IN THE UPPER TRIBUNAL Case No.  CDLA/1295/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.     This is an appeal by the Secretary of State with the permission of a judge of the Upper Tribunal against a decision of the First-Tier Tribunal that the claimant was entitled to the middle rate of the care component of disability living allowance from 2 March 2009 to 1 March 2011 because he required repeated attention at night and to the lower rate of the mobility component because he required supervision when walking out of doors.

2.     The claimant suffers from Crohn’s disease.  Because of it, he was unable to attend the tribunal hearing, but his wife attended and gave evidence.  The claimant provided a written statement (file, pp.3-6).  The tribunal broadly accepted the written evidence of the claimant and also found his wife to be a careful and accurate witness who, if anything, was likely to understate problems.

3.     The claimant explained that he had had Crohn’s disease for 33 years and it had been getting steadily worse.  He was often housebound for a week at a time, unable to look after himself at all.  He suffered a lot of pain and discomfort daily.  On a good day he could get up and potter around the house if he moved slowly and carefully, but even on a good day he rarely left the house and had to have somebody with him if he did.  When the condition was at its worst, he was bedridden and could not walk at all.  This happened every 2 to 4 weeks and he was ill for up to 7 days at a time.  A lump would appear on his right side which was extremely painful and did not disappear until he vomited and relieved the pressure surrounding it.  During this time he could not eat at all and he had hot sweats due to the severe pain.

4.     During this time he only got up to use the toilet.  Getting out of bed was often excruciating, he had to move slowly, and he often did not make it to the toilet in time.  His disease meant that he had to go immediately and could not hold on.  Often his bowel would close up and nothing would pass through.  This led to extreme pain.  He used the toilet about 20 times a day and 4 to 5 times a night.

5.     If he did manage to get out, he had to have somebody with him.  If he had a sudden attack of diarrhoea he needed to be taken home immediately as he could not walk properly let alone drive.  If his wife drove him to the high street he regularly had to get out of the car to use the toilet and if he did not make it in time, they had to go straight home to get him cleaned up. As soon as he got home he needed help to have a bath, change and wash his soiled clothes.  If going to the hospital or doctor’s surgery he usually needed to stop both on the way there and on the way back to use a toilet.  Due to being examined and prodded and pulled about by the doctor, his condition usually flared up and he would suffer for days afterwards.

6.     When he had a toilet accident, his wife had to clean him up and help change and wash his clothes. He could not bath alone as he would often need to use the toilet again and then needed help to get back in the bath.

7.     His accidents regularly happened at night due to his body being relaxed during sleep.  On average this happened 10 times a month.  His wife would help him bath, change the bed sheets and put them in the wash. 

8.     Bending down or lifting objects often made him need to open his bowels that instant.  His wife or daughter had to put his socks on and take them off as he could not do this.  His condition left him unable to go from his home in Great Yarmouth to Norwich to attend the tribunal hearing. 

9.     The claimant’s wife gave evidence to the tribunal that he could go out two to three times a week, but that the rest of the time he could not.  Sometimes vomiting relieved the pressure and the pain.  Every two weeks he had a sickness attack.  The current episode had lasted a week with pain and diarrhoea.  On a good day he would go to the toilet about 15 times, on a bad day more.  His walking was so limited because he needed the toilet after a few steps.  Describing the situation at around the date of the decision under appeal, about 6 months earlier, she stated that he had bad periods about a week long followed by 2 to 3 weeks when it would not be so bad, then another bad week.  In good times, he needed the toilet a lot but suffered less pain.  He could not do lower garments as bending made him want to go to the toilet.  He would not wear incontinence pads.  He could manage the bath but needed to get out if he sat down.  His wife helped him with bathing, pouring water over him so that he did not need to sit down.  In a good period there would be few daytime accidents.  He needed to get up 3 to 4 times a night, and sometimes up to 10 times.  There had been two soiled beds in the previous week.  He did not use incontinence aids at night.  His wife might leave him for half an hour, but if she was away for more than that, she got someone in.  Agitation made his condition worse.

10. The tribunal concluded that so far as the physical act of walking was concerned, the claimant had no problem.  He could not therefore qualify for the higher rate of the mobility component.  The claimant could not get out of bed one week in three or four except to go to the toilet and that he could not walk more than a few steps without needing the toilet.  If walking a few steps has that effect, then it appears to me that the urgent need to defecate which prevented him from going further would be quite capable of qualifying as severe discomfort.  However, the evidence of the claimant was that he could potter around the house on a good day, and it appears to me that the tribunal would have been entitled to conclude that if he could do so in the house, then subject to the need to have an available toilet, and to have somebody with him, he could do so out of doors as well.

