UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CSDLA_427_2006 (04 August 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/427/06

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

Appellant: Respondent:

Tribunal: Glasgow Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the appeal tribunal given at Glasgow on 17 March 2006 is not is not erroneous upon a point of law. The appeal fails. I dismiss it.
2. The claimant has appealed to the Commissioner against the decision of the tribunal which was to the effect that the claimant was not entitled to an award of disability living allowance from and including 27 July 2005. It should be noted that the claimant was born on 28 March 1997.
3. The claimant's grounds of appeal are within short compass and are as follows:

"I refer to the Appeal Tribunal decision of 17/3/06 please treat this letter as application for leave to appear to the Commissioner on the grounds that the Tribunal have given inadequate reasons for decision.

At paragraph two of the reasons for decision the Tribunal state that 'we accept that the claimant has dyslexia which is a learning disability causing difficulties with reading and writing. The need arising from this disorder is assistance with educational activities which the claimant receives at school. His grandmother also assists at home with his homework. The Tribunal consider such an assistance to be with the activities of reading and writing and does not class as attention with a bodily function'.

I refer to paragraph twenty of the Commissioners (sic) decision CDLA/395/2005 (copy attached) it is clear authority indicating that the Tribunal have erred in law in taking this approach.

I would also suggest that they have also erred by appearing to exclude 'assistance with educational activities'.

This was dealt with in R(DLA) 1/04 where the argument for the Secretary of State that educational needs could be distinguished from help with bodily functions was rejected as wrong in law."

4. The Secretary of State has support the appeal. In his submission he said:

"6. The tribunal concluded the extra supported provided by the school and the appointee with reading and writing was not attention in connection with a bodily function. The appointee's representative contends the Tribunal has erred in law by reaching this conclusion and refers to paragraph 20 in CDLA/395/05; the Secretary of State supports this view:

'Dyslexia, function and disablement

20. That is sufficient to deal with the appeal. I do not therefore need to deal with other issues raised. However, both parties gave evidence about, and addressed, wider issues about dyslexia and disability living allowance. This arose from the tribunal's parting comment that:

'we do not accept that the functions of reaching and writing are bodily functions.'

That is neither part of the tribunal decision nor necessary to it. Indeed, the tribunal took the pragmatic approach of assuming the opposite in the decision it took. As the point was a ground of appeal and addressed fully before me, I add that I agree with Mr Moore that the tribunal erred in so far as it made this statement as a statement of law. As the Commissioner said in CDLA 1420 2004:

'If a person with dyslexia reasonably requires assistance from another person to read labels of instructions on tins, packets, etc when shopping or cooking, it seems to me that that is attention in connection with the bodily function of seeing. It seems to me that bodily function includes not just making out the shapes of letters or words, but also making sense of what those shapes signify. It does not matter that 'communication' is an activity, not a bodily function (see Commissioner's decision R(DLA) 3/03) …"

And in CDLA 2680 2001 the Commissioner agreed with both parties that a tribunal that found as a statement of law that dyslexia generally was neither a physical disability nor a mental disability was wrong in law.

7. The second grounds of appeal raised by the appointee's representative is that the Tribunal appear to be suggesting that 'assistance with educational activities' whilst at school are to excluded (sic) when considering attention with bodily functions for the purposes of DLA. This is an error in law and is dealt with in R (DLA) 1/04."

5. I do not consider that there is any merit in the grounds of appeal nor in the support for them. In the passage of the tribunal's statement which was quoted in the grounds of appeal, it is apparent that the need identified as arising from the claimant's dyslexia is assistance with his education. For the purposes of this appeal, I am thus concerned with the assistance which he receives both at school and from his grandmother at home with his homework. I am satisfied that the tribunal did not err in law in reaching the conclusion that this assistance does not come within the compass of attention in connection with bodily functions.
6. I do not consider that R(DLA) 1/04 supports the proposition which is set out in the grounds of appeal and in the support for them. In that case the Court was concerned with a claimant who suffered from Leber's Optic Neuropathy. The Commissioner in that case in paragraph 11 of his decision, reached a conclusion that certain measures taken at school in respect of the claimant amounted to attention in connection with her bodily functions. These are set out in paragraph 12 of Lord Justice Tuckey's judgement. The Commissioner in that case granted leave to appeal to the Court of Appeal on the application of the Secretary of State. The first ground of appeal was to the effect that the needs identified in paragraph 11 of his decision did not amount to "attention" with the claimant's bodily functions. The Court dismissed the appeal without embarking upon consideration of its merits at all. What the Court of Appeal said was:

"18. Mr Forsdick, counsel for the Secretary of State, urged us to hear the appeal. First, he said that permission to appeal has been granted by the Commissioner, who was well aware of the limited submissions which he had received. That is true. There is permission, but it is permission granted in a less than wholehearted way. The fact that the Commissioner has granted permission does not mean that we must hear the appeal. This court considers it of utmost value, on an appeal from a specialist tribunal, to have the considered views of the points at issue of that specialist tribunal before testing them on appeal.

19. Mr Forsdick also argued that in the Secretary of State's short submissions the point about 'attention' had been raised. It is just possible to spell the point out of those submissions, but the point was not clearly raised, and certainly not raised in a way which remotely resembles the way in which the Secretary of State wishes to put the matter before this court.

20. Finally, Mr Forsdick says that if we do not proceed to hear this appeal the Commissioner's decision will stand as an unfortunate precedent for cases of this kind in the future. If his decision is wrong, it should not stand as a precedent and may have considerable consequences for future cases. The answer to that is that if this is an important case it must be important because there are many other similar cases where this point has arisen. If that is the case then it will not be difficult to find a case in which the point can be properly tested, at least at Commissioner level, and then taken to this court if that is considered necessary. It is not a reason for our embarking upon this appeal. If of course there are no such cases, then that demonstrates that this case will not cause a worrying precedent for the future. I should add however that in the light of our decision, and the limited assistance which the Commissioner had in reaching his decision, I do not think this case will be considered to be an important precedent for other similar cases."

It is thus clear that the question in respect of the nature of the educational measures provided for the claimant raised in the grounds of appeal by the Secretary of State in that case were not dealt with by the Court at all. The Court recognised that the point at issue could be properly tested on some future occasion.

7. The other case relied upon in the grounds of appeal is also of doubtful authority in respect that it is quite apparent from the first two sentences of paragraph 20 of the Commissioner's decision that his comments are strictly obiter and were not required for the purpose of the determination of the appeal before him.
8. Further, the proposition the Commissioner appears to have endorsed by reference to CDLA/1420/2004 is not one I can accept. It does not seem to me that interpretation of writing has anything to do with the bodily function of seeing. I can, for example, see Japanese or Arabic script but I cannot interpret it because I have never learned it. Every child initially can see writing but cannot interpret it. The interpretation is learned through education. For someone with dyslexia the education process is more complex and difficult but it is simply education nonetheless. Thus the premise on which both Commissioners proceeded is flawed. In my view, the tribunal have correctly applied the legislation and have not erred in law.
9. I should perhaps add that in my view educational provision at school is on any view outwith the scope of the statutory provisions. The cost of disability living allowance is derived from public funds as is the educational provision that the claimant enjoys. The cost of such educational provision will encompass such special measures as are needed to meet the educational requirements of the claimant. To encompass educational provision within the scope of attention would, in these circumstances, result in the public purse paying twice for the same thing. That cannot be what Parliament intended. Disability living allowance is not a form of publicly funded compensation for being disabled. It is a recognition of the additional cost of care for those who are disabled. When taken in that context it can be seen that additional educational requirements for the purpose of learning to reach and write are of an entirely different nature to attention in connection with an impaired bodily function. It fortifies the view which I have taken in paragraph 8.
10. The appeal fails.

(Signed)

D J MAY QC

Commissioner

Date: 4 August 2006