[2005] UKSSCSC CDLA_4100_2004 (21 July 2005)

CDLA/4100/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Nottingham appeal tribunal dated 7 July 2004 and I substitute a decision that the claimant is entitled to the middle rate of the care component of disability living allowance from 10 March 2004 to 9 March 2006.

REASONS

2.	The claimant was born on 9 October 2002.  A claim for disability living allowance was made on her behalf on 10 March 2004 and was dismissed on 4 May 2004.  The claimant appealed and, at a paper hearing, her appeal was dismissed on 7 July 2004.  She now appeals against the tribunal’s decision with the leave of a salaried tribunal chairman.

3.	Before the initial decision was made, advice was sought by the decision-maker from the Department’s medical services.  On the referral form, the evidence was summarised thus:

“17 month old baby girl.  She has severe bilateral hearing loss and wears 2 high powered hearing aids.  She receives weekly support from a specialist teacher.  Mother states she requires extra help with her development and finds it difficult to communicate.  She requires encouraging to play.  Mother also states she requires more help during the day and night than a child of the same age.”

The response was:

“The child is not profoundly deaf.  The hearing aids have been supplied to help with the deafness.  She does not require supervision/attention substantially in excess of child of same age day/night.  If child was crying during the night the parent would attend and not just call her.”

4.	However, in fact the specialist teacher had written to the effect that the claimant had “severe/profound” hearing loss.  In her letter of appeal written on the claimant’s mother’s behalf, she said that the result of hearing tests indicated that the claimant had a profound bilateral sensorineural hearing loss.  She also made the points that the claimant needed “support” because she was constantly removing her hearing aids and would be in danger if she swallowed them, that they were only a tool to assist listening and were not a cure for the distorted listening that the sensorineural hearing loss would create, that deaf children who wake at night tend to be very difficult to settle because they are deprived of both hearing (because hearing aids are not worn at night) and vision (because it is dark) and tend to be more alarmed than other children, that intense support would be required throughout her education and that she was already receiving “multiple weekly visits from specialist support staff to help her parents create a language rich environment in the house, this will demand considerable time and commitment on their part”.

5.	The tribunal’s decision was extremely brief.  After recording the claimant’s age and the procedural history of the case, the statement of reasons continues:

“3.	[The claimant] has severe bilateral hearing loss and wears two high powered hearing aids.  She receives weekly support from a specialist teacher as it is likely she will experience linguistic delays as a result of the hearing loss.  She has been referred for a cochlear implant.

“4.	[The claimant is less than 2 years old and therefore not entitled to the mobility component of Disability living Allowance.

“5.	[The claimant] needs support from an adult to manage her hearing aid use and needs supervision to ensure her safety.  She is not profoundly deaf and is able to hear with the use of hearing aids.  She needs attention at night if she wakes.  Although she needs attention with bodily functions for a significant portion of the day she does not require substantially more attention than a child of the same age in normal physical and mental health.

“Linking the evidence to the law

“Having regard to the above findings of fact and the facts [sic] as set out in section 72(1) of the Social Security Contributions and Benefits Act 1992 the Tribunal concluded that [the claimant] does not satisfy the criteria for an award of the care component of Disability living Allowance at any rate.”

6.	The claimant’s ground of appeal is essentially that the tribunal has failed to record sufficient findings of fact both in relation to her need for attention to learn communication and listening skills and in relation to her need for supervision to avoid the danger of swallowing a hearing aid.  The Secretary of State resists the appeal on the ground that:

“A child of the claimant’s age has to be supervised continually as they may put anything in their mouth and also have little awareness of danger.  The tribunal have not erred in law, and have given sufficient reasons for non-entitlement to DLA.”

7.	The decision was plainly right as regards the mobility component.  The claimant was too young to qualify.  It is therefore necessary to consider only the tribunal’s decision in respect of the care component.

