Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CDLA/2060/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 15/12/08 under reference 038/08/02193 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1 The appellant, who is the Secretary of State for Work and Pensions, appeals the decision of the Leicester First-tier tribunal with a District First-tier Judge’s permission. The Secretary of State submits, in brief, that the First-tier Tribunal erred in law in failing to find sufficient facts, give sufficient reasons and in applying the principles laid down in relevant case law in respect of DLA relating to those who suffer from deafness correctly.

2 The tribunal’s decision: The tribunal found that the appellant had no hearing in his right ear and markedly reduced hearing in his left ear, which was accompanied by tinnitus. This made it extremely difficult for him to hear any normal speech, including broadcast speech of any form. The tribunal considered that it was not possible to quantify the help the appellant required because his hearing problems pervaded his life, but considered, globally, that the claimant required frequent attention throughout the day in connection with the bodily function of hearing, involving such matters as receiving information via broadcast media (which could occur at intervals throughout the day), attention in connection with responding to telephone calls for the claimant, difficulty hearing the door bell, hearing on a one to one basis even if there was only low background noise, difficulty following multi-party conversations, needing to sit very close to a person to whom he is speaking and facing them directly, attention in connection with hearing out of doors, shopping, visiting a bank or post office and attending social and community functions in both of which he had formerly actively participated.

3 Why the tribunal erred in law: It was not enough in this case to say that the claimant’s problems were pervasive. It was necessary not only to break down the activities for which the claimant claimed to need attention, but to

a. articulate the nature of the assistance needed, which could vary considerably depending upon the activity in question,

b. give an indication of the frequency with which he required attention with the differing types of assistance he might need, and

c. assess how far the assistance was reasonably required.

4 Although the tribunal’s task is complex in relation to needs arising from sensory loss, careful analysis is particularly important in cases such as this, where deafness and hearing difficulties occur later in life. The claimant’s claim pack also appeared to indicate that he was seeking the lower rate of the mobility component. The Record of Proceedings does not show that he abandoned this aspect of the claim, but the tribunal did not deal with it. Finally, the tribunal was under a duty to explain why it considered the claimant’s oral evidence entirely credible in light of significant inconsistencies with the written evidence in his claim pack. The Secretary of State was entitled to know how the tribunal resolved these conflicts.

5 How should the tribunal have proceeded? The basic principles applying to a deaf claimant’s need for attention in connection with the bodily function of hearing are set out by the House of Lords in Secretary of State for Social Security v Fairey (aka Halliday) [1997] 1WLR 799 (House of Lords) also reported as R(A) 2/98 (‘Fairey’). Because this decision is well known, I propose simply to summarise the points which are important for making a decision in the present appeal. It is, however, useful to point out that Fairey, which concerned a prelingually deaf claimant’s need for a BSL interpreter, extended considerably the scope of attention which could be taken into account in relation to sensory disabilities.

6 Lord Slynn of Hadley, who gave the decision of the majority, confirms that in assessing entitlement to the care component of DLA on the basis of attention in connection with a sensory disability, the decision maker must take into account the attention which the claimant reasonably requires to enable him to live, as far as reasonably possible, a normal (or ordinary) life. What is reasonable depends on the age, sex, interests of the claimant and other circumstances, though the attention must ’still be reasonably required both in its purpose and in its frequency’. In particular, the decision confirms that engaging in a social life, in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be a part of normal life’ while at the same time acknowledging that there may be some activities that may never be available to deaf people. How much attention is reasonably required and how frequently it is required are questions of fact.

