CDLA/5419/1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought on the claimant’s behalf by her mother with the leave of the regional chairman of tribunals, against a decision of the Liverpool disability appeal tribunal dated 19 April 1999 whereby they held that the claimant was not entitled to disability living allowance.  I held an oral hearing in Cardiff at which the claimant was represented by Mr Richard Atkinson of the Welfare Benefits Advice Unit of the Metropolitan Borough of Wirral and the Secretary of State was represented by Mr Huw James, solicitor, acting as agent for the Solicitor to the Departments of Social Security and Health.

2.	The claim for disability living allowance was made on 5 June 1998 when the claimant was aged two years and seven months.  She was suffering from asthma which her general practitioner described as being of moderate severity.  Due to her age she was plainly not entitled to the mobility component of disability living allowance but she claimed the care component on the ground that she needed help with her inhaler during the day and she also needed help at night because she was often awake coughing and wheezing and was sick or wet the bed and needed soothing back to sleep.

3.	Section 72(1) and (6) of the Social Security Contributions and Benefits Act 1992 provides:

(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.

....

(6)	For the purposes of this section in its application to a person for any period in which he is under the age of 16 -

(a)	sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and

(b)	neither the condition mentioned in sub-paragraph (i)  of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless -
(i) 	he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or
(ii)	....”

By subsection (4), a person who satisfies both the conditions in subsection (1)(b) and (c) for the requisite period qualifies for the highest of the three rates of the care component, a person who satisfies either, but not both, of those conditions, qualifies for the middle rate and a person who satisfies only the condition in subsection (1)(a) qualifies for the lowest rate.

4.	The claim was disallowed by an adjudication officer and that decision was not revised on review.  The reviewing adjudication officer accepted that the claimant needed more care than children of her age normally did but he or she did not accept that the amount of care required was substantially in excess of that normally required.  The claimant appealed.  Mr Atkinson submitted that she satisfied the condition of the section 72(1)(c) in respect of her night-time requirements and, alternatively, satisfied the condition of section 72(1)(a)(i) because she had care needs for a significant proportion of any 24 hour period.  The tribunal dismissed the claimant’s appeal, finding that she did not require as much attention and watching over as was claimed and also rejecting the submission that, for the purposes of section 72(1)(a)(i), they could consider attention received over a whole 24-hour period.  They regarded any attention after 11.00 p.m., when the claimant’s mother went to bed, as night-time attention as opposed to attention during the day and they excluded it from consideration.

5.	Mr Atkinson’s first submission on this appeal was that the tribunal had erred in excluding night-time requirements from consideration under section 72(1)(a)(i).  He accepted that, for the purposes of section 72(1)(b), the phrase “by day” meant the opposite of the phrase “at night” used in section 72(1)(c) and that “day” and “night” for those purposes had the meanings attributed to them in Regina v. National Insurance Commissioner, ex parte Secretary of State for Social Services [1974] 1 W.L.R. 1290 (also reported as an appendix to R(A) 4/74) and R(A) 1/78.  However, he submitted that the phrase “by day” in paragraph (b) naturally imported a narrower meaning than the phrase “the day” in paragraph (a)(i) and that, as a matter of construction, there was nothing strange about a word having a broader meaning in the first of two paragraphs of the same subsection than the same word in the second of those paragraphs.  He further submitted that there was no reason why night-time requirements that were not sufficiently extensive to fall within paragraph (c) should be excluded from consideration altogether which would be the effect if they did not fall within paragraph (a)(i).  I do not accept those submissions.  It seems to me to be quite inconceivable that the draftsman of the Disability Living Allowance and Disability Working Allowance Act 1991 should have used the word “day” in what is now section 72 of the 1992 Act in two different senses in the same subsection and it is perfectly plain that he or she intended the word to have the same meaning as had already been given to the word in what was then section 35 of the Social Security Act 1975.  Nor does there appear to me to be any anomaly in leaving out of account altogether night-time requirements that are too slight to fall within paragraph (c).  Accordingly, I reject this first ground of appeal.

6.	Mr Atkinson then argued that the tribunal had misconstrued the phrase “significant portion of the day” when they said:

“The extra daily attention given to [the claimant] of two puffs of the inhaler four times a day, a process measured in minutes, can in no way be regarded as for a significant portion of the day or to be substantially in excess of that care normally given to a child of the same age.”

He referred to CSDLA/29/94 in which it was suggested that the aggregate length of a number of short periods of attention might be more significant than a single long period of the same length.  However, he accepted that the judgment as to the significance of the portion of the day taken up by caring for a disabled person was one to be made by the tribunal and that, even having regard to CSDLA/29/94, it was not arguable that, in the present case, the tribunal had reached a conclusion that no tribunal properly instructed as to the law could reasonably have reached.  I see no reason to suppose that the tribunal misdirected themselves at all.  Mr Atkinson also criticised the tribunal for apparently suggesting that the question whether attention by reason of disablement was required for a significant portion of the day was the same as the question whether such attention was substantially in excess of the attention normally required by a child of that age.  I do not accept that criticism.  The second question simply did not arise because the first question had been decided against the claimant.  It seems to me that all the tribunal were saying was that, if they had not decided the first question against the claimant, they would have decided the second against her so that she would still have failed.

7.	Finally, Mr Atkinson submitted that the tribunal had erred because they did not give reasons for apparently rejecting evidence provided by the claimant’s general practitioner which, he submitted, supported her case as regards night-time requirements.  It is true that the general practitioner had said that the claimant had a “cough and wheeze most nights” and required by night “more supervision over last two months [to 18 June 1998]”.  The tribunal did in fact refer to that evidence.  They said that “[the claimant’s mother] agreed that her GP was only aware {the claimant] coughed and wheezed at night because she had so informed him”.  That might not always be an adequate explanation for not accepting evidence from a general practitioner because, as Mr James accepted, a doctor repeating what a person has said to him or her may sometimes carry with it the implication that what was reported is not, in the doctor’s view, contradicted by his or her own observations and that implication may sometimes amount to material support for a claimant’s own evidence.  However, in the present case, after explaining why they did not accept the claimant’s mother’s own evidence, the tribunal said:

“We accept if [the claimant] is distressed at night she may need changing and comforting and take time to settle, but we do not accept the frequency is such that [the claimant] requires attention substantially in excess of that normally required by a child of the same age to satisfy the statutory criteria for any award of the middle rate of care component of the DLA (i.e., for day or night care).  We consider the attention levels were exaggerated in the Claim Form and before us.”

That is not inconsistent with what the general practitioner was saying because they plainly accepted that the claimant did require some attention at night.  The reason that they decided the case against the claimant was that they were not satisfied that the claimant required enough attention to qualify.  The general practitioner did not say how much attention was required and so the general practitioner’s evidence cannot be said to have supported the element of the claimant’s case upon which she failed.  In those circumstances, I do not consider that there was any duty on the tribunal to refer to the general practitioner’s evidence in their reasons at all and I do not consider that they erred in not saying more than they did.  Furthermore, I accept Mr James’ submission that, in this case, where the tribunal did not accept the evidence of the claimant’s mother, which was the only evidence given as to the amount of attention required, and where there had been no specific argument as to what might be sufficient to satisfy the condition of section 72(6)(b), the tribunal were not bound to record a specific finding as to how much attention was required and that it was sufficient for them simply to say that, whatever it was, it was not enough to meet the statutory criteria.

8.	I am not satisfied that the tribunal’s decision was erroneous in point of law.  Accordingly, I dismiss this appeal.

M. ROWLAND
Commissioner
29 June 2000