CDLA/3737/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Claimant, brought with my leave, against a decision of the Newcastle-upon-Tyne Appeal Tribunal made on 29 May 2002. For the reasons set out below that decision was in my judgment erroneous in law and I set it aside. In exercise of the power in s.14(8)(a)(ii) of the Social Security Act 1998 I make the further findings of fact set out below and substitute the following decision for that of the Tribunal:

The Claimant’s appeal against the decision of the Secretary of State made on 10 January 2002 is allowed. The Claimant is entitled to the lower rate of the mobility component and the middle rate of the care component of disability living allowance, in each case from 26 September 2001 to 25 September 2003.

2.	The Claimant is a girl who was born on 29 September 1994. She suffers from Leber’s hereditary optic neuropathy, a disease of the eyes which significantly limits both her distance and near vision. 

3.	On 26 September 2001 the Claimant claimed disability living allowance, but by the decision made on 10 January 2002 the claim was disallowed. The Tribunal’s decision was to allow the appeal to the extent of awarding the lower rate of the mobility component from 26 September 2001 to 25 September 2004. 

4.	The Tribunal’s findings of fact, so far as directly relevant to my decision, were as follows. First, as regards the Claimant’s care needs during the night it found that 2 to 3 times a week the Claimant required assistance to go to the toilet once during the night, and that on 2 nights a week (unlikely to to be the nights when she required the foregoing assistance) she would wet the bed and would require assistance with the changing of the bedclothes. The Tribunal found, however, that “such assistance does not fulfil the criteria for night time attention and is not substantially in excess of the normal requirements of a child of her age.” Secondly, as regards day time care needs the Tribunal found that the Claimant required assistance with dressing and cutting up her food. By implication it found that those needs did not amount either to a need for attention for a significant portion of the day or to a need for frequent attention throughout the day. 

5.	The first ground of appeal is that the Tribunal, in dealing with night time needs, failed to make sufficient findings to explain the finding (implicit in its decision) that the attention was not “prolonged”, and failed to give adequate reasons for its decision that the Claimant’s needs were not substantially in excess of the normal requirements of a child of the Claimant’s age. In my judgment, however, it is as a matter of common sense obvious that the care needs found by the Tribunal would not amount to more than a few minutes in the case of assisting the Claimant to the toilet, and 5 to 10 minutes at the outside in the case of changing her night clothes and bedclothes. I do not think that, on those facts, the Tribunal could reasonably have found that the attention required was “prolonged.” I therefore reject this first ground of appeal.

6.	The second ground of appeal is that the Tribunal failed to make sufficient findings as to the extra attention which the Claimant reasonably required at school, as to which there was evidence in the form of a report (pages 49 to 53) from the Durham County Council Education Department and from the Claimant’s father and the Claimant herself at the hearing. In my judgment that ground of appeal is well founded. The Tribunal’s reasons indicate that it “fully accepted” the statements in the report as to the Claimant’s distance and near vision. It is not clear whether the Tribunal was thereby stating that it also accepted that the measures outlined in the report were reasonably required, although I think that it probably did so accept. But in that event the Tribunal in my judgment failed to explain why a need for those measures (or at least some of them) did not amount to a need for attention in connection with the Claimant’s bodily functions. I must set aside the Tribunal’s decision as erroneous in law on that ground. 

7.	I consider that I am in a position to make such further findings of fact as are necessary in respect of the additional needs at school, and to substitute my own decision for that of the Tribunal. The report of the Durham County Council which I referred to above was not challenged by the Secretary of State before the Tribunal, and in those circumstances I see no reason why I should not accept that the needs there stated were indeed reasonable ones (as indeed I think the Tribunal probably accepted). The question is then as to the extent to which the needs outlined in the report amount to a need for “attention in connection with [the Claimant’s] bodily functions” within the meaning of s.72 of the Social Security Contributions and Benefits Act 1992. The report identified the following (among other) measures as being desirable:

