DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Paula Gray

DECISION

This appeal by the claimant succeeds.

Permission to appeal having been given by me on 12 January 2015 in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at Sutton and made on 20 May 2014 under reference SC 154/13/09453 and remake it as follows:

The appellant is entitled to the middle rate of the care component of disability living allowance for day attention between 28 January 2013 and 27 January 2018.

The respondent is entitled to set-off money now due under this award against money paid under the lower rate care award in the interim.

REASONS

Background

1. This appeal concerned the appellant’s entitlement to the care component of DLA.  There was no dispute about entitlement to the mobility component.
2. The case was dealt with at an oral hearing, and an award of the lowest rate of the care component was made for attention needs for a significant portion of the day under section 72(1)(a)(i) Social Security Contributions and Benefits Act 1992.  The statement of reasons prepared by the presiding judge set out the various needs found to exist. The needs were occasioned by the functional effects of the appellant’s mental health problems and broadly comprised encouragement and supervision with washing, dressing, eating and drinking, getting out of bed, managing medication, communicating and engaging in social contact with others.  Meeting those needs would, it was said, occupy a significant portion of the day.
3.  I granted permission to appeal saying that the grounds of appeal in relation to the frequency of care and the view of the FTT as to the meaning of the phrase “throughout the day” seemed to me to be arguable.

The issue before me

4. In essence the issue was whether the FTT had applied too high a test in relation to the reasonable requirements for attention frequently throughout the day, which was the only potential route to the middle rate of the care component in the circumstances of this case.
5. The parties are now agreed that the decision of the FTT was made in error of law. Neither has sought an oral hearing of the appeal, and in the circumstances a hearing is not required.
6. The respondent asks me to remit the matter to the FTT for further fact-finding. The appellant says that the FTT facts are sufficient to enable me to apply the law to them and make the decision on entitlement myself. 

The statutory provision 

7. The parties are fundamentally agreed in relation to the error of law, but as I am re-deciding the issue it is important in order to understand the facts and the legal principles that I set out the relevant provision which is section 72 (1) of the Social Security Contributions and Benefits Act 1992.  This provides for a person’s entitlement to the  care component

72 (1) …. for any period throughout which--

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

(i)             required 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 cooked main meal to 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;

(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 the purpose of watching over him.

The other parts of that section are not applicable in the circumstances of this case.

Should I remit or re-decide the appeal?

8. If I feel that I am able fairly to make a decision then I should do so.  A first-tier tribunal hearing DLA appeals comprises a judge, a medical member and a member with experience of disability.  It is important for me to consider whether any decision that I make will be deficient in some way for the lack of that expertise.  The FTT, of course, is the fact-finding body and it is in that aspect that the expertise of the members is so valuable. I feel that I am able to make this decision without the benefit of that expertise because the FTT in this case, using the expertise of the judge and the members, made sufficient findings of fact; it went wrong in its analysis of the legal test involved, and in its application of that erroneous test to the facts found. 
9. The appellant’s representative is right in saying that the facts found are sufficient for me to apply the correct legal test, and make the decision myself.

The Facts as found by the FTT

10. I rehearse the facts found by the FTT in this case, as set out by the presiding judge, omitting as unnecessary for my considerations the supervision and night needs issues and some of the reasons behind the fact-finding:

5. The tribunal found that [Ms B] suffered from depression and anxiety, bowel incontinence and migraine headaches….. There was a suggested diagnosis of emotionally unstable personality disorder made during 2013. She suffered from low self-esteem, changes of mood, and associated memory problems. Her mental condition was variable. She had good days and bad days but was also subject to rapid mood swings. The ratio of good to bad days was c. 50/50. On good days she was quite functional and could catch up on things she had neglected, but even on good days found social interaction difficult.

6. She suffered migraines on average about twice a week each lasting c. 2 - 3 hours. When they were occurring, these were debilitating and undermined her ability to self care.