7 What can be drawn from the judgment is that attention in connection with sensory functions needed to engage in ‘normal’ or ‘ordinary’ activities is capable of counting as attention, but will not necessarily do so. Commissioners’ decisions following Fairey, or referred to in it without disapproval, have tended to conclude that it is not necessary in order to lead ‘a normal life’ for a deaf claimant to be able to communicate with others, at will, frequently throughout the day, in the way that a person who is not deaf might do (R(DLA) 3/02 [24] referring to CA/249/1992); that unusual but minor acts aimed at attracting a deaf person’s attention will generally not amount to attention simply because such acts they are not necessary in relation to a hearing person in the same setting (R(DLA) 3/02 [28-29] cf. R(DLA 2/02[34]). Speaking loudly or more clearly directly to a deaf person, or signing to him in a two-way conversation (at least where the signer is reasonably fluent) would be unlikely to amount to attention (R(A)2/98, Commissioner Sanders; CA/249/1992; CDLA/240/1994), though if the task became particularly onerous, it might indicate a need for an interpreter, and thus for attention (RDLA)2/02). It is a question of fact and degree.

8 Application to this appeal: The claimant in this appeal, who was born in 1945, is not prelingually deaf. He lost his hearing in his right ear over 15 years ago, while the hearing in his left ear deteriorated over the last few years. It is said to be very poor. The claimant gave up work because his hearing was not good enough to undertake the telephone communication and face to face customer contact necessary for his job, and felt he could not take part in community activities as he used to, or attend religious services or social events. He felt that he needed assistance out of doors because of his hearing. At the hearing, he claimed difficulty with hearing broadcasts (radio and television), though in his claim pack, he stated that his hearing aid ‘helped him with his hearing’ (p11) and that he could hear with the sound turned up, or would watch programmes with text. At the hearing, on the other hand, he claimed that his hearing aid provided little assistance. Although his written evidence was that he had hearing tests monthly (which might have shed considerable light on his assisted and unassisted hearing) no results were before the tribunal. There was no evidence that the claimant was unable to read or write in English or another language, or that he used BSL or required a BSL interpreter. He appears to have filled in the claim form (which is written in the first person singular) himself. He could, on his written evidence, hear the telephone ring (p30) though he said he could not understand what was said by the caller. He could not hear the doorbell ring, but the tribunal did not explore whether he had a flashing light attachment. At the hearing, he was able to hear – albeit with some frustration – if he moved his chair close up to the tribunal member speaking to him. The tribunal does not seem to have explored his lip reading ability with members of his household, the extent to which he was able to hear and understand familiar voices such as those of his family if they spoke loudly to him, whether they could write quick notes in case of particular difficulty, or the frequency with which communicating with others was reasonably required on a day to day basis. The type of help which he might need at community events was not specified.

9 It is apparent from the different types of communication described in the previous paragraph that different levels of assistance might be required for each, which might lead to different legal consequences in terms of aggregating his needs. In a one-to-one conversation at home, for example, all that might be necessary is for the other party to face the claimant and speak more loudly. This type of assistance is unlikely to amount to attention unless it particularly strenuous. It may be that the participants could supplement conversations by very brief, simple written notes if there is some confusion. Expedients such as these might not be sufficient to count as assistance at all. The discussion in R(DLA)3/02 can be usefully referred to here. On the other hand, if the situation is such that, in order to be heard and understood, the family must go substantially beyond these expedients, their efforts may be classed as assistance. R(DLA)2/02 and 3/02 contain discussion. Ordinary activities such as watching television also require careful consideration. Text is available with many programmes, while DVDs generally have a subtitle mode. The claimant’s needs may be met by turning up the sound, and the claimant stated in his claim pack that he does this or accesses text. The tribunal would also have to consider whether any oral assistance would actually be feasible or effective: R(DLA)3/02. How would the claimant be assisted by a family member or other person at, say, a community meeting or religious service where loudly relaying what was being said would be disruptive?

10 Careful questioning should enable the tribunal to make the necessary findings, though the hearing might be lengthy. Once the tribunal has a feel for the nature of the claimant’s needs across a variety of situations, it will be able to assess on a more secure basis the frequency with which these are reasonably required.

11 The appeal must be remitted for further findings of fact. Since that is so, a district judge might also wish to consider whether further evidence is necessary, such as hearing tests (with and without the hearing aid) at and around the date of claim and date of decision.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 3 February 2010