UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CDLA_618_2006 (22 May 2006)

CDLA/618/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a supported appeal by the claimant with my leave from a decision of the Fox Court Appeal Tribunal given on 31 August 2005. For the reasons given below, the appeal is allowed, but this will not assist the claimant. I set aside the decision of the Fox Court Appeal Tribunal but I substitute my own decision to the same effect.
2. This is the second occasion that this matter has been before me. It has returned because the tribunal failed in one important respect to follow the directions that I gave on the previous occasion (CDLA/758/2005).
3. The claimant suffers from obsessive compulsive disorder, leading him to continually and unnecessarily clean himself, his clothing and his flat. The tribunal now under appeal followed my directions in relation to the cooking test and concluded that the claimant was entitled to the lowest rate of the care component of disability living allowance because "the fact he could not complete the process [of preparing a meal for himself] without lengthy interruption, when his obsessions took hold, amounted to an inability to do so. Help from another person to assist in the preparation of a main meal was reasonably required." The tribunal had heard extensive oral evidence from the claimant as to the way in which he would prepare a meal and the way in which his compulsion to clean would interrupt and prolong the process.
4. In relation to the claimant's attention needs in relation to his own bodily functions, the tribunal found that there was no independent evidence as to the time the claimant spent on his cleaning rituals, or how they affected his ability to attend to his own bodily functions. The tribunal referred to a psychiatric report dated 18 August 2004, where the psychiatrist reported that the claimant's condition had fluctuated over the years but had improved, if not resolved, when last seen in October 2003. It also referred to the GP's report that the claimant's ability to self-care was normal, and noted that the claimant's representative had not obtained from the GP any clarification of what was meant by "normal". Finally, it referred to a letter from the claimant's counsellor dated 24 August 2005, which it found unhelpful.
5. The tribunal found as a fact that in March 2004, the date of the decision under appeal, the claimant's main problem was his obsession with cleanliness which caused him to repeatedly wash his hands, wash his clothes, change his clothes and clean his flat many times a day. The tribunal found it impossible to assess how much time the claimant spent on these activities as his condition fluctuated. He was able to shop for food, leave his flat and go outdoors. He was able to use the underground and to go to his counsellors for counselling sessions.
6. The tribunal concluded that the claimant could attend to his own bodily functions despite his symptoms.
7. Unfortunately, the tribunal appears to have failed to address in its statement of reasons the principal issue which it was directed to consider in relation to attention or supervision in connection with the claimant's bodily functions. As I pointed out in paragraph 13 of CDLA/758/2005, "The help which it is said that the claimant needs is encouragement to desist from his obsessive compulsive behaviour." I further drew attention in that paragraph to the decision of Commissioner Mesher in CDLA/2717/2002 where he explained the need in that case for attention from the mother of a 23 year old with OCD, and explained the need for the tribunal to consider whether the claimant reasonably required attention or supervision to dissuade him from his obsessive activities.
8. For that reason, I conclude that the tribunal was in error of law and I set aside its decision. However, for the reasons given below, I also conclude that on the basis of the evidence before the tribunal I can and should substitute my own decision to the same effect as that of the tribunal.
9. Although it did not make any findings in its statement of reasons as to whether the claimant needed encouragement frequently throughout the day to desist from his compulsive behaviour, it did address that issue in its questioning at the hearing. At p.134 it is recorded that the claimant's representative was asked what assistance the claimant received from anyone to help him with his needs during the day. The recorded answer is "None". He was then asked "What assistance would he like?" The reply refers to the claimant's loneliness, fear, worries, panic and insomnia, principally relating to receipt of bills that he did not know how to deal with.
10. It is clear that the tribunal asked the right questions and that no suggestion was put forward as to what attention or supervision the claimant reasonably required in connection with his bodily functions, as opposed to dealing with the stresses of everyday life. In paragraph 11 of CDLA/758/2005 I stated

"…. It would, I believe, also assist the tribunal to have some evidence as to the nature and utility of the attention which it is said that the claimant reasonably needs. The only real evidence at present is evidence that the claimant was better when his mother was alive and able to re-assure him. It may be that similar re-assurance and other help could be obtained from some other source, and it may be that a tribunal could infer this from the evidence already available, but it is also possible that the tribunal could be left unclear on the evidence presently available whether there was any daily attention which might be given to the claimant from somebody other than his mother which would help him."

11. No such evidence was put before the new tribunal. At the hearing, it appears from the record of the proceedings at p.137 of the file that when asked how another person could help him the representative replied that his mother would talk to him, but she died in 2002, and that another person would talk to him – a friend would stop him being lonely. Stopping someone being lonely is not attention in connection with his bodily functions.
12. Another factor to which I referred in CDLA/758/2005 was the extent to which the claimant reasonably required such attention to enable him to lead as normal a life as possible. As to this I observed as follows:

"16. Mr. Sweeting has also referred me to cases directed to the question as to what amounts to the normal life to which it is reasonable for the claimant to aspire through the desired attention. That is a question of fact and degree for the tribunal to assess. If the claimant spends most of the day on useless repetitive activities because of his disorder, then it will be obvious that he is unable to lead a normal life to which he can reasonably aspire.

