UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CDLA_5216_1998 (26 June 2000)

THE SOCIAL SECURITY COMMISSIONERS Commissioner's Case No: CDLA/5216/1998 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 SOCIAL SECURITY ADMINISTRATION ACT 1992 SOCIAL SECURITY ACT 1998 APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE SOCIAL SECURITY COMMISSIONER MR COMMISSIONER JACOBS


 


Decision:

1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. .1 The decision of the Stockton Disability Appeal Tribunal held on 5th August 1998 is erroneous in point of law: see paragraph 8.
3. .2 Accordingly, I set it aside and, as it is not expedient for me to give a decision on the claimant's appeal to the tribunal, I refer the case to a differently constituted tribunal for determination.
4. .3 I direct the Appeal Tribunal that rehears this case to conduct a complete rehearing in accordance with my decision in CIB/213/1999. In particular, the tribunal must:

Determine the period over which it has jurisdiction.

The tribunal's jurisdiction begins on the date of claim: 29th October 1997.

In order to determine the date on which the tribunal's jurisdiction ends, the tribunal must establish whether the claimant has made any subsequent claim for Disability Living Allowance. It is possible that a "renewal claim" may have been made and adjudicated before the rehearing takes place. If a "renewal claim" has been made and has been adjudicated upon, the tribunal's jurisdiction runs down to the effective date of that decision. Otherwise, it runs down to the date of the rehearing. The Secretary of State must inform the tribunal, either by way of an additional submission or through the presenting officer at the rehearing, whether any claim has been made and, if so, the decision given on it and the effective date of that decision. The Secretary of State must also inform the tribunal of the effective dates and periods of the awards to the claimant's children: see paragraphs 49 and 50.

Determine the claimant's entitlement to Disability Living Allowance.

The tribunal must determine whether at any time within its jurisdiction the claimant satisfied the conditions of entitlement to any rate of either component of Disability Living Allowance, having regard to the guidance in paragraphs 11, 14 to 20, 23 to 38 and 47 to 50.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the Disability Appeal Tribunal brought by the claimant with the leave of a Commissioner. The adjudication officer supported the appeal. On the coming into force of the Social Security Act 1998, the Secretary of State has replaced the adjudication officer as a party to this appeal.
6. I directed an oral hearing of the appeal. It was held in London on 15th June 2000. The claimant did not attend, but was represented by Mr Kennedy and Mr Lowrie from the Welfare Rights Unit of her local council. They presented an interesting and thought-provoking case on behalf of the claimant. I am grateful to them for their arguments and for highlighting aspects of the case that had not appeared from the papers. The Secretary of State was represented by Mr J Heath of the Office of the Solicitor to the Departments of Health and Social Security. He presented a structured analysis of the issues and case law. The claimant's representatives thanked him for his detailed and helpful analysis and I endorse their comments.

The adjudication officers' decisions

7. The claimant's claim for a Disability Living Allowance was made on 29th October 1997. In her claim pack, she asserted difficulties with walking, with care and with cooking. The section of the pack dealing with falls has not been reproduced clearly on photocopying. It is not clear whether the claimant ticked the 'Yes' box to show that she had falls. Reports were obtained from the claimant's GP and from an Examining Medical Practitioner. Having received this evidence, the adjudication officer awarded a Disability Living Allowance consisting of the care component at the lowest rate on the basis of the cooked main meal test for one year from and including the date of claim. No award was made of the mobility component.
8. The claimant applied for a review of the decision. A different adjudication officer reviewed the decision under section 30(1) of the Social Security Administration Act 1992, but confirmed the award.

The appeal to the Appeal Tribunal

9. The claimant appealed against the decision given by the adjudication officer on the section 30(1) review. The claimant attended and gave evidence at the hearing of the appeal, accompanied by a representative from her local Welfare Rights Unit.
10. The tribunal awarded a Disability Living Allowance consisting of the mobility component at the higher rate and the care component at the lowest rate on the basis of the cooked main meal test for three years from and including the date of claim.

The error of law

11. The parties are agreed that the decision of the tribunal was erroneous in law. In summary, the tribunal's mistake lay in its approach to attention or supervision involved in helping the claimant to look after for her twin babies.

