Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1052/2011

ADMINISTRATIVE APPEALS CHAMBER

Before:  Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 13 October 2010 is set aside and the appeal is remitted for redetermination by a differently-constituted panel of the First-tier Tribunal.

REASONS FOR DECISION

1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal allowing, to the extent of awarding the lowest rate of the care component, her appeal against a decision of the Secretary of State disallowing her claim for disability living allowance.

2. As I said when I granted permission, the First-tier Tribunal’s statement of reasons was very full and most of the points raised by the claimant’s representative are answered implicitly, if not explicitly.

3. However, it is noteworthy that, when dealing with the daytime attendance conditions, the First-tier Tribunal said at paragraph 14 that “the appellant did not require attention throughout the day”, whereas the test under section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992 was whether she required “frequent attention throughout the day”.  The word “frequent” is important and is to be distinguished from “continual”, which is used in section 72(1)(b)(ii) in relation to supervision.  The use of the word “frequent” is presumably intended to ensure that benefit is awarded only if the attention is required sufficiently often that the person providing the assistance must for most practical purposes be continually present, or at least in the vicinity, even though the attention is actually provided at intervals.  Although it may be the case that the First-tier Tribunal had that well in mind, the fact that it did not set out the correct test raises the possibility that it may not have done so.  That is of significance because it is not unlikely that, in this particular case, a different conclusion could have been reached had it asked itself the right question.  This is particularly so, having regard to its findings that the claimant, who suffered from depression, required prompting and encouragement to go out alone (see paragraph 10) and with other functions (see paragraph 18). 

4. Although I also said when I granted permission that it was arguable that the omission of the word “frequent” did not vitiate the decision in this case, the Secretary of State’s representative has very fairly supported the appeal, adding that the First-tier Tribunal appears not to have taken account of help the claimant might have required to ensure she followed a diabetic regime, which not only includes the taking of medication and physical exercise but also regularly checking blood glucose levels and adhering to a healthy and somewhat limited diet.

5. I am satisfied that, despite the care that was obviously taken when writing the statement of reasons, the reasons were not, in the limited respects indicated above, adequate in the particular circumstances of this case.  Accordingly, the decision is erroneous in point of law.

6. The Secretary of State has not, however, conceded that the claimant is entitled to the middle rate of the care component and I accept his representative’s submission, not opposed by the claimant’s representative, that the case should be remitted to the First-tier Tribunal.

Mark Rowland

25 November 2011