UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Darlington appeal tribunal dated 15 April 2002 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to give to substitute a decision on the claimant's appeal against the decision dated 20 June 2001 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the decision dated 6 March 2001 falls to be superseded on the ground that it was made in ignorance of material facts. The superseding decision is that the claimant is entitled to lower rate of the mobility component of disability living allowance from and including 17 April 2001 and to the middle rate of the care component for the period from 17 April 2001 to 16 April 2006.
2. The claimant, who was born on 5 July 1978, was entitled prior to January 2001 to the lower rate of the mobility component of disability living allowance (DLA) and to the lowest rate of the care component under a decision dated 9 April 1997. The claimant's appointee, his mother, asked for the decision to be looked at again and a DLA form was submitted. The decision, dated 6 March 2001, was not to change the claimant's entitlement. Because of the technicalities of the supersession process that took effect as a superseding decision giving the same entitlement from and including 6 March 2001. On 17 April 2001, the claimant's mother's request for a review of the decision was received. As that request was outside the normal month for applying for revision of a decision, it was treated as a request for supersession of the decision of 6 March 2001. Another DLA pack was submitted. The decision dated 20 June 2001 was made on the ground that the evidence did not show any greater entitlement than provided by the existing decision. There was another superseding decision at the same rate taking effect from 20 June 2001. It was that decision which was under appeal to the appeal tribunal.
3. The claimant and his mother attended the hearing on 15 April 2002 with their representative, Anne-Marie Chappell of Darlington Citizens Advice Bureau. She had provided in advance of that hearing both a written submission and a substantial report on the claimant from a consultant clinical psychologist, produced after interviews and tests. The case made for the claimant was that he should receive the middle rate of the care component on the day-time conditions. No case was made for the higher rate of the mobility component.
4. The appeal tribunal's decision was that the claimant was not entitled to anything in addition to his existing awards from 20 June 2001. There was a detailed and thorough statement of reasons. Among the findings of fact were the following:

"20. According to [the claimant's mother] the Appellant did not always clean himself after he had been to the toilet. This was usually about two times a day and she had to check his rear end every day. Usually the Appellant asked her to do this. This would probably be on at least three occasions per day every day of the week.

21. [The claimant's mother] indicated that this was `a nightmare to her' and that it was `not normal'. She frequently heard `funny noises from the toilet' and she indicated that this `gets on my nerves'.

22. So far as checking the Appellant's behind was concerned, she stated that this occurred three times a day and two times on each occasion.

23. [The claimant's mother] also indicated that the Appellant required [her] to check his `private parts' at the front. He apparently asked `is it dry?' every time he went to urinate. In addition, she had to check his hands after washing to make sure there was no soap on them. [She] indicated that she firmly believed that it she did not do this checking he would lose his temper.

29. In answer to further questions from the Carer member of the Tribunal, [the claimant's mother] confirmed that the appellant washed his own face and hands and underarms and used deodorant. he washed his feet in a bowl. He washed his hands and face more than six times a day and took some five to ten minutes over this. [The claimant's mother] stated that `fortunately' she did not have to assist in this except to check that there was no soap left on his hands. She confirmed that her son would dry every finger three or four times and again she used the phrase that this was `so irritating'.

38. It was patently clear to the Tribunal from all that had been said at the Hearing that the Appellant was obsessional but that in addition he irritated his mother in this regard. It was clear from the evidence given both from the papers and verbally at the Appeal that the `frequent attention' that was required in relation to the Claimant's bodily function was in fact `checking' both in relation to the cleanliness of his behind and as to the presence of soap on his hands or dampness on his clothes. The Tribunal did not consider that `checking' was attention as required by the provision of section 73(b)(i) of the Social Security Contributions and Benefits Act 1992."

Although many of those points were expressed merely as describing the evidence which had been given by the claimant's mother, it is sufficiently clear that the appeal tribunal accepted that evidence. The appeal tribunal also dealt with the evidence on needs for supervision to avoid substantial danger to the claimant or others and concluded that the claimant did not qualify for the middle rate of the care component on that ground either.

