Upper Tribunal (Administrative Appeals Chamber)

 

 

DECISION OF THE UPPER TRIBUNAL

 

 

The appointee’s appeal is allowed.

The decision of the Kilmarnock First-tier Tribunal of 20 January 2012 is set aside.

The case is remitted to the First-tier Tribunal for redetermination by a freshly constituted tribunal in accordance with the reasons given below.

 

REASONS  FOR  DECISION

 

 

Introduction

1.           This is an appeal from a decision of the First-tier Tribunal (the FtT) sitting at Kilmarnock dismissing the appeal brought by the appointee of a child (the child), who is 10.  The appointee is his mother.  The subject matter of the appeal to the FtT was a decision of a decision maker in the Department for Work and Pensions (DWP) that the child was not entitled to either the care or mobility components of the Disability Living Allowance (DLA) and, by dismissing the appeal, the FtT upheld that decision.

2.               In the claim form “the child’s illnesses or disabilities” are described as “Dyslexia (possibly Dyspraxia) Meares Irlen syndrome”.  The FtT accepted that he suffers from dyslexia and that syndrome which is a form of visual stress that leads to difficulties with fine visual tasks such as reading.

3.           Permission to appeal, without reasons, was given by a district judge of the FtT (who did not sit on the hearing of the appeal) and, at an early stage of the appeal to the Upper Tribunal (the UT(AAC)), the DWP accepted that the appeal should be allowed on the basis that it accepted that the FtT did not make sufficient findings of fact.  In making this submission, the DWP referred to and cited from a decision of Commissioner Jupp (as she then was) (“Judge Jupp”) (CDLA/1983/2006).

 

4.               We agree that the FtT did fail to make sufficient findings of fact and so to properly reason their conclusion from such findings.  However, we would like to express some sympathy for the FtT because the DWP was not represented at the hearing of the appeal, the child and his mother were represented by a lay person and it seems that the attention of the FtT was not drawn to relevant authorities, or to the factual and analytical bases for the DWP’s decision.  However, we add that, in our view , the FtT also failed to provide adequate reasons for their effective rejection of the mother’s evidence relating to the attention given to and in her view required by her son, and their acceptance of a report from his school.

5.            Upper Tribunal Judge May QC (“Judge May”) directed that there should be an oral hearing of the appeal because he wanted to be addressed on two cases that he had decided (CDLA/427/2006 and CDLA/2349/2010). The reason for this was that, as he points out, it is clear that his view on the application of the relevant statutory provisions in a case of this type differs from that of Judge Jupp  in CDLA/1983/2006, the case referred to by the DWP.

6.           That difference is significant and creates difficulties for claimants, decision makers on behalf of the DWP and FtTs in respect of cases of this type.  Notwithstanding that it was agreed by the parties that the appeal should be allowed and the case remitted, a three judge panel was appointed because of that conflict of decisions, the unlikelihood that the parties would have a common view on the correct application of the relevant statutory provisions by the newly constituted FtT (which proved to be the case) and the need to give guidance in this case (and more generally to claimants, the DWP and FtTs in similar cases) on the correct approach to be taken at law to fact finding and the application of the relevant statutory provisions.

7.           At the hearing before us, the child and his mother had the same lay representation but the DWP instructed counsel who helpfully in writing and orally drew our attention (and that of the claimant’s representative) to relevant cases.

The relevant statutory provisions on entitlement to DLA

8.           It is of course necessary for all decision makers (at whatever level) to apply these provisions.  In doing so it is trite law that they must have regard to and apply the wording of the statute. The guidance given by the Upper Tribunal and the higher courts on the meaning and effect of the statutory words is relevant to the approach to be taken to the application of the statutory language in  the circumstances of the relevant case, but decision makers must take care not to substitute such explanations for the actual words of the statute.

9.           Sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 (the SSCBA) govern DLA.  For the purposes of this judgment the most relevant provisions are:

71.— Disability living allowance.

 

(1) Disability living allowance shall consist of a care component and a mobility component.

 

72.— The care component.

 

(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

(a) he is so severely disabled physically or mentally that—

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii)

(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

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(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; or

(ii)

 

(1A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) has effect subject to the following modifications–

(a) the condition mentioned in subsection (1)(a)(ii) shall not apply, and

(b) none of the other conditions mentioned in subsection (1) shall be taken to be satisfied unless–

(i) he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii) he has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.

 

(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

(a) throughout—

(i) the period of 3 months immediately preceding the date on which the award of that component would begin; or

(ii) such other period of 3 months as may be prescribed,

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

(b) he is likely to continue to satisfy one or other of those conditions throughout—

(i) the period of 6 months beginning with that date; or

(ii)

 

(3) Three weekly rates of the care component shall be prescribed.

 

(4) The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be—

(a) the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;

(b) the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and

(c) the lowest rate in any other case.

 

 (7) Subject to subsection (5) above, circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy such of the conditions mentioned in subsection (1)(a) to (c) above as may be prescribed.

 

 (8) Regulations may provide that no amount in respect of a disability living allowance which is attributable to entitlement to the care component shall be payable in respect of a person for a period when he is a resident of a care home in circumstances in which any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment.

 

73.— The mobility component.