The issue for decision

12. It would no doubt be commendable if legislation provided that financial and all other necessary resources should be provided to empower people to lead as full and as fulfilling a life as could be achieved despite any disabilities they might have. The cost to public finances precludes that possibility. Specifically, it is not the function of Disability Living Allowance. This Allowance concentrates on disability rather than on ability. It provides for payment on account of specific, limited needs that arise from disablement. That payment may meet part of the costs involved in enabling the claimant to overcome the consequences of the disablement, but that is as far as it goes towards empowerment. Inevitably, claimants and their representatives apply pressure at the boundaries of the Allowance. They try to extend the scope of the needs for which it provides and the disablement with which it is concerned. They try to move its focus away from disablement towards empowerment. That is only natural and I do not criticise them for it. It is the function of the Social Security Commissioners and the courts to ensure that the boundaries of the law are drawn in the proper place, having regard to the principles for interpreting legislation and to the authorities binding on them. This comment of Lord Mustill is apposite:

'The courts must I believe bear in mind that the entire shape of the social services legislation represents a strategy about the deployment of limited funds, and that to overstrain one element of the legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme.'

See Cockburn v. Chief Adjudication Officer and Secretary of State for Social Security v. Fairey (also known as Halliday) [1997] 3 All England Law Reports 844 at page 850.

13. In this case, the pressure is applied to the point at which a claimant's disablement affects someone else. In this case, the someone else were the claimant's twin children. They were born prematurely in 1997. They are both still ill, one more so than the other. They require more care than would babies in normal physical condition for their age. The claimant's ability to provide that care is limited by two factors: her hearing is impaired in her left ear and she has rheumatoid arthritis. Her impaired hearing only limits her ability to care for the twins at night, as she cannot hear the babies cry or the monitoring alarm sound if she is sleeping on her right side. Her arthritis affects her mobility and the use of her hands and arms by day and at night.
14. As far as caring for her children is concerned, her case rests mainly on her arthritis. That may give rise to a need for attention or supervision. As regards hearing, she will need attention in connection with this only at night. Even then, it will only be needed if she happens to be sleeping on her right side when a baby cries or the monitoring alarm sounds.

Supervision

15. It is convenient to start with supervision, because the legislation expressly provides for a claimant's disablement affecting someone else. The state of the authorities is also clearer.
16. Section 72(1)(b)(ii) and (c)(ii) of the Social Security Contributions and Benefits Act 1992 provide for entitlement to the care component if a claimant

'(b) is so severely disabled physically or mentally that, by day, he requires from another person-

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) is so severely disabled physically or mentally that, at night,-

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purposes of watching over him.'

In this decision, I use 'supervision' to cover both supervision by day and watching over at night.

17. Mr Heath argued that the decision of the Tribunal of Commissioners in R(A) 1/83 is still good law. I agree. The Tribunal emphasised the four elements that have to be proved. Stated in terms of danger to someone other than the claimant, those elements are:
18. .1 First, the claimant's disablement must create a substantial danger to her children.
19. .2 Second, that danger must not be too remote a possibility.
20. .3 Third, there must be a reasonable need for supervision.
21. .4 Four, the supervision must be continual by day. At night, the watching over must be needed for a prolonged period or at frequent intervals.

Supervision at the rehearing

22. I emphasise these points, which will be relevant at the rehearing.
23. First, the Tribunal of Commissioners said (paragraph 6) that supervision or watching over must be needed to ensure that the danger is avoided. However, it is not necessary for the supervision to eliminate all risk to the claimant's children. It is sufficient that the supervision would effect a real reduction in the that risk. See the decision of the Commissioner in R(A) 3/92, paragraph 6.
24. Second, the supervision must be of the claimant, not of the children. This is particularly relevant to the effects of the claimant's impaired hearing at night. There must be a reasonable need for someone to be awake to watch over the claimant. That watching over may be necessary in order to avoid danger to the claimant's children. But it must be the claimant herself who has to be watched over, not her children. On my understanding of the evidence, the claimant's impaired hearing at night means that she has to be wakened to tend to her children. That is a need for attention, not a need for watching over.
25. Third, the need for supervision must be reasonable. I consider this requirement in the context of attention: see paragraphs 34 to 37. With particular regard to supervision, the tribunal must determine whether there is any practical measure the claimant could adopt to avoid the risk to her children when she is moving around or holding them. If she can obviate the risk, she does not reasonably require supervision.
26. Fourth, the claimant's children may be at risk from her falling. However, the tribunal must not limit its consideration to falls. It must consider all aspects of the claimant's disablement that might affect her children's safety. This includes falls while walking, but also covers the claimant's lack of grip. This may increase the risk to a child if the claimant fell. It may also involve a risk of the baby being dropped by the claimant when she is not walking.
27. Finally, it seems to me that supervision in order to allow a claimant to care for children will seldom be sufficient on its own to satisfy the day-time requirement that the supervision be continual. There may, though, be exceptions where a child's illness gives rise to frequent, irregular and unpredictable demands on a mother. In those circumstances, the number, urgency and unpredictability of the demands may merit continual supervision.

