Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CDLA/3048/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge K Markus QC

 

Attendances:

 

The Appellant was represented by Mr Mike Robinson of Stockton District Advice and Information Service.

 

The Respondent was represented by Mr Stephen Cooper (solicitor).

 

 

DECISION

 

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 10 April 2013 under number SC227/12/04650 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

 

 

Directions

 

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

 

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

 

3. The parties shall send to the relevant HMCTS office as soon as possible any further relevant written evidence, if there is any.  If they cannot send that evidence within one month of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected. 

 

4. The new tribunal must look at the circumstances which existed at the date of the decision appealed against, that is the 11 July 2012. It must not take account of circumstances which did not exist at that date, but must take account of evidence which came into existence after that date but which relates to circumstances as at that date.

 

5. The new tribunal will make its own findings and decision on all relevant matters. It will consider all aspects of the case afresh but it should note in particular the issues that I set out in the Reasons below. 

 

 

 

 

REASONS FOR DECISION

 

Background

1.    The appellant (BM) was, at the time of the decision in question (11 July 2012), 7 years old. The papers before me including the tribunal decision refer throughout to him having been 6 years old but that is not correct.  The mistake as to his age is not relevant to my determination on this appeal but it may be relevant to the redetermination of the appeal and the tribunal to which this appeal is remitted should make sure that it approaches the case on the basis of the appellant’s correct age at the time of the decision.

2.    BM has learning difficulties, speech and communication problems and hyper-extensible knees and elbows. Through his mother he made a claim for disability living allowance (DLA) on 25 June 2012.  This was refused on 11 July 2012 and he appealed to the First-tier Tribunal.  On his behalf it was submitted that he was entitled to “at least the lower rate care component” (this is intended to be a reference to the lowest rate), and he also sought the lower rate of the mobility component.  On 10 April 2013 the First-tier Tribunal confirmed the Secretary of State’s decision, deciding that he was entitled to neither the mobility nor the care component of DLA.

3.    BM sought permission to appeal on the grounds that the tribunal failed to address the test in section 72(1A)(b)(ii) of the Social Security Contribution and Benefits Act 1992 and that the tribunal took the wrong approach to the prospective period  (this being a reference to section 72((2)(b)(i) of the 1992 Act. He was granted permission to appeal by a District Tribunal Judge of the First-tier Tribunal.  On 16 October 2013 Upper Tribunal Judge Gray gave directions for the conduct of the appeal and identified additional points which should be considered in the appeal. 

4.    There has been an exchange of written submissions on behalf of both BM and the Secretary of State, some prompted by directions given by me.  On 22 October 2014 I directed that there be an oral hearing of the appeal.  The hearing took place at Gateshead Law Courts on 5 December 2014. Throughout this appeal including at the oral hearing BM has been represented by Mr Mike Robinson of Stockton District Advice and Information Service. The Secretary of State was represented at the hearing by Mr Stephen Cooper (solicitor), who had not been involved until shortly before the hearing.  I am grateful to both Mr Robinson and Mr Cooper for their helpful submissions.

 

The evidence

5.    BM’s mother completed a claim for DLA on 23 May 2012. She said that BM received speech therapy for his speech impediment, learning therapies and one to one support at school for his learning difficulties, and physiotherapy and an exercise regime at home for his hyper-extensible knees and elbows, all on a daily basis. She described his walking speed as “very slow”, and said that he walked with a foot turned inwards, had poor balance, stumbled and got tired easily.  He needed guidance and supervision most of the time when walking outdoors including regularly displaying unpredictable behaviour (running across the road) and needing physical restraint.  BM’s mother also described his care needs in detail which, on her account, amounted to BM requiring help with most daily living tasks and needing help in his communication with others, social interactions and with hobbies.  She highlighted a number of specific needs including help with washing because he did not know which tap was hot and which was cold, having his food cut up, help with clothes fastenings, support when his routine changed, and help with communication and social situations.  He had difficulties speaking and communicating, and people he did not know struggled to understand him. If he got upset (which could be caused by a change in routine) he would shout and sometimes throw things, and he needed to be supervised at all times. She said that he also needed help at school, including prompting to change clothes for PE and other activities, to do his therapy and to communicate. 

