UK Social Security and Child Support Commissioners' Decisions

Stewart-v-Advocate for Scotland [2000] UKSSCSC CSDLA_512_1998 (30 May 2000)

R(DLA) 2/00


Mr. D. J. May QC CSDLA/512/1998

10.8.99

CS (Lord President, Lord Caplan and
Lord Milligan)

30.5.00

Care component - whether attention was required in connection with the bodily function of urinating and in particular, following completion of that function

The claimant, a child whose disability was described as being "chronic asthmatic - bed wetter" claimed the care component of disability living allowance. A disability appeal tribunal decided that he did not qualify for either the day time or the night time conditions in section 72(1)(b)(i) and section 72(1)(c)(ii) respectively. In particular, it was accepted by the tribunal that enuresis was a disablement to which section 72 applied but that the level of attention required was neither repeated nor prolonged. The claimant appealed to a Commissioner who upheld the appeal, substituting his own decision to the same effect. The Commissioner held that inter alia the tribunal had not determined whether enuresis was a mental or physical disablement and that was an error. However the Commissioner also considered further if for the sake of argument it was accepted that the claimant had a disablement they had erred in failing to identify any impaired bodily function and, by inference, in accepting that attention could be given in connection with the bodily function of urinating. The claimant appealed to the Court of Session.

Held, allowing the appeal, that upon the assumption that the requirements for disablement were met:

the Commissioner was wrong as a matter of law to exclude attention provided following completion of the bodily function of urinating merely because the attention did not assist in the actual bodily function of urinating. The attention did not have to be "in the performance" of the bodily function. The Court agreed with the observations of Lords Goff, Mustill, Slynn and Clyde in Cockburn v. Chief Adjudication Officer [1997] 1 WLR 799 [R(A) 2/98];

whether attention following completion of the bodily function of urinating will qualify for an award of care component is a matter for consideration in the circumstances of each case under reference to the statutory requirements as a whole.

The Court stated that the appeal before them was not concerned with what was required by disablement to meet the statutory conditions.

The Court of Session set aside the Commissioner's decision and remitted the case to the tribunal for rehearing.

[Note: In the course of the Opinion of the Court of Session, a passage from the speech of Lord Hope of Craighead in Cockburn v. Chief Adjudication Officer [1997] 1 WLR 799, 823 is wrongly attributed to Lord Clyde]


DECISION OF THE SOCIAL SECURITY COMMISSIONER


1. My decision is that the decision of the disability appeal tribunal given at Dundee on 25 September 1997 is erroneous upon a point of law. I set it aside. I make the decision which the tribunal ought to have made. It is to the same effect namely that the claimant has no entitlement to the care component of disability living allowance.
2. The claimant's appeal came before me for an oral hearing on 20 July 1999. The claimant was represented by Mr. Marshall, Solicitor of the Dundee North Law Centre. The adjudication officer was represented by Mr. Brodie, Advocate, instructed by Miss Miller of the office of the solicitor to the Advocate General.
3. The claimant was born on 26 July 1987. He made a claim for disability living allowance on 8 May 1996. An adverse decision was made in respect of that claim. Thereafter another adjudication officer reviewed that decision but did not revise it so as to award benefit. The claimant appealed to a disability appeal tribunal. His appeal was heard on 25 September 1997. His appeal was unsuccessful.
4. The claimant has appealed to the Commissioner. His grounds of appeal are related to the tribunal's decision that the claimant was not entitled to the care component in relation to either the day time attention condition set out in section 72(1)(b)(i) and the night time attention condition set out in section 72(1)(c)(i) of the Social Security Contributions and Benefits Act 1992.
5. In respect of the day time attention condition as set out in section 72(1)(b)(i) the written grounds of appeal are in the following terms:

"The tribunal erred in law in its decision that on the facts found the attention required did not amount to "frequent attention throughout the day". "Frequent" has been defined by case law as "several times" and it is submitted that attention given four times per day, which was found as a fact by the tribunal, does amount to frequent attention in law. The attention given, in addition to being frequent, must be given "throughout the day". The tribunal did not, in its decision, mention Isaac's pattern of needs throughout the day. However, the evidence given at the tribunal was that the attention was given in the morning, at lunch time, in the afternoon and in the evening. It is submitted that this amounts to attention "throughout the day"."

