DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:	CDLA/4134/2001

1.	My decision is that the decision of the tribunal given on 14 June 2001 is erroneous in point of law and accordingly I set it aside.  However, as I consider it expedient to give the decision the tribunal should have given, I further decide that the claimant is entitled to the middle rate of the care component and the higher rate of the mobility component of disability living allowance from 8 December 1999 to 7 December 2004.

2.	This is an appeal on behalf of the claimant against the decision of the tribunal of 14 June 2001, leave having been granted by me.

3.	The claimant, now aged 32, suffers from diabetes mellitus, under active thyroid gland, high blood pressure, partial blindness and renal failure requiring continuous ambulatory peritoneal dialysis (CAPD).  On 8 December 1999 she claimed disability living allowance.  On 5 February 2000 the decision maker decided that although she was not entitled to the care component she was entitled to the lower rate of the mobility component from 8 December 1999.  The claimant requested a reconsideration of the decision.  On 7 April 2000 a different decision maker rejected the whole of the claim.  On 16 June 2000 at the request of the claimant a different decision maker reconsidered the decision but did not revise it.  The claimant appealed to the tribunal.

4.	The hearing of the appeal before a tribunal on 12 January 2001 was adjourned in order to enable the claimant to submit further medical evidence.  The claimant and her representative attended the hearing of the appeal before the tribunal on 14 June 2001.  In the event the tribunal decided that although the claimant was entitled to the lower rate of the mobility component he was not entitled to any rate of the care component.  

5.	The issue before the tribunal was whether the claimant satisfied the conditions of entitlement for an award of the care and/or mobility component of disability living allowance as provided by sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 (“the Act”).  For the reasons set out below I agree with the claimant’s representative that the tribunal’s decision was inadequate and failed to comply with statutory requirements.  I have no alternative but to set it aside.  

6.	In order to satisfy the conditions of section 72(1)(b)(i) of the Act the claimant had to show that she was so severely disabled physically that she required from another person frequent attention throughout the day in connection with her bodily functions.  “Requires” means “reasonably requires” and not “medically requires”.

7.	In the House of Lords judgment in Mallinson [1944 1 WLR 630] Lord Justice Woolf considered section 35(1)(a)(i) of the Social Security Act 1975 [now section 72(1)(b)(i) of the Act] and held that:-

	“.. this .. involves doing no more than looking .. at the claimant’s account of what he can and cannot do together with the relevant medical report and asking 4 simple questions:  (1) Has the claimant a serious disability?  (2) If so, what bodily functions does it impair? (3) Does he reasonably require attention in connection with those functions? (4) Is that attention frequent?”

Lord Justice Woolf made it clear that different incidents of attention could then be aggregated when considering if the attention was frequent within the meaning of section 35(1)(a)(i).  

8.	In the House of Lords judgment in Fairey [1997 1 WLR 799] Lord Slynn of Hadley gave guidance on the meaning of “attention needs “which fall to be included in the assessment for the purposes of section 72(1) of the Act.  On pages 18 and 19 of the transcript he held:-

	“.. the test, in my view, is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life …  In my opinion the yardstick of a ‘normal life’ is important.  Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life.  It is not in any way unreasonable that the severely disabled person would wish to be involved in them despite his disability.  What is reasonable depend on the age, sex, interests of the applicant and other circumstances. .. How much attention is required and how frequent it is required are questions of fact ..”

9.	The tribunal accepted that the claimant suffered from “diabetes mellitus, under active thyroid gland, kidney failure, high blood pressure and was partially sighted”.  With regard to the kidney failure the claimant required dialysis by CAPD four times a day each lasting one hour.  The Disability Handbook describes the treatment as follows (paragraph 16.6):-

	“An indwelling catheter is inserted through the abdominal wall.  Through this fluid is run, left in the abdomen cavity for 4‑8 hours, and then run out.  The process is repeated on a continual basis.  Treatment is therefore continuous not sessional.

	A bag of dialysis fluid, after being warmed to body temperature, is suspended from a hook and attached to the catheter.  The patient sits down and the fluid is run out.  When the bag is empty, the connecting tube is clamped, the bag rolled up and tucked into a pouch or waste bag.  The patient is then able to go about his normal activity.  After 4 to 8 hours the patient unrolls the bag, removes the clamp from the tube and allows the fluid to run out.  Thereafter a new bag is attached and the cycle repeated.  Disconnection must be carried out using a meticulous aseptic technique to minimise the risk of peritonitis.