5. The claimant now appeals against that decision, with leave granted by a district chairman, who specifically mentioned the question of whether "checking", in the form and circumstances described to the appeal tribunal, constituted attention in connection with bodily functions. The written submission dated 15 August 2002 on behalf of the Secretary of State did not support the appeal. It was said that attention given in connection with the cognitive and other functions of the brain unrelated to physical functions is not within the statutory definition of attention in connection with bodily functions. Ms Chappell disagreed and requested an oral hearing. That request was granted by Mr Commissioner Howell QC.
6. The oral hearing took place at Doncaster County Court. Neither the claimant nor his mother attended, but they were represented by Ms Chappell. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for clear and succinct submissions.
7. In the course of the hearing, Ms Haywood accepted that the appeal tribunal's findings of fact and reasons in relation to attention in connection with bodily functions were inadequate, without having to go into any problems over whether cognitive functions are bodily functions. I agree. In paragraph 38 of its statement the appeal tribunal failed to take account of the checking of the claimant's private parts and failed to explain why it considered that `checking' of the sort described did not constitute attention within section 72(1)(b) of the Social Security Contributions and Benefits Act 1992. In the absence of any explanation of that conclusion, it appears that the appeal tribunal must have adopted a legally wrong approach to the meaning of attention.
8. The following observations of Dunn LJ in R v National Insurance Commissioners, ex parte Secretary of State for Social Services (Packer's case) [1981] 1 WLR 1017, appendix to R(A) 2/80, have been approved several times by the House of Lords, subject to one qualification:

"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 qualification is that the personal contact mentioned need not involve physical contact. The issue was most recently considered by the House of Lords in Cockburn v Chief Adjudication Officer [1997] 1 WLR 799, appendix to R(A) 2/98, where it was held that the subsequent washing, carried out elsewhere, of sheets soiled by night-time incontinence was not within the test. However, some flexibility was allowed in assessing what immediate activity consequential on the bodily function could be regarded still as attention to the disabled person.

9. I do not need to enter into the controversy over how far attention provided after the completion of a particular bodily function can count as attention in connection with that bodily function (see the decision of the Court of Session in Stewart v Advocate General for Scotland, appendix to R(DLA) 2/00). That is because in the present case the attention provided by the claimant's mother in checking his behind and private parts after he has used the lavatory and checking his hands after washing is, as Ms Chappell submitted, directed to enabling him to complete the bodily function in question. The evidence of obsessive behaviour was accepted by the appeal tribunal and the claimant's mother's evidence showed that, if the checking was not carried out, the claimant might either feel compelled to repeat the action concerned (eg washing the hands) or cause such problems that the claimant would not be able to move on to any other activity or would become agitated or distressed. The checking of the bottom and private parts, in the case of an adult aged nearly 23 at the date of the decision under appeal, was clearly of a close and intimate nature, so as to satisfy the test. So was the checking of the claimant's hands after washing, which would require close inspection and probably physical contact, to allow him to complete the activity of washing. I do not think that Ms Haywood dissented from that view, subject to the question of the identification of a disablement, which I deal with below. The appeal tribunal erred in law, either in adopting a different approach to the meaning of attention or in failing to explain how its conclusion was consistent with the proper meaning of attention.
10. I had reached that conclusion before the Court of Appeal handed down its decision in Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32 on 31 January 2003. Since the judgments in that case do not put forward any interpretation of Cockburn or any test of what constitutes attention in connection with bodily functions which is inconsistent with my conclusion above, I have not sought any further submissions on the effect of Ramsden.
11. For the reasons given above, the appeal tribunal's decision must be set aside as erroneous in point of law.
12. Ms Chappell submitted that there was no need to send the case back to another appeal tribunal. She said that the evidence was consistent, that the consultant clinical psychiatrist's report and the claimant's mother's evidence had been accepted by the appeal tribunal of 15 April 2002 and that there would be no difficulty in the Commissioner making any necessary additional findings of fact.
13. Ms Haywood, however, cast doubt on whether there was sufficient evidence that the claimant was suffering from a physical and/or mental disablement which resulted in needs for attention or supervision. She pointed to the consultant's opinion that the claimant's overall level of intellectual functioning was "within the borderline range" (apparently meaning one category above the "learning disabled range"). She queried whether that would mean that the claimant was mentally disabled, at least without obtaining further expert medical evidence to be put to a new appeal tribunal. Ms Haywood also drew attention to the way in which the consultant phrased his opinions on brain damage and obsessional compulsive disorder:

"There appears to be fairly marked variation in [the claimant's] subtest scores, which could suggest some degree of brain damage. It is noted that [the claimant] had fits when he was a baby, which could possibly indicate neurological damage. He was also involved in a bicycle accident when he was 15.

[The claimant's] mother believes that some brain damage occurred at that time. The overall pattern of these results is certainly indicative of brain damage.

[The claimant] also appears to suffer from Obsessive Compulsive Disorder, which manifests itself by the constant repetition of words. [The claimant] said he obtains these words from the television. He also has obsessive thoughts and behaviours concerning his general cleanliness and flushing the toilet."

She submitted that the consultant had raised suggestions and said what appeared to be the case, but did not make an unequivocal diagnosis, and that further expert evidence would be valuable.