6. In relation to that condition the tribunal found that the claimant suffered from asthma and made the following relevant findings in fact:

"4. [I] has becotide - two puffs four times a day, bricanyl - four times a day and occasionally six times a day and slofylin - in the morning and in the evening.

....

[I] cannot push down and inhale at the same time and so his mother always attends to the administration of the becotide.

It takes five minutes each time for the administration for the inhalers and medication."

In giving reasons for their decision the tribunal said:

"The tribunal accepted the appellant's evidence that she attended to [I's] medication. However, the tribunal were of the opinion that on each occasion this would take some five minutes and since on a regular basis this amounted to four times a day, although occasionally it might be more, the tribunal were agreed that this was not for a significant portion of the day and neither could it be found to be frequent attention throughout the day. Since the basic criteria for an award of the care component of DLA had not been satisfied the tribunal had no need to consider whether the attention required by [I] was in excess of that required by children with no disability."

7. Mr. Marshall accepted that the findings in fact reflected the evidence with the caveat that in a letter at page 57 the occasions on which the claimant required assistance with his inhaler were before he went to school, twice at school and in the evening. In the event on a fair reading of the tribunal decision I do not consider that they were disputing that the claimant required attention in respect of his bodily function of breathing throughout the day. It would be noted that in finding in fact 4 they indicate that the requirement is in the morning and in the evening. It is I think apparent that they did, not consider that the frequency of the attention was sufficient to satisfy the statutory condition.
8. Mr. Marshall's submission was that no reasonable tribunal could have reached that conclusion. He referred me to the definition of frequently given by the Master of the Rolls in the appendix to R(A) 2/80 where he said "frequently" connotes several times, not once or twice.".
9. In these circumstances it was submitted by Mr. Marshall that four times in a day amounts to frequent. It was his submission that on the basis of the findings in fact given by the tribunal I could find that they erred in law and made the decision which the tribunal ought to have made which was that the claimant satisfied the conditions set out in section 72(1)(b)(i) of the Act and is thus entitled to the low rate of the care component.
10. Mr. Brodie supported the appeal in respect of the conditions set out in section 72(1)(b)(i) upon the basis that the tribunal had failed to give adequate reasons for their decision in that they had not spelt out the basis upon which they reached the conclusion that the claimant did not satisfy the statutory condition. He also indicated that logically on the findings made by the tribunal they would have had to have found that the attention given was frequent.
11. I do not accept that any error in law has been identified on the part of the tribunal in relation to the attention condition as set out in section 72(1)(b)(i) of the Act. That statutory condition, which the tribunal accepted required to be applied in the context of section 72(6) of the Act as the claimant was under the age of 16, is that the claimant is so severely disabled physically and mentally that by day he requires from another person frequent attention throughout the day in connection with his bodily functions. There is no doubt in the findings of the tribunal that attention was rendered to the claimant throughout the day in connection with his bodily function of breathing by virtue of the disability of asthma. Thus the question in the case was whether such attention was frequent to the degree which would satisfy the statutory provision. I do not consider that the Master of the Rolls in indicating what "frequently" connoted was setting out a rigid definition other than to indicate that it connoted several times and not just once or twice. Whether four times amounts to frequently in the context of the findings in fact named by the tribunal was essentially a jury question to be determined by them. It is essentially a question which involves the assessment of degree. The tribunal have answered the question and their conclusion was that the degree is not sufficient to come within the ambit of frequency. I cannot say that the tribunal are not entitled to reach that conclusion and it would be to subvert the function of a tribunal if I were to hold otherwise and substitute as I was invited to do a decision making an award to the claimant. Clearly there will be cases which a conclusion of a tribunal in respect of a question of degree is plainly wrong. This is not one of them. I also consider that the reasons given are adequate. When assessing the question of degree there is little of anything that a tribunal could add to what they have said and I do not consider that their decision is objectionable on these grounds. In any event theirs is the conclusion I reach myself on the facts found by the tribunal. I am able to make this decision on the facts found in the context of section 73(6). The attention given was limited in time duration and number of times throughout the day the requisite degree to satisfy the condition is necessary. It should be noted that the reason I have made a decision of my own on this issue is that I have had to set the tribunal's decision aside on other grounds related to the night time attention condition.
12. The second ground of appeal advanced by the claimant is as follows:

"the tribunal erred in law in deciding that the 20 minutes per night attention which was given to [I] was not "prolonged" attention."

