THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal against the decision of the First-tier Tribunal given at Derby on 16 February 2011 is refused.  It is dismissed.

 

STATEMENT OF REASONS

 

1.               The claimant has appealed against the decision of the tribunal which was to the effect that he was not entitled to either component of disability living allowance with effect from 24 November 2009.  The grounds of appeal are set out at pages 79 and 80 and are restricted to the higher rate of the mobility component.  Upper Tribunal Judge Mesher who granted permission to appeal did not do so upon the basis that the claimant’s grounds of appeal in respect of the higher rate of the mobility component demonstrated any arguable error in law.  Instead he raised a different issue in respect of the care component.  He said:

 

“It must be arguable that the tribunal erred in law in stating that the regular care given by the district nurse could not be counted in looking at how much attention the claimant needed because that was nursing care and not personal care (paragraphs 6 and 19 of the statement of reasons).  I see no reason why changing the dressing on the claimant’s leg should not count as attention in connection with a bodily function and the fact that the district nurse’s time would already be paid for out of the public purse would not seem to be relevant to the conditions of entitlement to disability living allowance.”

 

2.               The Secretary of State has indicated in his submission that he supports the appeal.  In paragraphs 5(1) to 5(5) of his submission he dealt with the application of the statutory rules relating to attention to the circumstances of this case.  He then dealt with regulations 6, 7 and 8 of the Social Security (Disability Living Allowance) Regulations which are related to the payability of the allowance to claimants who are hospital in-patients, or in care home accommodation at public/local authority expense and those receiving renal dialysis.  It was asserted that these regulations did not draw that distinction between personal and nursing care that was the basis of the tribunal’s decision. 

He then went on to say:

 

“6(3) The policy behind the above statutory exceptions is the avoidance of double provision of state assistance for the same contingency (which for the sake of argument in the present case would presumably be the combination of the District Nurse providing free, NHS-financed “medical or other treatment” to [the claimant] [a “benefit in kind”, albeit at his home] plus the payment to [the claimant] of DLA (Care component) as a social security “cash benefit”).

 

(4) In [the claimant’s] case, it appears that although the First-tier Tribunal did not express itself explicitly in terms of the principle of avoiding “double provision from public funds”, nevertheless its decision and Statement of Reasons, especially paragraph 19 distinguishing “nursing care” from “personal care”, were underpinned by that principle, or if not by that one then by considerations of the kind expressed by Lord Bridge in the case In re Woodling about the “policy” underlying Attendance Allowance’s “attention …“  formula (see the quotation in paragraph 4(5)(A) on pages 4-5 of this submission).

 

(5) However, the crucial question is whether, apart from the statutory exceptions prescribed in the aforementioned regulations, care and assistance provided to a DLA (or Attendance Allowance) claimant

 

- in the claimant’s home

- by qualified medical staff employed by the National Health Service

 

is in any relevant sense different from circumstances in which another person who is not a doctor or qualified, trained nurse gives the claimant assistance (whether by way of “attention … in connection with his bodily functions” or in the form of “supervision” to avoid danger).

 

7. The answer appears to be along the following lines:-

- Because there is no express  statutory exception discounting  care and “attention” provided to a DLA claimant in the claimant’s home by qualified medical staff employed by the National Health Service, the fact that the District Nurse’s time would already be paid for out of the public purse is not determinative  of the question whether [the claimant] met the conditions of entitlement of DLA (Care component).

 

It is also apparent from paragraph 10(2) of the submission that the Secretary of State supports the appeal in relation to the higher rate of the mobility component.

 

3. The claimant’s representative made no further submission in the appeal though the claimant himself presented further evidence about his condition at pages 109 and 110.

 

4. The nature of the claimant’s disability is the subject of the findings by the tribunal in findings 3 and 4 of their statement where they say:

 

“3. The tribunal find that [the claimant] suffers from a combination of medical problems but that the most disabling and significant is leg ulcers. The leg ulcers are chronic and extensive, prone to infection and have proved difficult to treat.  [The claimant] is under monthly hospital care and at the time of the decision daily district nurse treatment.

….

 

4. [The claimant] also suffers from angioedema (swelling), arthritis, varicose veins and depression.  He is understandably frustrated at his inability to do things as he would have in the past, for instance pigeon racing.”

 

5. The tribunal’s findings in fact in respect of their claimant’s mobility are as follows:

“[The claimant] could reasonably and safely walk a distance of about 75 metres before the onset of severe discomfort.  This is with the aid of a crutch to reduce the amount of weight he is putting on his legs, but he is walking with both legs.  He has become unaccustomed to walking.  He would be advised to keep as mobile as possible to help his condition.  He would perhaps need to build up his walking gradually and sensibly.  It will be uncomfortable for him but the tribunal do not find that severe discomfort would arise before about 75 metres.  He would have to take his time, but would not be walking inordinately slowly to complete that distance.”

