DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:  CSDLA 0044 2002

1.	The decision of the Falkirk appeal tribunal (the tribunal) held on 12 October 2001 is erroneous in point of law.  Accordingly, I set it aside and remit the case for rehearing by a differently constituted tribunal.

The issues

2.	There are two main issues in the appeal.  The first is whether or not a claimant’s difficulty with kerbs is relevant to “unable or virtually unable to walk”, as set out in s.73(1)(a) of the Social Security Contributions and Benefits Act 1992, as amplified by regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, so as to give entitlement to higher rate mobility component disability living allowance (the mobility test).  The tribunal held that:-

“Problems on stairs, kerbs and hills are not relevant to mobility test.”

3.	The second issue is the use of a commode.  The claimant’s main problem is osteo-arthritis in both knees which she says causes stiffness and pain.  Her bedroom is upstairs and her toilet is downstairs.  She finds difficulty on the stairs, particularly coming down.  She uses the toilet at night, sometimes once and sometimes twice, and comes downstairs to do so with the assistance of her husband.  She has a commode in the bedroom, which was obtained for emergency use.  However, she doesn’t use it, in order to avoid slopping out, which she considers entails a loss of dignity.  The tribunal held:-

“There is an obligation on a claimant to take reasonable steps to alleviate the consequences of a disability and we do not consider that this is satisfied by reference to loss of dignity.”

4.	The appeal to the Commissioner is supported by the Secretary of State by reference to CA/168/1987.  At paragraph 7, the Commissioner said:-

“… the claimant could look after herself satisfactorily once she reached the toilet.  She needed no help, for example, with her clothes or in getting on and off the toilet.  However, the toilet in her house was upstairs and she required assistance to get upstairs to the toilet.  The DMP said that he took the view that the provision of a commode downstairs would obviate her need for supervision when negotiating stairs to get to the toilet.  In his submission to me the adjudication officer refers in this connection to an unreported decision CA/281 where the Commissioner said:-

‘The Board is well entitled to suggest practical means of overcoming a problem thought to involve a requirement of attention or supervision but capable of solution by other means…. In my view they are entitled to rely on their own experience and commonsense and do not have to call for evidence before making a decision of this kind although cases may arise in which that is desirable.’

In her letters of appeal the claimant has expressed strong reasons why she does not wish to use a commode downstairs.  She prefers to get to the toilet with the aid of her son, struggling up the stairs as best she can.  He waits outside the door of the toilet and then helps her downstairs again.  The decision of the DMP in relation to the commode discloses, in my view an error of law in that some of the most relevant considerations relating to it have not been set out and may not have been considered at all.  For example, was there sufficient space for a commode in the room in which the claimant would sit during the day?  Was there sufficient privacy for her to use a commode?  Above all, who would empty the commode after it had been used by the claimant?  Obviously it would have to be emptied soon after use and it seems equally obvious that the claimant, who walked with considerable difficulty using a stick, would not be able to empty the commode for herself.  The need to empty the commode after use would, I consider, fall within the words, ‘frequent attention throughout the day in connection with her bodily functions’.  Emptying a commode, as well as doing any necessary disinfecting and cleaning-up, would be ‘in connection with her bodily functions’.”

The statutory criteria

5.	The criteria for entitlement to the care component of disability living allowance (DLA) are set out in s.72 of the Social Security Contributions and Benefits Act 1992.  So far as material, this 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.”

My conclusions and reasons

Relevance of difficulty with kerbs to the mobility test

6.	The correct approach was set out in R(M)1/91.  At paragraphs 8 and 9 thereof, the Commissioner said:-

“8.	It is clear from [the statutory wording] that a claimant’s ‘ability to walk’ is to be assessed by reference to ‘his ability to walk out of doors’.  The significance of this is that the test should not proceed on the basis that his ability should be adjudged by reference to a surface as level as a billiard table.  It is well known that surfaces indoors tend to be smoother and more even than those out of doors.  Hence the specific statutory requirement that the ability to walk be tested by reference to the natural irregularities that have to be negotiated by anyone walking out of doors.  However, in applying that test only reasonable conditions should be in contemplation.  The test should obviously not be as to whether the claimant could walk on unploughed land or over unmade-up roads or over pavements under repair by the Council.  Many people who would on no basis regard themselves as being incapable of walking would be unable to negotiate those particular conditions.  The test should be to select or envisage the kind of pavement or road which one would normally expect to find in the course of walking out of doors.  The criterion is the type of surface which anyone walking out of doors would normally expect to encounter, any unusual hazards being disregarded. … 