	.. the bags are heavy.  In cases involving severe physical weakness, e.g. anaemia (which is common in renal failure) .. help will be needed with the lifting of the bag.  

	Night attention is not required as the dialysis fluid is left in the abdominal cavity overnight, changes taking place during the day.”

10.	The tribunal had before them a medical report dated 27 November 2000 from Mr D V Inglesby, a Consultant Ophthalmologist, who described the effects of the diabetes on the claimant’s eyesight:-

	“[The claimant] suffers from the ocular complications of diabetes, and has been my patient since 1989.  At that point she had very severe proliferative diabetic retinopathy, and underwent surgery on both eyes, comprising a left vitrectomy in March 1990, a right vitrectomy in July of that year, with subsequent right cataract surgery in February 1992.  She has also received extensive laser treatment to both eyes.  Despite the extensive surgery on the right eye, this eye has done badly, and has only hand movements vision, due to the retinal ischaemia and persisting detachment of the posteriora retina.

	The left eye retains what superficially appears to be good vision .. but the eye has marked cortical cataracts, which can be expected to interfere significantly with the vision ..  Also, because of the extensive retinal laser treatment which has been performed in the past to try to stabilise the eye disease, she is left with a very restricted field of vision and I made a note in November 1997 that at that stage she was ‘bumping into things’.

	This patient is therefore effectively one‑eyed, with the attendant problems of difficulty in judging speed and distance, and in judging prospective, particularly difficult when going up or down or crossing uneven ground.  Although the acuity appears to be good, the function of the eye is far from normal under many conditions ..”

11.	In his statement dated 22 January 2000 the claimant’s GP confirmed the claimant’s medical condition and explained that she was at the “end stage renal failure” requiring four hourly dialysis and that she was on a waiting list for kidney and pancreas transplant.  He added that “she tires very easily”.  The tribunal also had before them a letter dated 2 February 2001 from Dr. M McHugh, a Consultant Physician/Nephrologist, in which he wrote:-

	“This patient has chronic renal failure and is on peritoneal dialysis a treatment which she has been having since November 1999.  She does home dialysis using an automatic machine which requires 8½ hours dialysis per night, every night of the week.”

12.	In her claim form the claimant explained her difficulties as follows:-

	“I can only use the shower as I cannot soak my tube in my stomach.  It is an effort to use the shower when I am feeling exhausted and have to make sure the rooms are warm and clean.  The heating, an electric heater and my spare room with special cleaning equipment, I have to try to keep a sterile area – this stops me getting infections.  It takes me longer than normal [to dress and undress] I have to make sure the rooms are warm.  I may get breathlessness and exhausted.  I have no appetite due to my dialysis ....treatment can be a problem as I am too tired, remembering which tablets to take when.  Dialysis can be painful and uncomfortable feeling lousy and run down all the time has knock on side effects if I don’t treat myself I will die.  I may go into diabetic hypo.  I do not see hazards and danger.  I get exhausted.  I get dizzy, shake and sweat and can get aggressive with a hypo.  .. I do dialysis every 4 hours so cannot leave home for longer than this .. I need help to cope with day to day life ..  I get boxes of dialysis fluid delivered to my home.  I cannot carry anything heavy I need help moving this.” 

12.	In a letter dated 23 February 2000 the claimant wrote:-

	“… because I am on kidney dialysis I experience severe bouts of tiredness and frequently I am too exhausted to prepare and cook a meal and rely on others to do this for me.  I often do not eat a cooked meal because of this.  I frequently need help with personal care as I am attached to dialysis fluid and machinery lasting up to 1 hour at least 4 times a day.  I cannot handle heavy things or strenuous work ..

	Whilst doing kidney dialysis .. I cannot move from a sitting position – it is dangerous for me to do so and can cause pain or infection in my external and internal dialysis tube in my body.  I need supervision in my home at this time to avoid these dangers.  … I have a dialysis fluid heater machine which has to be constantly on preparing fluid to the correct temperature day and night .. I also have to consult a specialist dietician frequently about the content and preparation of my food.  The dietician supervises my diet as it would be dangerous for me to eat certain foods ..”

13.	In the light of that evidence the tribunal concluded, so far as relevant:-

	“The appellant was able to move around indoors with her activities being limited solely by breathlessness when climbing the stairs .. 

	There were no stated problems with toilet needs.

	Whilst the appellant stated that she did need encouragement at meal times the Tribunal was not of the view that such encouragement was needed on the basis of frequent attention or continuous supervision.