7. In relation to [Ms B’s] care needs, the tribunal found that she could physically undertake tasks of day-to-day personal care, but that motivation to do so was a recurrent problem. She ate fairly regularly, but sometimes skipped meals. She cooked sometimes, but having started might not complete it. She would wash and get dressed if going out, but would tend not to if staying in. She sometimes needed reminding about her medication despite using an alarm, and found herself with tablets left over at the end of prescribed courses. She found social relations difficult, and would not always answer the phone or the door. Although in her claim form, she had stated that she had left the door unlocked and on one occasion left the gas on, the tribunal found that this was not a risk most of the time, and accepted her oral evidence that she could be safely left alone. She needed encouragement to manage her bills and paperwork. She found it difficult to manage problems with housing: there had been long-running dispute their problems at her house, but she had not been able to engage with the landlady about these.

9.  (omitted).

10 (omitted)

11. Reviewing the evidence, the tribunal’s assessment was that to meet [Ms B’s] need for attention with her bodily functions would occupy a significant portion of the day. It did give consideration to whether the need for attention could be considered to arise frequently throughout the day, but it did not consider that this test was met. The encouragement she required with getting up, getting washed and dressed, taking meals and medication and dealing with communication and social engagement could reasonably be considered to require on average one hour or so a day, taking account of the fact that she would require less or no encouragement on good days (which were half of all days)….. it could not be said that the encouragement was required throughout the day since it was by its nature episodic, and cumulatively would not require another person to be there throughout the day.

11.  On the basis of those facts and that legal analysis the tribunal made an award of the lower rate of the care component  for a five-year period on the basis of section 72 (1) (a) (i), attention being reasonably required for a significant portion of the day.  The matters for which she required attention, getting up, getting washed and dressed, taking meals and medication and dealing with communication and social engagement, might be said to require on average one hour or so a day, bearing in mind that on some days she required no such attention.
12. There were findings which I have not rehearsed, as to the reasons why the appellant did not require continual supervision throughout the day, and why she had no relevant night needs within the terminology of the legislation.  I proceed in my task on the basis that those conclusions were correct as a matter of law; the error of law in relation to the frequency test did not arise.  I limit myself, therefore, to a decision as to whether there was entitlement beyond the lower rate care award; practically in this case the issue is whether the appellant was entitled to the middle rate of the care component for day attention.

The respective positions of the parties

The appellant

13.  Sam Walsh, a benefits adviser for Lambeth Council acts for the appellant, and has argued that although there was a general principle that in applying the law to the facts of the case the tribunal must take a broad view, the decision in R (DLA) 5/05 meant that the phrase “frequently throughout the day” should be read as a single phrase, and in broad terms.  It was submitted that the extent of somebody’s care needs is not solely defined by the aggregate period of time that they require care, but matters such as whether that care was required predictably at given hours of the day should be taken into account, more care perhaps being required in a situation such as existed here on the basis of the tribunal’s findings, where the reasonable requirement for care was variable. Additionally the representative disputed that there was any requirement, as was implied in the statement of reasons, that for care to be reasonably required throughout the day meant that somebody would need to be there all day.  The principle, it was said, was that somebody who required “episodic” care throughout the day could require attention throughout the day for the purposes of the legislation.
14. The submission, which was extremely careful and measured, concluded by conceding that this was not a case in which it could be said inevitably that the lower rate care award was wrong in law, but the approach to the tribunal in making that award was; alternatively the process of reasoning was insufficiently explained.

