UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CDLA_4333_2004 (24 February 2005)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Swansea appeal tribunal, held on 29 July 2004 under reference U/03/195/2004/00211, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.

The appeal tribunal must investigate and determine the claimant's entitlement to a disability living allowance on her 'renewal' claim for an allowance. In doing so:

The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. However, unless asked by either of the parties to the proceedings, it need only consider entitlement to the care component at the middle rate on the basis of day-time needs.

The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal: see section 12(8)(b) of the Social Security Act 1998, as interpreted by the Tribunal of Commissioners in CDLA/2751/2003 and related decisions. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01. As the evidence does not suggest any significant change in the claimant's disablement or needs, this is unlikely to be relevant.

History and background

2. This case concerns the claimant's entitlement to a disability living allowance on a 'renewal' claim from the effective date of 22 December 2003. At the time when she made the claim, she was in receipt of an award of a disability living allowance consisting of the mobility component at the lower rate and the care component at the middle rate. On renewal, her award consisted of the mobility component at the lower rate and the care component at the lowest rate. On appeal, she sought the care component at the middle rate. She did not argue for the mobility component at the higher rate or for the care component at the highest rate. The tribunal dismissed her appeal after a hearing on the papers. I gave the claimant leave to appeal to the Commissioner. The Secretary of State has not supported the appeal. The case is now before me for decision.

The evidence

3. The evidence consisted of the claim pack, of medical evidence obtained by the decision-maker and by the claimant, and of detailed written accounts by the claimant of her problems and the help that she received. I have read the claimant's accounts and they appear to me to be an honest and accurate account of the problems she has and of the help that she receives. I have dealt with the appeal on that basis.

The issues

4. There can be no doubt from the claimant's account that she has significant problems with functioning as a result of depression and panic/anxiety. Nor can there be any doubt that she needs help to function satisfactorily. But disability living allowance only takes account of certain types of problem and certain degrees of help. The issue is whether her problems are such that she satisfies the precise conditions of entitlement to a disability living allowance.

Night needs

5. I can deal with entitlement in respect of the night-time was briefly. The claimant says that she finds it helpful to have someone else in the house with her apart from her children. She does not say that the person has to be awake to watch over her at any time during the night. Nor does she say that the person has to provide her with any attention during the night. All that is necessary is for the person to be present with her in her home. On that basis, she does not satisfy the conditions of entitlement to the care component at the middle rate in respect of attention or watching over by night.
6. That narrows the issue down to whether she satisfies the conditions of entitlement in respect of the day-time.

Day needs

7. There are two sets of conditions of entitlement to the care component at the middle rate in respect of the day-time. One concerns the need for supervision and the other the need for attention. In each case, the key concern is the help that the claimant reasonably requires.
8. The claimant's representative has argued that the tribunal was wrong to say that the claimant received more help that she reasonably requires. I do not read the tribunal as saying that. The statement of reasons does say that the tribunal had to consider only the help reasonably required. That was a correct statement of law. But I do not read the statement as saying that the tribunal did not accept that the claimant reasonably required the help she received. That does not, though, mean that all the help was relevant for the purposes of disability living allowance.

Supervision

9. The issue here is whether the claimant's requires continual supervision.
10. There is medical evidence that the claimant's mental health will deteriorate if she is left unsupervised. For the purposes of this appeal, I accept that evidence. However, I cannot interpret it as meaning that the claimant's health will deteriorate unless someone is with her for every waking moment. (If that is what was meant, it is disproved by the fact that the claimant is able to spend some time alone without a noticeable deterioration in her mental health.) That evidence is not sufficient to show that the claimant needs continual attention. If the claimant were left without any supervision at all, her health would deteriorate. But that does not mean that she must receive continual attention in order to avoid the deterioration. It would be sufficient to provide intermittent supervision sufficient to prevent the deterioration.
11. There is evidence that the claimant twice attempted to take an overdose of tablets. But the tribunal was entitled to conclude that this does not show a need for supervision. Those incidents occurred a long time ago and the claimant has expressed concern to be around for her children.
12. The claimant's representative has criticised the tribunal for misdirecting itself by concentrating on the possibility of self-harm. I reject that argument. The tribunal dealt with that evidence because it was there. It had to deal with it, but that does not mean that it failed to direct itself correctly. It would have been better if it had dealt with the medical evidence of deterioration in her health. However, I have already explained why this does not meet the criteria for continual supervision. This omission is not sufficient to justify setting aside the tribunal's decision.

Attention

13. The issue here is whether the claimant reasonably required attention in connection with her bodily functions throughout the day. The tribunal found that she needed some help but that this was clustered in the morning and evening and not throughout the day. I accept that the claimant reasonably requires the attention found by the tribunal. But did she need more?
14. I begin with two points made by the claimant's representative.
15. One point relates to attention by telephone. The claimant's mother speaks to her by telephone, because that is in poor health. This is excluded from being attention by regulation 10C of the Social Security (Disability Living Allowance) Regulations 1991. However, the representative argues that it is evidence of the help that the claimant needs and is only provided by telephone because the mother's health prevents her doing anything else. I accept the point that if contact by telephone is the only feasible method for those concerned, it may be evidence of the need for attention in person. However, having read the tribunal's reasoning that deals with this evidence several times, it seems to me that the tribunal did not make the mistake alleged by the representative. The statement contains no adverse comment on the telephone calls. If there is any criticism of the tribunal, it may be that it took this into account as attention and failed to exclude it.
16. The other point relates to the claimant's need for assistance with her children. I have some sympathy with this point, especially as the representative made it in response to the Secretary of State's observations. However, except in holiday time, that help would be clustered in the morning and early evening when the children are at home. So, this does not help the claimant show attention throughout the day.
17. There is, though, one respect in which I consider that the tribunal did go wrong in law. It found that the claimant found life easier if she had a routine to her day. But it did not consider whether small amounts of attention scattered throughout the day might not assist her in maintaining that routine. For that reason alone I set aside the tribunal's decision.

Disposal

18. I set aside the tribunal's decision and direct a rehearing. I hope that the claimant will be able to attend as she can deal with any points on which the tribunal has questions or concerns. Although I have found only one error of law in what the tribunal did, all issues will be open for consideration at the rehearing.

Signed on original on 24 February 2005

Edward Jacobs Commissioner