JMH/IW/RC

           
THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CDLA/4295/2000

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF A DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER J M HENTY

1.	My decision is that the decision of the Appeal Tribunal was erroneous in point of law, in that it made an award for the whole period 18.7.98 – 17.7.2005.  I set it aside and, in pursuance of the powers in that behalf contained in section 14(8)(a)(i) SSA1998, I give the decision I consider the Tribunal should have given, namely that the claimant is entitled to an award of the care component of DLA at the lowest rate and of the mobility component at the lower rate for the period 18.7.98 to 8.3.2000.  In effect, therefore, the claimant’s appeal is dismissed.  

2.	This is an appeal with leave granted by the Commissioner on 17.1.2001 from the decision of an Appeal Tribunal dated 15.6.2000.  At the same time as giving leave, the Commissioner directed the appeal be expedited.  At the request of the claimant, the same Commissioner ordered an oral hearing of the appeal, which was initially fixed for 12.7.01, but, at the claimant’s request, postponed until 25.7.01.  The Commissioner in front of whom the appeal had been assigned became indisposed and the case was transferred to me.  I duly held the oral hearing, at which Mr Julien Foster of the Bar Pro Bono Unit, instructed by Messrs Hodge Jones & Allem, appeared for the claimant and Mrs Swainson, of the DSS Solicitors Department, appeared for the Secretary of State, I am grateful to them both.  The appeal is not supported.  I would add that the Tribunal’s decision was a majority one, but only for the reason that the minority member considered that a life, rather than a limited, award was appropriate.

3.	The claimant, a man now of some 44 years, is Greek by origin and, at all material times, has been a schizophrenic.  For the purposes of section 72(1) SSC & BA, he is disabled mentally.  He made his original claim for DLA on 18.7.95 and, on review, was awarded the lowest rate of the care component (cooked meal test) from 18.7.95 to 17.7.98 and, on appeal, the mobility component at the lower rate for the same period.  On renewal, he was awarded no benefit.  An application for review was unsuccessful, and he appealed to the Appeal Tribunal.  On 1.4.99, the Tribunal awarded him the lowest rate care component 18.7.98 to 17.7.2003 (cooked meal test) but no rate of the mobility component.  That claim was set aside by the Commissioner under section 14(7) of the 1998 Act, and the rehearing took place on 15.6.2000, from which decision the claimant now appeals to me.  At that hearing, he was awarded the mobility component at the lower rate and the care component at the lowest rate (cooked meal test) for the period 18.7.98 to 17.7.2005.

4.	At the Tribunal re-hearing, it was noted that a decision on a fresh claim had been notified on 13.6.2000 and, for reasons which I do not entirely understand, the tribunal did not limit their decision for “the closed period,” 18.7.98 to 8.3.2000, but made the award to end on 17.7.2005.  Mrs Swainson told me that, in fact, an award of DLA of the mobility component at the lower rate and the care component at the highest rate had been made for the period 9.3.2000 – 8.3.2003.  Accordingly, the tribunal were, as the Secretary of State submits in paragraph 6 of his submission to me dated 13.2.2001 (390/1), in error of law.  That submission was clearly correct, and Mr Foster agreed.  For that reason, I have, therefore, limited the order as set out in para 1 above.

5.	Now I do not know the precise circumstances of the award from 9.3.2000 and, while a not unreasonable comment might question why, if the claimant was entitled to the highest rate care from 9.3.2000, should he not also be entitled for the period 18.7.98 – 8.3.2000?  But in that lies a non sequitur, for the appeal to me under section 14(1) of the 1998 Act is concerned with, and solely with, whether the tribunal was on 15.6.2000 in error of law.  In any event, his condition was slowly deteriorating;  there is evidence that he became an in-patient in 1999.  Fiona Ritchie’s report of 20.1.99 (298/301) was obtained, though evidently in connection with possible after care needs rather than on the DLA claim.  But in this case, the order appealed from might appear to be that dated 20.5.1998 (245/249) which was before 21.5.1998, the date on which the 1998 Act for this purpose came into operation, and accordingly I raised a direction whether the Tribunal should not have consider the case down to the date of their hearing?  

