Commissioner's File: CSDLA 309/98
Mr Commissioner May QC
19 November 1998 

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disability Living Allowance
Appeal Tribunal: Glasgow DAT 
[ORAL HEARING]

1. My decision is that the decision of the disability appeal tribunal given at Glasgow on 5 June 1997 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.

2. This case came before for an oral hearing on 10 November 1998. The claimant was represented by Mr Orr of the City of Glasgow Council. The adjudication officer was represented by Mr Bevan, Advocate instructed by Mrs Sutherland of the Office of the Solicitor to the Secretary of State for Scotland.

3. The claimant was born on 2 May 1984. He made a claim for disability living allowance on 24 May 1996. An adverse decision was made in respect of that claim. Thereafter another adjudication officer reviewed that decision but decided that he could not revise it so as to award benefit. That decision is recorded at pages 68 to 72 of the bundle.

4. The claimant appealed to a disability appeal tribunal. His appeal was heard on 5 June 1997. It was successful to the extent that the claimant was found entitled to the lower rate of the mobility component from 24 May 1996 to 31 December 1997.

5. The claimant has appealed to the Commissioner. The written grounds of appeal at page 86 do not disclose any error in law on the part of the tribunal. They are simply a statement by the claimant's appointee that the claimant should have been given the middle or highest rate of disability living allowance care component.

6. I am however satisfied having heard parties that the tribunal decision errs in law and must be set aside. I have taken that view both in relation to the tribunal's treatment of both the care component and the mobility component.

7. Mr Orr submitted that the day and night-time attention conditions were focused before the tribunal in the evidence given in the claim pack. However it was Mr Orr's submission that the tribunal had not dealt with the attention condition of the component in the statement of material facts and reasons for their decision. Perusal of the statement of material facts and reasons demonstrates this to be the case and accordingly Mr Orr has satisfied me that there is an error in law in that regard.

8. In dealing with the care component the tribunal had made findings in fact in respect of the claimant's disabilities. They made the following findings:-
  
"The appellant is 13 years of age. He was the victim of child abuse over a number of years and now suffers from post traumatic stress disorder and separation anxiety. He is particularly attached to his father. He becomes very anxious about leaving home without his parents and has suffered panic attacks on occasions. He has only had 2 months schooling in the last 2½ years. He was receiving therapy by the Child Psychiatric Department but this attendance was irregular and treatment was suspended after his last visit in June 1996. He is not on any medication. He is not receiving treatment from any Doctor, psychiatrist or psychologist. He attends the Anvil Group with his parents once a week for family therapy and has done so for 6 months. He does not sleep well. Some of his abusers are still at liberty in the same locality."
The tribunal then went onto say:-
  
"With regard to the Care Component the argument was that [the claimant] requires continual supervision to avoid the risk of self-harm. We did not accept this argument. In coming to this view we had regard to the report of the Consultant Psychiatrist at page 58 question 5 which stated that he had been prone to self-harm in January 96 and that he had made comments when distressed; and to the opinion of the GP at page 66. We also noted that treatment had been discontinued, that there was no current medical involvement and that the appellant is not on any medication. Taking all these together we were not satisfied on a balance of probabilities that there is a reasonable requirement for continual supervision (in excess of normal requirements) in order to avoid the risk of substantial danger to himself. (Section 72 Social Security (Contributions and Benefits) Act 1992)."
9. It was Mr Orr's submission that the tribunal had contradicted itself when rejecting the claimant's argument that the supervision conditions were satisfied. They had noted that the claimant's treatment had been discontinued and that there was no current medical involvement. However in the first paragraph the tribunal found that the claimant attended the Anvil Group with his parents once a week for family therapy. It was said that the tribunal chairman in his note of evidence had made a reference to Parkhead hospital and had identified a community psychiatric nurse. That these notes were made in Mr Orr's submission tended to suggest continuing psychiatric involvement. Parkhead Hospital is apparently a psychiatric hospital. I was also told that the Anvil Group is attached to the Parkhead hospital. In these circumstances, while it is certainly true to say that the report of the consultant psychiatrist is not supportive of the claimant's assertion that he satisfies the supervision conditions, it is clear that the tribunal had regard when reaching its decision on the supervision conditions to their conclusion that treatment had been discontinued and there was no current medical involvement. I am satisfied that Mr Orr is correct when he says that the tribunal contradicted themselves in this matter. On these grounds also I am satisfied that the tribunal's decision errs in law.

