. It was noted in the chairman's note of evidence:

"Insulin must be injected twice daily and doses are increasing. Her blood has to be tested four times a day. She takes a lot of exercise. She has to adjust the food intake to compensate ... the blood tests are done by [the claimant] with her mother supervising except sometimes in the early morning or at night when she is not so keen. [The claimant] is supposed to do her own injections, but her mother tends to do the ones in her arms because her arms are thin and painful."

Also in the letter to which I have referred at page 64 it was said:

"The injections are still quite difficult for [the claimant]. She lacks confidence to inject herself and simply would not do it without supervision. She finds the injections are painful, especially in her arms, and would not vary the injection site. I often have to do the injection for [the claimant] and feel at this stage this is reasonable.

In addition to the insulin injections [the claimant] requires a blood test four times per day and food intake and insulin is adjusted (within permitted levels) according to the results. We find the blood sugar level is very unstable with no two days the same. It also varies on exertion and, although [the claimant] is capable of carrying out and recording the blood sugar tests, she is not capable of adjusting her exchanges or medication. We have to ensure that the proper foods are taken and are assisted by school staff in this respect. Unfortunately this is not yet a straightforward routine."

Evidence in respect of the question of exercise is to be found in a diary at page 87 of the bundle. It was submitted by Mrs. Kelly that all these areas constituted attention of the attention referred to in section 72 of the Act. It was also submitted by her that the six areas referred to by her were all elements which were inter-linked and inter-related and were part of a delicate balancing operation in the control of blood glucose. In the booklet she produced it said:

"Controlling Blood Glucose.

• Your diabetes is treated by insulin injections.

• Insulin injections bring your blood glucose levels down.

• Exercise uses glucose for energy so it will also bring your blood glucose levels down.

• Eating a meal, particularly when you eat starchy or sugary food will put your blood glucose levels up.

• Controlling blood glucose is a balance between insulin, food and exercise.

• Try to keep your blood glucose between the limits suggested by your clinic.

You will feel well and reduce the risk of problems associated with diabetes in later life."

In the light of what is said there it was Mrs. Kelly's submission that all the elements are part of the same regime and what is involved providing that regime is not part of the normal domestic activity.

With the exception of exercise Mr. Neilson accepted that all the elements referred to by Mrs. Kelly constituted attention.

The question of what constitutes attention has been the subject of a substantial amount of judicial authority over the years. In one of the latest cases it was said by Butler-Sloss LJ in the case of Cockburn v. The Chief Adjudication Officer, a decision of the Court of Appeal dated 5 June 1996:

"As O'Connor LJ said, a line has to be drawn somewhere and it is clearly drawn in Packer's case between cooking, shopping and I would add housework such as dusting, cleaning, sweeping and laundry on the one hand and, on the other, close personal attention such as helping to get in and out of bed, eating, drinking, bathing, washing hair, going to the lavatory. The latter, non-exhaustive list of duties, following the line of authority established over 15 years, do fall within attention ... in connection with bodily functions. The former type of duties do not. To find otherwise would be not to recognise the restricted and precise meaning of the phrase "bodily functions" nor the high degree of physical intimacy between the giver and receiver of attention required by Lord Bridge in Re Woodling."

I further reviewed the authorities in CSDLA/160/1995, starred decision 60/96. I said in paragraph 18:

"... It is important that the tribunal bear in mind that the construction of the relevant words was set out by Mr. Commissioner Monroe in CA/60/1974, cited with approval by Lord Woolf in his speech in Mallinson.
Mr. Commissioner Monroe said:

"I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself."

Lord Woolf in his speech said:

"These words Mr. Commissioner Monroe which received such strong endorsement of this House in 1984 are not wide enough to cover "domestic chores"."

Nonetheless they mean that attention qualifies if it is in connection with the performance of the many functions which the fit man normally performs for himself. It is also to be noted that Lord Woolf adopted with approval what was said by Lord Justice Dunn in [1981] 2 ALL ER 738 at 742 where he said:

"The word "attention" itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very words suggest the service of a close and intimate nature. The phrase "attention ... in connection with ... bodily functions" involves some service involving personal contact carried out in the presence of a disabled person."

In that passage Dunn LJ adopts an approach which I would commend subject to one minor caveat and that is that "contact" need not be physical contact, it can be the contact established by the spoken word in the type of situations to which I will refer later.