6.    A letter from the paediatric clinic dated 14 November 2011 described that BM was doing well in speech and language therapy, that his learning was coming on well and his speech was progressing but more slowly. The letter described BM’s mother’s concerns regarding his joints and hearing. A speech and language therapy report dated 28 May 2012 described a recent improvement in his speech and in his attention and listening skills.  It stated that he might struggle to access any classroom based activity where he was required to express himself verbally and that his speech difficulties might have an impact on friendships. The letter stated that he would benefit from more intensive therapy delivered at school and, with the correct level of support, he would be expected to continue to make progress with his speech.  An educational psychology report dated 30 May 2012 noted that he would shortly be leaving his current speech and language class and that it was not yet decided how his future needs would be met.

 

The statutory framework

7.    Section 72 of the Social Security Contribution and Benefits Act 1992 sets out the criteria for entitlement to the care component of DLA and provides, in so far as relevant, as follows:

(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) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(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) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(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

…”

8.    The Act and regulations provide for three rates of the care component, and by subsection (4) a person qualifies for the lowest rate if either condition in section 72(1)(a) applies to them.  By virtue of section 72(1A)(a) a child can only qualify for the lowest rate by virtue of section 72(1)(a)(i) as qualified by section 72(1A)(b).

9.    Section 73 makes provision for the mobility component, payable at two rates.  The condition of entitlement for the lower rate of the mobility component is set out in section 73(1)(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.”

10. In relation to children, section 73(4A) provides:

“(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.”

11. Section 73(9) makes similar provision to that in section 72(2) as to the period for which a claimant must have satisfied and be likely to satisfy the applicable conditions.

 

The decision of the First-tier Tribunal

12. The First-tier Tribunal decided that BM did not satisfy the conditions of entitlement for either component of DLA at any rate.  In its Statement of Reasons the tribunal summarised the relevant evidence. The tribunal said that, as BM was not dyslexic, the decision in KM v Secretary of State for Work and Pensions (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2, which I consider below, was not relevant. The tribunal summarised BM’s mother’s evidence as to his needs, and continued as follows:

“15. The Tribunal do not find any evidence of physical impairment which reasonably requires attention from another person. [BM] is 6 years old and would still reasonably require, as a child of that age, the natural support and discipline of a parent educating a child in normal day to day activities. None of the reports provided by the appellant  introduce any evidence of physical restriction or limitation.  It is accepted that there is residual speech and language delays in the development of a normal speech pattern and understanding…[the tribunal then referred to BM’s ability to swim, and to the educational psychology assessment noting some improvement in his confidence, motivation and communication skills].

16. The Tribunal find that although [BM] is in the low range of skills and needs some care from another person, he does not require substantially more care.

17. The Tribunal also reject the claim that the appellant requires guidance and supervision. A 6 year old child crossing the road will always require attention from a supervising parent or adult.  The appeal is disallowed.

18. In addition the Tribunal concluded that the appellant may not satisfy the test under paragraph 2(b) in that allowing for the appellant’s general development and rapid improvement, it is unlikely that the appellant would be expected to satisfy the conditions for entitlement for 6 months.  As the condition is prospective it is judged on the basis of the information and prognosis available at the time of the claim. Claims that the appellant’s condition could improve within six months could be taken into account if there is a real possibility that at the date of claim it might well do so.”

 

Discussion

13. I deal in turn with each of the grounds identified by Judge Gray.

 

 A.  The application of KM v Secretary of State for Work and Pensions

14. It is convenient to consider this ground first because the decision of the three-judge panel in KM v Secretary of State for Work and Pensions informs my analysis of some of the other grounds in this appeal.

15. The Upper Tribunal in KM held that a person with dyslexia has a functional or mental disability or impairment which is capable of giving rise to an entitlement to DLA.  Whether it does so in any particular case will depend upon the facts of that case.  Assistance of an educational kind can be treated as “attention” provided it is given as a consequence of the relevant functional disability and has the qualities required to qualify as “attention in connection with a bodily function”  (which in the case of dyslexia is the bodily function of the brain) in the light of established authority. The Upper Tribunal also held that the correct approach focuses on all assistance relied on and so, in the case of a child, includes assistance given both at home and at school.