 

(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(ab) he falls within subsection (1AB) below; or

(b) he does not fall within that subsection but does fall within subsection (2) below; or

(c) he falls within subsection (3) below; or

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

 

(1A)

 

(1AB) A person falls within this subsection if—

(a) he has such severe visual impairment as may be prescribed; and

(b) he satisfies such other conditions as may be prescribed.

 

(2) A person falls within this subsection if—

(a) he is both blind and deaf; and

(b) he satisfies such other conditions as may be prescribed.

 

(3) A person falls within this subsection if—

(a) he is severely mentally impaired; and

(b) he displays severe behavioural problems; and

(c) he satisfies both the conditions mentioned in section 72(1)(b) and (c) above.

 

(4A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) has effect subject to the modification that the condition mentioned in paragraph (d) shall not be taken to be satisfied unless–

(a) he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require, or

(b) persons of his age in normal physical and mental health would not require such guidance or supervision.

 

(5) Circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a) or (d) or subsection (2)(a) above.

 

(5A) Subsection (4A) has effect subject to regulations made under subsection (5) (except as otherwise prescribed).

 

(6) Regulations shall specify the cases which fall within subsection (3)(a) and (b) above.

 

(7) A person who is to be taken for the purposes of section 72 above to satisfy or not to satisfy a condition mentioned in subsection (1)(b) or (c) of that section is to be taken to satisfy or not to satisfy it for the purposes of subsection (3)(c) above.

 

(8) A person shall not be entitled to the mobility component for a period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.

 

(9) A person shall not be entitled to the mobility component of a disability living allowance unless—

(a) throughout—

(i) the period of 3 months immediately preceding the date on which the award of that component would begin; or

(ii) such other period of 3 months as may be prescribed,

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1) (a) to (d) above; and

(b) he is likely to continue to satisfy one or other of those conditions throughout—

(i) the period of 6 months beginning with that date; or

(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

 

(9A) The modifications mentioned in subsection (4A) shall have effect in relation to the application of subsection (1) for the purposes of subsection (9), but only–

(a) in the case of a person who is under the age of 16 on the date on which the award of the mobility component would begin, and

(b) in relation to so much of any period mentioned in subsection (9) as falls before the day on which he reaches the age of 16.

 

(10) Two weekly rates of the mobility component shall be prescribed.

 

(11) The weekly rate of the mobility component payable to a person for each week in the period for which he is awarded that component shall be—

(a) the higher rate, if he falls within subsection (9) above by virtue of having satisfied or being likely to satisfy one or other of the conditions mentioned in subsection (1)(a), (ab),(b) and (c), above throughout both the period mentioned in paragraph (a) of subsection (9) above and that mentioned in paragraph (b) of that subsection; and

(b) the lower rate in any other case.”

 

The statutory tests

10.        The statutory tests contain words of degree, and so chameleon words that take colour from their context and so, in particular, the descriptions contained therein.  Those descriptions provide internal links that give guidance on the meaning and effect of the consequential, qualitative, quantitative and in the case of s. 73(1)(a) causative elements of the statutory tests.

11.        The overall approach to the meaning and application of these sections was summarized, by a Tribunal of Commissioners, in R(DLA) 6/06 at paragraphs 13 and 14, by reference to R(DLA) 3/06 and R(DLA) 4/06 as follows:

The correct approach to the legislation

13. The approach to “disablement” for the purposes of sections 72 and 73 was recently considered in the Tribunal of Commissioners’ decision CDLA/1721/2004 (now reported as R(DLA) 3/06), particularly at paragraphs 33 and following. In that decision, in summary, the Commissioners identified the following propositions:

(i) DLA is a benefit for people who are so disabled that they need help to cope with their disability. The purpose of the benefit is to assist with the reasonable care and mobility requirements that result from disability.

(ii) “Disability” is distinct from “medical condition”, “disability” being entirely concerned with a deficiency in functional ability, ie a physical or mental ability to do things. Whilst a medical condition may give rise to a disability (eg a condition that involves the loss of a limb would give rise to an obvious diminution in functional capacity), it may not do so (eg a life threatening but asymptomatic heart condition may not have any adverse impact on one’s ability to care for oneself or be mobile without assistance). Sections 72 and 73 are entirely focused on disability.

(iii) However, the statutory provisions impose a number of limitations. First, the claimant must be disabled, ie have some functional incapacity or impairment. He must lack the physical or mental power to perform or control the relevant function. Second, even where there is a functional incapacity, that alone is insufficient for entitlement to benefit – for the purposes of sections 72 and 73(1)(d), the disability must be severe ie the disability must be such that it results in the claimant requiring the degree of assistance identified in the legislation (eg under section 72(1)(a)(i), the claimant must require attention for a significant portion of the day).

(iv) The Commissioners conclude (at paragraph 42) that sections 72(1) and 73(1)(d) give rise to two issues. (i) Does the claimant have a disability, ie does he have a functional deficiency? (ii) If so, do the care or mobility needs to which that functional deficiency gives rise satisfy any of paragraphs (i) or (ii) of section 72(1)(a) to (c) (and, if so, which) or (for the lower rate of the mobility component) section 73(1)(d)?