The Secretary of State

15. Ms Gilfoyle, acting for the Secretary Of State, essentially agreed with that approach, submitting that the tribunal may have confused attention required throughout the day with the requirement for continual supervision throughout the day, or that the reasoning for their distinction was unclear. She refers to CDLA/12150/1996, a case which established that attention required briefly but frequently throughout the day could qualify for the middle rate of the care component even though the total time spent might be less than that which would be expected for the lowest rate of the care component. The principle was, therefore, that care required can be episodic by its nature and still qualify for the middle rate award, and that the tribunal fell into error of law in appearing to use that reasoning to determine that the claimant did not qualify in this case. She further submitted that the approach of adding up the total time that attention was required did not accord with the reasoning in R (DLA) 5/05; an exploration of the number of occurrences throughout the day was required.
16. I have already explained the different views that the parties took about whether I should remit or decide the case and my conclusions as to that issue. I am assisted by the information from Ms Gilfoyle that no further claims for DLA or PIP have been made that would limit my jurisdiction.

The legal framework

17.  R (DLA) 5/05 [2005] AACR 92 was a decision of the then Chief Social Security Commissioner, now Hickinbottom J.  He considered the meaning of section 72(1) in relation to two cases before him.  He determined (at [9]) that, following the case of Moyna v Secretary of State for Work and Pensions [ 2003] UKHL 44 (reported also as R(DLA) 7/03) in respect of each of the criteria in section 72 (1) an exercise in judgement has to be made taking a broad view of the matter, that is to say taking account of all relevant factors. A determination could not be made upon an arithmetical formula or by reference to an invariable benchmark.  The case is also authority for the proposition that there is not necessarily a logical progression through the rates of DLA by virtue of the extent of disability, that is to say that it would be possible for somebody not to satisfy the lowest rate of the care component on the basis of attention for a significant portion of the day, and yet satisfy the middle rate of that component under the “frequently throughout the day” provision [12.7] although Parliament cannot have intended that less disabled people should generally be awarded DLA at a higher level than those who are more disabled.  Accordingly, when considering the provisions of section 72 (1) (b) or (c) it should be borne in mind that the middle rate award is in financial terms more than twice that of the lowest rate, and that has an effect on the construction placed upon them. Regard might also properly be had to the equivalence of an award in relation to the different tests under section 72 (1) (b) (i) and section 72 (1) (b) (ii) to inform the construction process, that being informed by the DLA scheme as a whole, and also where the criteria that must be construed fall within the particular scheme of section 72 (1).
18. The question as to whether a reasonable requirement for attention arises frequently throughout the day cannot therefore be decided upon by direct comparisons with the calibration of the extent of need for a substantial portion of the day.  As Ms Gilfoyle submits, the number of likely occurrences must be relevant, although whether attention is frequent is not an issue which can be resolved solely on mathematical principles. 
19. Judge Hickinbottom spoke of frequency as a product of the number of times something occurs over a period of time and an assessment of frequency depending upon a number of factors, particularly the number and pattern of those occurrences over time. [12.6]. The nature of the occurrences themselves is something relevant to the question of whether those occurrences are “frequent”, and instances of attention that are de minimis may be excluded [12.6].  The duration of individual occurrences is not irrelevant; however the number and pattern of occurrences will usually be the overriding factors in relation to the issue of frequency. 
20. The question, as expressed by Judge Hickinbottom at [12.3] is a composite one; it is unhelpful to regard the test as comprising a number of stages.  As was said by Lord Hoffmann in Moyna, to take the approach that there were two discrete questions (i) is the attention required frequently and, if so, (ii) is it required throughout the day is not helpful, and may lead to error.
21. I bear in mind all of those factors and I take a broad view as to whether over the period under consideration-the qualifying period both pre-and post claim-the person can fairly be described as, on the question in this case, someone who is so severely disabled physically or mentally that she requires from another person frequent attention throughout the day in connection with her bodily functions.  The nature of the attention and the quality, both of itself and in relation to recurrence must all be considered; the result is perhaps inevitably somewhat impressionistic.

How do the legal tests apply to the factual matrix found by the FTT?