16. Mr Robinson relied on KM before the First-tier Tribunal but the tribunal decided that KM was not relevant because BM was not dyslexic.  The parties are agreed that the tribunal was incorrect in rejecting KM.  I agree.  It is clear that KM is not limited to cases of dyslexia but applies to other cases of learning disability The three-judge panel approved the decision of Judge Jupp in CDLA/1983/2006 where she said:

“18. …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. … 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. … 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…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.

…

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.”

17.  On the face of it, and in the absence of evidence to the contrary, a person with a learning disability 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” (see KM at paragraph 44).  Applying Judge Jupp’s analysis, the tribunal in the present case should have considered whether BM required assistance with his bodily functions. This might have comprised assistance with the bodily function of speaking or with the bodily functions of the brain.

18. The three judge panel in KM gave guidance as to the proper approach to decision-making under section 72(1). They set out in detail the primary facts and consequent assessments which should be made (paragraphs 43-52).  I do not repeat that guidance here, but observe that it involves a structured approach to the determination of primary facts on the basis of which the tribunal must then decide whether the statutory criteria are satisfied.  The tribunal in the present case did not approach its task correctly.  It did not identify what functional disability or impairment BM had, did not determine what bodily function or functions that related to, what assistance he required in respect of it (this includes assistance at school as well as at home – see KM  at paragraph 51), whether that assistance was “attention” “in connection with his bodily functions” within section 72(1) and, if so, whether BM required it for a significant portion of the day or frequently throughout the day. The decision under section 72(1A), which I discuss below, should have been informed by those findings. 

19. In summary I find that the tribunal erred in concluding that KM was irrelevant.  Because the tribunal disregarded that important decision, it did not address the detailed issues which it was required to address. 

20. BM’s mother and his representative may wish to consider whether to provide further evidence including as to the nature and extent of the attention which BM reasonably required, at home and at school, in order to assist the tribunal in determining these issues.

 

B.  Section 72(1A)(b)

21. The issue of the proper approach to section 72(1A)(b), and in particular the meaning of the two subparagraphs (i) and (ii) within the subsection, lay at the heart of this appeal. 

22. The parties developed and modified their positions between the grant of permission to appeal and the hearing.  In essence Mr Robinson submitted that there is a difference between subparagraphs (i) and (ii) and that the First-tier Tribunal had erred in that it addressed the application of subparagraph (i), at paragraph 16 of its reasons, but had not addressed (ii).  He submitted that subparagraph (ii) is more appropriate to the circumstances of a child with developmental delay.

23. The Secretary of State’s representative, in written submissions, submitted that the tests in (i) and (ii) are very similar so that if, as in this case, the tribunal finds that the claimant required no substantial extra care as compared to a “normal” child of the same age then neither limb can be satisfied.  He submitted that a child could satisfy (i) alone but not (ii) alone, so that if (i) does not apply the tribunal need not consider (ii).  As to the former, he gave the example of a child who lost his legs, who would have requirements substantially in excess of the normal requirements of a child of that age but would not have the needs of a younger child in normal health.  Mr Cooper first became involved in this appeal, acting for the Secretary of State, shortly before the hearing.  He accepted that subparagraph (ii) must have a different meaning and effect to that of subparagraph (i) as the general presumption is that Parliament does not legislate in vain.  Mr Cooper conceded that the First-tier Tribunal had not addressed both limbs of section 72(1A)(b) and thereby erred in law.  However he found it difficult to identify what the difference was in practice between the two provisions. 

24. The parties were therefore in agreement that the appeal should be allowed on this ground.  That is correct, for reasons which I now explain. 

25. The original form of what is now section 72(1A) is found in section 35 of the Social Security Act 1975 (as modified by regulations of the same year) which provided for the conditions of entitlement to attendance allowance in similar but not identical terms to those for the care component of DLA and, in relation to children, included the words “being [attention or supervision] substantially in excess of that normally required by a child of the same age and sex”.  There was no equivalent to that now found in section 72(1A)(b)(ii). The Disability Living Allowance and Disability Working Allowance Act 1991 introduced DLA by amendment to the 1975 Act including the a newly formulated dual limb condition for children in relation (in section 35ZB(6)).  The annotations to the 1991 Act in Current Law Statutes commented as follows:

“The new formulation … thus emphasises that disabled children should not be denied benefit merely because they have substantial care or attention needs which may be shared by younger but physically and mentally healthy children.”

