[2005] UKSSCSC CDLA_2333_2005 (26 October 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decision of the Swansea appeal tribunal dated 24 February 2005 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 13 and 14 below (Social Security Act 1998, section 14(8)(b)).

2.	The appeal tribunal was concerned with the claim for disability living allowance (DLA) made on behalf of Elliot (date of birth 15 September 1998) on 6 April 2004. Elliot's mother is his appointee for DLA purposes. The claim pack referred to a variety of conditions, the most important of which was probably a left-sided weakness due to cerebral palsy. That was said to produce difficulties with walking (needing to be carried or supported due after a short distance) and with activities like getting dressed or in and out of the bath. Elliot's parents carried out physiotherapy exercises at home. He also had to have his asthma medication prepared four times a day for him to take. Once Elliot had gone to bed he tended to be very unsettled with bad dreams, needing someone with him to be re-settled, as well as help with the toilet, with getting untangled from bedclothes. He was said to wake on average three times a night and to need attention one to three or one to five times a night.

3.	Elliot was examined by an examining medical practitioner (EMP) on 14 June 2004. The EMP's opinion was that he could only walk 30 metres before the onset of severe discomfort. His opinion was that he needed supervision with some activities and help to cut up food and to use his inhaler (because of age). The EMP stated that there were no incontinence problems and that no attention was needed during the night hours (although I must say that the standard EMP form used did not contain printed questions that would have been apt to bring out the sort of problems described by Elliot's mother in the claim pack).

4.	On that evidence, the decision given on 1 September 2004 was to award the higher rate of the mobility component and the lowest rate of the care component for the period from 6 April 2004 to 5 April 2008. An appeal was made on Elliot's behalf. Some further documentary evidence was produced and Elliot's mother's representative, Karen Henn of the Neath Port Talbot Welfare Rights Unit, prepared a written submission arguing that there was qualification for the highest rate of the care component. Elliot's mother attended the hearing on 24 February 2005 with Ms Henn and gave detailed evidence.

5.	The appeal tribunal allowed the appeal to the extent of awarding the middle rate of the care component for the period from 6 April 2004 to 5 April 2008 in addition to the higher rate of the mobility component, which it confirmed on the basis of the EMP's opinion. The appeal tribunal accepted that Elliot would need some day-time attention as the result of his disabilities, but said this about the attention it had identified:

"The tribunal concluded that children of Elliot's age would normally require attention and help with tasks such as bathing, toileting, having clothes selected and even help with dressing and adjustment. Certain foods would need to be cut up. Elliot was safe and mobile indoors. Any parent of a young child would need to be continuously aware of the child's whereabouts at home and activities, even in the garden. Elliot is asthmatic, which in the main is controlled. He obviously needs help with his medication, but the time involved would be small. He would have become accustomed to using his inhaler, whether in school or at home. The attention involved with the physiotherapy would, at the most, involve a parent for an hour in the day, and outside school hours. The attention that Elliot reasonably required from another person during the day may be more than normally required by a 5 year old child, but not substantially more. Any 5 year old child needs some attention during the course of a day with bodily functions, which reduces as the child gets older."

In relation to the night-time conditions, it found as a fact that Elliot needed a lot of attention, which it specified. He required prolonged and repeated attention at night and sufficiently more than a normal five year-old for the award of the middle rate of the care component.

6.	The claimant now appeals against the appeal tribunal's decision with my leave. When granting leave, I said this:

"The grounds of appeal are arguable, in that it is arguable that the appeal tribunal failed to explain why the aggregate of attention required with bodily functions throughout the day did not amount to a need for frequent attention (if the appeal tribunal did reach such a conclusion) or why the aggregate of attention that would not have been required at all by a child of the same age with no disability (eg physiotherapy and help to administer medication) and additional attention, in terms of quantity and quality, over what would have been required by a child of the same age with no disability (eg help with dressing, bathing, toilet and at meal-times) did not meet the `substantially in excess' test. And would some of the attention needed after Elliot had gone to bed have been in the parents' day-time and so count towards day-time attention?"

7.	In the submission dated 26 August 2005 the representative of the Secretary of State did not support the claimant's appeal. Effectively, the submission was that the appeal tribunal had reached a decision that it was entitled to reach on the evidence and had adequately explained the decision. The submission also made some comments on the evaluation of the evidence, including that giving Elliot physiotherapy was not help with a bodily function and that the attention provided did not satisfy the criterion of frequency throughout the day because it was mostly concentrated at the beginning and end of the day. It was also noted that, if some attention given after Elliot had gone to bed was put into the day-time category, it would come out of the night-time category and make those conditions more difficult to satisfy. In the reply dated 7 September 2005 from the Welfare Rights Unit, issue was taken with some of the Secretary of State's comments.

