Upper Tribunal (Administrative Appeals Chamber)

JB v Secretary of State (AA) (DLA, AA: personal care : attention: daytime) [2015] UKUT 361 (AAC) (25 June 2015)

IN THE UPPER TRIBUNAL Case No.  CA/209/2015

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:   The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions given below.

 

 

REASONS FOR DECISION

 

1.    This is a supported appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal, sitting in Bexleyheath, dated 17 September 2014 dismissing the claimant’s appeal from a decision of a decision maker dated 13 December 2013 that the claimant was not entitled to an award of attendance allowance from and including 16 October 2013.  Since the date of the decision, the claimant has made a fresh claim for benefit and was awarded attendance allowance at the higher rate from and including 24 June 2014.  This appeal and the new hearing that I am directing will therefore only be concerned with her entitlement between 16 October 2013 and 23 June 2014.

 

2.    The claimant was born in 1945.  She suffered during the material period from back  and leg or knee pain, obesity and shortness of breath.  Her GP, in a report dated 9 December 2013 describes her as having a degenerative disc lesion and muscle atrophy.  An orthopaedic spinal surgeon’s report dated 8 October 2013 describes her as having lost her lumbar lordosis due to significant muscle spasm.  It goes on to state that her muscles had undergone significant atrophy, that her lateral core muscles were almost non-existent and her back muscles had suffered with significant atrophy.

 

3.    To qualify for an award of attendance allowance in respect of her daytime needs, section 64 of the Social Security Contributions and Benefits Act 1992 provides that the claimant had to show that she was so disabled that by day she required from another person either (a) frequent attention throughout the day in connection with her bodily functions or (b) continual supervision throughout the day in order to avoid substantial danger to herself or others. To qualify for an award in respect of her night time needs, she had to show that she was so disabled that she required from another person at night either (a) prolonged or repeated attention in connection with her bodily functions or (b) that the other person should be awake for a prolonged period or at frequent intervals for the purpose of watching over her in order to avoid substantial danger to herself of others.

 

4.    By virtue of section 65(1)(b) and (3) of the same Act, there is a six months qualifying period in respect of both elements of the award, so that the decision maker who awarded benefit from 24 June 2014 appears to have concluded that claimant’s needs were such as to satisfy the conditions for both the day award and the night time award at least from 24 December 2013, some 11 days after the decision under appeal.

 

5.    There was, however, a six months qualifying period, so that the decision maker in December 2013 had consider whether the claimant qualified in respect of either or both elements of the award at 16 April 2013 or at some time between then and 13 June 2013 in order to decide whether she qualified for an award from a date between 16 October 2013 and the date of the decision, 13 December 2013.

 

6.    The tribunal’s statement of reasons, after briefly noting the evidence and providing an incomplete summary of the conditions of entitlement, continued at paragraph 5 of the statement:

 

“It was accepted that [the claimant] had problems with mobility but [the claimant] must realise … that mobility outside the house is not a condition that allows entitlement to Attendance Allowance.”

 

7.    The statement then fails to consider whether the claimant reasonably required attention in relation to the bodily function of walking either outside or inside her home.  It is well established that there is nothing in the requirements for attendance allowance which excludes from consideration attention reasonably required in relation to the bodily function of walking (Mallinson v Secretary of State [1994] 1 WLR 630; R(DLA) 4/01; CDLA/2333/2005; CDLA/3376/2005).

 

8.    This claimant clearly had major problems walking out of doors, to the extent that from February or March 2014 the tribunal found that she had been using a wheelchair.  The tribunal was in serious and manifest error of law in excluding mobility outside the house from its consideration.  It was also in error of law in failing to make findings as to the claimant’s reasonable needs in this respect indoors, whether in her own house or elsewhere.  This could include getting in and out of a car and using public transport, and having somebody help her to get out and use a walking frame or wheelchair or store them after use.

 

9.    The remaining findings as to care needs were also seriously inadequate.  Thus it found that the claimant could get into a bath but had two falls in the bath and one when getting out.  It made no findings as to whether she could get out by herself, despite her evidence at p.26 of the file that she could not get up without assistance after she had fallen.  Nor was there consideration whether she reasonably needed help from another person with bathing because of the time it would otherwise take or because of the risk of injury if she bathed alone.  Bearing in mind that she was found to need help putting on shoes and socks, there might also have been consideration whether she could clean her lower legs and feet properly without help.  In addition there are no findings as to how often her husband washed her hair or why his help was needed although there is a finding that he did wash her hair ‘occasionally’.

 

10. Although it is found that her husband had to put on her shoes and socks, there is also nothing to indicate whether she reasonably needed help taking off at least her socks.  It was also found that she could dress herself otherwise, although this was not always easy for her.  There is no finding whether, in the light of the time it took her or the discomfort involved, she reasonably needed help in this respect.

 

11. The tribunal then went on to find that the claimant managed the stairs using her hands and knees.  There is no consideration of how often this occurred or whether she reasonably required help from another person when the alternative was to crawl up and down.  There may not have been any help that could sensibly be given.  It may be that what was really needed was a chairlift, but the matter needed to be considered and dealt with.

 

12. Similar comments apply to the findings of the tribunal in other respects.  I am left unclear as to whether the claimant reasonably needs help getting up out of bed and from a chair, even if, with a struggle, she can manage, and if so how frequently she needs help.  If she has an accident once a week because she does not get to the toilet in time, does this indicate that she needs help getting to the toilet once a week or most times when she goes and if so, why?  Is this at night and does the accident involve the need for further help changing or cleaning up?

 

13. I reject the submission by the claimant’s representative that a trend of substantial care needs over the qualifying period is sufficient.  A broad view must be taken of her needs at any particular time during the qualifying period, but if, for example, taking a broad view her needs were insufficient to qualify in month 1, they do not become sufficient because by months 3 to 6 they have become far more serious and are more than enough to satisfy the requirements in those months.

 

14. In general, as it was put by Judge Lane in Secretary of State v PV [2010] UKUT 33 (AAC) at paragraph 3:

 

“It was necessary not only to break down the activities for which the claimant claimed to need attention, but to

 

a.    articulate the nature of the assistance needed, which could vary considerably depending upon the activity in question,

b.    give an indication of the frequency with which he required attention with the differing types of assistance he might need, and

c.    assess how far the assistance was reasonably required.”

 

15. The tribunal under appeal ought to have approached the matter in this way and, in all the circumstances, was in error of law in failing to do so.  The new tribunal will need to adopt this approach unless for some reason it is manifestly unnecessary to do so.

 

 

(signed)

Michael Mark

Judge of the Upper Tribunal

 

25 June 2015