14. I do not accept Ms Haywood's submission. This case turns, in relation to the question of attention in connection with bodily functions, on disablement from the effects of obsessive compulsive disorder (whether or not brain damage has played any part in the causative process). The difficult issues involved in asking at what point an assessment of a person's overall intellectual functioning (eg in the learning disabled range or in the borderline range) could lead to a conclusion that the person was mentally disabled for DLA purposes can be left to some other case. I am quite satisfied, on an overall reading of the consultant clinical psychiatrist's report, that he was identifying the claimant as suffering from the symptoms of obsessive compulsive disorder in the ways specified and as being subject to obsessive thoughts and behaviours. That is what he had been asked to assess (see page 93). His opinion is clearly sufficient to show that the claimant suffered from a recognised medical condition and that the resulting needs for attention in connection with bodily functions were a consequence of his being mentally disabled for the purposes of section 72(1) of the Social Security Contributions and Benefits Act 1992. In those circumstances, fairness does not require giving the Secretary of State a further opportunity to put forward further expert evidence, either general in scope or specifically related to the claimant, or the referral of the case to a new appeal tribunal. The Secretary of State was content for the appeal tribunal of 5 April 2002 to come to a decision on the evidence available on that date.
15. Accordingly, I substitute a decision on the appeal against the decision of 20 June 2001. The only issue in dispute is qualification for the middle rate of the care component on the day-time conditions. I adopt the appeal tribunal's acceptance of the claimant's mother's evidence. For the reasons given in the previous paragraph, I am satisfied that the claimant is and was on 6 March 2001 and 20 June 2001 mentally disabled by reason of suffering from obsessive compulsive disorder. I am also satisfied that as a result of that disablement the claimant reasonably required the attention given to him by his mother, in particular the "checking" of his bottom and private parts after using the lavatory and of his hands after washing. That is because I accept, from the evidence given, that the claimant either would become agitated or distressed if the checking was not carried out or would be unable to move on to some other activity. I do not need to consider whether or not the claimant might be regarded as mentally disabled for other reasons or how his needs for supervision during the day should be assessed.
16. The appeal tribunal recorded slightly different statements from the claimant's mother at the hearing about how often each day she had to check his bottom after defecation. I adopt the lower estimate of twice a day, but also the statement that she might need to check him twice on each occasion. That is consistent with what she had put on the DLA form signed on 8 June 2001, where I note that she said that she had to check his bottom to see if it was clean and, if not she had to wash him (see page 71). The appeal tribunal did not make a finding about how often each day the claimant's mother had to check his private parts after urination, but it seemed to accept that this was on every occasion throughout the day. I make an estimate that this would occur five times each day. The appeal tribunal accepted that the claimant washed his face and hands more than six times a day and that his mother had to check his hands on each occasion to see that there was no soap left on them.
17. I am satisfied, for the reasons given in paragraph 9 above, that all those activities are instances of attention in connection with bodily functions. They add up to at least 13 times during the day, and in their nature would be spread throughout the day. In my judgment, the test of needing frequent attention throughout the day in connection with bodily functions was met on those findings of fact. I therefore do not need to consider other activities, such as having to check underwear and other clothes for dryness and cleanliness etc.
18. Accordingly, the decision of 6 March 2001 is to be superseded. The proper ground, as I have no doubt that there was no change in the claimant's needs between 6 March 2001 and 17 April 2001, is that the decision was given in ignorance of material facts - the facts as to the true extent of the claimant's needs for attention in connection with bodily functions (Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 6(2)(b)). There is nothing in regulation 7 of the Decisions and Appeals Regulations to displace the rule in section 10(5) of the Social Security Act 1998 that a superseding decision takes effect on the date on which it is made or, where applicable, the date on which the application for supersession was made. In the present case, the application was made on 17 April 2001. The superseding decision takes effect from that date.
19. I have considered whether to make the award of the middle rate of the care component for an indefinite period, effectively for life, in line with the existing award of the mobility component, which I confirm. However, it seems to me that there is a real possibility of an improvement in the claimant's condition and a reduction in his needs for attention, if he were to have further contact with Learning Disability Services and other services, as suggested by the consultant clinical psychologist. I have no specific evidence on this issue, but I find that the circumstances do not justify an indefinite award. On the other hand, the claimant's condition is not likely to change at all rapidly. I have therefore made the award of the middle rate of the care component run for five years from 17 April 2001. There can of course be a supersession before then if circumstances change.
20. My decision to that effect is set out in paragraph 1 above.

(Signed) J Mesher

Commissioner

Date: 3 February 2003