14. For the reasons set out in another recent Tribunal of Commissioners’ decision (CDLA/2879/2004, now reported as R(DLA) 4/06), section 73(1)(a) gives rise to some different issues. To satisfy the requirements for higher rate mobility component, it is necessary for a claimant to show that his symptoms or manifestations (even if physical themselves) have an identifiable physical cause. This is the only exception to the principle that the focus of the relevant statutory provisions is upon the consequences of a condition, not its cause, this exception resulting from the binding effect of the Court of Appeal decision in Harrison v Secretary of State for Social Services (reported as an Appendix to R(M) 1/88).

 

12.        We gratefully adopt that summary.  As it demonstrates, the statutory tests give rise to two main issues, but they can, and regularly do, give rise to sub-issues that require a person or tribunal charged with applying the statutory tests to consider whether a number of interconnecting factors exist.  In carrying out that task the decision maker has to consider all the relevant circumstances of the case. The first decision maker is a person acting on behalf of the Secretary of State.  He cannot make binding findings of fact, and so has to form a view on the facts by reference to the material provided to him. If that decision is appealed to the FtT, that tribunal has to base its decision on its findings of fact which must have a proper evidential base. This means that firstly a number of primary facts need to be found by the FtT and then that any further findings of fact are properly reasoned from those findings. 

13.        Naturally, every decision maker applying the statutory tests then has to consider whether the facts that he has identified or found satisfy those tests and therefore has to consider why they do so. This is a reasoning process based on the foundation of the facts identified or found.

14.            This fact finding and reasoning is at the heart of the task of the FtT.

15.        In many cases, and this is one, the existence of the consequences set out in s. 72(1) (a) to (c) and 73(1)(d), and so the facts that establish them, is at the core of a properly reasoned application of the statutory tests.  Their existence, nature and effect are an essential factor in determining whether the relevant person is disabled physically or mentally in a way that leads to the results / consequences set out in the subsections, and thus the existence of a qualifying functional deficiency. 

16.            Those results / consequences are themselves defined.

17.        Care component.  For the purposes of the care component the results / consequences must comprise attention that is required in connection with the relevant persons bodily functions, for the period specified in the subsections.

18.        The analysis, fact finding and reasoning process of a decision maker applying the statutory tests could start and build from a number of the factors referred to in them.

19.        We are of the view that a good starting point will often be for the decision  maker to remind himself of the following points concerning the terms used in the statutory tests:

i)                 “So severely”.  This is gauged by reference to whether the degree of assistance identified in the legislation exists (e.g. under section 72(1)(a)(i), the claimant must require attention for a significant portion of the day)  (see R(DLA) 6/06 cited above and R(DLA) 3/06 at paragraph 41).

ii)               “Disabled physically or mentally”.  This requires that that the claimant has a functional disability or impairment in the sense of a restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human (see R(DLA) 6/06 cited above and R(DLA) 3/06 at paragraphs 34, 35 and 39).

iii)              “Requires”.  This is used in the sense of what the claimant reasonably requires to enable him to cope with his disability (see R(DLA) 1/07 at paragraph 37 and Reg v National Insurance Commissioner, ex parte S of S for Social Services (“Packer’s case”) [1981] 1 WLR 1017 at 1022).

 

iv)              “Bodily function”.  This is used in the sense that it describes the normal functions of any organs or set of organs of the body including the brain (see Cockburn v Chief Adjudication Officer and S of S for Social Security v Fairey R(A) 2/98 and [1997] 1 WLR 799 in particular at 813, where Lord Slynn is expressing the view and reasoning of the majority (he dissented on something else), and R(DLA) 1/07 at paragraphs 13 to 17).  The relevant discrete bodily functions must be identified with sufficient clarity so that the care or support needs (and thus the attention) can be identified and linked to the relevant functional disability, in the sense that it is a consequence of that functional disability.  This may mean that an activity has to be “unbundled” to identify the relevant bodily functions that it engages or involves (e.g. shopping, dressing and undressing may need to be unbundled) (see R(DLA) 1/07 at paragraphs 36 to 39).

v)               “Attention”.  This describes a close and intimate service from another and so something that involves personal, but not necessarily physical contact, in the presence of the disabled person (see Cockburn at pages 802F, 822F and 824D, and earlier Woodling v S of S for Social Services [1984] 1 WLR 348 per Lord Bridge at 352G and Mallinson v  S of S for Social Services [1994] 1 WLR 630 per Lord Woolf at 636C to 637E and R(A) 3/94 (HL).  In those passages, the House of Lords approve a passage from a judgment of Dunn LJ in Packer’s case [1981] 1 WLR 1017 where, at page 1023,  he says:

“I look first at the section without regard to authority. To my mind the word “functions” in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions. The word “attention” itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase “attention … in connection with … bodily functions” involves some service involving personal contact carried out in the presence of the disabled person.”

20.        If, as here, the Claimant is under 16 the decision maker has to go on to consider the impact of s. 72(1A) which introduces comparisons by reference to the concept that the claimant child must have requirements that are substantially higher than, or different to,  a child of his age. 

