Upper Tribunal (Administrative Appeals Chamber)

MC [2009] UKUT 173 (AAC) (09 September 2009)
War pensions and armed forces compensation
Other

 


CAF/3558/2008

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. This appeal by the claimant does not succeed. I confirm the decision of the Pensions Appeal Tribunal sitting in London on 20th May 2008 (reference SD/00310/2007) to the effect that claimant is entitled to the constant attendance allowance ("CAA") at the full day rate, but not at any higher rate.
2. I held an oral hearing of this appeal on 27th August 2008. The claimant did not attend in person but was represented by Mr Glyn Tucker of The Royal British Legion. The Secretary of State was represented by Steven Kovats of counsel, instructed by the Treasury Solicitor. I am grateful to them for their assistance.

Background and Procedure

3. The claimant was born on 10th August 1963 and served in the Royal Marines Commandos from 4th August 1980 to 20th January 1984. He served in the Falklands War and in June 1982, while still only 18, he stepped on a landmine (losing part of his right leg as a result and suffering other injuries) and came under prolonged gunfire while rescue attempts were made. Subsequently he suffered mental health problems as well as other physical difficulties. On 9th June 2005 an appeal tribunal with jurisdiction over social security matters awarded him the highest rate care component and the higher rate mobility component of disability living allowance ("DLA") from 6th June 2003 to 5th June 2008. I understand that this award has subsequently been renewed.
4. In relation to the claimant's entitlement to war disablement pension there has been a complicated adjudication history which it is not necessary for me to deal with in this appeal, except to state that he has been in receipt of such a pension for many years and at the relevant time the degree of disablement was assessed at no less than 80%. On 15th June 2005 he made a claim for CAA (I deal below with the conditions of entitlement for this) and in connection with his claim he was medically examined at home on behalf of the Secretary of State on 28th July 2005 and 19th April 2006. On 9th June 2006 the Secretary of State (acting through the Veterans Agency) rejected the claim for CAA.
5. The claimant appealed to the Pensions Appeal Tribunal against this and other decisions and the tribunal considered the matter on 14th June 2006. It dealt with other appeals by the claimant with which I am not concerned in this appeal, and also allowed the claimant's appeal and made an award of CAA. It awarded the full day rate of CAA but the claimant's argument is that he is entitled to the (higher) exceptional rate.
6. On 5th August 2008 the chairman of the tribunal refused the claimant's application for leave to appeal to the Pensions Appeal Commissioner. He now appeals to the Upper Tribunal by my permission granted on 2nd March 2009 (in relation to the CAA appeal only). The Secretary of State opposes the appeal and supports the decision of the tribunal.

Entitlement to CAA

7. Entitlement to CAA is governed by article 8 of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006, which, so far as is relevant, provides as follows (my underlining):

8(1) where …

(a) a member of the armed forces is in receipt of … a pension in respect of disablement the degree of which is not less than 80%; and

(b) it is shown to the satisfaction of the Secretary of State that constant attendance on the member is necessary on account of the disablement the member shall be awarded an allowance in accordance with the following paragraphs of this article.

(2)

(3) Where the necessary attendance consists of –

(a) frequent or regular attendance for periods during the daytime which total not less than eight and not more than sixteen hours per day; or

(b) frequent or regular attendance for periods during the daytime which total less than eight hours per day and attendance on two or more occasions per night the rate of the allowance shall be the full day rate

(4) Where the necessary attendance consists of –

(a) frequent or regular attendance for periods during the daytime which total not less than eight hours per day and attendance on two or more occasions per night; or

(b) frequent or regular attendance for periods at night and which total not less than eight hours and during the daytime for periods which total not less than four hours per day the rate of the allowance shall be the intermediate rate

(5) Where the necessary attendance consists of continual attendance throughout the day and night, the rate of the allowance shall be the exceptional rate …

The Right of Appeal

8. So far as is relevant, section 5A of the Pensions Appeal Tribunals Act 1943 provides as follows:

5A (1) Where, in the case of a claim to which this section applies, the [Secretary of State] makes a specified decision –

(a) he shall notify the claimant of the decision, specifying the ground on which it is made, and

(b) thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground

(2) For the purposes of subsection (1) a "specified decision" is a decision … which is of a kind specified by the [Secretary of State} in regulations.

9. Regulation 3(1) and schedule 1 of the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulation 2001 provide that each CAA decision which refuses or discontinues an award, or establishes or varies the amount of the award or the date from which an award has effect, shall be a specified decision.