 

 

 

 

6. The tribunal in giving reasons for their decision said:

 

“15. The findings of fact show that the tribunal accept that [the claimant] is limited by his leg ulcers, that they are uncomfortable and have proved intractable to treatment but not that he is virtually unable to walk as required by law or that he has a need for care to the extent required by law.

 

16. The tribunal were not persuaded that [the claimant’s] walking distance was as limited as was claimed in the written appeal nor indeed that taking into consideration all the factors that are relevant (paragraph 11 above) that he is virtually unable to walk.  In the claim pack he said that he was limited to 60 – 100 metres.  That is limited walking but would not render him virtually unable to walk as required by the legal conditions.  The tribunal have to treat with caution any change in the evidence submitted by a representative.  There is a considerable difference between the 60 – 100 metres stated in the pack and 25 – 30 yards stated in the appeal.  At the hearing the representative argued that [the claimant] had told him that he had done a walk of 75 yards, then had to rest for 5 – 10 minutes, tried to return home but found he couldn’t.  He probably needs to build up his walking gradually.  A walk away from home of 75 yards is perhaps over ambitious since it means a total walk of 150 yards.”

 

7. I deal first with the claimant’s grounds of appeal on the mobility component.  It is apparent from the tribunal’s statement of reasons that they did not regard all the evidence before them as being reliable.  Further it is apparent in reaching their conclusion that they had regard to the factors referred to in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. It is apparent from the grounds of appeal that the claimant’s representative simply disagreed with the decision that had been made and sought to persuade me on the merits of the case, as seen by his representative, that he satisfied the conditions. 

 

8. The Secretary of State in his submission goes through the evidence in paragraph 8 and then goes on to say:

 

“With regards to the claim for DLA (Mobility component), it is submitted on behalf of the Secretary of State that although the First-tier Tribunal might have been entitled in principle to conclude that a person was not “virtually unable to walk” if he could walk apparently without severe discomfort a distance of 60-100 metres or possibly 75 metres in “2-3 minutes”, nevertheless the other elements alleged by [the claimant] (need for a rest of “5-10 minutes”; inability to make the distance to the surgery, need to be taken by car; the representative’s lack of  knowledge of detail when the claimant was not present at the hearing; and the written statements in the Claim Form about difficulty with walking) all suggest that,  with the advantage of hindsight, the Upper Tribunal should now –

 

- either re-make the decision about the Mobility component,

 

or

 

- remit it for rehearing by a fresh First-tier Tribunal.

 

 

 

 

 

 

9. Essentially the question as to whether the claimant satisfied the conditions for the mobility component is a jury question for the tribunal and I am not persuaded that in reaching their answer the tribunal made a decision which was outwith the bounds of reasonable judgement.  The tribunal accepted that the claimant had a disability and they took a view from the evidence as to the effect that disability had on his walking ability.  In my view,  they reached a conclusion which was within the grounds of a reasonable judgement.  I am therefore satisfied that neither the claimant nor the Secretary of State have demonstrated an error in law on the part of the tribunal in respect of the mobility component. 

 

10. The findings in fact in respect of the care component are to be found in paragraph 3 of the statement and also in paragraph 6. I have quoted part of paragraph 3 in paragraph 4 of this decision above. The tribunal went on to say:

 

“[The claimant] is under monthly hospital care and at the time of the decision daily district nurse treatment.  From January 2009 to April 2010 the district nurse had given daily treatment, from April 2010 this had reduced to 4 times a week.  The dressing takes 30 – 50 minutes a day depending on whether the ulcers are bleeding or infected.”

 

In paragraph 6 the tribunal find:

 

“The leg ulcers are chronic, painful and limiting but at the time of the GP report were noted to be “healing”.  The GP had last seen [the claimant] on 21/12/2009.

…..

His upper limbs have full function and there is no evidence of any problem with the back.

 

[The claimant’s] ability to self care is limited but generally he is found to be able to attend to his personal care needs provided he takes his time.

 

He lives alone.  He has a downstairs and upstairs toilet and at the time of the decision preferred to sleep downstairs rather than go upstairs.

 

He has regular help and support from his sister, […].   Much of what she is doing is providing help with domestic tasks like cleaning, shopping, ironing and escorting to hospital (document 8).  She will also be providing company and reassurance.