•	Ensure that the Claimant has an appropriate seating position pertaining to the relevant activity eg. a front, central seating position for all carpet/group activities, video or computer activities etc. 
•	The Claimant should be given the option of choosing her optimum seating position in large school events such as assemblies, which may involve sitting separately from the rest of her class
•	A desk copy of boardwork should be provided in order to help increase the Claimant’s speed of work and overcome the difficulties of re-focusing on near and distant vision tasks
•	The Claimant would need to view classroom displays at close range in order to see detail. She should be made aware of changes in display. A desk copy of word lists, tables, number squares etc would be more accessible to the Claimant than wall displays. 
•	Support in games activities would help the Claimant develop skills which may need to be taught in smaller steps and more directly
•	She would be able to work more independently if presented with enlarged or adapted copies of worksheets etc.
•	During literacy hour a check should be made to see whether she could access the relevant book with larger print from her seating position, and “support will also ensure that [the Claimant] is directed to the correct spelling, punctuation and the key element of the lesson.” 
•	As regards numeracy strategy: “the numeracy lesson relies on a brisk oral/mental session and is highly visual which immediately puts a pupil with a visual impairment at a disadvantage. This is likely to be assessed in school in the future and detailed printed information on accessing the numeracy strategy will be given to the class teacher.” 

8.	The Secretary of State’s submission, in opposition to the appeal, is that the “assistance required was with [the Claimant’s] educational needs rather than with any bodily function”, and further (see the Secretary of State’s further submission in response to my Direction dated 10 December 2002) that “the use and provision of different forms of written materials does not meet the test in R(A) 3/94”. That test was stated as follows: “Attention is “in connection with a bodily function” if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired.” 

9.	In my judgment there can be no doubt that the measures referred to in the report are “in connection with” the bodily function of seeing. They enable the Claimant to see more easily materials which she would otherwise have difficulty in seeing. The point made by the Secretary of State, as I understand it, is in effect that any school child would require a substantial degree of attention by a teacher, but that would be with reference to the function of education, not in connection with any bodily function. However, that in my judgment misses the point that the specific measures outlined in the report are either to enable the Claimant to see more easily exactly the same materials which the other children see, or to enable her to see substitute materials imparting the same information. If the measures amount to “attention”, for that reason they in my judgment clearly amount to attention “in connection with a bodily function”, namely the function of seeing.

10.	Further, there can in my judgment be no doubt that the Claimant’s reason for wishing to see that information, namely in order to be educated at school, is well within the range of purposes for which assistance with bodily functions can reasonably be required for disability living allowance purposes. In Fairey R(A) 2/98 it was held by the House of Lords that the yardstick of a “normal life” was important. If assistance to undertake a reasonable degree of social activity can be reasonable, then assistance in order to enable a child to be educated efficiently must be. 

11.	The only question of difficulty is in my judgment the extent to which the relevant measures constitute “attention”. It has been said many times that this concept involves personal service of an intimate nature. It need not involve actual physical contact, but must be carried out in the presence of the claimant (with perhaps certain very limited exceptions – see for example the recent decision of the Court of Appeal in Ramsden v. Secretary of State for Work and Pensions [2003] EWCA Civ 32, where previous authority is reviewed in some detail). I have no doubt that the obtaining or preparation of some of the materials recommended by the report (e.g. desk copies of board work, large print books etc) would not constitute “attention”. Those operations could, and indeed for the most part would, be done in the absence of the Claimant, indeed very probably outside school hours and to some extent outside the school premises. Similarly, in so far as the measures involve the initial devising and putting in place of a system which will assist the Claimant e.g. that she always sits in a particular position, has access to certain materials etc, the element of personal service is absent, and in any event the initial putting in place and subsequent modification as necessary of the system would be unlikely to take place with sufficient frequency as to be significant for disability living allowance purposes. The subsequent monitoring of such systems (e.g. a teacher simply checking that the Claimant is indeed sitting in the designated position) would also not generally, it seems to me, amount to “attention”, but rather to supervision. I have, however, come to the conclusion, looking at the matter broadly, that measures of the nature indicated in the report are likely to involve a teacher or classroom assistant actually intervening, with specific reference to the Claimant, in a manner which amounts to “attention”, on a significant number of occasions throughout the average school day. The sort of examples I have in mind, arising from the measures outlined in the report, are (a) the need actually to hand to the Claimant desk copies of board work etc on each occasion on which it is required. (b) the need actually to alter the Claimant’s seating position, whether in class or (perhaps more particularly) in other school activities, when it is found that she is not in fact in the most appropriate position (c) the need to check the Claimant’s work while she is doing it, to a perhaps greater extent than would be normal, to make sure that she is not in fact being disadvantaged (particularly in relation to the specific examples mentioned in the report of literacy and numeracy) and (d) the need to provide additional support during games and other communal activities. On balance, I conclude that attention of this nature would be needed frequently throughout the average school day, and would be required to an extent which is substantially in excess of that required by a child of the Claimant’s age without disability. 