The Secretary of State simply submits that it was a necessary pre-condition of any appeal in DLA cases prior to 18.10.99 that, under ss.30(1) and s33(1) of the Administration Act 1992, there had been a second tier review.  The review date was 17.8.98, thus after 21.5.98 when s.12(8)(b) of the 1998 Act came into force.  That, therefore, the dtae of the relevant decision and the down to the date of hearing “principle did not apply.  The skeleton submissions helpfully prepared by Mr Foster simply put this in issue, but, in my judgment, the submissio of the Secretary of State is clearly right.  There is nothing, therefore, in the hare which I mistakenly raised.

6.	There is no issue about the award of the mobility component.  The appeal is concerned solely with the care component.  

7.	I now set out section 72(1) SSC & BA so far as is relevant (my underlining):

	“72(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 …; 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.”

8.	At this stage I would make two comments:

	(i)	It was accepted by Mr Foster that “a bodily function” must have the same overall meaning whether it is considered in relation to physical or to mental disablement – and that, in my view, is clearly right.

	(ii)	The requirement for attention or supervision is that which a claimant reasonably requires, not that which he actually receives.

9.	Mr Foster’s first submission was that the function of the brain is in itself a bodily function.  For that proposition, he relied on Lord Slynn’s speech in Cockburn v. Secretary of State 1997 1WLR/799 at p.813 as follows:

	“Although movement of the limbs (including their use for walking and running) is a bodily function, so also, in my view, is the operation of the senses.  The reception of sound, its communication to the brain and the brain’s “instruction” to the limbs or other parts of the body to act or refrain from acting are all as much bodily functions as the movement of the limbs and the action of the digestive or excretory organs.”

That passage relates to “the senses”.  What that passage, to my mind, contemplates is that messages sent by the brain through the nervous system to exercise limbs etc. is as much a bodily function as the exercise of the limb itself, for, without the intervention of the nervous system, the limb could not be exercised.  Put another way, it is all part and parcel of the bodily function concerned. 

Mr Foster’s submission on the other hand involves, not so much the effect of the nervous system, or the senses, but the abstract concept of thinking.  In CSA/389/97, the Commissioner succinctly put the point thus:

	“18.	It was [The representative’s ] position that if someone’s condition through anxiety was such that they could not think straight, could not make a sensible decision and required intervention by someone else so that they could come out of their anxious state in order to carry on then such a condition was caused by an activity of the brain.  It was therefore a bodily function and having regard to what was said by Lord Slynn of Hadley, [in Cockburn] it was his submission that the claimant had a mental disablement which manifested itself in panic and anxiety.  It was his position that the bodily function impaired by this disability was thinking or as he put it “other operation of the brain”.  He then went on to submit that attention might be required to cure the defect.

“19.	In the context of the approach that the words of that section are directed primarily to those functions which the fit man normally performs for himself it was [the representative’s] submission that the attention reasonably required was to think for the claimant, to instruct her what to do and to make her calm.  …

“22.	I have come to the conclusion that the tribunal erred in law when it held that social contact with another person to relieve anxiety and enable the claimant to go on recreationally while indoors to participate in ordinary everyday activities was help reasonably required with a bodily function.  There are three reasons for this.

“23.	First I am inclined to the view that the Commissioner in CA/0222/93 was correct when he considered that the statutory definition did not included attention given in connection with the cognitive and other functions of the brain unrelated to physical functions even although the brain is an organ and is part of the body.  I propose to follow him for it seems to me that what is essentially a state of mind cannot fit comfortably into the statutory definitions”.

Like the Commissioner in that case, I do not think that the dictum of Lord Slynn in Cockburn is, in fact, authority for Mr Foster’s submission and I propose to follow the Commissioner in CSA/389/97.  Accordingly I reject this submission.  

I now turn tot he next point of Mr Foster’s argument.

10.	In para 10 of the decision the tribunal said:

	“Turning to the supervision needs, it has been argued that without continual supervision throughout the day [the claimant] would suffer substantial harm.  Indeed, it was also put that he would self-neglect and this is the reason why his mother or sister in Greece have to phone him on a daily basis or he to phone them and the contact which he had with the hospital and the day centre.”

