CA 2034 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. The claimant is appealing with permission of a chairman from the decision of the Stockport appeal tribunal on 1 April 2004 under reference U 40 125 2004 00018.

2	For the reasons below, I set aside the decision of the tribunal and replace it with the decision that the tribunal should have given. This is:

Appeal allowed. The appellant is entitled to the lower rate of attendance allowance from and including 5 August 2003 to 3 September 2004 for help with daytime personal care. 

3	I held an oral hearing of the appeal at Bury County Court on 7 December 2004. The claimant was unable to attend because of her ill health, but she was represented by Mrs Wain and Mr Bhabuta of Tameside Citizens Advice Bureau. The Secretary of State was represented by Mr Huw James, instructed by the Office of the Solicitor to the Department for Work and Pensions. 

REASONS FOR THE DECISION 

The claim

4	The claimant, Mrs B, claimed attendance allowance on 5 August 2003, at the age of 73. She said that she suffered from arthritis of back and knees, and hypertension, but the reality was that she was unable to stand upright – she could only move with her back and head heavily bent forward. This was the result of falls following a back operation. 

5	In her claim form, she claimed difficulties with washing and bathing, with getting dressed and undressed, moving about indoors and because of falls and stumbles. She was dependent on using a walking stick to walk. Her general practitioner confirmed her problems. An examining medical practitioner confirmed her back problems, and that she walked with a limp and using a stick and bent forward by 40 degrees. The report also opines that the claimant needed help with getting in and out of bed, using stairs, dressing and undressing, taking a bath or shower, using a cooker and coping with hot pans. But no falls were recorded in the previous twelve months. It was further recorded that she might need help getting out of bed to use the toilet at night but not for any other reason. Her problems were reported as entirely physical.  The Secretary of State accepted all the above evidence, but found that the claimant’s needs were not of a level to justify award of the allowance. Other matters raised, such as cooking, shopping, help outdoors, and the cost of special adaptions to her home were rejected as irrelevant. 

The tribunal decision

6	The tribunal held an oral hearing. The record of proceedings shows that the tribunal discussed with the claimant what she could and could not do.  This identified a number of things that the claimant could not or did not do, including picking things up if they dropped, carrying things (including drinks), standing for any length of time, washing and drying herself, dressing and undressing, sometimes getting in and out of the car.

7	The tribunal confirmed the decision to refuse allowance. It found that the claimant  “normally needed daily help” with dressing and undressing, getting in and out of the bath or shower, and preparation of meal”. But it found that this did not amount to the need for frequent attention throughout the day with bodily functions.
However, it added that:

7	She is used to having drinks brought to her throughout the day by her husband and workmates, but we did not find that this help was in connection with her bodily functions and, therefore, could not count these acts of assistance … If such assistance could be counted the we judged that [she] would be entitled to an award at the lower rate because of the frequency of the assistance required and afforded throughout the day. 

The grounds of appeal 

8	For the claimant it was argued that the tribunal had erred in law both on the issue of ignoring her need for drinks and with regard to the way in which the tribunal considered the whole evidence. The Secretary of State, both in the written submission of the secretary of state's representative and at the hearing, sought to support the decision of the tribunal both on the issue of drinks and generally.

My decision

9	In my view the tribunal has not adequately explained its decision in the light of the evidence before it. I draw the general conclusion from its paragraph 7 that the case was regarded as marginal. If the attention given to drinks was included with the other aspects of attention found by the tribunal, then it accepted that the test would be met. It was against that background that the claimant’s representatives argued that the tribunal should have indicated its views on all the issues for which there was evidence that the claimant needed help. They also made the point that the claimant was a strong character who tried to help herself as much as possible, so that for example she still carried on some part time work.

10	The tribunal has not explained why it rejected the opinion of the examining medical practitioner that the claimant needed help getting up and going to bed, and with other actions such as carrying things, picking things up and getting into and out of a car. If it rejected that evidence because the claimant herself said she could do it, that may in this case be imposing too high a test. It is trite law that the test is whether the attention is reasonably required. And while a test of whether something is reasonably required is whether it is actually provided, it is not a conclusive test. It is common knowledge that some people demand more help than they reasonably need while others do not demand as much as they reasonably require. In my view, although this is a marginal case, I find that the representatives rightly criticised the decision as inadequate on these issues. And I reach that conclusion without reference to the issue of drinks.

