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[2007] UKSSCSC CSDLA_535_2007 (07 December 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

The decision of the Dundee Appeal Tribunal sitting on 22 June 2007 (the tribunal) is wrong in law. I therefore set the tribunal's decision aside and return the appeal for rehearing by a new tribunal. The new tribunal will note that a new claim has been made, effective from 21 May 2007 and that, accordingly, any decision made on the appeal, the subject of the rehearing, is limited in its consideration to 20 May 2007.

Leave to appeal was given by a district chairman. The appeal is not supported by the Secretary of State but, for the reasons set out below, in my judgement, the tribunal erred in law and in material matters such that the claim should be considered afresh.

Background

The claimant is a child (the child). Her date of birth is 30 December 2003. She acts through her appointee, (the mother). A claim for disability living allowance (DLA) was lodged by the mother dated 5 September 2006. A consultant, in a report dated 30 October 2006, states as a diagnosis, "… a degree of spasticity and a moderate amount of cerebral palsy", leading to "… tightness of the left Achilles' tendon with definite clonus of the ankle and brisk knee and ankle jerks on the left".

An initial decision dated 23 November 2006 on the claim, made on behalf of the Secretary of State by a decision maker (DM), was that the child was not entitled to either rate of the mobility component of DLA because not aged three and not entitled to any rate of the care component of DLA because she did not satisfy the relevant statutory conditions.

The mother asked for that adverse decision to be looked at again. This request was dated 27 November 2006 and thus fell within regulation 3(1)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the Decisions and Appeals Regulations). On 20 December 2006, a DM again refused to find entitlement to either component of DLA at any rate and an appeal to a tribunal was lodged on 8 January 2007.

A first tribunal hearing on 21 May 2007 adjourned on the basis that the mother might not be aware that the tribunal "could not make award of higher rate mobility component as [the child] was not 3 at time of application". By the date of the tribunal hearing on 22 June 2007, the mother was represented by the local Welfare Rights Service (the representative). The representative, in a written submission, requested higher rate mobility component of DLA from 30 December 2006 (the child's third birthday) and the highest rate care component of DLA from the time of the claim.

The tribunal confirmed the adverse decision under appeal to it. The tribunal gave as its reasons for refusing higher mobility that:

"… the Tribunal could not make an award of mobility component as at the time of the reconsideration of the original decision [the child] had still not reached the age of 3."

So far as the care component was concerned, the tribunal considered the submission that the child "needed assistance with … walking, sleeping and eating". As the application to the Commissioner relates only to the tribunal's approach to the mother's claimed help in settling the child to sleep, I give only its findings in this respect:

"The other area which [the child] seemed to have difficulty with was settling at night. Again, the Tribunal were of the view that while she was not a good sleeper and got up early, the Tribunal also had the view that this was not substantially in excess of a child of her age. The Tribunal were aware of children who did not sleep well, were frequently up in the early hours of the morning and would not settle again. They were not of the view that her needs at night were substantially in excess of a child of her age".

In essence, the ground of appeal to the Commissioner is that the tribunal erred by concentrating:

"… on the fact that [the child] does not sleep well, but failed to consider the number of times Mum has to get up out of bed to settle her, and how long this takes. As [the child] has a disability, this task is made more onerous for Mum. Therefore, in our opinion, the care required is substantially in excess of a child of the same age".

The Secretary of State does not support the appeal, submitting that, from all the evidence presented, whether or not the child's needs were substantially in excess of a child of the claimant's age was an issue of judgement and it has not been demonstrated that the tribunal's conclusions were such as no reasonable tribunal could make.

My Conclusion and Reasons

Incorrect approach to a DLA claim for a child

Section 72(1) and (6) of the Social Security Contributions and Benefits Act 1992 provides:-

"(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a) he is so severely disabled physically or mentally that –

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself or he has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day, he requires fro another person –

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night, -

(i) he requires form another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

…

(6) For the purposes of this section in its application to a person for any period which he is under the age of 16 –

(a) sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and

(b) neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless-

(i) he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or

(ii) he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.