22. Distilling from the fact finding paragraphs in the statement of reasons those matters with which the appellant may need assistance and at what level, it is clear that on good days she was quite functional, even catching up on things that she had neglected, although she still found social interaction difficult on those days.  On other days, that is to say some 50% of the time, she needed motivation to undertake tasks of day-to-day personal care, that is to say getting out of bed, washing and dressing, eating regularly (including encouragement to complete the cooking of a meal) and to deal with her household administration.  An example is given of her failing to engage with her landlady in relation to a long-running dispute about problems with her house, which seems to illustrate both her difficulties with the administrative tasks of daily living and in her interaction with others.  Given those circumstances, how do I apply the test laid down in the case of Moyna and further explained in R(DLA)5/05?
23. It seems to me to be implicit in the findings of the FTT that the range of activities set out with which it is said the appellant requires attention are bodily functions, and that the attention is reasonably required.  I proceed on that basis because it is a finding that was open to the FTT.  The bodily function in relation to which attention is required is the activity of the brain; the appellant’s thought processes, motivation and ability to concentrate being affected by her mental health problems. CDLA/2974/2004 and CSDLA /133/2005(T) are authority for the propositions that, where there are such difficulties. interaction to enable social functioning, communication and social integration are bodily functions.
24. I remind myself that he yardstick in relation to whether or not attention is reasonably required is that of enabling someone to live a “normal life”, per Lord Slynn of Hadley in Secretary of State v Fairey [ 1997] 1 WLR 799 (also reported as R (A) 2/98).   
25. The key here is attention for the purposes of motivating the appellant, since she was physically able to undertake tasks of day-to-day personal care but the lack of motivation to do so was described as a recurrent problem.  That motivation may take longer on some days than on others; if it was not a good day it may involve making sure that she got up, washed and dressed, and assisting in the preparation of food and seeing that she ate it.  On better days when she was more functional and able to cope with her basic personal care it may mean ensuring that she was trying to deal with routine administration or going out and engaging with other people; attention that assists with and reinforces positive patterns of behaviour is reasonably required in both circumstances. The pattern of the attention required is variable because on one day she may be minded not to eat lunch and on another not to eat supper, but her need for regular attention, which is due to her mental health condition overall, seems to me to be there as much as anything to assess her mental state, or what has been described as her mood, on a regular basis and not for attention with this or that task in isolation.  That is because such regular assessment is likely to inform the person providing the attention as to what attention is required, and the level of it.  Particular difficulties may be ameliorated by specific encouragement and participation in activities; other more general anxieties may require a different approach, such as talking matters through. The high quality of the required attention is apparent both in relation to making that assessment, and thereafter in reacting with an appropriately nuanced approach.
26. Overall, given the variability both in relation to the amount of attention, and the likely quality which will be required at any given time, I am of the view that the appellant can fairly and properly be described as a person who, throughout the period under consideration, reasonably required attention with her bodily functions throughout the day. I will, however, deal specifically with one other point, which I have borne in mind in that assessment.
27. Materially her evidence to the FTT was that she could be safely left alone, and the tribunal so found.  I have considered that as a check point, given the comments in R (DLA) 5/05 which I set out in paragraph 17 above, that one can look at what care would be provided were the supervision test set out in section 72(1) (b)(ii) satisfied, the award being financially equivalent. 
28. Although continual supervision throughout the day in order to avoid substantial danger is a difficult test to satisfy, the supervision need not always be active; the closeness of the supervision required depends upon the type of danger and a more passive role may be sufficient, but the provision of attention in connection with the bodily functions of another person is always active, and, qualitatively, engagement during the periods where attention is given may amount to an equally or possibly more taxing role for the other person providing the attention than would continual supervision.  That may well be the case here.
29. Those comparative considerations were helpful in reinforcing my primary conclusion.
30. Accordingly I make the decision that the FTT should have made upon the facts that they found, which is that the award throughout the period that they identified as appropriate should have been one of the middle rate of disability living allowance for day attention.

Upper Tribunal Judge Paula Gray

(Signed on the original on 16 September 2015)