IN THE UPPER TRIBUNAL Case No  CDLA/3586/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE FORDHAM QC

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Sutton on 24 August 2011 under reference SC173/11/00760 involved the making of an error on a point of law. The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in the final paragraph of the Reasons below.

REASONS FOR DECISION

1.          On 18 April 2011 (page 63) the Secretary of State rejected the claimant’s claim for disability living allowance (DLA), as to (a) mobility component and (b) care component. On 24 August 2011 the tribunal gave its summary of reasons (page 108), and on 29 December 2011 its statement of reasons (page 110) for refusing the claimant’s appeal, after a hearing on 24 August 2011. This is the claimant’s appeal from the tribunal’s decision, with the permission of Judge Ward (page 196). The claimant has evidently not renewed the request for an oral hearing in relation to the substantive appeal, and no oral hearing of this appeal has been requested by the Secretary of State, and in any event I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without one.

Required “attention” and physical presence

2.          Section 72 of the Social Security Contributions and Benefits Act 1992 deals with the care component of DLA, using eligibility tests which include asking whether a person “requires … attention”. Specifically, two such questions ask whether the person “is so severely disabled physically or mentally that” (1) “he requires in connection with his bodily functions attention from another person for a significant portion of the day” or (2) “by day, he requires from another person … frequent attention throughout the day in connection with his bodily functions”. See section 72(1)(a)(i) and (b)(i).

3.          In case CDLA/1148/1997 (11 April 2000) Commissioner Goodman concluded (at §23) that guidance, supervision and encouragement given over the phone to an individual with mental health problems could constitute “attention” within the meaning of section 72 of the 1992 Act. That position was effectively reversed by the Secretary of State, acting pursuant to section 72(7) of the 1992 Act, in amending the Social Security (Disability Living Allowance) Regulations 1991 to add regulation 10C. That regulation, introduced on 25 September 2000 (SI 2000/2313), provides that the section 72 questions (described above) are not satisfied: “unless the attention the severely disabled person requires from another person is required to be given in the physical presence of the severely disabled person”. As Commissioner Parker observed in case CSDLA/554/2005 (26 August 2005) at §11, regulation 10C underscores that “attention” involves “physical presence”.

4.          Does it follow from this that evidence of assistance on which an individual relies in order to function is necessarily irrelevant, because it currently comes without physical presence? In my judgment, that does not follow. I accept the submission on behalf of the claimant, that such assistance can, depending on the circumstances of the individual case, be relevant as evidence of care needs.

5.          In my judgment, the correct analysis in law is as follows:

(1)       The correct question is always to ask what “attention” is “required”, from another person, given in the “physical presence” of the claimant. That involves focusing on what the claimant’s need is. Unless the claimant needs attention from another, physically present, person the relevant eligibility test will not be satisfied. That is the consequence of regulation 10C.

(2)       Providing that the correct question is always being asked, evidence of assistance on which the claimant relies can be relevant in answering it, even if that assistance is not given by a person who is physically present.

(3)       It is helpful to give an example. Suppose that a claimant is reliant on constantly being prompted to get up, to get dressed, to wash, and to eat. Suppose that a parent visits in person, several times a day. The statutory test of ‘required attention’ could perfectly well be regarded as satisfied. Prompting from a person who is physically present is what the claimant really needs (requires). Now suppose that the parent in such a case suffers a broken leg and is housebound for a month. Instead of visiting in person, the claimant and their parent are now reliant on telephone contact. Suppose, through constant and repeated telephone calls, the parent is able to prompt the claimant into getting up, getting dressed, washing, eating. In this modified situation, the claimant would be functioning without assistance from a person who is physically present. But it could still convincingly be said that prompting from a person who is physically present is what the claimant really needs (requires).

(4)       Evidence of assistance from an individual who is not physically present will no doubt often be of limited weight. It is likely to be most convincing in circumstances where: (a) the reason why the person assisting is not physically present is involuntarily, by force of circumstances; (b) the claimant and the person assisting would unhesitatingly say that what the claimant really needs is for someone to be physically present in order to assist; and (c) the prompting without physical presence is fragile or not wholly successful.

(5)       As Judge Jacobs observed in case CDLA/4333/2004 at §15: “if contact by telephone is the only feasible method for those concerned, it may be evidence of the need for attention in person”.

(6)       It is for the fact-finding tribunal to evaluate the facts and circumstances of any individual case, to ask the correct question, and to decide what conclusion properly follows from the fact that assistance being relied on is provided without physical presence. But assistance from a person who is not physically present is not, of itself, legally irrelevant.

Skype Calls with family in the United States

6.          In my judgment, the tribunal’s reasoning on this topic in the present case was legally inadequate. The position is as follows:

(1)       The claimant is described as having difficulties which include (page 91 §3) “a long-standing history of psychiatric illness and emotional difficulties”, having been “diagnosed in the past as having depression, bipolar disorder and borderline personality disorder”, and who “also suffers from manic episodes, suicidal thoughts and restarted … use of self-harm”.