8	Section 72(1) and (6) of the Social Security Contributions and Benefits Act 1992 provides:-

“(1)	Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –
   (a)	he is so severely disabled physically or mentally that –
   (i)	he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or
   (ii)	he cannot prepare a cooked main meal for himself if he has the ingredients; or
   (b)	he is so severely disabled physically or mentally that, by day, he requires fro another person –
   (i)	frequent attention throughout the day in connection with his bodily functions; or
   (ii)	continual supervision throughout the day in order to avoid substantial danger to himself or others; or
   (c)	he is so severely disabled physically or mentally that, at night, -
   (i)	he requires form another person prolonged or repeated attention in connection with his bodily functions; or
   (ii)	in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.
…
(6)	For the purposes of this section in its application to a person for any period which he is under the age of 16 –
   (a)	sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and
   (b)	neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless-
   (i)	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; or
   (ii)	he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.
…”

9.	As a matter of strict analysis, it was necessary for the tribunal first to consider whether, as a result of disability (i.e., ignoring needs due to simple immaturity), the claimant required attention, supervision or watching over sufficient to satisfy any of the conditions in section 72(1) (other than section 72(1)(a)(ii)) and, if so, whether the amount of such requirements was sufficient to satisfy the condition of section 72(6)(b) having regard to the needs that a claimant of her age in normal physical or mental health would in any event have had through simple immaturity.  Of course, there is no reason why a tribunal should rigidly apply that two-stage process if it appears unnecessary to answer the first question because the second question can clearly be decided against the claimant.  Nonetheless, it can be useful to bear in mind that there are two stages and not just one and that in dealing with the first stage care needs due solely to immaturity are to be ignored.

10.	In the present case, the tribunal plainly had section 72(6) in mind, notwithstanding that it was not expressly mentioned at the end of the statement of reasons, because there is a reference in paragraph 5 of the reasons to the test under section 72(6)(b) and the tribunal also correctly did not make any finding in respect of section 72(1)(a)(ii) which is disapplied by section 72(6)(a) in the case of a child.  I am prepared also to presume that the tribunal’s findings that the claimant required attention for a significant portion of the day, attention at night and supervision were intended to be findings that she had those requirements as a result of her deafness, although that is not entirely clear in respect of all the findings.  However, even on that assumption, the tribunal’s findings are not recorded in sufficient detail to explain why it concluded that the claimant needed attention due to her disability for only a significant portion of the day, rather than frequently throughout the day, or why it concluded that the claimant did not require substantially more attention during a significant portion of the day than a child of the same age in normal physical and mental health.  Moreover, there is no recorded finding as to the extent of the night-time attention or the supervision found to be required by the claimant and so it is unclear whether the tribunal found the claimant not to satisfy the conditions of section 72(1) or not to satisfy the additional condition imposed by section 72(6)(b) and it is also unclear why the tribunal made whatever finding it did make.  The evidence in the case did not inevitably lead to the conclusion reached by the tribunal.  In those circumstances, I have no hesitation in finding the tribunal’s decision to be erroneous in point of law because the chairman has not recorded a statement of the tribunal’s reasons that is sufficient to show why the claimant was unsuccessful or even that the tribunal properly answered the statutory questions.

11.	There was a paper hearing before the tribunal and the claimant has not asked for this case to be referred to another tribunal so that there can be an oral hearing.  I turn, therefore, to consider what decision should be substituted for that of the tribunal.

12.	The claimant’s current representative has not argued that either of the conditions mentioned in section 72(1)(c) in respect of night-time attention or watching over is satisfied.  The only additional night-time need identified in the evidence as arising in consequence of hearing loss is that it takes longer to settle the claimant if she wakes up.  Although it has also been said that she cannot hear her mother calling to her so that her mother has to actually go and see her in order to provide reassurance, it has been pointed out that that would often be the necessary response even if the child was not deaf and, in any event, that does not of itself make it any easier to satisfy the conditions of section 72(1)(c).  I am content to accept that a deaf child will often be more difficult to settle than one who can hear.  However, there is no evidence that the frequency with which the claimant wakes up is attributable to her deafness or that in this particular case the extra time taken because of her disability to settle her is prolonged or repeated on most nights.  Accordingly, I am not satisfied that the night-time conditions in section 72(1)(c) are satisfied.

13.	In respect of section 72(1)(a)(i) and (b)(i), day-time attention, the principal point made on behalf of the claimant is that her deafness gives rise to a requirement for attention because she needs more help in communicating and learning to talk than children who are not deaf.  In respect of section 72(1)(b)(ii), day-time supervision, the principal point made is that the claimant’s tendency to remove her hearing aids creates a risk of her dismantling them and swallowing all or some of the parts, including the batteries, and so gives rise to a requirement for supervision.  The Secretary of State has not addressed the first point and in respect of the latter point the Secretary of State’s representative merely observes that all young children need supervising as they may put anything into their mouth and have little awareness of danger.  That is not a complete answer.  