17. If, by contrast, he only spends a total of an hour or two a day, spread through the day, on such activities, then the tribunal will need to enquire how those activities prevent the claimant from having a normal life. Mr. Sweeting has informed me of a number of reasonable basic activities that the claimant would like to carry out but says that he is unable to carry out because of his obsessions. For example, he states that he cannot pray because of them. Prayer would be a normal activity for a religious Muslim for the purpose of this test. The claimant would need to explain why he is unable to pray because of his obsessions. So to he would need to explain why he cannot work or study.

18. Having made the necessary findings of fact on the evidence, including findings as to the frequency, nature and length of any required attention, the tribunal will then need to decide if the claimant reasonably requires attention in connection with his bodily functions either frequently throughout the day or for a significant portion of it."

13. In written submissions to the new tribunal (file, pp.112-114) the claimant's representative contended that the claimant's bodily functions were impaired by his mental health condition so that he was compelled to exercise his bodily functions in performing unnecessary activities and that this impeded his ability to perform other activities and thus lead a more normal life. He submitted that attention of a verbal nature would assist the claimant to cease unnecessary cleaning and washing and perform other normal activities, and that that attention was required frequently throughout the day. That attention had been provided by the claimant's mother while she was alive and could be provided by another person provided that that person was able to establish a sufficient level of trust with the claimant.
14. The tribunal's attention was drawn to a paper, 'Social Functioning and Quality of Life Comparisons Between Obsessive-Compulsive and Schizophrenic Disorders', in Depression and Anxiety 14:214-218(2001), where the authors suggest at p.217 that

"psychosocial rehabilitation for persons with OCD should become a major component of treatment programs for this population. Medication and cognitive-behavior therapy may be able to remove or attenuate symptoms of OCD, but they are not suited or designed to teach patients the skills needed for better functioning in everyday life."

15. It does not appear to me that that paper assists the claimant. The symptoms of OCD are the obsessive washing and cleaning. The paper refers to medication and cognitive therapy as removing or attenuating these, not frequent attention throughout the day. The psychosocial rehabilitation, which may or may not involve frequent attention throughout the day, is designed to teach patients the skills they need in everyday life. The paper does not spell out what is involved in such psychosocial rehabilitation, but it appears from the paper to be directed not to the patient's bodily functions but to their social skills.
16. It may well be that stopping the claimant from being lonely, and teaching him social skills may ultimately contribute to his overcoming his obsessive cleanliness compulsion. It may well be that he reasonably requires such attention. However, it is not attention in connection with his bodily functions in the sense that attention directed to his immediate need to wash or clean could be. It is therefore not attention which can give rise to an award of the care component.
17. No evidence of any kind was adduced to show either that there was anybody who could give such attention or that such attention, rather than, or in addition to, cognitive therapy or medication, plus perhaps the teaching of social skills, was reasonably required repeatedly throughout the day, or that it would induce the claimant to desist from the obsessive compulsive behaviour.
18. The record of the proceedings before the new tribunal show, at p.136 of the file, that the claimant's representative contended at the hearing that the question that the tribunal should be asking was what attention did the claimant need to lead a normal life. The tribunal clearly investigated the extent to which the claimant was unable to lead a normal life, and indeed asked that very question. The note of the reply, which is clear from the original on the tribunal file, but which does not appear on the photocopy of the record in the file for this appeal is "reply – vague – "encouragement"".
19. The claimant was represented at the hearing by the same representative who had appeared before me at the oral hearing in CDLA/758/2005. He was well aware of the matters which he needed to address and of the additional evidence that I had indicated might assist the claimant. Despite this, and despite the tribunal having had asked the right questions and had provided him with the opportunity to deal with the issues which I raised, there was no additional evidence before the new tribunal which took the claimant's case any further.
20. In the end I conclude that the claimant failed to show that there was any sufficient attention in connection with his bodily functions which he could reasonably be said to require frequently throughout the day, both because there was no evidence of any relevant attention which any outsider could give him which would assist him to control his compulsions and because there was nothing to show that any such assistance which might be offered would have any significant effect on the quality of his life. I do not doubt that the claimant was lonely, and that his life would be improved by having a friend to talk to, and by his being taught greater social skills, and it may be that the resulting improvements would lead to improvements in his obsessive compulsion disorder. However, those are not matters which can entitle him to any award of disability living allowance.
21. I note the submissions on behalf of the Secretary of State in this case that the tribunal erred in law by failing to make adequate findings of fact for the decision because it found that it was impossible to assess how much time the claimant spent on his obsessive activities and his condition fluctuated. I agree with the representative of the Secretary of State that it would have been better if the tribunal had taken a broad view of the matter, and also explained whether the variations were due to fluctuations in the claimant's condition or to fluctuations in the pressures on him day by day.
22. In the end, it appears to me that in this case it is unnecessary for me to make such findings. It appears to me that, for the reasons which I have given, there is no evidence before me, and there was no evidence before the tribunal, on which I or it could find that the claimant in this case reasonably required repeated attention throughout the day in connection with his bodily functions.
23. While I have the utmost sympathy for the claimant, and I make the same award of the lowest rate of the care component from 11 February 2004 to 10 February 2007 as the tribunal for the same reasons as the tribunal, I am unable to make any award of the middle rate of the care component. No grounds have been put forward for any award of the mobility component and I can see none.

(signed on the original)

Michael Mark

Deputy Commissioner

22 May 2006