(2)       The claimant had placed strong reliance on the prompting she obtained from her family. Her claim said (page 9) she received help “daily via skype” from her sister in North Carolina: “verbal prompting to wash, eat, attend appointments, get out of bed and to dress, etc”. She said: “The only way I am able to initiate and sustain personal action is with the encouragement of my family, who need to speak with me several times a day in order to keep my day-to-day life running” (page 59); “I require constant reminders to eat … as without such it is not unusual for me to go several days without eating or drinking” (page 59); “I am unable to successfully manage day-to-day living without … receiving daily prompting and encouragement from family members. Although I live alone, when I first arrived in the UK, my sister performed this role, first in person, then, when she returned to the USA, via Skype, [an] internet video communications service. Through this medium, members of my family are in daily contact, helping to manage my everyday life; without this I would be completely unable to carry out normal tasks, and this verbal prompting extends to such basic activities as eating and washing” (page 60); “I take around an hour and a half to shower and dress and when undertaking housework, tidying up, bed-making, laundry, and dishwashing, it will take me over twice the normal time and can only be accomplished with ongoing reminders and prompting from members of my family” (page 60); “I require daily verbal prompting and reminders to perform such basic functions as washing, dressing and eating. In the absence of such support, I find that it is impossible for the majority of the time to carry out such actions …” (page 61).The claimant’s submission was (page 92 §10) that: “The fact that she receives some support from her family members in the USA via Skype demonstrates her care needs”.

(3)       The tribunal’s summary of reasons did not address the question of prompting by family members via Skype (page 108). Nor did the statement of reasons (pages 111-113) do so. The tribunal concluded that the claimant was self-caring. It found in its summary of reasons that the claimant was “able to self care notwithstanding her mental condition” (page 108). In its statement of reasons (page 112 §25) it found that: “She was … self caring … she managed by herself. We asked ourselves whether she reasonably required prompting from another person and we concluded that she did not. She was [able] to get up [and] dress when needing to attend her appointments see her GP and go shopping; this was no[t] suggestive of someone who could not manage without prompting”.

(4)       What did the tribunal mean by the claimant being self caring, and managing “without prompting”? It may well be that the tribunal concluded that assistance (prompting) from family members who were not physically present was legally irrelevant. The tribunal may have meant that the claimant “managed by herself”, in the sense of managing “without prompting” from anyone else physically present. If so, as I have explained (§5 above), that would in my judgment have been an error of law. Alternatively, the tribunal may have thought that, important though the prompting was, it was not sufficient to evidence a need for attention from a person who was physically present. Or the tribunal may have thought that the claimant did not need prompting at all, rejecting her description of the importance of prompting by Skype. The statement of reasons did not cite regulation 10C. It did not say the tribunal was excluding as irrelevant prompting from family members, nor that it was rejecting what was said about its importance. In my judgment, the tribunal ought to have addressed the question of prompting from family members, albeit not physically present, and given clear reasons on that point. I have identified above (§5) what in my judgment is the correct analysis in law. Legally adequate reasons required the tribunal to grapple with it, and make clear findings.

(5)       The Secretary of State’s submissions emphasise (page 200 §§6 and 10) that ‘attention’ focuses on physical presence. I accept (see §5(1) above) that this is the relevant question. I also accept, however, the claimant’s submission (page 221 §3) that the prompting through the Skype conversations was capable of being evidence of care requirements. The Secretary of State realistically accepts that the tribunal “may not have referred specifically to the evidence before them in this respect” (page 201 §11), but submits that “their findings were neither unreasonable nor perverse”. In my judgment, the problem is one of adequacy of reasons: the error on a point of law lay in failing to address the question of prompting by Skype, making clear findings and giving clear reasons about what the tribunal made of it. The tribunal’s reasons are consistent with it having erroneously excluded the evidence of prompting as legally irrelevant under regulation 10C. I do not find that the tribunal did misdirect itself in law in that respect. I find, rather, that the reasons are not legally adequate to demonstrate how the matter was addressed.

Conclusions

7.          I therefore find that the tribunal’s decision involved the making of an error of law. It follows that further findings of fact are necessary in order to determine this case correctly. The decision cannot stand and the case must be remitted to the tribunal. I need not address other aspects of mobility component or care component, or the other matters raised by the claimant, Judge Ward or the Secretary of State. That is because I am in any event satisfied that it is appropriate on remittal for all issues and all DLA components to be determined afresh by the tribunal. It would not be in the interests of justice to restrict the scope of the remitted appeal hearing, and the claimant is entitled to advance all points on their merits at the fresh hearing.

Directions

8.          The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. The tribunal must deal with any procedural questions, as may arise, on their merits. The tribunal must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision: R(DLA)2/01 and 3/01.

MJ Fordham QC

Judge of the Upper Tribunal

17 May 2013