10. The adjudication officer in a submission to the Commissioner also supported the claimant's appeal. It was said in paragraph 5 of the submission:-
  
"5. I submit however that the tribunal's decision is erroneous in respect of the care component. The tribunal have dealt with the evidence regarding supervision and their decision is consistent with the evidence and I see no error in law in the decision regarding supervision. However there was some evidence of a possible need for attention. During the day the claim pack indicates that the claimant may require prompting to attend to certain bodily functions these being bathing, dressing, undressing and getting into bed. In Commissioner's decision CDLA/895/94 it was held that prompting can amount to attention-
  
"In my view, bearing in mind what Lord Woolf decided in Mallinson's case, and two of their Lordships also agreed with him, a wife daily urging and cajoling, asking or telling her husband to go to the toilet, shave or wash himself and indeed to dress himself, and such other matters, ie capable in law of constituting attention in connection with bodily functions."
I submit therefore it was incumbent on the tribunal to determine whether the need to be prompted arose from some disability, whether without that prompting the claimant would attend to his bodily function and if not which bodily functions he would not attend to and the frequency of any requirement for attention."

11. Mr Bevan adhered to that submission. As I have already indicated the tribunal did not deal with the attention conditions of the allowance at all. Accordingly it is not necessary for the purposes of determining whether the tribunal erred in law for me to address the specific submissions made by the adjudication officer in his submission and adopted by Mr Bevan. However when I come to give directions to the freshly constituted tribunal I will address this submission and deal with the authority referred to therein.

12. In respect of the lower rate of the mobility component it was agreed by both parties to the appeal that the tribunal when making the award had not applied the provisions of section 73(4) of the Social Security Contributions and Benefits Act 1992 which they required to do. That is self-evident from perusal of the statement of facts and reasons. Accordingly the tribunal decision errs in law on these grounds alone.

13. Otherwise Mr Orr conceded that it was difficult to argue in support of the tribunal's decision in respect of the lower rate of the mobility component. It was his submission that it was easier to argue than the supervision conditions of the care component were satisfied. It was his position that what the tribunal said about the mobility component led to the conclusion that one of the rates of the care component should have been awarded. Mr Bevan's submission was that the adjudication officer had made no submission in respect of the mobility component and therefore must have considered that there was no error in law. For myself I am satisfied that there is an error in law in addition to the one I have already pointed out.

14. It is apparent from the evidence presented to the tribunal that the claimant was the victim of a crime in respect of which a person who was accused of the crime received a lengthy prison sentence. I refer to a letter from a social worker at page 53. The tribunal made no direct finding in fact in respect of that evidence. However it made the following findings:-
  
"he was the victim of child abuse over a number of years....."
and
  
"Some of his abusers are still at liberty and living in the same locality."
The evidential basis for these findings is not apparent from reading the papers in this case.

15. The basis upon which they made the award that there was a need for supervision when walking out of doors in view of the risk of panic attacks and of "encountering an abuser".

16. The relevant statutory provision, which also has to be read in the context of section 73(4) of the Act is set out in section 73(1)(d) in the following terms:-
  
"73. - (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the age of 5 and throughout which -
  
.........................................................
(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."

17. It is clear from that statutory provision that an essential pre-requisite is that the claimant is severely disabled physically or mentally. If that is established then there has to be a link between the disablement and the inability to take advantage of the faculty of walking in the statutory context.

18. I have held in other cases and I do so in this case also that a panic attack is not a mental disablement, though it may be the manifestation of one. Further I am satisfied that the potential encounter by the claimant of someone who had committed a criminal offence which the claimant was the victim in the past could not be said to give rise to satisfaction of section 73(1)(d). The evidential basis for the tribunal's conclusion in respect of an exacerbation of the claimant's condition is not apparent from perusal of the papers. In the absence of evidence it is not at all clear from the tribunal's findings and conclusion whether if he had a supervisor or not that would have made any difference and why the absence of a supervisor would prevent him walking on unfamiliar routes. Indeed the findings seem to suggest his main problem would be on familiar routes. Further and in any event any fear he may have of encountering such a person may not be related to any mental disablement but rather be a rational view based upon an extremely unpleasant experience or experiences. I should also add that the evidence presented by the claimant in respect of him satisfying the condition was not supported by the medical report given by the consultant psychiatrist. I refer in that connection to page 57. The tribunal have not set out reasons as to why that evidence did not satisfy them. For all these reasons the tribunal's decision errs in law.

19. The case goes before a freshly constituted tribunal. That tribunal will note that a renewal claim was made by the claimant and a renewed award of the lower rate of the mobility component was made from 1 January 1998. In these circumstances the freshly constituted tribunal will only be concerned with whether the claimant satisfies the conditions for the allowance for the period from the date of the claim to 31 December 1997.