…"

How to approach care needs for a child is excellently set out by Mr Commissioner Rowland at paragraph 9 of CDLA/4100/2004:

"9. As a matter of strict analysis, it was necessary for the tribunal first to consider whether, as a result of disability (i.e., ignoring needs due to simple immaturity), the claimant required attention, supervision or watching over sufficient to satisfy any of the conditions in section 72(1) (other than section 72(1)(a)(ii)) and, if so, whether the amount of such requirements was sufficient to satisfy the condition of section 72(6)(b) having regard to the needs that a claimant of her age in normal physical or mental health would in any event have had through simple immaturity. Of course, there is no reason why a tribunal should rigidly apply that two-stage process if it appears unnecessary to answer the first question because the second question can clearly be decided against the claimant. Nonetheless, it can be useful to bear in mind that there are two stages and not just one and that in dealing with the first stage care needs due solely to immaturity are to be ignored".

I agree with the above, except to note that it is actually a three stage process because the first stage itself correctly splits into two; as the Tribunal of Commissioners put it at paragraph 42 of R(DLA)3/06:

"Therefore, in our view, section 72 raises two issues. (i) Does the claimant have a disability, i.e. does he have a functional deficiency, physical or mental? (ii) If so, do the care needs to which the functional deficiency give rise satisfy any of paragraphs (i) or (ii) of section 72(1)(a) to (c), and if so, which? ...".

I call the third stage "the additional child condition". As Mr Commissioner Rowland rightly says, the process does not have to be rigidly sequential; this is because a "no" at any stage negates entitlement. It can, however, be useful for a tribunal to keep in mind the converse position: that entitlement requires a positive answer to each of the three questions, and that the first two steps in the process are the same whether a claimant is an adult or a child. I am not, of course, suggesting that the taking of evidence during the hearing is constrained by the above process; but in making its determinations on the totality of that information, the above statutory framework must underpin a tribunal's decision.

However, evidence on the difference in this child's needs to that of other children may itself inform the tribunal's conclusions, when it answers the correct statutory questions in sequence; thus it may assist on the question whether he or she does indeed have a functional deficiency which cannot be avoided such that it amounts to the necessary disability, or on the incidence of any resultant reasonable requirements for help and whether they fit the strict statutory criteria on the necessary pattern of help.

So far as the additional child condition is concerned, Mr Commissioner Rowland has made further valuable comments in other cases. Thus, at paragraph 7 of R(DLA)1/05, the Commissioner quotes from paragraph 9 of his earlier unreported decision, CA/92/1992, in which he said:

'Attention or supervision is not to be regarded as 'substantially' in excess of that normally required unless it is outside the whole range of attention that would normally be required by the average child.'

The point is further well made by Mr Commissioner Rowland at paragraph 10 of R(DLA)1/05:

'The word in the legislation is 'normal' and requirements may be normal notwithstanding that fewer than half the total number of children have them. However, there comes a point where the proportion of children who have the requirements is so small that the requirements can no longer be said to be normal, even though the total number of children affected may still be quite substantial.'

An observation of Mr Commissioner Rowland in CA/92/1992 (at paragraph 5) which was not repeated in his later case, but neither did he retract from it, was the following valuable comment:

'… attention or supervision may be required 'substantially in excess of that normally required' either by virtue of the time over which it is required or by virtue of the quality or degree of attention or supervision which is required.'

The Commissioner then continued with an example of what he meant by the above at paragraph 6 of CA/92/1992:

'The idea of a greater quality or degree of attention can be illustrated by considering meal times. A young child may require attention in connection with eating because he or she requires the food to be cut up. A disabled child of the same age may require attention in excess of that normally required by a child of the same age because he or she not only requires the food to be cut up but also requires it to be spooned into the mouth …'

The tribunal did not tackle the initial question of how far the child's sleeplessness related to her functional impairment. Only care needs to which a functional deficiency gives rise may be taken into account. It appears (but this is now an issue for the new tribunal) that the child's continued wearing of nappies at night, and screaming when she was changed, was not linked to a relevant disablement. However, there was evidence that, at least to a degree, her sleeplessness related to her disability (see for example page 26, where in the claim it was said: "restless if her leg is sore") and this needed to be addressed by the tribunal. I held in CSDLA/567/2005 that soothing a child back to sleep can count as attention with a bodily function, provided the sleeplessness is linked to a disability.