11. The tribunal also found that the manifestations of Crohn’s disease were not only urgent incontinence but included pain and debility.  It was therefore satisfied that the claimant needed a companion out of doors to help him to find a lavatory when the need arose and to help him cope with the consequences of not reaching one in time.  That finding appears to me to be amply supported by the evidence which I have cited.  The Secretary of State has contended that assistance in finding toilets in the event of an unpredictable bout of diarrhoea does not amount to a requirement for guidance or supervision within section 73(1) of the Social Security Contributions and Benefits Act 1993.  Reliance is placed on the statement of Commissioner May QC in CDLA/4927/1997, paragraph 11, where he says that

“I also consider, and it is the reason why I find myself disagreeing with the Commissioner in CDLA/494/94, that in essence that guidance is related to orientation and the ability to cope in the sense of finding one’s way about in unfamiliar surroundings and that the supervision requirement is primarily related to claimants who have no awareness of traffic dangers such as for example by reason of a mental disablement being unable to take the elementary precautions of looking before crossing a road.  I refer in that connection to my decision in CSDLA/68/98 paragraph 14.  The statutory condition in these circumstances cannot be satisfied in a situation where there is no mental impairment of the claimant but what is asserted is required is related solely to potential assistance in discovering the location of public toilets and as it is put by the claimant’s representative “to gain assurance and/or protection from what he might believe to be ridicule, at the very least strangers curiosity”.  There is no suggestion that the claimant is incapable by reason of mental or physical disablement of being unable to take advantage of the faculty of walking in unfamiliar routes or indeed, though it forms no part of the statutory test of finding public toilets for himself on the way to the destination he wishes to reach on an unfamiliar route. Supervision does not encompass dealing with the associated effects of incontinence when out of doors and in particular the potential reaction of passers by.  I consider that the Commissioner in CDLA/494/94 has stretched the statutory condition way beyond the parameters that were within its intended scope.”

12. Without it being necessary to embark upon any analysis of the correctness of that decision where it conflicts with CDLA/494/94, it is apparent that the facts in the present case go well beyond those in CDLA/4927/1997.  The evidence in the present case is not only that walking a few steps brought on the urgent need to go to the toilet but that if he had a sudden attack of diarrhoea the claimant would need to be taken home immediately as he could not walk let alone drive.  The danger of his becoming incapacitated by an attack of diarrhoea was a very real one, and it would leave him unable to continue.  For that reason, it appears to me that, regardless of the correctness of CDLA/4927/1997, the claimant reasonably required supervision when walking out of doors and the tribunal came to the correct conclusion.  For the same reason, it does not appear to me that the Secretary of State is assisted by CSDLA/731/04, referred to by Judge Wikely when granting permission to appeal, where the only reason for any need for another person to accompany the claimant was said to be her embarrassment if she went out and had an accident.

13. With regard to daytime care, the tribunal found that the claimant’s care needs did not entitle him to an award of the care component, and there is no appeal against that finding.  The tribunal went on to find that at night, taking a broad view, the claimant did need repeated attention and was thus entitled to the middle rate of the care component.  This finding is challenged by the Secretary of State on the ground that the fact that the claimant was reluctant to wear incontinence pads during the night was not a factor to be taken into account.  I have been referred to paragraph 34 of CSDLA/552/01, where it is held that “the requirement for attention must be in consequence of the severe disablement and not from its combination with the religious or cultural beliefs of the claimant.  Therefore, if the claimant [in that case a 5 year old child] does not wear nappies because he believes this is “babyish” but their use would negate qualifying attention, he cannot show the necessary causal link between the disablement and resultant care needs.”  I am by no means clear that, following the coming into force of the Human Rights Act 1998, it would right so cavalierly to disregard religious or cultural beliefs in determining what attention a person reasonably required in connection with his or her bodily functions, but it is not necessary to address that question here.

14. In the present case, there is no evidence as to why the claimant was reluctant to wear incontinence pads, but there is a finding of fact by the tribunal that “incontinence pads are never totally secure and the Tribunal did not see them as an answer to his problem.”  Both on that account and because the most that the pads would achieve would be to reduce the amount of time spent on some occasions dealing with the consequences of an accident, the causal link between the accidents and the need for repeated attention is not disturbed by the claimant not wanting to wear them.  The attention required was not just changing bedclothes as the representative of the Secretary of State suggests in her submissions on this appeal, but also in cleaning the claimant and helping him to change.  The claimant was found to need such help when he had accidents both by day and by night.  It is plain that the two to three times a night, three or four times a week, that the claimant was found to need such help went beyond the number of times that he soiled the sheets and extended to all the times he soiled himself at night.  The tribunal was fully entitled to come to the conclusion that it did, and on this count also the appeal must be dismissed.  It also appears to me that the attention required on each occasion may well have been prolonged, even without changing the bed linen, although it was unnecessary for the Tribunal to address that question in view of its conclusion that the attention required was repeated.

(signed) Michael Mark

Judge of the Upper Tribunal

2 November 2010