Attention

28. Section 72(1)(b)(i) and (c)(i) of the Social Security Contributions and Benefits Act 1992 provide for entitlement to the care component if a claimant

'(b) 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

(c) is so severely disabled physically or mentally that, at night,-

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions'.

29. Unlike the legislation on supervision, the legislation on attention does not contain a specific reference to anyone other than the claimant. So, an award can only be based on the claimant's need for attention in connection with her own bodily functions. I deal first with the general principles of the law and then consider the decisions of Commissioners on attention while looking after children.

Attention while performing tasks and performing tasks instead of claimant

30. Mr Heath argued that it is necessary to distinguish between (i) cases where the claimant is helped to do something and (ii) cases where something is done by someone else instead of the claimant. I agree. If the claimant reasonably needs someone to help her in connection with her bodily functions while she cares for her babies, that may qualify as a need for attention. However, if she cannot tend to the needs of her babies and she needs someone else to do this for her, that does not qualify as a need for attention. See the distinction drawn in relation to cooking by the Commissioner in CDLA/267/1994, paragraph 5.
31. In Mallinson v. Secretary of State for Social Security [1994] 2 All England Law Reports 295 at page 306, Lord Woolf said that attention may take the form of

'a substitute method of providing what the bodily function would provide if it were not totally or partially impaired.'

However, that statement must be taken with care and in context. In that case, the claimant was blind and the attention required was a substitute for vision. That substitute allowed the claimant to obtain the information that would otherwise have been provided by his eyes if they were functioning properly. The information provided allowed him to walk safely. That is different from a case in which someone else tends to the claimant's babies instead of her because of her arthritis. That help is not a substitute method of providing to the claimant what her bodily functions would provide if they were functioning normally.

32. So, the tribunal at the rehearing must investigate the facts to determine whether the claimant needs (i) help in order that she may tend to her babies or (ii) someone else to tend to some aspects of her babies' care for her. If it is (i), the tribunal must determine whether the help takes the form of attention in connection with her bodily functions or supervision. It will be supervision if the claimant is doing things for herself and the helper is standing by ready to intervene if something goes wrong in order to protect the claimant or the child. It will be attention if the helper is actively helping the claimant to do things herself. Of course, it is possible that both attention and supervision may be required.