Mallinson was dealing with the situation where the bodily function impaired was sight and it was in relation to that that the concept of non-physical contact was related. This line of authority has been continued in Cockburn as can be seen from the quotation above. It is also to be noted that in that case it was expressly said that anything in R(A) 1/91 and R(A) 1/87 which is contrary to what was said in Cockburn does not represent a correct interpretation of the Statute."

At first blush the third to sixth elements referred to by Mrs. Kelly do not appear to have the connoted idea of service of a close and intimate nature and do not involve themselves direct personal contact.

However if all of these items form part of a regime, which is a delicate balancing act required to counteract the impairment of the bodily function, it seems to me that because some of the elements indisputably fall within the definition of attention then to make sense of the condition contained in the statute, the whole regime must be considered as a unity and each part of that regime forms part of the "attention required". Mr. Neilson in his submission provided some compelling arguments as to why this was so. He said for example that the analysis of the sample of blood which was taken was an essential part of the process. If the taking of the sample, which amounts to attention, was not then analysed then it would be a useless exercise to take the sample in the first place. Another example he gave was that whereas in the case dealing with phenylketonuria, CSDLA/160/1995, "the policing of the plate" was in the nature of supervision because the wrong food taken could do specific harm, in the case of diabetes mellitus the taking of certain foods at certain times was all part of the balancing act and was in effect he said the same as the injection of insulin.

Evidence in relation to all these matters will no doubt be placed before the freshly constituted tribunal including the nature of diabetes mellitus the bodily function it impairs and the attention reasonably required by the claimant. It will of course be necessary for them to receive that evidence and make appropriate findings in respect of it. However when they have made their findings they should apply the approach which I have indicated to these findings in determining whether the middle rate attention condition is satisfied and if not the lowest rate attention condition. I do however underline that it is only any attention reasonably required by the claimant from another person in implementing the regime to deal with the impaired bodily function which is relevant for inclusion in the calculation of the aggregate attention needs. Thus for example in respect of the taking of exercise it could only be considered if it meets that test. In other words if the claimant can organise and take the requisite exercise herself it cannot count.

Whether in the event, having regard to the directions in law I have given, they consider that the attention requirements are satisfied to the degree set out in section 72(1)(b)(i) or (a)(i) is a question which is essentially a jury one. However one of the arguments which was advanced before me by Mrs. Kelly when she submitted that the tribunal erred in law related to what she referred to as the immediacy of the attention required. In other words the attention could not wait until later. This is something that she said the tribunal, whose decision was set aside, ought to have taken into account when determining the extent of the attention required for the purposes of the statutory tests. No authority was produced in respect of this argument and I consider that it is unsound. I do not consider that time spent anticipating the attention or presence to give attention when required can on a proper reading of the statutory provisions be regarded in the assessment of "a significant portion of the day" or "frequent". Thus any argument along these lines is not to be accepted by the fresh tribunal.

The freshly constituted tribunal are also likely to have in issue before them the question as to whether the claimant satisfies the supervision condition set out in section 72(1)(b)(ii). Again this condition has to be applied in the context of section 72(6). What the freshly constituted tribunal will require to do is to make findings on the four elements set out in the continual supervision test in decision R(A) 1/83. These are as follows:

"1. The claimant's medical condition must be such that it may give rise to substantial danger to himself or others;

The danger must not be too remote a possibility, the fact that an incident may be isolated or infrequent is immaterial;

There must be a need for supervision on the part of a third party to avoid the danger;

The need for supervision must be continual."

It appears that in relation to the question of supervision the question of potential hypoglycaemic attacks is one area which will be material. It is apparent from the evidence, although of course that is a matter which will be the subject of further evidence before the tribunal, that the claimant appears to know herself when she is about to have a hypoglycaemic attack and can take avoiding action in respect of it. Accordingly in relation to that matter close attention will have to be given by the freshly constituted tribunal to the questions of need for supervision and the need being continued as set out in the third and fourth elements. There may also be other evidence in respect of supervision which it is asserted is required which may overlap with some of the elements referred to in respect of attention.

The tribunal should note that they are required to consider whether the claimant satisfies the conditions for the allowance over the whole period from the date of the claim until the date of hearing or any renewal, whichever is the earlier. They will also bear in mind that the claimant's requirements may decrease both as she gets older and as she learns to cope with her disability.

The appeal succeeds.

Date: 24 March 1997 (signed) Mr. D. J. May QC

Commissioner