Again in respect of prolonged attention reference is made to what was said by the Master of the Rolls in R(A) 2/80.

13. The tribunal in dealing with the night time attention condition and that the claimant suffered from enuresis. Other relevant findings in fact in respect of that condition are as follows:

"8. [I] wets the bed 5-7 nights in the week.

9. Once or twice in the week [I] will wet twice in the night.

[I's] mother takes 20 minutes to attend to him when he wets the bed."

In giving reasons for their decision they said:

"So far as night needs are concerned the tribunal accepted the appointee's evidence that most nights in the week she has to attend to [I] once a night for 20 minutes at a time. The tribunal were agreed that this was not prolonged attention. The appointee required to attend to [I] twice in the night, only once or twice in the week and so the tribunal were unable to find that the attention required by [I] was repeated during the night on a regular basis. Since the tribunal did not find the primary criteria for a night time award to be satisfied they had no need to address whether the attention required by [I] was in excess of that required by a child with no disability."

14. It will be seen from the tribunal's reasons for their decision that the tribunal have accepted that enuresis is a disablement to which section 72 of the Act applies and that the attention given 'constituted the nature and quality of attention to which the statutory provisions are directed.
15. There are however issues which have not been properly resolved in that regard. The first of these is whether enuresis is a physical or mental disablement. That was an issue which was raised in CSDLA/296/1998 and which was not addressed by the tribunal. It is a crucial issue as a physical or mental disablement is required before entitlement to the allowance can be established. That is clearly set out in R(A) 2/92 where Mr. Commissioner Skinner said "clearly where a person indulges in aggressive or seriously irresponsible conduct the Board has to concede whether that arises from some recognised disordered mental condition or whether it arises from a defective character.". There is a recent contrary authority by Mr. Commissioner Levenson in the appendix to CDLA/15467/1996 in paragraphs 8 and 10. In particular in paragraph 10 the Commissioner quotes what he says in CDLA/15892/1996, put it this way:

"It seems to me that to suffer from enuresis is to suffer from a disability. Whether it is physical or mental in origin, or whether its origin can or cannot be established, is irrelevant."

I do not accept that as a sound statement of the law. It is contrary to the views reached by Mr. Commissioner Skinner in R(A) 2/92, which as a reported decision had the assent of the majority of Commissioners. I am satisfied that the establishment of a disability caused by a medically recognised, physical or mental condition is an essential prerequisite. To hold otherwise would broaden the scope for disability allowance far beyond what is envisaged by the statute.

16. It may well be that if in the event the basis of the tribunal's decision is sustainable on other grounds a failure to make findings on this issue would not be fatal as the error may well be of no consequence in respect of the result.
17. However I consider that even if the tribunal's failure to establish whether the claimant suffered from a disablement caused by a recognised physical or mental condition was in error, if it is for the sake of argument accepted as such, their treatment of the night time attention conditions in respect of attention required in connection with bodily functions is seriously defective. They have not identified any bodily function which was impaired. If it can be inferred that the claimant's impairment was related to urinating, which realistically I think it can it is not at all clear upon what basis the tribunal found that he reasonably required attention in connection with that bodily function. In paragraph 11 of CSDLA/296/1998 I said:

"11. The tribunal also find that the claimant required repeated attention during the night with the bodily function of urinating. The evidence in this case in my view does not disclose that the claimant required attention in connection with urinating rather it was service in respect of the consequence of urinating which he received namely the changing of pyjamas and sheets. I refer in that connection to finding in fact 7."

The situation is not dissimilar in the present case in relation to the findings in fact made by the tribunal.

I went on to say in CSDLA/296/1998:

"12. In the case of Cockburn v. the Chief Adjudication Officer [R(A) 2/98] a judgment of the House of Lords was focused by Lord Hope of Craighead where he noted:

"There are two bodily functions involved in Mrs. Cockburn's case. The first is that of urinating. Her disability in regard to that function is her incontinence. But she does not require assistance in the performance of the function or urinating. Her problem is that she cannot cope with the consequences of her incontinence due to her arthritis. The assistance which she requires is in connection with the other bodily function, which is that of moving her limbs."