11 	 I heard full argument about whether drinking and being provided with drinks constitutes a proper element of attention. It was common ground that help with drinking itself would constitute required attention. And drinks, unlike meals, cannot be limited to preparing just one hot meal a day.  If the claimant reasonably required several drinks – perhaps several hot drinks – a day, then any attention necessary to ensure she was able to consume those drinks would be relevant.  How far will such attention go beyond helping her lift a pre-filled cup or glass to her lips? I reject the view of the Secretary of State that attention can be considered only in so far as it is with the actual act of drinking. In my view, that – like the frequency with which cold or hot drinks are needed – is a question of fact in each case. 

12	In this case it is common ground that the claimant is unable to stand up straight or straighten one of her knees. She walks only with a limp and with the use of a walking stick and any available grab bars. How can someone carry a drink in such a condition? The evidence was that the claimant could not. And how can she get her drink from the tap, bottle or kettle into a cup, glass or container and then to a location so that she can drink it (which presumably involved her sitting down)? That question was not fully explored, but is relevant to this claimant’s reasonable attention needs. Her evidence was that she could, but did not, make a hot drink, but could not carry it. But the evidence of the examining medical practitioner was that while she could use taps she could not use a cooker or cope with hot pans. In my view, taking all this together there is evidence that the claimant reasonably needed some help with her drinks, if only to get them to a position where she was able safely to drink them, and that such help would be reasonably required on a number of occasions in any day. I do not think that the law is so strict as to limit the attention needs for a person such as the claimant to the physical act of lifting a pre-positioned and pre-filled cup or glass to the lips.  The claimant’s representatives rightly reminded me of the well-known caselaw about “the yardstick of a ‘normal life’ ” and the test of immediacy used in Cockburn (R(A) 2/98). I do not need to repeat those citations. Even quite disabled people can normally get themselves drinks without difficulty if they are mobile. The claimant is severely limited in her ability to do that. The help she reasonably needs so that she has her drinks available as others would is within the test of what is reasonably required for her personal care.  While that does not extend so far as to include all the aspects of preparing drinks by what might be termed “room service” or “desk service”, it is a factor in evaluating what she reasonably needs.

13	I accept from the examining medical practitioner (and the decision of the Secretary of State) that during the day the claimant reasonably requires help getting into and out of bed, with washing and bathing, with using any stairs, with dressing and undressing. She also reasonably needs some help with getting drinks  (and I assume from the same arguments food) into a cup or container and a position where she can drink it, and with picking things up and with carrying things.   There is also evidence that sometimes she has to use a wheelchair. At night there is evidence that she may need help getting out of bed to go to the toilet sometimes. 

14	I agree with the Secretary of State and the tribunal that the help she needs, and gets, with cooking, shopping, cleaning and general household duties is not relevant. Nor does help with her scooter or getting her to her part time job count. But the fact that she is able to carry out some part time work despite her disabilities does not negate any reasonable requirements she has throughout the day. Rather, it is the help she reasonably needs when working that is the issue. 

15	Drawing my own conclusion about the limitations that the accepted severe disablements of the claimant would impose upon her physical activities in the light of all the evidence, I am of the view that on the balance of probabilities she reasonably required frequent help throughout the day with her personal care. This help was not needed only in the morning and evening but during the day as well. I do not agree with the Secretary of State’s view that there are long periods during the day when she does not reasonably require any help. 

16	I agree that she did not reasonably require more than occasional help at night, nor any significant level of supervision at any time. In so finding, I do not consider that the evidence is such as to require supervision to stop the claimant falling. Although I now know that she did fall some months after the tribunal hearing, it was clear that she took considerable care with moving around, and it is not clear how further supervision would have avoided any danger that she did not herself avoid by the care she took and the aids she used. 

17 	The claimant should therefore be awarded the lower rate of attendance allowance for daytime care. For what period? It is clear from the evidence that the claimant’s condition was slowly getting worse during the period up to her claim.
The examining medical practitioner’s evidenced confirms that the claimant ‘s condition had demanded the existing level of care for some two years before the examination in November 2003. I am therefore satisfied that she had that level of need for at least six months prior to her claim. The award should therefore start at the date of claim.

18	At the other limit, I am told that she now receives the lower rate of attendance allowance. Unfortunately, she had a fall some months ago and that has made matters worse. As a result she made a new claim, and has received the allowance from 12 March 2005. This was because she claimed in September 2004, but the initial period of six months was imposed before allowance was payable.  I cannot therefore look beyond the date of claim, which I am informed is 4 September 2004.

								David Williams
								Commissioner

								15 December 2004
[Signed on the original on the date shown]