	Again the tribunal were of the view that assistance was not required of medical treatment nor did the appellant need someone to keep an eye on her during the day or night.  It was accepted that the appellant did suffer dizzy spells, blackouts, fits and seizures the Appellant had full warning of these and was able to take appropriate precautions.”

14.	In addition the tribunal recorded:-

	“In relation to help with personal care the Appellant’s own evidence to the Tribunal was that she could manage on her own living alone and being able to cope, being able to get up on the morning and retire to bed without assistance, get washed and dressed on her own and accepting that she could prepare a cooked main meal.”

This was not an accurate summary of the claimant’s evidence of the tribunal.  The chairman’s note of evidence records that the claimant stated:-

	“I do get hypo attack at least once per day sometimes 4 a day .. attack cause, dizzy shaking.  I take sugary drink if I feel an attack coming on .. did once have to call an ambulance.  .. get very tired all the time feel worse on a morning .. don’t go out or do anything evenings.  No marked improvement after dialysis.  .. vision and tiredness restrict my social life .. I take insulin            3 times a day + the injection .. awaiting kidney and pancreas transplant since 99.  Sometimes I cannot be bothered to get out of bed.  If I go out it needs great preparation .. as regards meals I have little appetite but can cook a [?] meal but need encouragement ..”

15.	The tribunal referred to the GP’s report that the claimant “was able to manage her own testing, therapy and personal care unaided”.  They disregarded that he answered “no” to the question “is the overall control satisfactory” and that she was on a waiting for transplant and that she “tires very easily”.  The tribunal also stated that “the evidence from Dr. McHugh was that the Appellant was able to carry out her own dialysis unaided indicating there was no particular disabling feature with or immediately following dialysis”.  I cannot find any supporting evidence for this conclusion.  There was no reference to Mr Inglesby’s medical report.

16.	In considering section 72(1)(b)(i) the emphasis is on whether the claimant “reasonably requires” frequent attention with her bodily functions.  The tribunal concluded that the claimant “is able to move around indoors with her activities being limited solely by breathlessness when climbing the stairs”.  They failed to show what activities they took into account and I agree with the claimant’s representative and the Secretary of State’s representative that the tribunal failed to demonstrate that they had explored the test of reasonableness.  They failed to take into account the claimant’s exhaustion and disregarded the medical and all other evidence in support.  Who would help her carry the bag of dialysis fluid if she was incapable to do so?  Who would assist her if she required help to connect and clamp the tube because she was partially sighted?  During dialysis she was required to sit still for one hour four times a day.  No doubt she reasonably required attention in connection with her bodily functions during these times.  Who would help her disconnect the bag using meticulously aseptic technique to minimise the risk of infection if the claimant was too exhausted to do so?  The claimant is a young woman and was totally dependent on help from others for any social activity.  I consider the tribunal’s findings of fact to be perverse and their application of the law contrary to the principles established in the House of Lords judgments in Mallinson and Fairey.  

17.	It was incumbent on the tribunal to make primary findings of fact about the attention the claimant required from another person, the frequency of that attention and whether it was reasonably required.  As stated they concluded that the claimant had no attention needs.  With regard to the “cooking test” they failed to take into account that the claimant was diabetic and on a special diet and that she lacked appetite and was too exhausted to cook for herself.  These were salient points in determining whether she satisfied the conditions of section 72(1)(a)(ii).  The decision was inadequate because there is nothing to indicate they considered these issues.  

18.	For the reasons stated above I have no hesitation in concluding that the claimant satisfied the conditions contained in section 72(1)(b)(i) of the Act.  In view of  my decision I do not propose to comment on the provisions of paragraph (b)(ii).  No purpose would be served.  Suffice it to say that the tribunal did not have regard to the effects of the claimant’s medical condition and to the difficulties which might arise.  For example what would happen if the claimant suffered a hypoglycaemic attack while having dialysis and was unable to obtain the necessary sugar to counteract the attack?  The risk was not too remote and could result in substantial danger.  

19.	I now turn to the night time conditions contained in section 72(1)(c).  The claimant had to show that she was so severely disabled that she required from another person prolonged or repeated attention in connection with her bodily functions or that in order to avoid substantial danger to herself or others she required another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over her.  In her claim form she stated she had to be careful in bed not to hurt herself or damage the dialysis tube which she had in her stomach.  She estimated that she needed attention once a night for one hour.  Her problems were exacerbated because she was unable to see in the dark and could not recognise hazards.  The medical evidence did not refer to the claimant’s needs at night.  I have considered all medical evidence and statements before me with care but I do not consider that the claimant satisfied either of the conditions of entitlement contained in section 72(1)(c).