The Nature of the Appeal

10. Mr Kovats argued that the use of the words "shown to the satisfaction of the Secretary of State" in article 8(1)(b) of the 2006 Order means that the role of the tribunal is limited to considering the reasonableness of the Secretary of State's decision, rather than considering the matter afresh and making its own findings, otherwise the words would serve no purpose. It is not clear to me how this is consistent with his support for the decision of the tribunal or how it is suggested it would have affected the outcome, but in any event he was unable to cite any authority in support and I reject the proposition. The tribunal stands in the shoes of the Secretary of State and it would be an error of law for the tribunal not to make its own findings on any disputed or unclear matter. To decide otherwise would be to undermine the right of appeal to the tribunal.
11. The authorities are all against the proposition put forward on behalf of the Secretary of State. In R(SB) 5/81 the Social Security Commissioner was considering regulation 30 of the Supplementary Benefit (Single Payments) Regulations1980 and the words "a single payment shall be made … if, in the opinion of the benefit officer, such a payment is the only means …". Commissioner Watson decided that "The reference in regulation 30 to the opinion of a benefit officer also extend to the opinion of the tribunal on appeal, who may disagree with the benefit officer" (paragraph 8).
12. A number of authorities to similar effect were reviewed by a Tribunal of Commissioners in paragraphs 19 to 26 of R(IB) 2/04. That tribunal decided in relation to section 12 of the Social Security Act 1988:

"12. … the legislation does not expressly specify the powers – any powers – of the appeal tribunal in relation to the decision under appeal … [it] does not even expressly specify that an appeal tribunal may allow or disallow an appeal, or vary or confirm the decision under appeal. Therefore all the powers of an appeal tribunal – including even the most basic – must be implied. They must be derived from the fact that the statute gives a right of appeal, and from the nature of such an appeal in the context of the statutory scheme.

13. The following features of an appeal to an appeal tribunal are in our judgment clear.
14. First, the appeal is general, i.e. it is an appeal on fact and law … Indeed, the appeal tribunal is designed to be a superior fact finding body, and is able to investigate the facts in greater depth then usually occurs before the decision maker. The composition of appeal tribunals (with one or two members in addition to the legally qualified chairman, where considered appropriate by the legislature) is designed to enable them most effectively to make the necessary findings of fact. Unlike the decision maker, appeal tribunals hear oral evidence where necessary. In the light of the fact that the initial decision is made by the Secretary of State (i.e. a person patently lacking in independence) and of the limited scope for the claimant to make representations to the Secretary of State, nothing less than such a superior fact finding body would be sufficient to comply with Article 6 of the European Convention on Human Rights …
15. Second, and as a consequence of the first feature to which we have referred, the appeal tribunal's jurisdiction is not limited to affirming or alternatively setting aside the decision under appeal. If, having made its own findings of fact, it considers the decision to be wrong, it has power to make the decision on the claim which it considers the Secretary of State ought to have made on the basis of the facts which it has found. In cases where the appeal tribunal makes a different decision from that made by the Secretary of State, the appeal tribunal's decision simply replaces that of the Secretary of State …
16. These principles are, of course subject to any statutory provision to the contrary (for example section 5B(b) of the 1943 Act, and see also the facts of my decision in CF/3565/2001 where I held that the Secretary of State is not an independent and impartial tribunal within article 6) and to the principle that a right of appeal against the exercise of a discretion that is non-justiciable because the relevant considerations cannot be discerned must be limited to points of law (R(H) 3/04 and R(H) 6/06 para 39).
17. I also refer to the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, upholding the Court of Appeal ([2005]) EWCA Civ 105). Delivering the opinion of the House, Lord Bingham said (at paragraph 11):

" .. the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful …".

18. I appreciate that pensions appeal tribunals were not governed by the Social Security Act 1998 but they were very similar in nature to the tribunals that were governed by the 1998 Act and the same general principles apply, especially those set out in paragraphs 14 and 15 of R(IB) 2/04. Indeed, as from 6th April 2005 the right of appeal against decisions of pensions appeal tribunals was transferred to the Social Security Commissioners who, in their capacity as Pensions Appeal Commissioners and then as Judges of the Upper Tribunal, have since that transfer always operated the same approach on this point in relation to both types of tribunal. (Since 3rd November 2008, of course, tribunals in both systems have been incorporated into the First-tier Tribunal created by the Tribunals, Courts and Enforcement Act 2007).
19. I also note that the issue for the tribunal under section 5A(1)(b) is "whether the decision was rightly made". The word used is "rightly" and not "lawfully" or "reasonably".