21.        We heard no submissions on the approach to be taken to the application of the comparisons set by s. 72(1A). There is a useful commentary on that provision in the notes to s. 72 in Volume 1 of the Sweet and Maxwell Commentary of Social Security legislation In the absence of detailed argument, we confine ourselves to comments on the general approach to be taken to the application of the word “substantially” and “substantial”. As a matter of the common use of language these words can have a range of meaning.  In a very different context, the meaning of “substantial” was the subject of Reg v MMC ep SYT [1993] 1 WLR 2 (House of Lords) and [1992] 1 WLR 291 (Court of Appeal) and that case confirms that it has been the subject, in other different contexts, of decisions of the courts and as Lord Mustill says at [1993] 1 WLR 29C:

“The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision ”

The citation at [1992] 1 WLR 299 C/E from the speech of Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, 1171 also gives general guidance.  He said:

“ It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look at examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved, admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament”

22.        Unlike the use of the words “so severely” in s. 72(1) there is no internal express linkage to a level or standard to gauge what is “substantial”.  So, it seems to us that the decision maker should take the approach set out in the speech of Lord Upjohn (cited above) to the facts of the given case on the basis that the comparisons set by s. 72(1A) recognise that all children by reason of their age and immaturity require personal attention and the mischief to which this provision is directed, is to require that the differences they identify are of such a degree that they warrant an award of DLA.  In our view, this means that:

i)                 “substantial” and “substantially” are not being used in the sense of “not unsubstantial” or “more than minor or trivial”,

ii)               the purpose of the comparison is to ensure that the entitlement to an award is based on:

a)               attention to the child that satisfies the tests set by s. 72(1) and is therefore the consequence of a functional disability,  and falls within the “description mentioned in the [relevant] condition” of s. 72(1) (see s.72(1A)(b)(i) and (ii)), and so

is not based on

b)               attention that would be given to a child of the same age who is normal in the sense that he does not suffer from a functional disability,  and

 

iii)               it is unlikely that a case can be decided simply by reference to the comparisons set out in s. 72(1A).  But, there may be cases in which after either (a) the identification of the bedrock of primary fact, or (b) on the hypothesis that the claimant establishes all the facts upon which he or she relies, the comparisons set by s. 72(1A) render further close analysis of s 72(1) unnecessary.

Point (ii) links the comparison for a person under 16 to the entitlement for others and thus the degree of disablement required to obtain an award on the basis that the claimant is “so severely disabled physically or mentally” that he has the defined requirements.

23.        In light of the conclusions he has reached, the decision maker then has to determine the rate of the care component pursuant to s. 72(4).

24.        The mobility component. As stated in the citation from R(DLA) 6/06 above s. 71(1)(a) gives rise to an additional causal requirement, namely that it has to be shown that the inability or virtual inability to walk has a physical cause.  The other bases for the higher rate introduce a consideration of prescribed conditions (see ss. (1A) and (2)) and ss. (3) relates back to s. 72(1)(b) and (c) and therefore also the comparisons in s. 72(1A).

25.        Section 73(1)(d), together with the limitation based on the comparisons in s. 73(4A), provide an effectively self contained test for the lower rate of the mobility component.

26.        In the light of the conclusions he has reached the decision maker has to apply s. 73(8) and (9) and if those provisions are satisfied determine the rate of the mobility component applying s. 73(11). 

 

The two decisions of UT Judge May - CDLA/427/2006 and CDLA/2349/2010

27.            In the first decision, (CDLA/427/2006)  he said:

“8. Further, the proposition the Commissioner appears to have endorsed by reference to CDLA/1420/204 is not one I can accept. It does not seem to me that interpretation of writing has anything to do with the bodily function of seeing. I can, for example, see Japanese or Arabic script but I cannot interpret it because I have never learned it. Every child initially can see writing but cannot interpret it.  The interpretation is learned through education. For someone with dyslexia the education process is more complex and difficult but it is simply education nonetheless. Thus the premise on which both Commissioners proceeded is flawed. ---------

9. I should perhaps add that in my view educational provision in school is on any view outwith the scope of the statutory provisions. The cost of disability living allowance is derived from public funds as is the educational provision that the claimant enjoys. The cost of such educational provision will encompass such special measures as are needed to meet the educational requirements of the claimant. To encompass educational provision within the scope of the attention would, in these circumstances, result in the public purse paying twice for the same thing. That cannot be what Parliament intended. Disability living allowance is not a form of publicly funded compensation for being disabled. It is a recognition of the additional cost of care for those who are disabled. When taken in that context it can be seen that additional educational requirements for the purpose of learning to read and write are of an entirely different nature to attention in connection with an impaired bodily function. It fortifies the view which I have taken in paragraph 8. ”

28.            In the second decision, (CDLA/2349/2010) he said:

“12. It is apparent from these findings that if nursing care was not included within the claimant's reasonable requirement for attention 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 did 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 bloody 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 of 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 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 Allowed 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 and 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 Regulations 7, relating to Renal Dialysis, are ones whereby the requirements of section 72 (1)(b) and (c) of the Social Security Contributions and Benefit 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 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.”

 

29.            These passages give rise to three issues:

i)                 Whether the public funding of some of the attention reasonably required is relevant to entitlement?

ii)               The approach to be taken to specialised medical treatment.

iii)              The approach to be taken to a child with dyslexia.

Issues (i) and (iii) are directly relevant to this appeal.