The situation is not dissimilar in the present case where there is no assistance which can be given to the claimant in the performance of the bodily function of urinating. Even if the enuresis had in itself been found to be a physical or mental disablement or the consequence of such as Lord Slynn said in his speech in Cockburn in respect of the requirement for attention in connection with bodily functions impaired by disablement:

"The attention is provided by removing or reducing disability to enable the bodily function to operate or in some cases to provide a substitute for it."

That was not the service provided to the claimant when he involuntarily urinated while in bed."

18. Mr. Marshall on behalf of the claimant accepted on the authority of Cockburn the parameters placed upon the conditions and in particular the quotation from Lord Slynn quoted by me in paragraph 12 of CSDLA/296/1998. He did however submit that in respect of the word "operate" used by Lord Slynn this meant operation in a normally socially accepted manner which included such matters as washing the claimant and changing the bed clothes. However I am not satisfied that that is what was intended by Lord Slynn in his speech. It is quite clear that no attention for the bodily function of urinating was given by washing the claimant or removing, washing and replacing the bed clothes. It is thus clear to me that even if enuresis for the sake of argument was accepted as a physical or mental disablement that would be insufficient to bring him within the statutory parameters. Thus in apparently accepting that the claimant had requirements in connection with his bodily functions, which by inference was urinating they have erred in law and their decision must be set aside.
19. Having determined that the tribunal has erred in law for these reasons it is not necessary for me to determine the claimant's second ground of appeal.
20. I am from the findings in fact able to make the decision that the tribunal ought to have made which is to the same effect. I do not consider in the circumstances that it is necessary to determine whether enuresis is a physical or mental disability as on the facts the claimant fails anyway. In addition as attention is not held by me to have been established the question as to whether it is prolonged or repeated does not arise.
21. The appeal succeeds but that success is of no advantage to the claimant.

Date: 10 August 1999 (signed) Mr. D. J. May QC Commissioner

The claimant appealed to the Court of Session. The decision of the Court of Session follows.


 


DECISION OF THE COURT OF SESSION

Mr. J. J. Mitchell QC and Mr. S. G. Collins (instructed by Brodies, WS) appeared on behalf of the Appellant.

Mr. A. R. Dewar (instructed by Mr. H. Macdiarmid) appeared on behalf of the Respondent.

LORD MILLIGAN:

22. This is an appeal by Margaret Stewart, as appointee of her son Isaac, who was born on 26 July 1987. On 8 May 1996, she applied on his behalf for a disability living allowance, the disability being described as "Chronic asthmatic - bed wetter". The present appeal relates to refusal of the care component of the application so far as attention at night is concerned. In particular it concerns the appointee's actings in dealing with Isaac's bed wetting at night. The requirements for qualification for the component mentioned, so far as material to his application, are specified in section 72(1) of the Social Security and Contributions and Benefits Act 1992, which provides:

"Subject to the provisions of this Act a person shall be entitled to the care component of a Disability Living Allowance for any period throughout which .... (c) he 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 ....".

The present appeal is concerned, and solely concerned, with the meaning of "attention in connection with his bodily functions". In particular it is not concerned with what is required either by way of disablement or to qualify attention as prolonged and repeated in terms of the statutory provisions concerned. For present purposes we simply assume that these requirements were met. The phrase with which this appeal is concerned was first put in issue in the case by the Commissioner, who allowed the appeal made to him on other grounds but refused the application expressly because there was no "attention in connection with his bodily functions" on the tribunal's findings in fact. The terms of the tribunal's findings in fact were:

"The appointee claimed DLA for Isaac on 8 May 1996.

Isaac suffers from asthma and enuresis.

Isaac has no mobility needs.

Isaac has becotide - two puffs four times a day, bricanyl - four times a day and occasionally six times a day and slofylin - in the morning and in the evening.

Isaac cannot push down and inhale at the same time and so his mother always attends to the administration of the becotide.

Isaac's mother would not leave him in the bath.

It takes five minutes each time for the administration for the inhalers and medication.

Isaac wets the bed 5-7 nights in the week.

Once or twice in the week Isaac will wet twice in the night.

Isaac's mother takes 20 minutes to attend to him when he wets the bed".