The Effect of the DLA Decision

20. As indicated above, on 9th June 2005 an appeal tribunal awarded the claimant the highest rate care component and the higher rate mobility component of disability living allowance from 6th June 2003.
21. Mr Tucker relied on the award of highest rate care component of DLA. Mr Kovats summarised the argument by stating that Mr Tucker was arguing that this award obliged the Pensions Appeal Tribunal as a matter of law to award the exceptional rate of CAA. I am not sure that Mr Tucker went quite that far.
22. Insofar as it is relevant, section 72(1)(b) and (c) and 72(4) of the Social Security Contributions and Benefits Act 1992 provide entitlement to highest rate care component of DLA for a person for any period throughout which:

72(1)

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

(i) frequent attention throughout the day in connection with his bodily functions; or continual supervision throughout the day in order to avoid substantial danger to himself or others

…

[and]

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

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

23. It can be seen that the conditions of entitlement are not the same for exceptional rate CAA and highest rate care component of DLA. For example, at night the conditions of entitlement for exceptional rate CAA include that the claimant requires continual attendance, whereas those for highest rate care component of DLA include that the claimant requires prolonged or repeated attention, or another person to be awake for a prolonged period or at frequent intervals. This is not the same as "continual attendance".
24. Accordingly I must reject any proposition that the highest rate care component of DLA is any kind of passport to an award of exceptional rate CAA. Certainly any evidence in relation to one might be helpful in relation to the other, as might a tribunal statement of reasons and findings, and if they are available they should be taken into account, but I would put it no higher than that. In the present case, however, it is not known what evidence was before the tribunal that awarded DLA and there is no statement of reasons (and, as the claimant was successful on the facts before the DLA tribunal) it is unlikely that such a statement was ever prepared.
25. I do not find it helpful or necessary to refer to the various authorities which were or could have been cited in connection with this point, as none of them deal with these particular provisions in relation to each other.

The Meaning of Necessary Constant Attendance

26. Neither "necessary" nor "constant" nor "attendance" is specifically defined. "Constant" clearly does not mean non-stop or uninterrupted. For example the condition in relation to the full day rate refers to "frequent or regular attendance for periods … which total …". This would be incompatible with a requirement of non-stop or uninterrupted attendance. I conclude that the word "constant" in article 8(1)(b) is not an independent condition or concept to be satisfied but is a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of CAA.
27. The concepts of "necessary" and "attendance" must be considered together because the questions to be decided relate to the purposes for which the attendance is necessary. Mr Tucker makes the point that unlike the provision in relation to an increase of disablement pension for constant attendance in the industrial injuries scheme, where the claimant must be "to a substantial extent dependent on such attendance for the necessities of life" (Social Security (General Benefit) Regulations 1982 regulation 19) the war pensions scheme provides that constant attention be "necessary on account of the disablement" but there is no further limitation or qualification beyond the conditions of entitlement for the various rates of CAA. He argues that necessary attendance may include attendance for the purposes of attention, supervision both precautionary and anticipatory, and of what I referred to when giving permission to appeal as "emotional support".
28. He referred to the decision of the Court of Appeal in the attendance allowance case of Dorothy Moran v Secretary of State for Social Services (reported with R(A) 1/88) which held that the word "supervision" in section 35 of the Social Security Act 1975 can include supervision which is either precautionary and anticipatory and that a person who is standing by to intervene (there, in case of an epileptic attack) can be exercising supervision.
29. Mr Kovats argued that attendance or emotional support to make a claimant feel happier or bring about an improvement in mood would not be attendance that was "necessary" for the purposes of CAA. On the other hand, the kind of emotional support that would prevent an identifiable harm such as suicide or the development of or clinically significant deterioration in a psychiatric condition would be "necessary", although "it will require exceptional circumstances for emotional support to bring a case within article 8".
30. He referred to the House of Lords decisions in the attendance allowance case of Cockburn v Chief Adjudication Officer [1977] 1 WLR 799 which held that in order for an activity to constitute "attention" within the meaning of section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 it was necessary for it to be performed in the presence of the claimant, and the joined attendance allowance case of Secretary of State for Social Security v Fairey or Halliday where Lord Slynn said:

"On the question of principle I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test in my view is whether the attention is reasonably required to enable the severely disabled person as far as is reasonably possible to live a normal life".

31. The parties and I agree that this approach also applies to CAA and within the context of what I have set out above, the parties seem to be agreed that for the purposes of article 8 "attendance" can in appropriate case include what in the DLA scheme is referred to as "supervision", that this can include what I have referred to as emotional support, and that neither "constant" nor "continual" mean literally non-stop or uninterrupted. I agree with all of these propositions. I do not accept what I think is implicit in Mr Tucker's argument, that supervision which is neither anticipatory nor precautionary but in some other way "just in case".
32. It is now well established in relation to DLA and attendance allowance "continual" is not the same as "continuous" (R(A) 1/73) and means something more like "frequently recurring" (R(DLA) 10/02).
33. For obvious reasons, care must be taken when considering principles developed in a case about one benefit to cases of different benefits, but there are adequate similarities for the relevant principles to which I have referred in the cases of Moran, Cockburn and Fairey/Halliday and in relation to the meaning of "continual" to apply to CAA to the extent that I have indicated.
34. However, the parties do not agree on how the law applies to the facts of the present case, and I deal with this further below.