20.	With regard to the mobility component, it was contended that the claimant was virtually unable to walk in terms of section 73(1)(a) of the Act.  Regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 (“the Regulations”) sets out the circumstances in which a person may be found to be virtually unable to walk for the purposes of section 73(1)(a).  That regulation clearly imports that a person suffering from a physical disablement may be found to be virtually incapable of walking if her ability to walk out of doors is limited in one or more of the ways mentioned in that regulation in making progress on foot without severe discomfort.  The effect of pain, breathlessness and exhaustion on the claimant’s ability to walk was specifically in issue in this case.  The claimant’s GP reported that when she was very tired she could only walk 50 yards before the onset of severe discomfort, but the distance was variable and she tired very easily.  The tribunal rejected this evidence because there was no evidence that he had “ever seen her attempt to walk”.  There is no evidence to support this conclusion. 

21.	In her claim form the claimant stated that she could walk 90 metres before the onset of severe discomfort.  The tribunal noted that this took five minutes although the claimant specified “5-10 minutes” and qualified this by stating “I cannot walk far as I get exhausted and short of breath easily”.  The tribunal accepted her evidence before them that she estimated she could walk 75 metres before “having to stop due to onset of fatigue”.  There was evidence that the claimant walked at a very slow pace.  Distance and speed are on equal footing and accordingly it is usually necessary to weigh up distance and speed when applying the criteria without giving one fact more importance over the others but rather judging each fact in the context of the other and bearing in mind that if a claimant’s walking ability was sufficiently limited with regard to only one factor then it may be enough to satisfy the conditions of entitlement (see CDLA/1389/97).  I have considered all the evidence with care and I am satisfied that the claimant was virtually unable to walk in terms of section 73(1)(a)

22.	I should add for completeness that on 4 April 2002 I issued the following Directions:-

“1.	In the submission to the tribunal on the claimant’s appeal dated 10 July 2000 the decision maker asserted that the claimant had made a new claim for Disability Living Allowance on 9 October 2000 (doc 1D).  The  tribunal, which sat on 12 January 2001, adjourned.  They directed that the case be relisted with full details of that new claim.  They recorded that the claimant was not aware of it (doc 83).

2.	In a supplementary submission dated 23 January 2001, Newcastle Disability Centre then asserted that there was no record of a new claim on 9 October but that the claimant had made a new claim “effective from and including 9 June 2000” and that an adverse decision had been made on that claim on 14 July 2000 (d0c 84).  The submission does not say when the decision was notified to the claimant or whether she appealed.  No supporting documents were produced to the tribunal.  

3.	As the claimant had appealed in respect of one claim on 10 July 2000 she might have been expected to take action had she received another adverse decision a few days later.  In a letter dated 15 September 2000 her representative states “...our client... informed us that she appealed against a decision of DLA earlier this year.  To date [she] has not received any acknowledgement of the GL 24 or what progress has been made.”  (doc 81).

4.	Neither the tribunal that sat on 14 June 2001 nor the Secretary of state’s representative on the claimant’s appeal to me has taken any point about this alleged fresh claim.

5.	I now direct the Secretary of State’s representative to produce to me, within one month a copy of any fresh claim which he asserts the claimant made in 2000 together with evidence that it was notified to the claimant and a chronology of what, if anything, happened thereafter.”

In a submission received on 29 April 2002 the Secretary of State’s representative confirmed that the claimant had made no new claim.

23.	For the reasons stated above the tribunal’s decision was erroneous in law and I wish to express my concern at the decision.  The claimant’s case is evocative of sympathy and it is difficult to imagine a case more qualified for an award of disability living allowance.  I have limited the award to a period of five years in the hope that the claimant’s condition will improve following a successful transplant.  As I consider it expedient to give the decision the tribunal should have given, I give the decision set out in paragraph 1 as I am empowered by section 14(8)(a)(i) of the Social Security Act 1998.  The payment of the awards should be expedited.  If there is any undue delay the parties are at liberty to refer the matter back to me or to another Commissioner.

24.	The claimant’s appeal is allowed.  

					(Signed)	Mrs R F M Heggs
							Commissioner

					(Date)		2 May 2002