Commissioner’s case no:  CDLA/2852/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow this appeal by the Claimant, brought with my leave, against a decision of 
the Whittington House Appeal Tribunal made on 25 March 2002. For the reasons set out below that decision was in my judgment erroneous in law. I set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted appeal tribunal. So far as relevant, the new tribunal should apply the law as set out in paragraphs 5 to 10 below.

2.	The Claimant is a girl who was born on 17 September 1998 with a heart condition and who was in  receipt of the highest rate of the care component of disability living allowance from 1 June 2000 to 31 May 2001. The Tribunal’s decision was that, on her renewal claim, she was entitled only to the lowest rate of the care component from 1 June 2001 to 31 May 2003. That decision varied the decision of the decision maker (made on 18 April 2001) only to the extent of extending the period of the award by an additional year.

3.	The grounds of appeal centre on the way in which the Tribunal dealt with the Claimant’s alleged needs at night. The contention before the Tribunal was that, owing to night sweats, the Claimant’s bed clothes and night clothes needed changing at about 11.30 p.m., before the Claimant’s mother went to bed, and again at 3 to 4 a.m. 

4.	I think that the Tribunal’s reasoning as regards those contentions was probably as follows:

(a)	That the attention given before the Claimant’s mother went to bed was not at “night”;
(b)	That the time taken to change bedding and clothes in the small hours was only 5 to 10 minutes, and was not therefore “prolonged”. 

5.	If that was the Tribunal’s reasoning, I am of the view that it was not erroneous in law. I gave leave to appeal on the ground that it was arguable that the Tribunal had erred in law in failing to deal with the argument on behalf of the Claimant that the first occasion on which attention was needed (i.e. at about 11.30 p.m) was also during the “night” because the Claimant’s mother would have gone to bed earlier had it not been for the need to give it.

6.	However, although the Secretary of State supported the appeal on this ground, on more detailed consideration I do not think that that is so. In R v. National Insurance Commissioner, ex p. Secretary of State for Social Services [1974] 1 WLR 1290 “night” was defined as being “that period of inactivity or that principal period of inactivity through which each household goes in the dark hours, and to measure the beginning of the night from the time at which the household as it were, closed down for the night.” That was applied to a case of attention given to a child in R(A) 1/78, so that attention given after the child went to bed, but before the parents did so, was not attention given during the night. 

7.	On p.141 of Vol. 1 of Sweet & Maxwell’s Social Security Legislation 2001, the following suggestion is made:

	“While this definition seems to address itself to the habits of the particular household there is probably room for a more objective element to be applied so that, where, for example, the only other member of the household sits up late to perform the first act of attention before they retire, this should count as attention at night.”

8.	That, however, begs the question of what is meant by “late” in that passage. If by late is meant “later than the carer would otherwise wish to go to bed”, I do not think that I agree. The mere fact that the carer would otherwise to go to bed earlier does not seem to me to mean that the attention is given at night. So, in this case, the Claimant’s representative says that his recollection is that the Claimant’s mother’s evidence is that she would otherwise have wished to go to bed at 8 or 8.30. I record, however, that the Record of Proceedings, which is partially illegible, may not bear out that any such evidence was given. Even if it was, and even if such evidence were to be accepted (and on the face of it I agree with the Secretary of State’s suggestion that it would seem improbable that the Claimant’s mother would for this reason delay going to bed for some 3 hours), however, it does not seem to me that this household’s night began at 8 or 8.30 for this purpose, rather than at the time when the Claimant’s mother actually goes to bed – i.e. when the household actually shuts down for the night. 

9.	I would, however, accept that there may be an objective element in the definition of “night” in extreme cases – i.e. where the carer, owing to the need to give the attention, delays going to bed until an hour which is extremely late and would on any normal definition plainly be part of the night – e.g. into the small hours. If that is what is meant by “late” in the above passage, then I would agree. I would think, however, that such cases would in practice be very rare. For the avoidance of doubt I do not think that going to bed at 11.30 p.m. or even 12 a.m. (the sort of time suggested in this case) is sufficiently late to fall into that exceptional category.

10.	There may also be cases where the carer’s partner does go to bed earlier, and at a time when the carer would also have done so but for the need to give the attention. It may then be possible to say that the time when the partner goes to bed and when the carer would have wished to do so should be regarded as the time when the household in fact shuts down for the night.

11.	However, the respect in which the Tribunal in my judgment did err in law is that it is not sufficiently clear from the long penultimate paragraph of its reasons what its reasoning in respect of the claimed need for night attention was. Although I think that the decisive elements were probably those which I set out in paragraph 4 above, the Tribunal also appears to rely to some extent on arguments (a) that there was no medical evidence of a need for a “complete change” (and I am not wholly clear what was meant by “complete”) and (b) that children of that age routinely need “checking at night and potting” in any event. Both these arguments appear to me to be suspect, if they were intended to be self-standing grounds of decision. I think that they probably were not, and were probably added more by way of comment. But the overall effect is not sufficiently clear, and for that reason I allow the appeal. 

12.	The Claimant’s representative requested that I should myself substitute a decision in the Claimant’s favour (i.e. presumably an award of the middle rate of the care component). However, it will be apparent from what I have said above that I am of the view that on what appear to be its primary findings the Tribunal’s decision was correct. It would therefore clearly be inappropriate for me to do so. 

                    (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                              7 October 2002