30.        Entitlement / payability.  Judge May takes a purposive approach by reference to his view on the intention of Parliament and this view receives some support from what Lord Bridge said at 352E in Wooding, namely:

“ Again, it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution ”

31.        However, we agree with the DWP that Judge May’s view is incorrect and that his reasoning concerning the Social Security Disability Living Allowance Regulations 1991 (the 1991 Regulations) Regulations 8-9 is flawed.  It is correct, as he says, that these provisions relate to “payability” and not “entitlement” but, in our view, this and the statutory powers under which they are made (s. 72(8) SSCBA in relation to the care component of DLA, s. 67 SSCBA in relation to the continuing attendance allowance for persons 65 years or over and s. 73(13) SSCBA in relation to the mobility component of DLA) provide a clear and compelling argument in favour of the conclusions we reach that:

i)                  Parliament recognised that some of the attention, care or assistance that falls to be taken into account in determining whether a person meets the criteria for entitlement may be funded by the public purse and so it enacted the statutory powers to provide that, through regulations, a double payment from public funds would, in the circumstances set out in such regulations, be precluded, and so

ii)               Parliament did not intend that, of itself, and so without relevant regulations or other statutory provision being made, that publicly funded relevant attention, care or assistance should be discounted when entitlement is being determined.

32.        In our view, these conclusions are also supported by the following considerations:

i)                 the legislation does not contain any provision that pragmatically or legally requires the benefit to be used to pay for the relevant attention care or assistance, or for it to be paid to the person or persons who are providing it (either for payment or free of charge), and

ii)               by reference to the passage cited from the speech of Lord Bridge, experience indicates that many people who qualify for the benefits will not have families or friends who can perform the tasks to which he refers, and so, in many cases, those tasks will fall on local authorities or some other  publicly funded body,

iii)              point (ii) shows that, if Parliament had intended that, of itself, double access to public funds was to be taken into account in determining “entitlement”, it would have so provided,

iv)              the combination of points (i) and (ii) demonstrates how difficult it would be to make any such provisions,

v)               by s. 72(7) and s. 73(5) Parliament has provided a statutory route to providing either that publicly funded attention generally or some publicly funded attention do not satisfy the statutory conditions for entitlement, but has not done so.

33.        Medical treatment.  This is not directly relevant to this decision and, given the fact specific nature of the application of the entitlement to DLA, we confine ourselves to general remarks. 

34.        In our view, the breadth of the approach taken by Judge May does not fit with the correct approach to the application of the statutory criteria for entitlement that we have set out above.  In CDLA/2349/2010 (cited above), this is demonstrated by the points that:

i)                  the ulcers were not a consequence of the relevant disability, and

ii)               the relevant disability did not prevent the claimant from reaching the ulcers and, so by reference to what Lord Slynn said in Cockburn at 813E, the treatment of the ulcers was not provided to remove or reduce the relevant disability, to enable the relevant bodily function to operate or to provide a substitute for it.

35.        So, we do not dispute the point made in the first sentence of paragraph 13 in CDLA/2349/2010 (cited above) but are of the view that it triggers further analysis by reference to the purpose and intended effect of the medical treatment, or of “unbundled parts” of it, to see whether, in all the circumstances of the case, the linkage between the relevant disability and those aspects of the medical treatment (and so the attention relied on) is established.

36.        Dyslexia / education.  On this Judge May is at odds with the approach of Judge Jupp in CDLA/1983/2006.  After discussing earlier cases, Judge Jupp said (with our emphases):

“16. As it happened, almost immediately thereafter another Commissioner gave a decision in CDLA/3204/2006, a case also involving a girl with dyslexia, in which he also considered what I may call the ‘traditional’ approach of describing dyslexia as linked to the bodily function of seeing, identifying four stages in the process of seeing, of which the last, that of interpretation, may be appropriate to dyslexia – that is, the dyslexic person sees, but cannot interpret, the information. He said:

 

“16. It is usual to identify the bodily function as that of seeing, sight or vision: see Mr Commissioner Mesher in CDLA/1420/2004 at paragraph 11. We speak of seeing as a composite activity. I say that I can ‘see’ what is on the computer screen as I type this decision. Everyone understands what that means, but it consists of a number of separate but related stages. My seeing the screen can be analysed into at least four stages; an impairment and a resulting disablement can occur at any of these stages. First, there is the reception stage. The light rays from the screen must penetrate into my eye and reach the retina. The light may be prevented from penetrating my eye, for example by a cataract. Or it may be prevented from focusing on my retina, for example by degeneration of the macula. Second, there is the transmission stage. The information received at the retina must be transmitted to my brain along the optic nerve. This may be disrupted, for example by damage to the nerve caused by glaucoma. Third, there is the construction stage. The information received by my brain has to be interpreted in order to create the image that I am seeing. As I understand it, sight always involves this interpretative process; the light rays detected by the retina always require the brain to interpret them to create the image that we see. The optic nerve does not simply transmit an image. It transmits information from which an image is constructed by the brain. Fourth, there is the interpretation stage. Once the information has registered as an image, the brain has to use that image. It cannot do so unless it can recognise the images as words with meanings individually and in the context of sentences. No doubt, this process of seeing the computer screen could be further subdivided. I may also have distinguished between stages that are not severable. For example, the processes of construction and interpretation may be more interwoven than my analysis allows.