26. The amendments introduced by the 1991 Act were almost immediately incorporated in the Social Security and Contributions Act 1992, the children conditions originally being in section 72(6) and now found in section 72(1A).

27. It should be presumed that Parliament introduced the dual limb child condition for a purpose.  But despite the different emphasis identified by the annotations in Current Law Statutes, it is hard to discern what the effective difference is between the two limbs.

28. In CA/92/92 Deputy Commissioner Rowland (as he then was) considered the meaning of the phrase “attention substantially in excess of that normally required by a child of the same age and sex” in section 35 of the 1975 Act.  He said:

“5. In the case of a child, it is to be noted that the attention or supervision required must be "substantially in excess of that normally required by a child of the same age and sex" and there is a similar modification to section 35(1)(b)(ii). Attention or supervision may be required "substantially in excess of that normally required" either by virtue of the time over which it is required or by virtue of the quality or degree of attention or supervision which is required.

6. The idea of a greater quality of degree of attention can be illustrated by considering meal times. A young child may require attention in connection with eating because he or she requires the food to be cut up. A disabled child of the same age may require attention in excess of that normally required by a child of the same age because he or she not only requires the food to be cut up but also requires it to be spooned into the mouth. The fact that the child will be supervised anyway is irrelevant: there is still an additional requirement for attention. Whether such additional attention, taken together with any other additional attention requirements, is “substantial” and “frequent … throughout the day” are matters of judgment to be determined in each case where the condition in section 35(1)(a)(i) is being considered. Those may be significant limiting factors.

…

9. …It seems to me that the legislation contemplates a yardstick of an average child, neither particularly bright or well behaved nor particular dull or badly behaved, and then the attention or supervision required by the child whose case is being considered must be judged to decide whether it is "substantially" more than would normally be required by the average child. That, I think, comes to much the same thing as saying that the attention or supervision required must be substantially more than that normally required by most children … Attention or supervision is not to be regarded as "substantially" in excess of that normally required unless it is outside the whole range of attention or supervision that would normally be required by the average child.”

29. In R(DLA)1/05 Commissioner Rowland considered what was then section 72(6)(b) of the 1992 Act, which was in materially similar terms to what is now section 72(1A)(b). Having referred to his decision in CA/92/92, he said:

“10. …The word in the legislation is “normal” and requirements may be normal notwithstanding that fewer than half the total number of children have them. However, there comes a point where the proportion of children who have the requirements is so small that the requirements can no longer be said to be normal, even though the total number of children affected may still be quite substantial. It is important to bear in mind that, in section 72(6)(b)(i), “normal” describes “requirements” and not “child”.  This is in contrast to section 72(6)(b)(ii), where the word “normal” describes “physical and mental health”. Section 76(2)(b)(ii) applies only where no child of the claimant’s age in normal physical and mental health would have the same type of requirements as the claimant.” 

30. I respectfully agree with this. Although at first sight it appears to leave subparagraph (ii) as a subset of subparagraph (i) so that if (i) does not apply (ii) cannot, on closer analysis it can be seen that that is not the case.  In referring to the comparison in subparagraph (ii) between the type of requirements of the claimant and those of other children, Commissioner Rowland highlighted that (ii) is concerned with requirements which are different from those of normally healthy children of the same age rather than requirements which are greater or higher than those of others. This is also noted by the Upper Tribunal in KM at paragraph 20.  The point is reinforced by the use of the words “substantially in excess” in (i) as compared to “substantial” in (ii). On the facts of a case, subparagraph (ii) might apply where a claimant has substantial requirements which are different to those of normally healthy children of the same age even though (i) does not apply because the claimant’s requirements are not substantially in excess of the requirements of those other children.