The Secretary of State for Defence's Guidelines

35. The file contains (pages 348 to 351) an extract from what appear to be guidelines issued by the Secretary of State for the use of those actually making war pensions decisions. They are not legally binding on tribunals and in the file they appear out of context and I am not sure of the date on which they were issued or their status in the eyes of the Secretary of State, but they seem to have influenced the tribunal's approach (although not explicitly) and they merit consideration.
36. Particularly relevant are the following paragraphs explaining how the Secretary of State interprets certain words in the provisions:

"constant

13205 For the purposes of a claim to CA the Secretary of State interprets the term "constant" as meaning "continually occurring or recurring" (ie the dictionary definition).

"attendance on him"

13206 He interprets "attendance on him" as the help required from another person in connection with the personal functions a fit person would normally perform for himself such as dressing, eating, drinking, bathing or going to the toilet. Such help may also be needed where, for instance, bedclothes are continually soiled through incontinence, or the person has bed-sores, or is bedfast and cannot move without assistance. "Attendance on him" may also mean "supervision" ie someone to keep an eye on the person to prevent him injuring himself or others. It does not include help of a purely domestic nature (eg shopping, housekeeping, getting meals etc). CAA is designed to give extra financial help where the pensioner is so severely handicapped by the nature of his pensioned disablement that he requires someone to assist him with the ordinary and personal requirements of everyday living – the necessities of life.

"necessary on account of the disablement"

13207 For CAA to be awarded the law requires the attendance to be "necessary" on account of the (war pensioned) disablement. The Secretary of State interprets this as meaning the effects of the pensioned disablement must be such that there is a medical need to a greater or lesser extent for "attendance on him" from a third party. It must be clear that the attention is needed because of the (war pensioned) disablement, and not because of some other disablement, or simply old age.

13208 Disabled individuals and their families vary in their response to disablement. Many with great impairment remain highly independent, while others more readily assume an invalid role. In assessing requirements for attendance or supervision the Secretary of State should be concerned only with the medical need for the attendance or supervision.

13209 The advice of a medical adviser should be sought in the more difficult cases. This may be where there is doubt regarding the pensioner's account of the need for attendance. For example, claimants often emphasis nocturnal visits to the lavatory; as such visits are normal practice for many males, medical advice may be necessary in order to establish whether the visits really are as a result of the war pensioned disablement. Another common claim is that attendance is required due to the side effects of therapeutic drugs for the war pensioned disablement; generally modern therapeutics should make tolerance of side effects such as dizziness or disorientation etc unnecessary and a matter of good therapeutic management. Again the medical adviser should be consulted."

37. Paragraph 13217 gives examples of the (suggested) appropriate rates for particular situations where there are no other complications.
38. It might be helpful if I comment on these paragraphs in light of the above discussion. An important general point is that the tribunal must itself make the necessary findings of fact and form its own view of how the provisions apply to those findings. It must not in any was consider itself bound as a matter of law by these guidelines. However, that said, and providing the tribunal treats the examples as examples and not as an exhaustive list I have no quarrel with paragraphs 13205 and 13206 except for the final four words in 13206 ("the necessities of life"). These are not consistent with the preceding words in the paragraph or with the statement made by Lord Slynn in Secretary of State for Social Security v Fairey or Halliday (see above). Too strict an application of those four words is likely to lead to a decision being made in error of law.
39. Paragraphs 13207 to 13209 emphasise the Secretary of State's view that the word "necessary" means that there must be a "medical" need. This is not the wording of article 8 and in my opinion the way that the Secretary of State has expressed it is misleading. Certainly the relevant attendance must be necessary on account of the relevant disablement, but it need not be "medically" necessary in the sense of being necessary to medically treat the claimant or to provide nursing care. This is not to say that medical evidence should not be obtained or is not very useful (although it must be remembered that a tribunal will have a medical member in such cases) but in my view the provision should be read in light of what Lord Slynn said (as quoted above): "The test in my view is whether the attention is reasonably required to enable the severely disabled person as far as is reasonably possible to live a normal life".
40. The examples on paragraph 13217 must, in particular, be treated with caution. A tribunal which took such suggestions as a starting point may well find itself in error of law. The tribunal must itself make the necessary findings of fact and form its own view of what is needed in light of those findings. The examples in paragraph 13217 might be useful predictors for claimants of what tribunals are likely to decide, but they are not in any way binding on tribunals.