23. The Commissioner's decision, so far as relating to the sole matter with which we are concerned, was in the following terms:

"17. However I consider that even if the tribunal's failure to establish whether the claimant suffered from a disablement caused by a recognised physical or mental condition was in error, if it is for the sake of argument accepted as such, their treatment of the night time attention conditions in respect of attention required in connection with bodily functions is seriously defective. They have not identified any bodily function which was impaired. If it can be inferred that the claimant's impairment was related to urinating, which realistically I think it can it is not at all clear upon what basis the tribunal found that he reasonably required attention in connection with that bodily function. In paragraph 11 of CSDLA/296/1998 I said:

"11. The tribunal also find that the claimant required repeated attention during the night with the bodily function of urinating. The evidence in this case in my view does not disclose that the claimant required attention in connection with urinating rather it was service in respect of the consequence of urinating which he received namely the changing of pyjamas and sheets. I refer in that connection to finding in fact 7."

The situation is not dissimilar in the present case in relation to the findings in fact made by the tribunal.

I went on to say in CSDLA/296/1998:

"12. In the case of Cockburn v. The Chief Adjudication Officer [R(A) 2/98] a judgment of the House of Lords was focused by Lord Hope of Craighead where he noted:

"There are two bodily functions involved in Mrs. Cockburn's case. The first is that of urinating. Her disability in regard to that function is her incontinence. But she does not require assistance in the performance of the function or urinating. Her problem is that she cannot cope with the consequences of her incontinence due to her arthritis. The assistance which she requires is in connection with the other bodily function, which is that of moving her limbs."

The situation is not dissimilar in the present case where there is no assistance which can be given to the claimant in the performance of the bodily function of urinating. Even if the enuresis had in itself been found to be a physical or mental disablement or the consequence of such as Lord Slynn said in his speech in Cockburn in respect of the requirement for attention in connection with bodily functions impaired by disablement:

"The attention is provided by removing or reducing disability to enable the bodily function to operate or in some cases to provide a substitute for it."

That was not the service provided to the claimant when he involuntarily urinated while in bed".

Mr. Marshall on behalf of the claimant accepted on the authority of Cockburn the parameters placed upon the conditions and in particular the quotation from Lord Slynn quoted by me in paragraph 12 of CSDLA/296/98. He did however submit that in respect of the word 'operate' used by Lord Slynn this meant operation in a normally socially accepted manner which included such matters as washing the claimant and changing the bed clothes. However I am not satisfied that that is what was intended by Lord Slynn in his speech. It is quite clear that no attention for the bodily function of urinating was given by washing the claimant or removing, washing and replacing the bed clothes. It is thus clear to me that even in enuresis for the sake of argument was accepted as a physical or mental disablement that would be insufficient to bring him within the statutory parameters. Thus in apparently accepting that the claimant had requirements in connection with his bodily functions, which by inference was urinating they have erred in law and their decision must be set aside."

24. Mr. Mitchell, for the appellant, submitted that the Commissioner had erred in law in his decision on the point now in issue. In particular, the Commissioner sought as the basis for his decision to found on a passage in the speech of Lord Hope of Craighead in the case of Cockburn v. Chief Adjudication Officer and another [1997] 1 WLR 799 (HL) [R(A) 2/98], overlooking the fact that the other four judges in the case adopted a different and wider approach than that of Lord Hope in the passage founded upon by the Commissioner. Furthermore, the Commissioner wrongly attributed as relating to the case of Cockburn a passage in Lord Slynn's speech which related to a deafness case which the House heard at the same time as the case of Cockburn. In the result, Mr. Dewar, for the respondent, stated that he could not challenge what Mr. Mitchell submitted about the Commissioner misdirecting himself in relation to the case of Cockburn and he conceded that the Commissioner had erred in law and that the appeal should be allowed and the case remitted to the tribunal for a rehearing of the application. In this situation, our opinion on the matter can be stated more shortly than would otherwise be appropriate.
25. The facts in the case of Cockburn were clearly very different to those in the present case. The Cockburn case involved an applicant who lived on her own and whose daughter came in weekly to take away for laundering by her clothes and bed linen soiled as a result of the applicant's incontinence which accompanied her severe arthritis. The present case involves an asthmatic child, eight years old at the time of the application, for whom his mother "takes 20 minutes to attend to him when he wets the bed" on average about once a night. The exact nature of what she does can only be guessed at having regard to the lack of specification in the findings in fact. While the two cases are very different on their facts, whatever precisely the appointee does, some of the observations made in the speeches in the Cockburn case are clearly supportive of the present appeal. Under reference to the observations of Dunn LJ in R v. National Insurance Commissioners, ex parte Secretary of State for Social Services [1981] WLR 1017 at page 1023, all of their Lordships accepted that activities which constitute "attention" will involve a degree of intimacy and will often take place in the person's presence although that requirement need not be strictly applied. Thus, Lord Goff said (at p. 802):

"In my opinion, in the case of an unfortunate woman who because of her arthritis cannot cope with her incontinence, the services of changing her clothes or her bed linen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to fall within the section".

