UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CA_4332_2003 (06 February 2004)

 


CA/4332/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Durham appeal tribunal dated 14 July 2003 and I refer the case to a differently constituted appeal tribunal for determination.
2. I direct the Secretary of State to obtain a report from the claimant's general practitioner as to (a) whether, as at 4 February 2003, the claimant suffered any medical condition increasing the risk of injury from falling, (b) whether, as at that date, the claimant was in his opinion at significant risk of injury from falling if he was not supervised, (c) whether, as at that date, the claimant would, in his opinion, have been able to get up off the floor after a fall and (d) any other matter the Secretary of State considers relevant. Upon receipt of that report, I direct the Secretary of State to consider whether the decision under appeal should be revised and, if not, to forward the report to the clerk to the appeal tribunal with a short submission as to the desirability of there being a report from an examining medical practitioner.
3. I direct the clerk to the appeal tribunal to place that submission before a legally-qualified panel member who should consider whether to obtain an examining medical practitioner's report before the tribunal hears the appeal. If he decides not to do so, the claimant will have the opportunity of asking for such a report either in writing before the hearing or orally at the hearing.

REASONS

4. The claimant was aged 68 at the date of his claim for attendance allowance. He had had a hip replacement that he did not view as a success. He had claimed attendance allowance on the ground that he needed continual supervision throughout the day in order to avoid substantial danger to himself because he was liable to fall (see section 64(2)(b) of the Social Security and Contributions and Benefits Act 1992). The first decision-maker took the view that, though there was a risk of falling, it did not give rise to substantial danger. On receipt of evidence from a medical adviser, a second decision-maker refused to revise the initial decision but that was because he or she took the view that there was no significant risk of falling at all. The claimant appealed on the ground that, while he did not fall particularly frequently, if he did there was substantial danger. The appeal was dismissed. The chairman recorded in the statement of reasons that the claimant had given evidence of two falls, neither of which had caused injury. He had been helped up on both occasions. The reason for the tribunal's decision was given as follows:

"It is perhaps not surprising that the Appellant has some apprehension but the Tribunal are not satisfied that there is a risk of frequent falls causing injury."

Reference was made to a report from a consultant orthopaedic surgeon but, as he did not deal with the question of falling, that did not add to the tribunal's reasoning. No further explanation was given for the decision as regards supervision. The claimant now appeals with my leave.

5. It is common ground before me that the tribunal's decision is erroneous in point of law. I agree. There is no requirement that falling be frequent. Obviously, if there is a risk of injury occurring through falling, the risk of injury is greater if the risk of falling is greater. That may have some bearing on the reasonableness of requiring continual supervision. However, the fact that falling is not frequent does not necessarily make the risk of injury insignificant and the tribunal did not explain why they rejected the claimant's submission that, despite the infrequency of his falls, the risk of serious injury was still such as to require him continually to be supervised. As the Tribunal of Commissioners pointed out in R(A) 6/89, at paragraph 24, the question whether there is substantial danger requires consideration to be given both to the likelihood of the event in question occurring and to the seriousness of the possible consequences of the event if it should occur.
6. In his submissions on behalf of the Secretary of State, Mr O'Kane refers me to R(A) 3/89, in which the Mr Commissioner Hoolahan QC suggested four questions that should be considered where there is evidence that a claimant should fall, and to R(A) 5/90, in which a Tribunal of Commissioners said that, although answering those four questions might be helpful in relation to sufficiency of reasons, there might be other cases where different questions needed to be posed. The four questions were:

(i) Are the situations in which the claimant may fall predictable or unpredictable ?

(ii) If the falling is predictable, can the claimant reasonably be expected to avoid the risk of falling or to place himself at such risk only when adequately supervised ?

(iii) If the falling is unpredictable, will the falling give rise to substantial danger to himself ?

(iv) Is the substantial danger too remote ?

It is important to note, however, that the four questions were accompanied in the Commissioner's decision by a considerable amount of explanation as to what he meant. It is also clear from the decision why those particular questions were posed. Unfortunately, it is common to cite the questions without reference to the context in which they were posed. That is seldom helpful.

7. It is clear that the first two questions came to be posed because, in the case before Mr Commissioner Hoolahan, the delegated medical practitioner had accepted that the claimant did require supervision in "predictable, potentially dangerous situations such as bathing, using stairs and when out of doors" but considered that he was "fully aware of his disability and liability to fall and I would expect him to avoid placing himself at risk without ensuring that he was adequately supervised". Furthermore, the Commissioner was concerned that those or similar passages frequently appeared in the decisions of delegated medical practitioners. Although it is possible that the delegated medical practitioner meant that the claimant was more likely to fall when bathing, using stairs or when out of doors, it seems to me as likely that he meant that it was only in such circumstances that he was likely to suffer serious injury as a result of a fall. In any event, I consider the use of the word "predictable" to be unhelpful and would suggest that those first two questions could usefully be rephrased as:

(i) Is there a risk of substantial danger due to a fall only in certain situations ?

(ii) If so, can the claimant reasonably be expected to avoid those situations or to expose himself or herself to them only when adequately supervised and, if supervision is required, does the claimant reasonably require it to be "continual … throughout the day" ?

In R(A) 1/73, it was made clear by the Chief Commissioner that "continual" is not synonymous with "continuous" and that the former is wider than the latter. Short gaps in the supervision do not necessarily prevent it from being "continual". The Chief Commissioner also said:

"If a person is liable to require attention at unpredictable intervals it may be necessary for someone to be continually available to provide attention when it is needed. In such a case the requirement of continual supervision could properly be found."

