CSDLA_535_2007
[2007] UKSSCSC CSDLA_535_2007 (07 December 2007)
DECISION OF SOCIAL SECURITY COMMISSIONER
Background
"… 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."
"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".
"… 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
"(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.
…"
"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".
"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? ...".
'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 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.'
'… 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 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 …'
Night and day
Incorrect approach to whether the mobility component could be considered
Summary
(Signed)
L T PARKER
Commissioner
Date: 7 December 2007