CDLA/2166/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The appeal is dismissed.

2.	This is an appeal with leave granted by me from the decision of an appeal tribunal dated 3.2.03.  When I granted leave I thought the grounds might be arguable, but gave a warning that much of the tribunal’s comments concerned the probity of the evidence.  The appeal is not supported by the Secretary of State.

3.	The claimant (d.o.b. 18.9.41) suffers from diabetes (from 1994) and, in December 1993, he had a myocardial infarction.  Initially, his diabetes was treated with tablets but, in 1997, he was started on insulin.  He suffers from ischaemic heart disease, peripheral vascular disease, peripheral neuropathy (“painful” – see p137), hypothyroidism, depression and has a past history of a duodenal ulcer.  He takes a total of some 15 different medications, mainly once a day, but certainly with one as many as four times.  He also has a GTN spray for use as needed (angina).  He stated to the EMP at (110):

	“I need my medication sorting out so I have it at the right time – she puts it in the dosset boxes for me.”

The EMP noted that there was a large psychological element which led to his depressed mental state (127) – “very depressed due to financial problems.  Erratic diabetes needs better control” (128).

4.	In his submissions to the tribunal, the Secretary of State gave particulars of the claimant’s previous entitlements, but the starting date of awards given obviously be correct.  I, therefore, have to look at the tribunal’s decision who stated that the claimant had been entitled to mid‑care and higher mobility since 1994, and that the award was for a limited period which            determined on 26.7.02.  This, therefore, was a renewal claim.  Unfortunately the papers and evidence relating to the previous awards are no longer in existence I can only assume they were fully justified.  I can only assume they were fully justified the DM awarded the higher rate mobility from 27.7.02 but no rate of the care component.  The claimant appealed and, on 3.2.03, the tribunal heard his appeal, confirmed the award of the mobility component and awarded the care component at the lowest rate (main meal cooking test).  It was not suggested at the tribunal by the representative that an award higher than the mid‑rate care was appropriate, there being no significant night needs.  This appeal is, therefore, concerned with whether the claimant either requires frequent attention during the day in connection with his bodily functions or continual supervision to avoid danger. 

5.	In her letter at 134/6, the Social Worker stated:

	“(134)	He needs assistance to get out of bed … He needs assistance with his toilet needs … In view of caring for his appearance he needs assistance with bathing and someone to supervise him when he gets washed as he is prone to episodes of loss of consciousness and hypoglycaemia.  He is unable to manage putting on his lower garments and needs help with his trousers, shoes and socks.  He needs help to wash parts of his body he cannot reach.  He gets very breathless and exhausted and needs supervision and support to get out of the bathroom.

	This stated cares are not clearly needs required the day.  They are required at one or two possibly three intervals.  

	“(136)	“In summary:  due to physical and mental health [the claimant] needs hands on care, supervision and prompting with personal care, dress, mobility, continence and medication.  He needs ongoing supervision regarding general safety, as he suffers from sudden loss of consciousness and hypoglycaemic episodes.  He needs emotional support, encouragement and prompting his memory.”

6.	His GP wrote a report on 15.11.02 (137/8) which was most helpful so far as the claimant’s condition and diagnosis are concerned but not particularly helpful so far as his attention needs etc. are but she adds:

	“He suffers pain in his left arm but this is thought to be due to the painful peripheral neuropathy.  So his present mental state (not helped by a long Court Case) means that he finds it hard to cope with any added pressure.”

7.	At para 7 of the statement (164) the tribunal said:-

	“We find the appellant’s written account of his disabilities to be exaggerated.  In fairness to him we should add that the oral account which he gives of himself is much more realistic as indeed was the oral account which he gave to the examining medical practitioner.  The appellant does have a warning of a minute or two or hypoglycaemic attacks (oral evidence to us) and has not fallen (account given to the examining medical practitioner).”

At the same time, the Tribunal discounted the Social Worker’s Report on the not entirely unreasonable grounds that it included material which was unlikely to be derived from first hand knowledge.

And in his evidence to the tribunal the claimant is recorded as having said:-

	“I get a minute or two’s warning of hypos – never been to hospital with hypo.

	“I have good days/bad days, bad days 4 or 5 p.w. – I don’t want to get out of bed – in pain – get very upset – don’t want to face another day of pain – carer helps me out – gets me to the bathroom – I wash – on a bad day want help on and off toilet.  I use rail to get downstairs – Sue will help me if necessary.  On a good day go downstairs step at a time – can make a cup of tea on a good day – so far as small meal concerned – on a bad day – drop things – clumsy dangerous.  I still drive.”

And the carer said:

	“I help him in and out of shower”.

The representative made the point that he was heavily reliant on the partner to remind him as he is forgetful.

8.	Supervision So far as the medication is concerned, the tribunal said in para 11 that they accepted the evidence of the carer.  “We are sure that she does check that the appellant has taken his insulin but he does not require this.  He may be occasionally forgetful but is not at risk because of it.”.

I would have thought it quite clear that the measuring out of the pills during the day, as to which the claimant says he requires assistance, is attention in connection with a bodily function viz the taking of necessary medication but it does not seem to me to say that this amounts to supervision.  

As to hypos– as I have noted above – the tribunal states that he has a warning of a minute or two of an attack, and has not fallen.  So far as I can see that really deals with the question of any possible supervision. 

9.	Frequent attention.

(1)	The measuring of the pills etc amount to attention.  The Secretary of State in his submissions to me dated 4.8.03 at p182 states:-

	“The tribunal accepted that the claimant required attention to get in and out of the bath but rejected a contention that the claimant required prompting to get up in a morning.  Nothing turns on this point as even if it were accepted that the claimant did require prompting to get up this would not increase any accepted care needs to a level where it could be said to be frequent throughout the day.  The claimant himself states that he is able to manage his own bodily functions other than getting in and out of the bath (109-114).  Attention at the beginning of the day added to this would not be frequent or throughout the day.”

I respectfully agree.

10.	Grounds of appeal (168/9)

The ground in para 2 is that it is difficult to discern why the detailed report from the social worker has not been given full consideration.  The tribunal discounted it for reasons which I think are perfectly reasonable, but, in my view, taken at its highest, it goes little further than to justify the care component at the lowest rate.  

At paras 4 and 5, it is stated that the tribunal appear to consider the claimant’s ability to get in and out of bed in isolation from the effects of his mental health problems on other functions and supervision needs and submitted it was unreasonable to expect a claimant to remain in bed for a substantial part of the day.  What the tribunal actually said was:

	“We accept that the appellant may have days when such is his depression that he feels reluctant to get out of bed but he could do so if he wished and would not come to any harm if he did stay in bed for the morning as he sometimes does.”

It is accepted that the claimant’s needs derive both from physical and mental causes.  What is relevant is the totality of the claimant’s needs both physical and mental.  In my judgment, the tribunal have correctly set these out and, while an award at the lowest rate is doubtless fully justified, the evidence to this tribunal falls short of an award at the middle rate.

						(Signed)	J M Henty
								Commissioner

						(Date)		10 September 2003