8.	I have concluded that the appeal tribunal erred in law in essentially two ways. The first is one that was not expressly mentioned when I granted leave to appeal, but I am not going to impose any delay by asking for submissions about it. The appeal tribunal, having confirmed Elliot's qualification for the higher rate of the mobility component, did not consider what attention he reasonably required throughout the day in connection with the bodily function of walking and did not count any such attention of part of the aggregate of attention to be looked at in relation to the criterion of frequency throughout the day. That was an error of law. The position was set out in paragraph 11(g) of the Tribunal of Commissioners' decision R(DLA) 4/01:

"We note (from the printed cases) that a submission was made to the House of Lords both in [Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, R(A) 3/94] and in [Secretary of State for Social Security v Fairey [1997] 1 WLR 799, R(A) 2/98] to the effect that attention which might be connected with entitlement to mobility component should be ignored when entitlement to the care component was under consideration. Such a submission was not accepted - see per Lord Woolf in Mallinson at 633F and 635A and per Lord Slynn in Fairey at 813G-H. Although the converse proposition is in issue in the present appeals, `overlap' as a concept did not influence the majority reasoning in either decision of the House of Lords."

9.	In the present case, there was evidence in the claim pack of Elliot having to be carried or supported after walking a short distance out of doors. Such help would plainly be attention from another person in connection with bodily function of walking, required as a result of Elliot's disablement. More detailed evidence might well be available about what sort of attention was required from other people at what sort of frequency through the day when Elliot was with his parents and when he was at school or otherwise away from his parents. In the absence of anything in the legislation to the contrary, whatever attention was found to be reasonably required in connection with the bodily function of walking would count towards the day-time condition regardless of the fact that limitations on walking ability are relevant to qualification for the mobility component.

10.	Second, and independently of the first ground, the appeal tribunal erred in law in failing to consider whether any of the attention needed after Elliot had gone to bed was needed during the day, as measured by when the household as a whole closed down for the night. Elliot's mother is recorded in the record of proceedings as having said that Elliot went to bed at 7.30 to 8.00 and she and her husband went to bed at 10.30 to 11.00. That raised the possibility that some of the many sorts of intervention accepted by the appeal tribunal as reasonably required could have been before the parents retired to bed. The difference could possibly have tipped the balance on whether the day-time attention needed was substantially in excess of what would normally be required by a boy of the same age, whether or not it would make a difference to the conclusion about the night-time conditions.

11.	Leaving that aside, it would be a very marginal matter whether the appeal tribunal had failed adequately to explain why it concluded that Elliot's needs were not substantially in excess of normal. An appeal tribunal may not be absolutely required to state whether or not it finds that attention required by reason of disability meets the condition of frequency throughout the day if it properly concludes that the quantity and quality of attention is not substantially in excess of normal (Commissioner's decision CDLA/4100/2004, paragraph 9), but it is desirable for the logical stages to be worked through (R(DLA) 1/05 and CSDLA/829/2004). The appeal tribunal left that question rather open. Then it could be argued that it failed to make completely clear the respects in which it accepted that Elliot's needs for day-time attention were in excess of normal (particularly in relation to elements where a more intense quality of attention might have been required) before expressing the judgment that the excess was not substantial. As it turns out, I do not have to come down one way or the other, because of the errors of law already identified, but I would have been reluctant to set the appeal tribunal's decision aside on this ground alone.

12.	For the reasons given above, I set the appeal tribunal's decision aside as erroneous in point of law. The claimant's appeal against the decision of 1 September 2004 is referred to a differently constituted appeal tribunal for determination in accordance with the directions below.

13.	There must be a complete rehearing of the appeal against that decision on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 24 February 2005. The whole of the decision of the appeal tribunal of 24 February 2005 has been set aside, including its award of the middle rate of the care component. The new appeal tribunal must consider afresh what rate of the care component is properly to be awarded from 5 April 2004 in addition to the mobility component. Entitlement to the mobility component need only be considered if the Secretary of State expressly raises a question about that or if the new appeal tribunal considers that it should be considered after a proper exercise of the discretion in section 12(8)(a) of the Social Security Act 1998 and compliance with the requirements of natural justice (see Tribunal of Commissioners' decision R(IB) 2/04, paragraphs 32 and 89 to 94).

14.	I need give only limited directions of law on the conditions of entitlement to DLA. The approach to attention in connection with bodily functions by day and by night set out in paragraphs 8 to 10 above must be followed. For the avoidance of doubt I see no reason why physiotherapy of the kind carried out by Elliot's parents at intervals during the day should not count as attention in connection with bodily functions. When considering the application of section 72(6)(b) of the Social Security Contributions and Benefits Act 1992, the new appeal tribunal should be guided by the three-stage approach commended in Commissioners' decisions R(DLA) 1/05 and CSDLA/829/2004. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

(Signed)          J Mesher    
Commissioner

Date:  26 October 2005