31. Take Commissioner Rowland’s example of a child to whom what is now subparagraph (i) would apply.  If the disabled child is three years old, it might be said that his requirements are in excess of but not substantially in excess of the normal requirements of three year olds because a normally healthy three year old will require considerable supervision during a meal (even if not needing to be spoon fed), and so (i) would not apply.  However, the requirement of a disabled three year old child to be spoon fed may be said to be “substantial” and, although not required by three year olds in normal physical and mental health, it is required by 1 year olds.  Hence the three year old child in this example might be held to fall within subparagraph (ii) but not (i).

32. An example which is closer to the facts of this appeal is that of a young child with developmental delay.  All young children require assistance with reading.  Different types of help are required depending on the age of the child, but the help for younger children is not necessarily greater than (rather than different from) that required by older ones.  A child with developmental delay may require help of a type which is required by younger children in normal health. It is substantial help, it is different from the help required by children of the same age but is not substantially in excess of that help. 

33. Therefore I conclude that there may be cases in which subparagraph (ii) applies to a child even though subparagraph (i) does not.  There is nothing in the words of the provision which limits subparagraph (ii) to cases of children with developmental delay and, as illustrated by the above examples, it is not so limited.  I reject Mr Robinson’s submission to the contrary.

34. Once it has been determined that a claimant has requirements falling within section 72(1) (which I have assumed to be the case in the above hypothetical examples), the issues which arise for determination under section 72(1A)(b)(i) are: (a) what the relevant requirements are of normally healthy children of the same age; and (b) whether the claimant’s requirements are substantially in excess of those in (a).  Under section 72(1A)(b)(ii) the issues which arise are: (a) whether the claimant’s requirements are substantial; (b) whether the claimant’s requirements are different from those of children of the claimant’s age in normal physical and mental health; (c) whether younger children in normal physical and mental health would have those requirements.

35. If a tribunal decides that one of the subparagraphs applies, there will be no need to consider the application of the other.  It may be that on the facts of the case, it is not necessary to carry out a strictly sequential exercise in respect of the two subparagraphs but a decision that section 72(1A)(b) does not apply must demonstrate that both subparagraphs have been considered in substance.

36. In BM’s case the tribunal summarised this aspect of the Secretary of State’s case as follows:

“8. The Secretary of State also decided that none of the conditions of entitlement to either the lowest, middle or highest rate of the care component of disability living allowance was satisfied because [BM] did not require substantially more care from another person than children of their age would normally require, or care that children younger than then in normal physical and mental health may need but a child of their age in normal physical and mental health would not require.”

37. This is a correct summary of the relevant statutory provisions, but it does not appear as such in the tribunal’s reasons for its decision at paragraphs 15 and 16.  Instead one has to struggle to decipher what aspects of section 72(1A)(b) the tribunal considered.  The second sentence of paragraph 15 introduces a comparison between BM’s needs and those of other children of his age, but does not in substance address the specific requirements of either subparagraph.  Paragraph 16 appears to address subparagraph (i), although the tribunal did not say what comparator it used. The tribunal did not address subparagraph (ii).

38. This is not a case in which it can be said that consideration of subparagraph (ii) could have made no difference.  As I have set out under heading A above, the tribunal did not make the necessary findings as to BM’s requirements for attention in connection with his bodily functions which arose from a functional disability or impairment. Without such findings, the tribunal did not have the necessary foundation for a decision that that neither section 72(1A)(b)(i) or (ii) applied to him (paragraphs 22, 37 and 51 of KM and Commissioner Parker in CSDLA/535/07).

39. For these reasons, the First-tier Tribunal erred in law.

 

C.  The mobility component: guidance or supervision

40. The tribunal’s reasons for concluding that BM did not satisfy the condition of entitlement to the lower rate mobility component were:

“17. The Tribunal also reject the claim that BM requires guidance and supervision. A 6 year old child crossing the road will always require attention from a supervising parent or adult.”

41. In her observations on this appeal, Judge Gray asked whether this was a “too narrow approach bearing in mind that the lower rate of the mobility component is available to children over five years of age?”  The Secretary of State agrees that the tribunal erred in law in this respect.