Attention in connection with bodily functions

33. Commissioners and the courts have attempted to define where lies the boundary of 'attention ... in connection with ... bodily functions'. The result is that this phrase has been interpreted narrowly and restrictively. Naturally, different judges and Commissioner have expressed themselves differently. Some of their attempts are more helpful and appropriate than others. What is important is the idea encapsulated in the various statements rather than the particular expressions of that idea.
34. The most commonly used expression is that the phrase covers those things which fit persons would normally do for themselves. It is inherent in this that a fit person would do this without assistance from anyone else: see the comment of Lord Goff in Fairey at page 47. Also, it is emphasised that attention must be personal and intimate to the claimant. I tried to bring these two elements together in my suggestion that attention is something 'fit persons ... would not expect or allow anyone else to do for them or to assist them in doing': see CA/1141/1997, paragraph 18.
35. In some cases, a mother will require help in order to look after a child that is personal and intimate to her. For example, if her hearing is impaired so that she cannot hear her baby crying, she needs to be told that her baby needs feeding, changing or other care. Also, if her arms are impaired, she may need help with holding a baby for breast feeding. In both those cases, the attention provides a substitute for the impaired bodily function of the mother that is personal and intimate to the mother, while also allowing her to care for her baby.
36. In other cases, it is difficult to see how attention would be given in practice. Take as an example a mother whose grip is too weak to allow her to deal with buttons, zips and other fastenings. In practice, someone else would not help the mother to perform the task, but would perform it instead of the mother.
37. .2 If the mother cannot dress herself, this help will be a substitute method of providing for the mother what her grip is too weak for her to do herself. Dressing the mother is personal and intimate to her.
38. .2 However, if the mother cannot dress her baby, the other person will be dressing the baby instead of the mother and not helping the mother to perform the task. Nor would help given to the child be personal and intimate to the mother.
39. The claimant's representatives made two arguments that are relevant to this aspect of the case.
40. Their first argument was the authorities were very broad and allowed tending to the needs of others to be taken into account. In particular, they argued that there should be no closed categories. By this they meant that there should not be predetermined classes of case that fall outside the scope of 'attention ... in connection with ... bodily functions'. An example of a closed category would be 'domestic duties'. Mr Heath did not express himself in the same terms, but he emphasised that the relevant question was whether the conditions of entitlement for an award were satisfied in a particular case on the authorities.
41. I agree with Mr Heath that the question to ask is: does the claimant satisfy the statutory conditions of entitlement? It is wrong to interpose additional questions which are not authorised by the legislation, like: is this a domestic chore? I also agree with the representatives that there are no classes of case which in principle must fall outside the statutory conditions. I recognise, and could hardly do otherwise, that Commissioners and judges have sometimes expressed themselves in terms that may suggest that there are closed categories. However, they were merely using those categories as a convenient omnibus way of encompassing a range of circumstances which are likely to fall outside the statutory conditions. They do no more. It is fallacious to treat those expressions as excluding from all consideration assistance that falls with the category. That would introduce an unnecessary, additional step when deciding whether a claimant is entitled to an Allowance. Commissioners at least do not use closed categories. This is shown by decisions holding that assistance may amount to attention despite being given in the context of cooking (CDLA/267/1994, paragraph 5), domestic chores (CDLA/5221/1995, paragraph 4) and shopping (CDLA/12354/1996, paragraph 9). So, assistance that is given in the context of a mother caring for a child is not in principle excluded from qualifying as attention. However, this does not mean that all assistance given in that context must qualify as attention. The proper focus is, as Mr Heath rightly emphasised, always on the statutory conditions of entitlement.
42. The representatives' second argument was that the emotional and physiological needs of a mother to care for her children were bodily functions. Mr Heath made an interesting argument on whether an emotional need was a bodily function. Fortunately, I do not need to decide that issue, because on my analysis of the law it is irrelevant in this case. If the claimant, when caring for her babies, reasonably needs help that is intimate and personal to her in connection with her impaired hearing and arthritis, that qualifies as attention. The attention is not given in connection with her emotional and physiological needs to care for her children, but it incidentally fulfils those needs. On the other hand, if the claimant needs someone else to perform tasks instead of her, that does not qualify as attention. Nor could it fulfil the claimant's emotional and physiological needs, which are to perform the task herself.

Reasonable required

43. The legislation provides that the supervision or attention must be 'required'. However, it has been accepted by both the Commissioners and the courts that this means 'reasonably required'. The word "reasonably" extends the scope of the word "required", but not without limit.
44. It extends the scope of the word 'required' so that the test is wider than necessity. For example, the help need not be medically required: see the decision of the Commissioner in R(A) 3/86, paragraph 6.
45. Although it extends the scope of the word 'required', it is still essential for there to be a reasonable need for the help 'required'. This limitation is seen in the cases where Commissioners have held that it is relevant to consider whether there are means by which a claimant could avoid a need for attention or supervision. It is also recognised in the leading speeches in both Mallinson and Fairey. In Mallinson, Lord Woolf (at page 307) saw the condition that the help be reasonably required as a means of excluding from consideration

'extreme situations where a blind person would require assistance which is unlikely to have been intended to qualify ....'

In Fairey, Lord Slynn (at page 859) accepted that the provision of an interpreter for someone with impaired hearing could amount to attention, but added:

'It must still be reasonably required both in its purpose and in its frequency.'

As the Commissioner pointed out in CDLA/267/1994, paragraph 4, the word 'reasonably' does not remove all force from the word 'required'. That statement was made in the context of the Court of Appeal decision in Fairey, but it remains valid following the decision of the House of Lords.

46. So, if the claimant requires attention in order to care for her children, the tribunal must exercise a judgment as to its reasonableness. The tribunal must consider both the purpose and the frequency of the need, as Lord Slynn said. However, it is not limited to these considerations. The age and health of the children will also be relevant. Attention for a mother to look after a baby or infant is more likely to be reasonable than attention to look after an adolescent. Attention to look after an ill child (even an older child) is more likely to be reasonable that attention to look after a healthy child. The tribunal must also have regard to the realities. It may be that, realistically, a claimant is not able to look after her children, even with help. In other words, it may be unrealistic to expect anyone to provide the assistance required for a claimant to tend to the needs of children. Perhaps, the only help that would be provided in practice is taking over the care of children, or at least some aspects of their care, from the claimant. If that is the position, the tribunal may consider that attention would not be reasonable required.