14.	In CA/92/1992, I suggested that a claimant’s requirements for attention or supervision may be “substantially in excess of the normal requirements of persons of his age” either by virtue of the time over which they are required or by virtue of the quality or degree of attention or supervision which is required.  Thus, a young child may require attention in connection with eating because he or she requires food to be cut up.  A disabled child of the same age may require additional attention because he or she not only requires food to be cut up but also requires it to be spooned into the mouth.  Similarly, a very young immobile baby or a rather older child might normally be regarded for much of the time as being adequately supervised by a person who was getting on with his or her own chores in a different part of the home.  A disabled child of the same age may require much closer supervision amounting to being watched over.

15.	I am satisfied that the present claimant does require frequent attention from another person throughout the day in connection with the bodily function of hearing.  It is recognised in chapter 39 of The Disability Handbook (2nd edition, TSO) that, if a severely deaf child “is to overcome the disability by being trained to develop social, self-care and learning skills, and effective means of communication, considerable attention must be given by others to this task.”  That seems wholly consistent with the submissions and evidence put forward on behalf of the claimant in this case.  The medical advice received by the decision-maker seems to have been based on a view that the claimant’s deafness was not all that severe and that her needs would largely be met by her hearing aids.  It is pointed out on behalf of the claimant that hearing aids may still leave speech distorted but, in any event, the medical advice appears to have been given in ignorance of the true extent of the claimant’s disability.  It is difficult to assess hearing loss in very young children but the view of those concerned with this claimant’s welfare appears clearly to have been that the degree of deafness was such that she required, and would continue to require, much more help than children who are not deaf to ensure she developed communication skills and, in particular, acquired language.  By the time of the tribunal hearing, the claimant was receiving “multiple weekly visits” and a substantial purpose of those visits was to equip her parents with the skills necessary to provide the additional attention the claimant required throughout the day.  I have no doubt that the extent of the claimant’s deafness is such that she reasonably requires such attention.  At the age that the claimant was three months before the date of claim, a child without disability would have been learning to talk and I accept that the claimant required frequent attention throughout the day from then onwards as a result of her deafness and that her needs for attention were, and remain, substantially more than those of children without disabilities.

16.	As to supervision, The Disability Handbook also recognises that, when they become mobile, severely deaf children may initially require substantially more supervision throughout the day than that required by children of the same age without disabilities because they cannot hear sounds warning of danger.  In the present case, however, I am unsure whether the severity of the claimant’s deafness is such that, with the hearing aids, there is sufficient useful hearing to mitigate the difficulty with the consequence that, at the date of the Secretary of State’s decision, she did not require substantially more supervision than a child of her age without disabilities, given the amount of supervision that such a toddler requires.  I would accept that the claimant’s tendency to remove the hearing aid would lead to an additional need for supervision because, while I accept the Secretary of State’s point that any child of her age would be inclined to put things in her mouth and would need supervising on that account, most parents would restrict the child’s access to such small items and correspondingly reduce the need for supervision.  Whether the additional element of supervision required by the claimant because of the risk from the hearing aids would be substantial is, of course, again another issue.  However, it is unnecessary to reach any firm conclusion as to the extent of the claimant’s additional needs for supervision because it would make no difference to her entitlement to benefit.

17.	In the light of my finding that, as a result of her deafness, the claimant reasonably requires frequent attention throughout the day and that she requires substantially more attention in order to develop speech than children of her age who are not deaf, she is entitled to the middle rate of the care component of disability living allowance.  Ordinarily, I would consider making an award for a period of about ten years in the case of a profoundly deaf child aged under two at the date of claim.  However, in this particular case the evidence before me leaves some doubt as to the precise extent of the claimant’s hearing loss and there is also the possibility of the cochlear implant.  In those circumstances, I will limit the period of the award to two years and it will be possible for up-to-date evidence to be provided on the renewal claim.

	(signed on the original)	MARK ROWLAND
		Commissioner
		21 July 2005