20. I draw the attention of the chairman of the freshly constituted tribunal to the provisions of section 55 of the Social Security Administration Act 1992 and regulation 30 of the Social Security (Adjudication) Regulations 1995. It may well be that he may wish to refer the claimant to a medical practitioner for examination and report.

21. In respect of the care component the tribunal will note that in respect of whether the claimant satisfies the conditions for that component they are required to apply the statutory provisions of entitlement in the context of section 72(6) of the Social Security Contributions and Benefits Act 1992.

22. It is essential that in respect of both the care and the mobility components that the tribunal make clear findings in respect of the mental disability suffered by the claimant. There is no suggestion that he suffers from physical disablement.

23. In relation to the supervision conditions of the care component the tribunal should have regard to the four conditions set out by a Tribunal of Commissioners in R(A) 1/83 in respect of the day time supervision condition and note in respect of the night time supervision condition the very high test set out in section 72(1)(c)(ii).

24. In respect of the attention conditions it is essential that the tribunal pose the four questions put by Lord Woolf in his speech in Mallinson v Secretary of State for Social Security [1994] 2 All ER 295 at 307. The last question can be altered to suit the statutory conditions set out in section 72(1)(a)(i) and (c)(i). It is vital in this case that the tribunal correctly identify the bodily functions which are impaired by the claimant's mental disablement. 

25. The basis upon which the claimant asserts that he satisfies the day time attention condition is in relation to daily reminders to wash and to be stimulated in all aspects of personal care.

26. What constitutes bodily functions has been the subject of judicial consideration over many years. The meaning has been developed judicially. In Regina v National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 WLR 1017 Lord Denning MR said at page 1022(a-c):-
  
"'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself."
It is matters such as bathing, dressing, undressing and getting to bed that the adjudication officer in his written submission in support of the claimant's appeal identifies as relevant bodily functions in this case. That approach follows from what was said by Lord Denning. It was also consistent with a similar approach that the Deputy Commissioner based his decision in CDLA/895/94.

27. However that approach has now been disapproved as can be seen from the speech of Lord Slynn of Hadley in the case of Fairey and Cockburn v the Chief Adjudication Officer a decision of the House of Lords issued on 21 May 1997. Lord Slynn in his speech said in respect of what was said by Lord Denning:-
  
"I would not myself regard all of these as separate bodily functions. Thus walking, sitting, getting in and out of bed, dressing and undressing are not, in my view, functions in themselves. They are actions done by organs of the body, the limbs, fulfilling their function of movement. This does not, however, affect the result that a narrow meaning of the words is not to be taken.
Dunn L.J. also avoided a narrow interpretation, [in [1981] 2 All ER 738 at 742] at p.1023E-F. "To my mind the word 'functions' in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions."
Lord Slynn went on to say:-
  
"If the bodily function is not working properly that produces the disability which makes it necessary to provide attention. The attention is provided by removing or reducing the disability to enable the bodily function to operate or in some cases to provide a substitute for it."
It should also be noted that the passage from the judgment of Dunn L.J. quoted above was approved by Lord Woolf in his speech in Mallinson at page 302.

28. It follows from this that the passage in paragraph 9 of CDLA/895/94 quoted at paragraph 5 of the adjudication officer's submission to the Commissioner is not good law and should not be followed as it proceeds upon an erroneous basis as to what are bodily functions. 

29. It has also to be borne in mind that not all services by another in the care of a person whose bodily functions are impaired will constitute attention in connection with these functions for the purposes of the statutory condition. It is accepted by the authorities that what was said by Dunn L.J. Packer's case [1981] 1 W.L.R. 1017, 1023 that:
  
"The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention.... in connection with.... bodily functions' involves some service involving personal contact carried out in the presence of the disabled person."
The thrust of the authorities is that unless service provided is of a close and intimate nature involving personal contact carried out in the presence of a disabled person it is not attention in the sense of the statutory condition. Thus in the case of Cockburn, which involved a claimant who had two disabilities, namely incontinence and arthritis, washing bed clothes soiled by the incontinence which the claimant could not by nature of her impaired functions of movement caused by arthritis do for herself did not constitute attention where assistance with dressing required did. There is thus a line drawn.

30. This issue was addressed in Mallinson where the import of the decision was that in applying the definition of "attention" given by Dunn L.J. in Packer's case the contact need nor of necessity be physical contact. The type of situation referred to at page 305 by Lord Woolf in his speech in that case was that in respect of a blind man having the content of correspondence read to him which he could not read for himself this could constitute attention. The basis for that view was that it was active personal assistance in respect of something which the claimant could have done for himself had he been sighted. Thus I do not consider that it supports the proposition by the Deputy Commissioner that cajoling or verbal persuasion constitutes attention as the situation is quite different. I did not regard the case cited by Mr Orr - CDLA/14696/1996 - takes matters any further.