9.	As regards the question of a claimant’s ability to negotiate ‘inclines’, it cannot be over-stressed that the criterion is whether or not the claimant is unable or virtually unable to walk;  the question is not whether he is unable or virtually unable to climb.  The ability or otherwise to surmount hills or mountains has no relevance, in my judgement, to the question of whether or not a claimant is unable or virtually unable to walk.  Of course, no pavement or road is absolutely flat.  Some degree of ‘incline’, or for that matter ‘ decline’ must be contemplated.  Once again the tribunal must envisage a reasonable outdoor track which will not be entirely level.”

7.	Although the point is not entirely free from ambiguity, while I agree with the tribunal that stairs and hills are not relevant to the mobility test, I consider that kerbs are.  If one is envisaging walking on the kind of pavement or road which one would normally expect to find in the course of walking out of doors, then the kerb separating the two is hardly an unusual hazard peculiar to the claimant’s situation.  The tribunal erred in law in its conclusion that the claimant’s ability to negotiate up or down a kerb was irrelevant to the mobility test.  

Use of a commode

8.	It is settled law that “requires” in the context of care needs means “needs which are reasonably required on an objectively determined basis”.  The tribunal’s conclusion on this is subject to interference by a Commissioner only if it is such a conclusion as no reasonable adjudicating body could have made.  

9.	
I am unable to accept that the tribunal erred in this respect.  The appellant has a commode in the bedroom, so there is clearly adequate space for it.  It is self-evident that there is sufficient privacy when she uses a commode in her own bedroom.  The claimant’s representative draws comparisons with Barlinnie.  Emptying a commode after the duration of a normal night’s sleep does not, in my view, equate with emptying a chamber pot after twelve hours confinement where a person is perfectly fit and able to use a toilet if only let out of their cell.  There is some regrettable loss of dignity, as there is sadly for all disabled people who have to rely to a degree on help from others.  But DLA is a publicly funded benefit.  That is a factor to be taken into account in determining what are “reasonable requirements” in the individual circumstances.  Using a commode in the privacy of her bedroom does not entail such a loss of dignity as to relieve her of the necessity of using it if it otherwise obviates care needs.

10.	However, while the tribunal did not err in principle, it erred in a failure to make some relevant findings of fact on whether the claimant could use a commode.  In her letter of appeal to the tribunal, the claimant said that she needed her husband to help her out of bed as her knees locked and she could not bend them.  The report from the general practitioner (GP) of 12 April 2001 says she can get in and out of bed but the GP’s later letter of 14 June 2001 somewhat resiles from that.  The examining medical practitioner (EMP) on 4 May 2001 addresses only mobility but does note the claimant’s statement “sometimes I struggle to sit down on the toilet”.  Whether it is commode or a toilet, primary findings of fact are necessary on whether the claimant, through disablement, first required help out of bed to use it and later to sit down on it.  In so far as the toilet is concerned, the tribunal made no findings on whether she actually needed assistance on stairs.  In her appeal letter she says she holds onto the rail and moves slowly.  It is not entirely clear what assistance is reasonably required from the husband in using the stairs at night.  If no reasonable requirements arise at night from the claimant’s own wish to use the toilet downstairs, then the claimant fails in any event on this point and any consideration of the use of a commode is otiose.  