Mr Foster submits that, following the Commissioner in CDLA/1148/97 (Mr Commissioner Goodman dated 11.4.2000 after revision by the Court of Appeal) the telephone conversations, which undoubtedly take place, and which are undoubtedly important to the well-being of the claimant, would themselves constitute attention.  This was resisted by Mrs Swainsome on the grounds that there was not the necessary physical contact which normally implies presence or the person rendering attention and the claimant.  In para 23 of that case, the Commissioner concluded that a telephone conversation could amount to attention notwithstanding the lack of actual physical presence.  I entirely agree.  In para 23, the Commissioner concluded that a telephone conversation could amount to attention notwithstanding the lack of actual physical contact.  I entirely agree.  If reassurance by speaking directly to a claimant, which involves the speaker being in the claimant’s actual presence, can amount to attention, I see no reason why a telephone conversation, involving as it does, personal communication should not similarly qualify.  But Mr Foster submits to me that the bodily function concerned is the consequence of the claimant’s malfunctioning brain but, as I have held, that is not of itself a bodily function.  

But I think that this discussion may be something of a red herring.  In this case, only an award of the care component at the middle rate is in issue, for the claimant already has an award at the lowest rate.  Either frequent attention or continual supervision, in each case, throughout the day, is required.  The only evidence of phone calls is that either the claimant or his mother will ring each other at approximately 7pm each day and the claimant is able to function until that time.  The Tribunal dealt with supervision thus:

“We find nothing in the evidence from 1998 which suggests that his mental condition is such that he is at risk of substantial danger if he does not have continual supervision the day.  We did note the phone calls from his mother, sister as reported by him to them and that without this he may self-neglect.  We do not accept this as falling anything near as continual supervision throughout the day.”

That deals with the supervision point on this aspect quite satisfactorily.  One or so telephone calls a day, when aggregated with other care needs – which the Tribunal has carefully identified – would out tip the scales and make frequent attention necessary throught the day, I so hold.

11.	Mr Foster submits that, inasmuch as there was an express submission made at the hearing that brain function was within the area contemplated above “a bodily function”, the tribunal did not directly deal with that submission I have dealt with that and in the circumstances I have remedied that error under section 14(8)(a)(i) of the 1998 Act. 

12.	Mr Foster then submitted to me that the tribunal had failed to apply the statutory test – viz. that attention is reasonably required, and accepted the psychiatric evidence, which had been obtained, but in a different context and for a different purpose.  He places particular emphasis on Fiona Ritchie’s statement in the last paragraph of her report (301):

	“[The claimant] has, however, built up a most effective supports system around himself, using a number of community resources and this helps him compensate for many other difficulties he experiences.”

That is as it may be, and, in the normal course of events, something like that would be expected in a person who has any initiative.  But I do not think that you can read into it any qualification of the previous conclusions.  I note in particular:

	“Mobility

	[The claimant] is able to go out independently.  He is physically fit and is able to use buses to go to his day centre.  He has a bus pass and a good knowledge of local bus routes.  He describes feeling well when in familiar settings but becomes very anxious and disorientated when in unfamiliar settings.”

	“Planning a meal

	[The claimant] does not plan or cook more elaborate meals for himself.  He described how his lack of concentration would render him unable to plan or cook a meal.  He felt that this was a task that was beyond his present abilities – there was no practical assessment of this on this occasion.”

And, in his report of 25.1.99, Mr Richardson indicates that the claimant is not able to prepare a meal.  These indications, to my mind, support an award of the care component at the lowest rate and of the mobility component at the lower rate, but nothing more.  The fact that the reports may have been obtained in a different context and for a different purpose does not, in my mind, detract from the irrelevance of them for the purposes of DLA, as interpreted by the tribunal.

13.	As for supervision Mr Foster submits that the tribunal do little more than to rehearse the evidence but it seems to me quite apparent from the evidence that they properly came to the decision that they did.  He takes exception at the last 2 sentences of para 9:

	“We also noted that in the previous submission on his behalf that at page 90 solicitors then acting ... under the heading 5 invited the tribunal to consider the middle or the lower rate of the care component and nothing was made of the night needs.  This was put to Mr Good who said that that submission may have been written for tactical reasons.  Whatever may have been the reasons for submitting it, we are not satisfied that there is amongst the considerable evidence any support for the submission as to night needs.”

I do not think for one moment that the comment about the omission to a claim night needs before binds this tribunal, but I do not think that it is unfair comment but marginally carries the matter no further.

14.	For the reasons above I therefore dismiss the appeal in the terms of paragraph 1 above.

					(Signed)	J M Henty
							Commissioner

					(Date)