The issue then becomes whether it is reasonable for the claimant only to place himself in potentially dangerous situations at predictable intervals, which is essentially the same as asking whether the claimant can reasonably be expected to expose himself or herself to such a situation when supervised. If the danger arises only when, say, bathing, the answer is likely to be "yes" but, if the danger arises whenever the claimant stands, the answer is likely to be "no".

8. Mr Commissioner Hoolahan's third question is best understood when set out with its commentary.

"(iii) If the falling is unpredictable, will the falling give rise to substantial danger to himself ? This is, again, a matter of medical opinion. Nevertheless i[t] must be borne in mind that a person, particularly a disabled person, may when falling hit his head on the corner of a cupboard or on a fire kerb or radiator; and whether or not he is injured in the course of falling, he may by reason of his disability be unable to rise or be unable to summon help. Or he may of such an age that a fall will be likely to have serious consequences. Clearly such matters ought in an appropriate case to be taken into account."

Thus, subsidiary questions must be asked. Firstly, there is the question of the likelihood of the claimant injuring himself or herself while falling. That in turn will raise questions about the manner in which the claimant tends to fall and whether he or she might reasonably be expected to break a fall so as to avoid the worst consequences that might otherwise ensue and also as to the frailty of the claimant. Secondly, there is the question whether the claimant might be in danger if help is not immediately available following a fall. This may arise from the nature of the possible injuries or because the claimant would in any event be unable to get up off the floor without assistance.

9. Mr Commissioner Hoolahan's fourth question was whether the substantial danger was too remote. That issue arose because the delegated medical practitioner had said that the risk of substantial danger arising from a fall "is so remote a possibility that it ought to be reasonably disregarded". The question, then, is whether the risk is such that it can be said that the claimant reasonably "requires" continual supervision in order to avoid it. It is important in this context to avoid treating differently those who in fact have done without supervision because they live on their own and those who have in fact generally been under supervision because they live with, say, their spouse. The issue is about what is reasonably required; not what is in fact received. In other words, the question is whether it is, or would be, reasonable to expect the claimant to live by himself or herself without continual supervision. It is not reasonable for a person to be by himself in a house – at any rate for periods long enough to make any supervision there was not continual – if that would result in substantial danger (see R(A) 1/73 at paragraph 15).

10. There is then a more general question that must be considered as to whether the claimant could reasonably be expected to take precautions, other than being supervised, in order to avoid the danger. These days, such precautions might include wearing a device that enables a person who has fallen to activate a telephone monitoring service through which help can be summoned, provided, of course, that such a service is potentially available to the claimant.

10. In any event, as Mr Commissioner Hoolahan himself said at paragraph 13 of his decision, "… in the final analysis, each case must depend on its particular facts."
11. In the present case, Mr O'Kane has obtained medical advice from Doctor Pamela Ford, Medical adviser to the Corporate Medical Group of the Department for Work and Pensions, which is in the following terms:

"It is possible … to give some general advice about falls in an elderly person following hip surgery. The Disability Handbook (chapter 4) provides some useful guidance on how the decision maker can evaluate the likelihood of falls and the risks posed. Factors to be considered include:

the clinical basis for falls

the pattern of their occurrence

the person's ability to take reasonable precautions to avoid falls

the age of the person

the ability of the person to get up unaided after a fall

the existence of another medical condition that would make falls more dangerous, e.g. osteoporosis – thinning of bones.

"It is reasonable to accept that a person might be prone to fall following hip surgery. In general, however, a person who had undergone successful hip replacement surgery would not be expected to fall unduly. Factors predisposing a person to fall after such surgery would be an additional medical problem e.g. weakness due to muscle wasting or disordered balance arising from a neurological condition. …

"A claimant of 69 years is more likely to sustain injuries when falling. Reaction time is slower in elderly people and they may be less able to maintain balance or to take protective action to reduce the risk of injury. In addition an older person is more likely to have one or more medical conditions that would increase the risk of falls and the likelihood of injury.

"Elderly people are more unlikely to be able to get up without help after a fall. This may be due to generalised frailty and weakness (general loss of muscle bulk and power) or due to the additional disabling effects of other medical conditions. An elderly person who is unable to get up off the floor may be at risk of hypothermia or dehydration, if help cannot be summoned.

"The likelihood of a serious injury such as a fracture is increased if osteoporosis is present, or if a neurological problem such as poor balance coexists."

12. Dr Ford says that the functional limitations described by the claimant are consistent with those that might be experienced by a 69 year old man who had had a hip replacement one year previously, but she says that there is insufficient evidence to reach a firm conclusion as to whether the claimant would sustain a serious injury if he fell at home. I agree. As she points out, there is no evidence of co-existing medical problems and, although it would have been unlikely that the claimant needed assistance from another person to enable him to walk within his home if there were no co-existing medical problems, it would not be surprising if he would have needed help to get up following a fall. The implication is, of course, that not only did the tribunal not ask the right questions but neither did the Secretary of State before the case reached the tribunal.
13. Dr Ford suggests that I should obtain a general practitioner's report and an examining medical practitioner's report. However, I consider that this case should be referred to another tribunal and accordingly I give the directions set out above. The tribunal will have a medical practitioner among its members and so the necessity for an examining medical practitioner's report may be reduced, depending in part upon what the claimant's own general practitioner has to say. Unless a physical examination is likely to be helpful, there may be no great advantage in obtaining a further medical report.

(Signed) MARK ROWLAND

Commissioner

6 February 2004