 

 

17.  I believe that dyslexia operates at the fourth stage, although this must be subject to any evidence before the tribunal and the knowledge of the tribunal’s medically qualified panel member. I do not consider that it matters whether this is considered as part of the bodily function of seeing or part of the bodily function of the brain. What matters is substance, not labels. The tribunal must identify a bodily function in connection with which the claimant receives assistance through special attention at school, her attendance at the Dyslexia Institute, from her mother at home and anything else that the tribunal identifies from the evidence. The use of labels must not mislead the tribunal in that task”.

It follows that the Commissioner also disagreed with the comments made in paragraphs 8 and 9 of CSDLA/427/2006 set out above.

 

17. ----

 

18. I accept the Commissioner’s overall analysis in CDLA/3204/2006 and that, ultimately, it may not matter whether dyslexia is considered as part of the bodily function of seeing or alternatively as part of the bodily function of the brain and what matters is substance, not labels. In the light of R (DLA) 3/06, this must be so.  Provided a claimant is disabled physically or mentally, it is whether the extent of the disablement is such that the claimant reasonably requires assistance with a bodily function which is fundamental, not the existence of a diagnosis. Following CSDLA/133/2005 the functions of the brain are included within the term ‘bodily function’. Although I understand how case law has developed in which dyslexia has been considered to be a problem with the bodily function of seeing, nonetheless, on the basis of medical information currently available, the dyslexic (unless otherwise suffering from an independent sight problem), does not have difficulties with seeing, but the problem arises from the brain’s inability to process the written information which the eyes have seen. As I suggested in my Direction, the question which is then to be addressed is how disablement flows from the inability of a person with dyslexia to process written information to enable him or her to read and/or write (or deal with other difficulties which are also on occasion associated with dyslexia), what help is reasonably required to overcome that deficiency or those deficiencies and whether it is such as to satisfy the criteria for an award of any rate of the care component of disability living allowance.

 

19. Paragraph 17 of CDLA/3204/2006 identifies aspects which were relevant in that case, and some of which, certainly as to the help the claimant receives both at school and at home, will be relevant in this case. There may be others specific to this claimant.  The new tribunal must address whether the attention which the claimant reasonably requires as a result of her disablement is sufficiently intimate to amount to attention in connection with the bodily function of the brain. For example, in disability living allowance cases in respect of the care component, help required with housework is considered to be too remote to qualify as attention with a bodily function, whilst attention required with dressing and undressing is considered to be attention which may qualify, (subject to satisfaction of the other criteria for an award of disability living allowance) although the root cause of either difficulty may stem from disablement of an arm or hand. Depending on the facts of each case, attention given to assist a somewhat slow reader, whilst reasonably required, may be too remote, as being primarily concerned with education, but the teaching of basic reading and writing skills, where the attention is reasonably required because of a claimant’s dyslexia, may qualify as attention in connection with a bodily function, subject to the claimant satisfying the other criteria for an award provided in section 72(a) or (b) of the Social Security Contributions and Benefits Act 1992. Each tribunal will need to make appropriate findings of fact. 

 

20. The claimant and her representatives may wish to consider whether it would be helpful to obtain further detailed evidence on the extent of the attention reasonably required by the claimant in connection with her dyslexia and other problems at the date of the decision appealed against. 

 

21. The third ground of appeal is that the tribunal made inadequate findings of fact in connection with the lower rate of the mobility component, that is whether the claimant required guidance or supervision when walking on unfamiliar routes that was substantially in excess of the requirements of 14 year old children in normal physical and mental health. The Secretary of State’s representative submits, and overall I accept, that the tribunal limited its findings to how the claimant coped with travelling to school, a route with which she was familiar. The tribunal was understandably pleased to hear that the claimant had coped well with an untoward incident on her regular school journey, but its findings are not clear, at least to me, on whether it considered that she would be able to cope with travelling on unfamiliar routes without guidance or supervision, subject to the provisions of section 73(4) of the Social Security Contributions and Benefits Act 1992. As noted in paragraph 2 above, the original decision maker accepted that the claimant might not be able to read signs, but concluded that the claimant could ask for help if necessary. The tribunal made no finding on this point. The point was made at the tribunal hearing that the claimant preferred to travel with a friend, but the tribunal considered this to be within the bounds of normality for a 14 year old girl. I have no quarrel with that finding, but in my view the tribunal did not say clearly whether it considered it was simply the claimant’s preference or fundamental to her ability to use unfamiliar routes. The new tribunal which rehears the case should consider the extent to which the claimant would have been able to cope with routes which were unfamiliar to her at 16 November 2005, taking into account section 74(3). (nb this is a typing error and should be 73(4))

 

22. The new tribunal must conduct a hearing on the issues arising in connection with both components of disability living allowance. It must make and record full clear findings of fact on all necessary points with reasons for its acceptance of the evidence which is preferred and for the rejection of the other evidence. It should not apply CSDLA/427/2006. That decision is dated only one week after the decision in CSDLA/133/2005 was given and the Commissioner in CSDLA/427/2006 made no reference to it.