11.	If use of a commode remains an issue, then there is the important matter of emptying it.  On the assumption that the claimant is not able to do this herself because of disablement, is help given to do it capable of constituting “attention in connection with bodily functions”?  At minimum, to count as attention, there must be a service provided to the claimant of a personal and intimate nature.  Some kinds of attention are closely connected with bodily functions and other kinds are too remote.  There is always the dilemma of where and how to draw the line.

12.	In Cockburn v. Chief Adjudication Officer (Cockburn), R(A)2/98 a majority of the House of Lords held that taking away and washing the dirty linen caused by the claimant’s urinary incontinence did not constitute the necessary attention in connection with her bodily functions.  However, in the view of a different majority in Cockburn on this point, changing of soiled bedlinen which might be achieved without physical contact between the claimant and the person providing the service could suffice as sufficiently close and intimate.  According to Lord Goff of Chieveley and Lord Mustill, even immediately rinsing out the soiled clothing so removed, where the claimant is too disabled to do this herself, can qualify as the relevant attention.  Lord Slynn of Hadley, dissenting, would have gone even further.  

13.	It is clear from the overall tenor of the majority of the speeches in Cockburn and in the Secretary of State for Social Security v. Fairey, decided by the House of Lords at the same time, that the test of attention “in connection with” a bodily function is satisfied if the assistance is a close and intimate act that either must be carried out in the claimant’s presence or is so very closely associated with such an act in time and place as to be, in effect, part and parcel of the required close and personal service necessarily carried out in the claimant’s presence.  

14.	It does not seem to me obvious, as it apparently did to the Commissioner in CA/168/87, that a commode has to be emptied soon after use.  However, different considerations might apply during the day or if faeces are passed.  During the night hours, it seems unnecessary that the commode be immediately emptied but rather that such emptying can be left until the start of the next day.  In such circumstances, emptying the commode and then cleaning and disinfecting it would be analogous to taking away and washing the dirty linen in the Cockburn case, and therefore not such as to constitute the necessary attention in connection with her bodily functions.  However, what is reasonable is for the expertise of a tribunal.  Is emptying a commode as necessary for a claimant’s comfort and hygiene as removing soiled or wet bedlinen or night clothes, so that it is sufficiently connected with her bodily function of urinating?  If it is reasonable to leave emptying the commode till the next day then, like the laundry, it does not count.

15.	The tribunal therefore erred in failing to make adequate primary findings of fact about the claimant’s capabilities with respect to her asserted night needs.  However, its basic premise, that use of a commode subject to considerations of privacy and space may be reasonably expected, was right.  If another has to help empty the commode, this is attention in connection with her bodily function of urinating only if it is unreasonable not to do so immediately thereafter.

Evaluation of the evidence

16.	I am unable to accept the other grounds of appeal which relate to the tribunal’s treatment of the evidence and its explanation of which evidence was accepted and why.  It is for the tribunal to weigh the evidence and determine the merits.  Provided it explains how issues are resolved, it is not expected to produce a judgement equivalent to the Court of Session.  It is an adjudicating authority of summary jurisdiction.  The key question is whether the claimant is left “in the dark” as to why her case failed.  

17.	The tribunal relied on the claimant’s own evidence that she walked to shops which the representative said were 100 metres away.  There was therefore no mistaken premise.  The claimant told the EMP that she used a stick out of doors if her condition was bad.  The tribunal found that her balance was normal and that she prefers to lean on her husband’s arm.  This is a sufficient explanation for its conclusion that the claimant could make more use of her stick.  

18.	The tribunal clearly indicated the basis on which it preferred the EMP’s opinion and the GP’s formal report to the latter’s later letter.  The representative disagrees with that assessment and suggests a different interpretation of the GP’s letter. Such is the representative’s view, but the tribunal, as the fact-finding body, came to a different conclusion.  It is the tribunal rather than the representative to whom Parliament has given the determinative function.  What the tribunal said was sufficient for setting out their facts and reasons and therefore a Commissioner cannot interfere.  

Summary

19.	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that it will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and the determination of the claimant’s case on the merits is entirely for them but having regard to the guidance set out above.  Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.

					(signed)
					L T PARKER
					Commissioner
					Date:  21 June 2002