CDLA/3217/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the Claimant, brought with the permission of the person who was the chairman of the Tribunal, against a decision of the Sheffield Appeal Tribunal made on 21 June 2004. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted appeal tribunal. 

2.	The Claimant is a boy who was aged a little short of 3 years and six months at the date of the decision under appeal to the Tribunal. That decision was made on 30 January 2004, and was to disallow the Claimant’s claim for disability living allowance with effect from 31 October 2003 (the date of claim). The Tribunal dismissed the Claimant’s appeal against that decision. 

3.	The disabilities from which the Claimant suffers are asthma, eczema and delayed speech development (the Tribunal accepted the evidence of a speech therapist that at the date of her report in April 2004 the Claimant was functioning at around an age of 20 months in terms of language development). 

4.	The Tribunal found that the additional attention which, by reason of his disabilities, the Claimant required in connection with his bodily functions during the day – i.e. use of an inhaler, application of cream, and assistance with his language development - amounted to frequent attention throughout the day. However, it found that this was “not wholly outside the range of attention given to any child of 3½, without a disability”. It further found that the Claimant did not need “constant supervision in order to avoid danger to himself or others, of a quality different from any other 3½ year old without his disability.” The Tribunal therefore concluded that the Claimant did not qualify for the care component on the day grounds. 

5.	The ground on which the chairman gave permission to appeal, and on which the appeal is supported by the Secretary of State, is that the Tribunal did not consider whether the Claimant was entitled to the lowest rate of the care component (by reason of a need for attention for a significant portion of the day; the main meal test cannot of course apply to a child under 16). 

6.	The statement of reasons certainly contains no mention of the condition for the lowest rate. It may be that the Tribunal reasoned, consciously or subconsciously, that since it was finding that that the Claimant did require attention frequently throughout the day, but not substantially in excess of the normal requirements of persons of his age, it was implicit that his need for attention for a significant portion of the day was also not substantially in excess of the normal requirements of persons of his age. The condition in s.72(6)(b)(i) of the Social Security Contributions and Benefits Act 1992 is that “he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age.” It must be the case that every child of the Claimant’s age requires both frequent attention throughout the day and attention for a significant portion of the day.  It is possible that a child of that age might, by reason of disability, require additional attention for only one part of the day (solely for an hour in the morning, for example). Such a child might, it seems to me, be held to qualify for the lowest rate of the care component without also being held to qualify for the middle rate of the care component. It is therefore possible, it seems, for a very young child, who necessarily requires frequent attention throughout the day, to be found entitled to the lowest but not the middle rate of the care component. In the Claimant’s case, however, there is the additional factor that the Tribunal did expressly find (see para. 4 above) that the additional attention which he required by reason of his disability was frequent throughout the day (but that his overall need for frequent attention throughout the day was nevertheless not substantially in excess of the normal requirements of a person of his age). It is perhaps arguable that it followed from that finding that his overall need for attention for a significant portion of the day was also not substantially in excess of the normal requirements of a person of his age. However, I do not think that that did necessarily follow. The answer to the question what is substantially in excess of the normal requirements of a person of the claimant’s age may differ according to whether one is looking at a need for attention frequently throughout the day or a need for attention for a significant portion of the day. If and so far, therefore, as the Tribunal did reason along the lines which I have indicated, I think that it needed to make that reasoning express. The conclusion did not necessarily follow from the express findings which it made about the middle rate. As the tribunal chairman gave permission to appeal on this ground, and the Secretary of State has supported the appeal on that ground, I think it right to set aside the Tribunal’s decision on this ground.

7.	That means that it is unnecessary to examine the other grounds of appeal put forward by the Claimant’s representative. The new tribunal must consider the matter afresh, uninfluenced by the findings of the Tribunal. 

	(signed on the original)	Charles Turnbull
		Commissioner
		30 November 2004