42. I find that the tribunal did err in law in deciding that BM was not entitled to the lower rate mobility component.  In KM the three judge panel said at paragraph 54 that section 73 generally requires a similar fact finding approach to that required by section 72.   At paragraph 57 they observed that, as with section 72(1A)(b), a determination under section 73(4A) is assisted by the correct approach to decision-making as to the primary conditions of entitlement.

43. The starting point for the tribunal in the present case should have been to identify what relevant assistance BM required when walking out of doors. This may not have been limited to guidance in crossing the road.  Indeed, as the Secretary of State has pointed out, the claim form completed on behalf of BM identified a number of difficulties which might have brought his case within section 73(1)(d). The tribunal should then have to identified the nature and degree of any guidance or supervision that was required and whether it was substantially more than the requirements for guidance or supervision of 6 year olds in normal physical and mental health, or whether 6 year olds in normal physical and mental health would not require such guidance or supervision.

44. Even if the only assistance that BM required was guidance in crossing the road, the fact that all 6 year olds need guidance in crossing the road did not dispose of the case.  It would depend on (in shorthand) whether he needed substantially more guidance or different guidance.

 

D.  Section 72(2)(b)(i)

45. The First-tier Tribunal addressed prognosis under section 72(2)(b)(i) at paragraph 18 of its reasons, set out above.  It was not strictly necessary for the tribunal to consider the application of section 72(2), having decided that the conditions of entitlement for the lower rate care component of DLA were not satisfied. That seems to explain why the tribunal said that BM “may” not satisfy the test.  This issue does not therefore arise for determination by me.  However, as the Secretary of State accepts, the issue becomes relevant if this case is remitted to another tribunal for reconsideration and so I make the following observations.

46. Section 12(8)(b) Social Security Act 1998 provides that a tribunal:

“shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”.

47. In R (DLA) 3/01 Commissioner Jacobs (as he then was) made it clear that section 12(8)(b) does not prevent tribunals considering evidence that was not available at the time of the Secretary of State’s decision.  Where a prediction of future events is required, a tribunal is not entitled to take account of fresh circumstances which occurred after the decision.  However,

“62 In other cases, the fact that a claimant’s recovery has not progressed as quickly as expected does not necessarily indicate that a fresh circumstance has occurred. This may do no more than reflect the natural vagaries of an uncertain recovery process that cannot be predicted accurately or with confidence. In this case, the actual rate of recovery is not a fresh circumstance that the appeal tribunal must ignore.

63. There is no clear test that will allow appeal tribunals to distinguish between cases in which there has been a set back to recovery and those where the evidence only shows that the rate of recovery is inherently uncertainty. An appeal tribunal must use common sense to draw the distinction between these cases.

64. It must ask: how long was the claimant likely to satisfy the conditions of entitlement for a disability living allowance, disregarding fresh circumstances?  The answer will depend on the tribunal’s assessment of the admissible evidence. The appeal tribunal may, and must, take account of any evidence about the claimant’s likely disablement beyond the date of decision that can sensibly be related to the circumstances obtaining at that date. The conclusion will be a finding of fact on probability which the appeal tribunal may substitute for the finding of fact on that issue made by the officer acting on behalf of the Secretary of State.”

48. The tribunal did not approach this issue in accordance with the above because it precluded consideration of evidence post-dating the decision of the Secretary of State even if it satisfied the requirements of relevance as explained by Commissioner Jacobs. 

49. I also note that there was evidence that continued improvement for BM depended upon him receiving appropriate support but there was some uncertainty on the evidence as to whether he would receive such support. This is relevant to the assessment of prognosis, whether or not the tribunal decides to admit post-dating evidence as to BM’s progress.

50. If on reconsideration of this case the First-tier Tribunal needs to address section 72(2)(b)(i) it would benefit from reading the whole of the judgment in R(DLA) 3/01 which provides valuable guidance as to the application of section 12(8)(b) of the 1998 Act and the approach to prognosis.

 

Conclusion

51. In the light of the errors of law by the First-tier Tribunal I set aside its decision.  I am not in a position to determine the appeal and it will have to be reconsidered by a freshly constituted tribunal in accordance with the guidance in this decision and the directions which I have set out above.

 

 

Signed on the original Kate Markus QC

on 14  January 2015 Judge of the Upper Tribunal