The regular care given by the district nurse cannot be counted for the purposes of assessing care needs for Disability Living Allowance.

 

It is reasonable that [the claimant] should have care and attention to help wash his feet.  Otherwise he can strip wash himself sitting in a chair.  He is not able to have a bath or shower as he has to keep his leg dressings dry.  The time taken by another person to attend to his feet would be a few minutes only at the beginning or end of the day.

 

[The claimant] sensibly uses a urinal at night.  There is no reason why he could not empty this himself.  Even if it were emptied by another the time taken would only be a couple of minutes.

 

He can attend to his own toilet needs (document 20).  He is found to be able to rise from a seat of a suitable height and also to be able to balance and stand long enough to pull on his lower clothing.  Sometimes it would be reasonable to have help putting on socks and shoes but generally he should be able to manage this himself.  There is no evidence of his back being compromised so that he is  unable to bend.”

 

11. In giving reasons for their decision:

 

“18. As far as care is concerned, [the claimant] clearly has a lot of attention from his sister.  Some of this is for domestic tasks and escorting to hospital which cannot be counted.  Some is to provide meals.  However [the claimant] accepts that he can sit to prepare meals (document 30) and even with a crutch the tribunal would expect him to be able to manage to deal with small pans and dishes for one.

 

19. The regular care given by the district nurse cannot be counted in looking how much attention [the claimant] needs from another person as that is nursing care not personal care.

 

20. It would be reasonable to him to have some help as found above in paragraph 6 but this care would not take sufficient time to satisfy the requirement for a significant portion of the day.

 

21. It is also reasonable that he has some encouragement as he lacks motivation but that would not need to be personal attention as it could be given over the phone and would again not amount to sufficient time (even added to the above) to satisfy the care requirements.”

 

12. It is apparent from these findings that if nursing care was not included within the claimant’s reasonable requirement for attention then the claimant could not be said to satisfy the conditions for the allowance.   Even if it was included it would seem to me that the extent of that care could properly be said to be outwith the parameters of a requirement for a significant portion of the day, particularly after  the care was reduced to four times per week.  However the crucial finding is that contained in paragraph 19 which excludes the care given by the district nurse from being within the attention required though the tribunal do not dispute the requirement for such care. 

 

13. There is I think a significant difference between a close personal service which substitutes for what a bodily function would do if it were not totally or partially impaired and specialised medical treatment required in order to heal the underlying condition. The findings in fact do not disclose that the claimant is physically incapable of reaching the ulcers on his legs in order to dress them.  In fact the physical restrictions found by the tribunal only prevent him from attending to his feet and putting on his socks and shoes.  What he is receiving from the District Nurse is, as the tribunal found, treatment which involves skilled medical care which it is nowhere suggested the claimant or his sister, who gives him regular help and support, have the requisite medical skills to carry out. Thus, although the tribunal have not set out why nursing care is not encompassed within the parameters of the regulations I consider that they reached the correct conclusion thereon and did not err in law in doing so. I do not accept as is submitted by the Secretary of State that express statutory provision is required for the purposes of “the exclusion” of what he calls “the double provision of State assistance for the same contingency”.  The examples he gives to support that proposition do not assist his argument.  Regulations 8 and 9 of the Social Security Disability Living Allowance Regulations 1991 are concerned with the payability of the allowance not entitlement to it.  Thus the provisions are related to persons who satisfy the attention or supervision conditions for the allowance and are entitled to it but who by virtue of being hospitalised or in a care home with support from public funds, are not to be paid it.  The provisions contained in Regulation 7, relating to Renal Dialysis, are ones whereby the requirements of section 72(1)(b) and (c) of the Social Security Contributions and Benefits Act are treated as being satisfied if certain circumstances apply. These provisions are specifically related to renal dialysis and cannot be used to support the proposition advanced by the Secretary of State. They bring a claimant within the compass of the allowance in certain circumstances when due to the conditions for it he otherwise would not.

 

14. I  consider  contrary  to  what  is  said  in  paragraph 6(5) of  the Secretary of State’s submission that there is a substantial difference between skilled medical care provided for the claimant at his home and attention provided by others, which I sought to explain in paragraph 13, is of an entirely different nature.  The first is a service provided under the National Health Service through public funds.  The second may give rise to an entitlement to the benefit on the basis of being sufficient on its own or with other requirements to satisfy the attention condition of the allowance.  I consider that it would be wrong for the statutory intention of the allowance to be construed in such a way that double provision were made.  In these circumstances I am not satisfied that the Secretary of State has demonstrated any error in law on the part of the tribunal.

 

 

 

 

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 31 May 2012