The extent and type of supervision or attention (and the two may not be aggregated for the purposes of the statutory tests) required by a child of the same age as the claimant but in normal physical or mental health, may be different to that which arises on account of disability. It then becomes an issue of fact for a tribunal whether the claimant child requires a greater quality or degree of supervision or attention, as distinct from the duration of this help, such that it can be considered outside the whole range of what would normally be required by the average child. The tribunal went wrong because it did not address and make findings on the evidence that (see page 13) the child required more help getting in and out of bed because of her leg problems, and, indeed might fall out of bed when trying to get up on her own. Is this usual for a nearly 3 year old? Precisely what help was required? This is for a tribunal: but because falls had been raised with respect to mobility needs and the tribunal decided that she was ineligible for that component, it then failed to give sufficient consideration to the evidence on falls so far as the care component was concerned.

Night and day

The tribunal made insufficient findings on what were day needs and what were night needs. From the written submission by the representative to the tribunal, it seems that the mother is in the livingroom until 1.00 am and attends to the child's sleeplessness. The tribunal accepted that the child then woke again at around half past five in the morning.

The starting point in defining day and night is what actually happens in the particular adult household providing the care. When does it close down? If a mother stays up until 1.00 o'clock in the morning, then prima facie night in that household does not begin until after 1.00 am; therefore, the needs arising before that time are day rather than night needs. The same considerations apply to the start of the day: when does this household normally get up? However, in R(A)1/04, the Deputy Commissioner held that there is also an objective element in the definition, to reflect what ordinary households do, (unless there is specific evidence to the contrary with respect to the subjective pattern of the household in question and this pattern is not materially due to having to cope with a particular child's difficulties); and that the normal period of night is between 11.00 pm and 7.00 am. It will be for the new tribunal to apply the night and day tests accordingly.

Incorrect approach to whether the mobility component could be considered

While the tribunal was right that it could not make an award for mobility component on this claim, nevertheless its reasoning (see above at my paragraph 7), like that of the earlier tribunal, was wrong. The written submission from the DM to the tribunal incorrectly stated that the decision under appeal was that of 20 December 2006. It was not. There is no right of appeal against a decision under s.9 of the Social Security Act 1998 to revise or not revise an earlier decision, and the DM's decision of 20 December 2006 was precisely such a decision, viz a decision not to revise the earlier decision of 23 November 2006. Because the mother had asked for revision under regulation 3(1) of the Decision and Appeals Regulations, however, the time for appealing against the initial decision was extended under regulation 31(2) of those regulations, so that the appeal was in time and against the initial adverse decision.

The real issue before the tribunal was, therefore, whether, under regulation 13A of the Social Security (Claims and Payments) Regulations 1987 (regulation 13A), a DM in the initial decision could have made an advance award of DLA; and this is so, even if the criteria justifying such an advance award are only established by evidence materialising after the date of that decision but relating to circumstances at the relevant time. However, under regulation 13A, an advance award can only be made if a claimant will satisfy the relevant requirements on a day not more than three months after the date of the relevant claim; as the date of claim is 5 September 2006 and the child was not three until 30 December 2006, the criteria for an advance claim necessarily could not be satisfied with respect to mobility. (The relevant age is 3 for the higher mobility rate, and 5 for that of lower mobility, so neither level was possible).

Summary

The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the child's case on the merits is entirely for them. Although there has been success in this appeal limited to issues of law, the decision on the facts of the case remains open.

(Signed)

L T PARKER

Commissioner

Date: 7 December 2007