The Factual Disagreement

41. It was the claimant's case that he required another person to keep an eye on him all the time and to be available whenever needed. Mr Tucker argued that the tribunal had not taken full account of the claimant's mental and psychological needs, and had focussed on the need for hands-on attention but not on supervision.
42. In addition to the bulky written evidence already in the file from the claimant and to the claimant's own evidence, the claimant's partner (who is his carer) gave evidence to the tribunal that she looks after the claimant 24 hours a day, 7 days a week and that he needs her constant attention to prevent injury to himself and exacerbation of his mental health difficulties. Without his prosthesis he was liable to trip and fall, but it is poorly fitting and he suffers intermittently with sores. He needs help in and out of the bath and needs constant encouragement and reminding to get up, bathe, shave, brush his teeth, wash his hair, change his clothes and take his medication. He needs help dressing and with his special diet, has no motivation to plan or prepare meals and suffers from anxiety attacks. He needs help to get to his medical appointments and constant reassurance and diversion from anger and frustration. Most nights he has nightmares and flashbacks and it takes at least 2 hours each time to settle him down again.
43. Mr Kovats referred to the medical examination of the claimant on 28th July 2005, when the doctor reported that the claimant needed 6 to 8 hours attendance by day for personal needs and attendance on two occasions each night for 20 minutes on each occasion (page 15 of the file). He then referred to the medical examination of the claimant on 19th April 2006 where a different doctor reported that the claimant did not need any attendance either day or night, that "I feel he should be capable of full self-care" (page 62), and that there was "normal insight and cognition. Not suicidal or self-harming. Full upper limb function. Functioning right leg prosthesis" (page 63).
44. He also referred to the evidence of the claimant at the tribunal that his carer can go away for a few hours and that "I could survive quite a while on my own but quality of life would not be good" (page 287).
45. The tribunal's key conclusion was that

"His mental problems and his physical problems are not so serious as to warrant 24 hour care. Such is necessary and warranted in extreme cases – that is not [his] situation. In reality there are substantial periods of time during the day and night when [he] does not need any attendance. If a carer was sitting by his side for the whole 24 hours, [his] quality of life would not be any better in the view of the Tribunal" (pages 309-310).

46. However, the tribunal did not accept the Secretary of State's case on the facts and clearly did not accept the medical opinion from the 19th April 2006 examination. It accepted the carer's factual evidence (although not her subjective opinion or conclusions) and its findings are also consistent with the medical opinion from the 28th July 2005 examination.
47. The tribunal was clumsy in not addressing that carer's evidence that "she looks after the claimant 24 hours a day, 7 days a week" and in not specifically addressing the conditions of entitlement to the various rates. However, I do not accept that it disregarded the mental/psychological aspects or the "supervision" aspect, or drew the criteria of entitlement too tightly. The deficiencies in its reasoning were not, on the particular facts of this case, serious enough to amount to an error of law.

Conclusions

48. For convenience I summarise my conclusions as follows,

(a) The tribunal stands in the shoes of the Secretary of State and it would be an error of law for the tribunal not to make its own findings on any disputed or unclear matter. To decide otherwise would be to undermine the right of appeal to the tribunal (paragraph 10 to 16).

(b) I reject any proposition that the highest rate care component of DLA is any kind of passport to an award of exceptional rate CAA. Any evidence in relation to one might be helpful in relation to the other, as might a tribunal statement of reasons and findings, and if they are available they should be taken into account, but I would put it no higher than that (paragraphs 18to 22).

(c) "Constant" for the purposes of CAA does not mean non-stop or uninterrupted. It is not an independent condition or concept to be satisfied but is a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of CAA (paragraph 23).

(d) for the purposes of CAA "attendance" can in appropriate case include what in the DLA scheme is referred to as "supervision", and can include supervision which is either precautionary or anticipatory, and what I have referred to as emotional support (paragraphs 26 to 30).

(e) "continual" for the purposes of CAA does not mean literally non-stop or uninterrupted (paragraph 28).

(f) The relevant paragraphs of the Secretary of State's guidelines are not necessarily accurate statements of the law and are capable of leading to decisions being made in error of law (paragraphs 32 to 37).

(g) The deficiencies in the tribunal's reasoning were not, on the particular facts of this case, serious enough to amount to an error of law (paragraph 44).

H. Levenson

Judge of the Upper Tribunal

9th September 2009