31. In respect of the day time attention condition I find it difficult to envisage how cajoling or persuading someone to do something which he can physically do can amount to attention in connection with bodily functions. The use of speech in a case such as the present is not as in the case of correspondence being read to a blind man a substitute method or as Lord Slynn puts it removes or reduces the disability to enable the bodily function to operate or provide a substitute for it.

32. The guidance I can give the freshly constituted tribunal as to how to apply the law I have set out to this particular case is limited as it is not at all clear on the evidence which was presented to the tribunal whose decision I have set aside what bodily function of the claimant is being asserted to be impaired in the sense which that phrase is now defined judicially. It is only if and when the tribunal make findings in respect of a bodily function impairment linked to the disability that findings can be made on the question as to whether or not attention in connection with those functions is reasonably required.

33. That will no doubt be the subject of evidence and argument. It may well be in a case such as the present that there is no bodily function in the physiological or bodily sense impaired. If that is the case the claimant would not come within the conditions. It may well be that any mental disablement found does not impair bodily functions. If it does then the tribunal will require to determine the case in the light of what I say in paragraph 31 if it does not the claimant would not satisfy the condition.

34. The basis upon which the claimant asserts that he satisfies the night time attention condition is somewhat different. In the claim pack he says:
  
"I need supervised and assisted all night as I cannot sleep normally and require attendance/reassurance."
The evidence from his mother noted in the Chairman's note of evidence is:
"Son doesn't sleep v. well at all."

35. I do not consider that it can be doubted having regard to the authorities to which I have referred that sleeping is a bodily function in the sense that it connotes the normal actions of any organs or set of organs of a body. The question which requires to be addressed in the light of the evidence presented is whether service in the form of reassurance referred to in the claim pack amounts to attention in connection with the bodily function of sleep. 

36. In that regard Mr Orr made reference to R(A)3/78. In that case it is apparent that a boy had difficulty in getting back to sleep after he had been disturbed by an epileptic fit. The Commissioner in that case indicated that the delegated medical practitioner erred in law because he made no findings on the question whether attention thus given was or was not in connection with the bodily function of sleeping. The Commissioner does not develop his views further than that. In addition the decision in that case was given where prior to the judicial elucidation of the law given in the authorities to which I have referred to above. Thus this authority gives no assistance in the determination of this case and it is in my view no authority for the proposition that assisting the claimant to get back to sleep was attention in connection with the bodily function of sleeping.

37. In this case the freshly constituted tribunal will I consider require in the first place to establish whether the claimant's bodily function of sleeping is impaired by the disability which on the evidence before the tribunal whose decision I have set aside was post-traumatic stress disorder and separation anxiety. Unless such a link can be established as a matter of fact the claimant could not satisfy the condition for the allowance. If such a link can be established then the question for the tribunal would be whether the service provided by the claimant's parents in the form of reassurance could be said to amount to attention. I do not think it could be argued or established that reassurance could ever be regarded as a substitute for the bodily function of sleeping. The question then is whether the reassurance in itself removes or reduces the disability which presumably would enable the claimant to sleep. The evidence as it presently stands does not indicate that the reassurance given assists him in any way in sleeping rather it tends to suggest that he is just reassured while he is awake. Even if the former could be established there is still the difficulty in that the service requires to be one of a close and intimate nature involving personal contact. While in Mallinson as can be seen above it was accepted that the contact need not of necessity be physical contact, the basis for that in Mallinson, as I have indicated, was because the reading of correspondence provided a substitute for the claimant's sight. The service in this case is of a wholly different nature and the tribunal would have to determine on the evidence led whether it reached the close and intimate nature referred to in the authorities. The tribunal would in the event that they were able to conclude that the service provided was attention in connection with the claimant's bodily function of sleeping have to consider whether the amount was sufficient to reach the high test set out in section 72(1)(c)(i). 

38. In relation to the lower rate of the mobility component the freshly constituted tribunal will note that they require to determine whether the claimant satisfies that condition in the context of section 73(4) of the Social Security Contributions and Benefits Act 1992. They will also note the content of this decision in respect of the errors in law which I have decided were made by the tribunal whose decision I have set aside. The freshly constituted tribunal are directed that the statutory conditions relate to what the claimant can do as opposed to will do and the object of this element of the mobility component is to remedy an incapacity. They should also follow the guidance given by me in CSDLA/68/98 starred decision 53/98 at paragraph 15 of CSDLA/76/98 referred to therein. That case is also starred under the number 53/98.

39. The appeal succeeds.

Signed

D J May
Commissioner 
19 November 1998