 

23. The new tribunal must not take account of circumstances which did not obtain at the date of the decision appealed against, but must take account of any evidence which came into existence after that date but which relates to circumstances as at that date. If the claimant is minded to submit further evidence, she will appreciate that this must relate to the extent of her disablement at 16 November 2005, and not at the date of any report given.

 

24. In connection with the care component, the parties will appreciate that notwithstanding that it is now established that functions of the brain are included within the terms “bodily functions”, and dyslexia is a problem with the functions of the brain, not with seeing, this claimant, as any other, must establish that such problems as she had at the date of the decision appealed against gave rise to a reasonable requirement for attention with her bodily functions to such an extent that she falls within any of the provisions of sections 72 of the Social Security Contributions and Benefits Act 1992, and/or in connection with her mobility within section 73 of the Act. ”

 

 

37.        We would like to pay tribute to the passage cited by Judge Jupp from the decision of Mr Commissioner Mesher (as he then was) and to her own analysis.  We agree with them and, as appears later we endorse her view that it is of central importance for the FtT to make full and clear findings of fact and apply them to the statutory tests.

38.        In our view, the approach of Judge May in paragraph 8 of CDLA/427/2006 to education is incorrect because it fails to unbundle that activity and thereby to identify the “bodily functions” it engages, or that are involved in it.  It follows that, in our view, his approach should not be followed and that of Judge Jupp should.

39.        It is apparent from the approach of Judge Jupp, that the decision maker and the FtT have to carry out a detailed task that includes a number of assessments / findings of fact and value judgments.  During the hearing we raised with the DWP (a) whether it had any internal guidance that was used by its decision makers, (b) whether it had information on the number of awards made in respect of children with dyslexia, (c) whether it could give us examples of factors that would merit an award of DLA,  or of cases in which DLA would and would not be awarded, to a child who suffered from dyslexia, as a guide to the application of the judgmental exercise involved in applying the statutory tests, and (d) what, if any, submissions they wished to make on any guidance that we might give to decision makers at the DWP in respect of the making their decisions and the giving of their reasons for them.

40.        After the hearing, we were informed that: (a) there was no such guidance or a prescriptive list of issues and that, as indicated by the DWP intranet regarding DLA, decision makers were referred to an NHS website (www.nhs.uk/conditions/dyslexia/Pages/Introduction.aspx) and advised to contact Medical Services should they require assistance, (b) they did not have information on the number of awards made, and (c) they could not provide the examples referred to.  We were also referred to some authority on the detail of reasoning that was required, and to ss. 8 to 10 of the Social Security Act 1998 and the FtT Tribunal Rules in the context of the need to make decisions promptly, fairly and justly, and we were told that the DWP would take note of any guidance given by us but did not wish to make any further submission on its content.

41.        We have concluded that we should not attempt to give guidance by describing or defining circumstances in which an award of DLA should (or should probably) be made to a dyslexic child and when it should (or probably should) not be made.  A major reason for this is that such claims are fact specific and so, as we have explained, they should be decided on the basis of focused and specific assessments or findings of fact and the application to them of the relevant statutory provisions.

42.        We therefore focus our further comments on issues relating to the approach to be taken by decision makers to the application of the statute in cases such as this and thus the decision making process.

 

The decision making process

43.        It seems to us that in many cases, having reminded himself of the matters mentioned in paragraphs 10 to 25, it would be appropriate for the decision maker to next identify, in general terms, the relevant physical or mental disability. In many cases that will be obvious or agreed.  If this is not the case disputes as to its existence will require to be resolved by an examination of its alleged consequences.

44.        Dyslexia.  We agree with Judge Jupp (and Judge Mesher) that in the case of dyslexia the label is likely to be unimportant and that, in the absence of contrary medical evidence, a person with dyslexia has a functional or mental disability or impairment, in the sense of a restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human.  This case provides a good example of the point that it is unlikely to matter whether the generic description dyslexia is considered as part of the bodily function of seeing or of the brain (and so processing / interpretation).  This is because the claimant also has a diagnosis of a syndrome that leads to difficulties with fine visual tasks and the attribution of relevant consequences between that and the functioning of his brain would be a fruitless task, even if it was possible. 

45.        So, as Judge Jupp pointed out, an essential question to be addressed is what flows from, and so is the consequence of, the dyslexia (and any other relevant syndrome) and thus the relevant functional disability or impairment (i.e. the physical or mental disability).

46.        Care component.  It seems to us that, in many cases, the next sensible step in the decision making process would be for the decision maker to identify (and so in the case of the FtT to make findings on) the assistance from other people that is relied on to satisfy, or which arguably might satisfy, the statutory tests set by s. 72(1). What that assistance is will vary from case to case and will be fact specific.

47.        This fact finding exercise can be, and in our view generally should be, carried out in isolation from the value judgements that have to be applied to those findings.  It identifies and particularises, by reference to primary facts, the actions and steps for the benefit of the claimant (and thus the person who claims to be suffering from a functional disability) that are relied on to found the entitlement to the care component of DLA.