The period of an award

47. The circumstances in which attention or supervision is needed and the factors taken into account is assessing reasonableness, will be relevant to the period of an award. The tribunal must also take account of the awards of Disability Living Allowances to the children: see paragraphs 49 and 50.

The Commissioners' decisions on attention

48. Three decisions were cited to me in which Commissioners have considered attention in the context of caring for children. I deal with them in the order in which they were decided. None of the decisions dealt with supervision.

CDLA/16996/1996

49. This was a decision of Mr Commissioner Sanders. The claimant was a mother whose vision was impaired. She had three children, aged 5, 3 and 1. The tribunal found that, if it were not for the children, the mother would qualify for attention covered by the care component at the lowest rate. However, when tending to the needs of her children was also taken into account, she qualified for the middle rate. The tribunal found that she needed to wash, dress, feed, supervise, discipline, read to and play with her children. The tribunal awarded the middle rate for just over 4 years. The adjudication officer appealed against this decision. The Commissioner decided that the tribunal had not made an error or law. He commented that (paragraph 6):

'attention in connection with the bodily function of seeing to enable a sight impaired person to deal with (to use a neutral expression) her very young children is properly capable of counting as qualifying attention. It has of course to be reasonably required and so frequently throughout the day.'

50. Comments This is a very limited decision. The Commissioner was mainly concerned with an argument by the adjudication officer that the attention was in connection with the bodily functions of the claimant's children and not with her own. The Commissioner rejected that argument, as the tribunal had clearly concentrated on the need for attention in connection with the claimant's own bodily functions. Apart from this, the Commissioner did not give an analysis of the legislation as it applies in the context of tending to children. He merely approved what the tribunal had done as in accordance with the principles laid down in the authorities (paragraph 6). He accepted that attention to a mother to allow her to look after her children could qualify. However, he did not decide that it would always qualify. Nor did he analyse the circumstances in which it would qualify. Finally, I note that the award was fairly short, taking the youngest child to school age.

CSDLA/314/1997

51. This was a decision of Mr Commissioner May. The claimant was a mother whose vision was impaired. The ages of the children are not stated, but they were attending schools or nursery. The tribunal found that the claimant 'needed some help with bathing, washing and dressing both herself and her children.' It awarded the care component at the middle rate for 5 years. The adjudication officer appealed against the decision. The Commissioner decided that the decision was erroneous in law and remitted the case for rehearing. He considered and disagreed with CDLA/16996/1996.
52. Comments The Commissioner made three points in relation to attention given to a mother while she tends to the needs of her children.
53. .1 Assistance given while tending to the needs of someone else is too remote to be taken into account (paragraph 14). This was stated as a general proposition and was not linked to the facts of the case. As I understand it, remoteness is just another way of referring to the need for attention to be reasonable. With respect, I think that as a general statement that goes too far. I do not read the authorities as being quite as narrow as the Commissioner did. However, as a statement limited to the facts of the case, I respectfully agree that the evidence did not support a (reasonable) need in respect of tending to the children.
54. .2 The assistance given while tending to the children would not be personal and intimate to the claimant (paragraph 15). I respectfully agree with this as a general proposition.
55. .3 Assistance given while tending to the needs of children is not social functioning as envisaged by Fairey and was of the same order as cooking, shopping and housework (paragraph 16). Fairey was concerned with social and leisure activities. I agree with Mr Heath that it does not extend beyond that. The House of Lords did not consider caring for children. However, it is difficult to see how caring for children can be excluded in principle when Fairey has accepted that leisure activities may be included. Also, with respect, the references to cooking, shopping and housework overlook the authorities which have accepted the possibility of attention in connection with these activities: see paragraph 32 above.

