DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:  CSDLA/2/2002

1.	The decision of the Glasgow appeal tribunal (the tribunal) held on 4 September 2001 is in error of law.  Accordingly, I set it aside.  Using my powers under s.14(8)(a)(i) of the Social Security Act 1998, I substitute the following decision:-

The appellant is not entitled to disability living allowance from and including 14 September 2000

Background

2.	The claim for disability living allowance (DLA) was lodged on 14 September 2000.  The claimant was seen by a visiting doctor (EMP) on 24 October 2000.  The diagnosis was back pain, type II diabetes and urinary incontinence (urgency and stress incontinence following a hysterectomy).  The claimant told the EMP she used the toilet once during the night, and managed but it was a struggle.  She tended to dribble and wet herself.  No devices were used in bed.  

3.	On 3 November 2000 a decision maker (DM) held that the claimant was not entitled to DLA, either component, at any rate.  The decision was notified to her on 14 November 2000.

4.	By letter dated 1 December 2000, the claimant requested a supersession of decision “dated 16/11/00”.  She said that her condition had not improved since her DLA application.  By decision dated 15 January 2001, notified on 22 January 2001, a DM refused to revise the decision on the claim.  

5.	The claimant appealed to a tribunal and has been represented throughout by a member of a local welfare rights service (the representative).

The tribunal decision

6.	The tribunal unanimously held that the appellant is not entitled to any award of DLA from 14 September 2000.  It relied on the EMP report in so doing.  

Appeal to the Commissioner

7.	The representative appeals on the claimant’s behalf, submitting that the claimant explained at the hearing that she frequently cannot rise from bed quickly enough to get to the toilet on time, on which contention the tribunal made no findings.  

8.	The Secretary of State does not support the appeal.  It is accepted that it was contended at the hearing that the claimant required help out of bed on two occasions during the night.  However, in the claim pack the claimant said she may need help once a night for ten minutes which was insufficient to qualify.  She also told the EMP she used the toilet once at night and that she managed.  On this basis she could not fulfill the criteria for DLA and the tribunal was right to rely on the EMP’s conclusions.  

9.	In response, the representative points out that it is not contended that the claimant is unable to get herself out of bed but that she reasonably requires attention in order to do so, which is the critical issue.  She had told the EMP that it was a struggle to get up to use the toilet.  

10.	It is argued that the decision appealed against is the reconsideration notified on 22 January 2001.  This date is the significant one in terms of s.12(8)(b) of the Social Security Act 1998.

My conclusion and reasons

Reasonable requirements

11.	I agree with the representative that the issue is what help is reasonably required because of the claimant’s disablement, not the help actually received, nor that medically required, nor what she would like to receive.  Pain and how long it takes her to carry out functions unaided are relevant factors in assessing what is “reasonably” required.  It is not a simple issue of whether the claimant is able to carry out the function unaided if she has to.  However, also relevant is whether or not assistance from another would reduce her difficulties.  Her complaint is of back pain and it is arguable that it may be better to struggle rather than have the possibility of such pain being exacerbated by another.  

12.	The tribunal erred in failing to tackle the issue.  That is why I must set its decision aside.  However, at the time the decision under appeal was made, the claimant’s own evidence was that she required help once a night for 10 minutes.  As there was at this stage only one such episode of attention during the night, it has to be “prolonged”.  “Prolonged” means “lengthy”.  In CA/271/88 a Commissioner refused to hold a delegated medical practitioner had erred in law when he decided that attention for 15 minutes was not “prolonged”.  No reasonable tribunal could judge 10 minutes to be a “prolonged” act of attention.  “Repeated” attention, which is the alternative, requires an incidence of at least 2.  This was not suggested either in the claim or to the EMP.  Therefore, the only rational inference from the claimant’s contemporaneous evidence is that she did not then satisfy the night-time conditions.

The date beyond which circumstances may not be taken into account

13.	The applicable statutory criteria are in the Social Security Act 1998 (the Act) and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the regulations).  

14.	So far as material, s.12 of the Act provides:-

“12 - (1)	This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which-
(a)	is made on a claim for, or on an award of, a relevant benefit …..	
………..
(8)	In deciding an appeal under this section, an appeal tribunal -
		…………………………
(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

15.	The relevant parts of the regulations are these:-

“Revision of decisions

3.(1)	Subject to the following provisions of this regulation, any decision of the Secretary of State ….. under section 8 or 10 (“the original decision”) may be revised by him …. if -
……………
(c)	an application for a revision is received by the Secretary of State … at the appropriate office
(i)	within one month of the date of notification of the original decision, 
……………………
(10)	  The Secretary of State  ….. may treat an application for a supersession as an application for a revision.”

16.	“Supersession of decisions
6.- ……………….
(3)	A decision which may be revised under regulation 3 may not be superseded under this regulation except where ‑ [circumstances inapplicable to this case]”

17.	“Time within which an appeal is to be brought

31.-(1)	Where an appeal lies from a decision of the Secretary of State … to an appeal tribunal, ….. the time within which that appeal must be brought is, subject to the following provisions of this Part ‑
(a)	within one month of the date of notification of the decision against which the appeal is brought; ….
……………
(2)	Where the Secretary of State …..
(a)	revises, or following an application for a revision under regulation 3(1) or (3) does not revise, a decision ….. under section 9

the period of one month specified in paragraph (1) shall begin to run from the date of notification of the revision … of the decision, or following an application for a revision under regulation 3(1) or (3), the date the Secretary of State ….. issues a notice that he is ….. not revising the decision.”

18.	From the above, it will be seen that the representative’s argument that 22 January 2001 is the date of the decision referred to in s.12(8)(b) of the Act, is incorrect.  

19.	The claimant asked for a “supersession” of the original adverse decision.  She did so within a month of it being notified to her.  Under regulation 3(10) of the regulations, the Secretary of State may treat an application for supersession as an application for a revision.

20.	The circumstances of the application fell within regulation 3(1)(b)(i).  Under regulation 6(3) of the regulations, a decision which may be revised under regulation 3 may not be superseded unless circumstances arise which are inapplicable in this case.  As obliged to do, the Secretary of State therefore treated the application for supersession as an application for a revision but did not revise.  

21.	As s.12(1) of the Act makes clear, appeals to the tribunal are against decisions under s.8 or s.10, whether as originally made or as revised under s.9.  The decision in this appeal was not revised under s.9, so that the pertinent decision remains that under s.8, i.e. the original decision on the claim.  However, under regulation 31(2)(a), the time limit for appealing is extended to run from the date when the Secretary of State issued the notice that he was not revising the initial decision.

22.	Thus, the one month for appealing ran from 22 January 2001 when the notice of non-revision dated 15 January 2001 was issued to the claimant but the decision under appeal remains the decision under s.8 made by the Secretary of State on 3 November 2000. An appeal tribunal could not take into account circumstances beyond 3 November 2000.

Summary

23.	Although the appeal technically succeeds, this is without practical benefit to the claimant, as my substituted decision is as set out in paragraph 1 above.  Although the tribunal erred in not sufficiently addressing night time needs, the claimant’s evidence applicable to the relevant date must be that on her claim and given to the EMP, because closest in time. Moreover, she did not allege deterioration when she wrote on 1 December 2000.  She could not then satisfy the night time criteria because, even if the assistance claimed was reasonably required, it was neither prolonged nor repeated attention at night.  

					(signed)
					L T PARKER
					Commissioner
					Date:  11 July 2002