48.        Once that is done, the list of the activities comprising the assistance relied on will form the factual foundation or platform for the consideration of the following issues:

i)                 the bodily function or functions it relates to, which will include the issue whether a generically described activity (e.g. shopping or education) should be unbundled or broken down into the relevant bodily functions that it engages of involves,

ii)               whether the assistance has a sufficiently intimate and personal quality to qualify as “attention” in the statutory sense

iii)              whether the attention is a consequence of the relevant functional disability, which involves considering whether and so why each aspect of the attention is reasonably required as a consequence of the existence of the functional disability.  In our view, a “but for” test (i.e. but for the existence of the functional disability would the relevant attention be reasonably required) will generally assist to test whether the relevant consequential link exists between the attention and the functional disability,

 

 

iv)              whether the attention so identified satisfies the quantitative requirements of the statutory tests, and

v)               if the claimant is under 16, the nature and extent of his requirements “within the [relevant] description mentioned” in s. 72(1), (see s. 72(1A).

49.        In other words, in most cases, this bedrock of primary fact will form a vital and firm foundation for the analysis of the existence and consequences of the functional disabilities relied on, and of the qualitative and quantitative aspects of the statutory tests.  From it:

i)                 the bodily functions to which the attention relates can be identified,

ii)               the link between them (and thus the relevant attention) and the relevant functional disability can be identified,

iii)              the intimate quality of each aspect of the assistance can be assessed,

iv)              the period or periods for which the attention is reasonably required can be assessed, and

v)               in the case of a claimant under 16 the relevant comparisons can be made.

50.            Broadly these steps involve asking and answering the following questions:

i)                 What are the constituent parts of the assistance relied on and who gives it?

ii)               Which parts of it are of a sufficiently intimate and personal nature to qualify as “attention”

iii)              Why is it reasonably required, and thus what is it directed to and what is it a consequence of?

iv)              How often and when is it given?

v)               If the claimant is under 16, how do the claimant’s requirements, and thus the attention given to him that is within s. 72(1) and has been identified by the above process, compare with the normal requirements of persons of his age?

51.        This approach focuses on all of the assistance relied on and thus that given to a child at home and at school.  It seems to us, that generally this overview will assist in an assessment of the comparison required by s. 72(1A) because:

i)                 it will assist in the identification of the degree and nature of the additional attention and help reasonably required by the claimant child throughout the day and night, and thereby inform why that additional attention is reasonably required both at school and at home, over and above the education and pastoral care that would be given to a child of the same age who does not have a functional disability, and

ii)               it will inform the analysis referred to by Judge Jupp (paragraph 19) and Judge May (paragraph 9) of whether the attention and help is properly classified (a) as within the education and pastoral care normally given to a child of his age, or (b) as outside that and directed to the consequences of the functional disability (dyslexia) and has the necessary intimate or personal quality to meet the description of the relevant condition set out in s. 72(1). 

 

We consider that it is likely that in a number of cases relating to children with dyslexia the statutory comparison will particularly focus on the attention which is the consequence of the dyslexia rather than the age and maturity of the child.

52.        In some, but we suspect in only a limited number, of cases this part of the decision making process may lead back to a need to examine more closely the nature and effect of the relevant functional disability.  And, in most if not all cases, it would be sensible to stand back at the end of this decision making process and check whether all the constituent parts of the statutory tests have been considered and given appropriate weight in the application of the tests considered in the round.

53.        At the end the decision maker will have to determine the rate of the care component by applying s. 72(4).

54.        Mobility component.  In our view, an equivalent “fact finding” approach to that described above in respect of the care component will generally be appropriate.

55.        The statutory tests are in our view less complex than those relating to the care component.  As mentioned earlier, in our view s. 73(1)(d) (which was the basis of the claim here, and in CDLA/1983/2006) together with the comparison required by s. 73(4A) provide an effectively self contained test to which that fact finding process can be applied.

56.        In doing that, as Judge Jupp points out, the decision maker must identify (and so the FtT must make findings on) on whether the claimant can or cannot take advantage of the faculty of being able to walk out of doors without guidance or supervision from another person most of the time (disregarding any ability to use routes that are familiar to him).  This will involve a consideration of, for example, the claimant’s ability to read signs, his appreciation of risks and dangers, his sense of direction and his ability to return to a known and familiar place.

57.        The comments in respect of the comparison required by s. 72(1A) also apply, with appropriate modifications to take account of the differently worded comparison in s. 73(4A)(a) and (b), which is focused on s. 73(1)(d).

58.        The conclusions so reached will inform the application of ss. 73(8), (9) and (11) on payability and rate of payment.

The reasoning of DWP decision makers.

59.        On the approach we have taken, we confine ourselves to stating that, in our view, it would generally be helpful to claimants and FtTs if they set out succinctly (a) the facts they have accepted and applied, and thus assertions in support of the claim that they have rejected, and (b) from that factual base, the reasons for their decision.

Remission

60.        We remind the FtT that the onus of establishing the statutory criteria rests on the appointee, and of the points made by Judge Jupp in paragraphs 22 and 23 of her decision in CDLA/1983/2006 which apply here as they did there. 

(Signed)

Mr  Justice Charles

Signature

Date: 7 February 2013

 

 

(Signed)

Lady Stacey

Signature

Date: 8 February 2013

 

 

(Signed)

A J Gamble

Signature

Date: 8 February 2013