CDLA/16129/1996

56. This was a decision of Mr Commissioner Goodman. The claimant was a mother whose vision was impaired. She was awarded a Disability Living Allowance, consisting of the mobility component at the lower rate and the care component at the lowest rate for life from April 1992. She applied for a review on the birth of her child in May 1995. The tribunal refused to increase the award. The claimant appealed against this decision. The Commissioner decided that the decision was erroneous in law and remitted the case for rehearing. He considered both CDLA/16996/1996 and CSDLA/314/1997.
57. The claimant and the adjudication officer agreed that the tribunal was at fault for not considering whether the help given to the claimant to look after her baby daughter was in connection with the bodily function of seeing. However, they were not agreed on whether this assistance was in connection with the claimant's bodily functions. The claimant relied on Mr Commissioner Sanders' decision and the adjudication officer relied on Mr Commissioner May's. The Commissioner preferred the former. He accepted that some aspects of looking after a baby were capable of involving attention - measuring feeds, dressing, changing nappies, bathing and watching out for her as she played and learnt to walk. He left it to the tribunal at the rehearing to decide these matters as fact. He also left the period of the award to the tribunal, commenting only that 'the needs of the child or the mother to look after the child will vary in quantity and quantum over the years' (paragraph 17).
58. Comments This is a limited decision. The argument before the Commissioner seems to have been concerned with whether assistance was given in connection with the claimant's bodily functions. The Commissioner emphasised (paragraph 19) that it must be reasonably required by the claimant herself in connection with her bodily functions. He did not analyse whether the assistance was attention and, specifically, whether it was intimate and personal to the mother. His decision is not authority for the proposition that assistance in doing something is attention, and by definition intimate and personal to a mother, simply because she would like to do it for herself.

Conclusions on the Commissioners' decisions

59. With respect, some of the comments in CSDLA/314/19967 are too broad, although I do not question their application on the facts of that case. I agree with the other decisions that attention while looking after children is capable in principle of qualifying as attention in connection with the parent's bodily functions. However, those decisions are very limited in scope. Neither case involved argument on all aspects of the qualifying conditions. There are considerable difficulties in satisfying those requirements. Specifically, it is difficult to show that the help given to a mother is intimate and personal to her and that it does not involve doing something instead of the mother. It will be rare for attention to qualify and be reasonably required to such an extent that it alone justifies an award for attention. It is more likely to help tip the scales in favour of an award or of an award at a higher rate. Finally, attention is most likely to be relevant to babies and young children, and this will be reflected in the period of the award.

Need must be caused by a disablement

60. The need for attention or supervision must be caused by the claimant's disablement. The tribunal must disregard difficulties experienced by the claimant that do not arise on account of her impaired hearing and arthritis. In this case, the claimant has twins. She commented in her claim pack that she had particular problems if both twins needed her at the same time. This difficulty is not caused by her disablement. At least, it is not solely caused by it. Most parents would find it difficult to cope with two children who were both ill and who required care at the same time. It is, though, possible that the claimant's difficulties in this regard may have been increased by her disablement.

Double recovery

61. At the date of the claimant's claim for a Disability Living Allowance her children had not been awarded a Disability Living Allowance for their own needs. An award has since been made to each of the children. At the rehearing, the tribunal must identify the effective date of the awards to the children. From that date, any assistance that the claimant needs to help her look after her children cannot qualify as supervision or attention in her claim. Otherwise, there would be a double recovery.
62. This issue was decided by the Court of Appeal in Miller v. Chief Adjudication Officer on 27th April 1994. The case concerned what is now called the care component of Disability Living Allowance. The claimant had an award in respect of day-time supervision. Her husband had an award in respect of night-time attention. The claimant claimed that her award should also include night-time supervision to allow her to provide her husband with the attention reflected in his award. The Court of Appeal held that that was not permissible. As Lord Justice Peter Gibson explained, it

'would permit a double recovery for the needs of the husband, or an aggregation of his needs with those of the appellant's needs.'

Summary

63. As the Disability Appeal Tribunal's decision is erroneous in law, I must set it aside. I cannot decide the claimant's entitlement to a Disability Living Allowance myself, as further investigation of the facts is required. Also, the practical and professional experience of the members of the tribunal will be valuable in the assessment of the evidence. There must, therefore, be a complete rehearing of this case before a differently constituted Appeal Tribunal in order to determine the claimant's proper entitlement to Disability Living Allowance at all times within the period of the tribunal's jurisdiction. As the Social Security Act 1998 has abolished Disability Appeal Tribunal, the rehearing will take place before a new Appeal Tribunal. That tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing, except in so far as I have directed the tribunal on the law to apply.

Signed on original Edward Jacobs

Commissioner

26th June 2000