12.	That level of attention is, however, required only on weekdays during the school term. I see no reason to depart from the Tribunal’s finding that, on other days, the only respects in which the Claimant required attention in connection with the bodily function of seeing were with dressing and cutting up food, and that such attention would not be either for a significant portion of the day or frequently throughout the day. 

13.	The findings which I have made raise an issue as to the period (if any) for which an award of the middle rate of the care component could be made. By s.72(1) of the 1992 Act a person shall be entitled to the care component for “any period throughout which” the relevant conditions are satisfied. By s.72(2) a person shall not be entitled to the care component unless (a) throughout the period of 3 months immediately preceding the date when the award would begin he has satisfied or is likely to satisfy the relevant conditions and (b) he is likely to continue to satisfy one or other of the relevant conditions throughout the period of 6 months beginning with that date.

14.	 In CDLA/6784/1999 Mr. Deputy Commissioner Mark held, on somewhat similar facts to those which I have found in the present case, that the conditions were satisfied “throughout” the period from the beginning of the autumn term in each year to the end of the following summer term, but that they were not satisfied during the summer holidays. He held that the result was that entitlement ceased at the end of the summer term, and that the 3 month qualifying period in s.72(2) had to be satisfied from the beginning of each autumn term, so that entitlement did not begin again until about the beginning of December. There was therefore entitlement from about the beginning of December to the end of the summer term in each year, but not for the rest of the year. 

15.	That decision was set aside, with the consent of the parties, by the Court of Appeal, because, among other things, it overlooked Reg. 6 of the Social Security (Disability Living Allowance) Regulations 1991, which has the effect that where the conditions become satisfied again within two years of previous entitlement, the 3 month qualifying period need not be served again. It was also agreed, in the statement of reasons signed by the parties for making the Court of Appeal’s consent order, that the Deputy Commissioner 

“did not adopt the correct approach when deciding if the claimant was entitled to the care component of DLA and as a result he failed to follow the decided cases. Instead of defining the “period throughout which” the conditions in s.72(1)(b)(i) were satisfied as the four separate school years during the operation of the claim, he should have taken a broad view and considered if most of the time throughout the claim period 9 February 1996 to 20 September 1999, the claimant’s care needs were sufficient to entitle him to an award. If appropriate, he should have made an award for the entire period.” 

The agreed order was to remit the matter to a fresh appeal tribunal. The authority particularly relied upon was R(A) 2/74, which concerned a person who required renal dialysis for about 10 hours a night on 3 days a week. The Chief Commissioner there said that a strictly mathematical approach was not necessarily appropriate, and that “the delegate should take a broad view of the matter, asking himself some such question as whether in the whole circumstances the words in the statute do or do not as a matter of the ordinary use of the English language cover or apply to the facts”. I propose to direct myself in accordance with that view of the law. 

16.	On balance I take the view that, looking at an academic year (i.e. approximately from the beginning of September to the middle of July) broadly, the Claimant does require the necessary level of attention in connection with her bodily function of seeing throughout the year. Like Mr. Deputy Commissioner Mark, I have no great difficulty in reaching that result up until the end of the summer term, and on balance I do not think it would be right to separate out the summer holidays, notwithstanding that they form a continuous period of 6 weeks or so each year when, if looked at on its own, the conditions are not satisfied. It is in my judgment probably permissible (see para. 33 of R(A) 2/74) to take into account the fact that the Claimant has some attention needs in connection with her bodily function of seeing even when at home, albeit not sufficient to satisfy the care component conditions. 

17.	It remains to consider the appropriate period of the award in this case. I note from the evidence (p.110) that the Claimant ceased riding her bike owing to vision difficulties in March 2001, and that she moved to her new school in the summer term of 2001. Applying the above principles, I consider that the 3 month qualifying period was satisfied by 26 September 2001 (the date of claim), notwithstanding that the summer holidays had in fact only recently ended. That is because, looking at the period March 2001 to 26 September 2001 broadly, I consider that she satisfied the attention condition throughout that period. However, having regard to the fact that her requirements in connection with vision at school may be changing (for better or worse) rapidly at her age, I do not consider that it would be right to make the award of the care component for more than 2 years. The Tribunal awarded the lower rate of the mobility component for 3 years, but by s.71(3) of the 1992 Act I am prevented from awarding the two components for different fixed periods. I therefore consider that I should therefore limit the award of both components to 2 years. The Claimant will of course shortly be able to apply for renewal of the award which I have made. 

	(Signed)	Charles Turnbull
		Commissioner

		26 February 2003