He distinguished the taking away of laundry to be washed as transcending personal attention of that kind. Lord Mustill (at p. 804), after dealing with cases involving accompanying a claimant to the lavatory, said:

"Assume now that the applicant does not manage to get to the lavatory in time and needs help to change his or her clothes and put things straight. I think it quite a small step to say that here the help is given in connection with a bodily malfunction which, as I have said, I would equate with a bodily function. And if this is right the same must be the case with the changing of bedclothes and nightwear and other tasks. ... I would go one step further still. If the other person, having come in to strip the bed etc. had stayed to rinse the linen and hang it up to dry I believe that this, too, would have fallen within the section..... There are cases where it is better to concentrate on the words themselves, in the context of the actual dispute. In my opinion this is one. I see here a sufficient continuity between the applicant's incontinence and the presence of the other person to deal with the consequences on the spot to satisfy the section. If the other person had been asked why she spent an hour or so in the flat she would say that she had gone to help out with the applicant's bladder problem".

Lord Slynn, who dissented in the result of the Cockburn case, which involved refusal of the applicant's appeal, said (at p. 818):

"In considering these cases it is important to bear in mind that the 'care component' of the attendance allowance is concerned with 'care' and with 'attention'. The question in each case is whether the particular activities said to be 'attention' is reasonably required by the individual because of the severe disability affecting the relevant bodily function and is reasonably required in connection with that function. This question must be considered as a whole and I do not think that it helps to adopt particular categories which cannot ever be capable of constituting 'attention' ..... I do not think that attention necessarily involves physical contact. In particular, in a case like the present, the attention may involve acts of physical contact and acts where there is no physical contact. Preparing a warm sponge and soap and rinsing the sponge afterwards is as much a part of attention as the physical contact involved in cleaning the body. So, equally, I do not think that removing soiled, and providing clean, clothes and bedclothes, though in both cases it may begin by physical contact with the person involved, ceases to be capable of being attention because the cleaning of the clothes does not involve physical contact".

Lord Clyde (at p. 823) said:

"She does not require attention in connection with the performance of the bodily function of urinating, but the fact that she is incontinent of urine increases her need for attention in connection with the other bodily functions which I have described".

The passage in the speech of Lord Hope referred to in paragraph 17 of the Commissioner's decision thus stands alone in support of the Commissioner's decision so far as the speeches in the Cockburn case are concerned. In particular the speeches of the other judges provide no support for the contention that the fact that Mrs. Cockburn's problem was that she could not cope with the consequences of her incontinence due to her arthritis was in itself fatal to her case. Nor do they support Lord Hope's view that the assistance requires to be "in the performance of" the function of urinating.

26. In our opinion, therefore, the Commissioner was clearly wrong in excluding as irrelevant as a matter of law attention provided following upon completion of the bodily function of urinating simply because the attention did not assist in the actual bodily function of urinating. We agree with the observations of Lord Goff, Lord Mustill, Lord Slynn and Lord Clyde in their speeches in the Cockburn case in the passages which we have quoted. Whether attention provided following completion of the bodily function of urinating will qualify as relevant in any particular case is a matter for consideration of the circumstances of the case under reference to the statutory requirements as a whole. The Cockburn case illustrates this point. The requirement for considering the whole circumstances of the case under reference to the statutory requirements as a whole thus applies to the rehearing of this case by the tribunal. Our decision is not dependent on the possible relevance of attention assisting in the bodily function of sleep, a suggestion introduced into this case by Mr. Mitchell in the course of his submissions but it is, of course, open for any such possible specific additional consideration to be introduced at the rehearing. On the whole matter, we sustain the appeal and remit the case to the tribunal for rehearing.