[2005] UKSSCSC CSDLA_554_2005 (26 August 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/554/2005

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Appellant:                       		Respondent:  Secretary of State

Tribunal:  Glasgow			Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of the Glasgow appeal tribunal dated 24 May 2005 (the tribunal) is erroneous in law.  Accordingly, I set its decision aside and return the appeal for a rehearing.  Leave to appeal was granted by the district chairman.

Errors of law

R(DLA)4/03

2.	The representative on behalf of the appellant states that the appropriate test for virtual inability to walk is:

“… the distance walked before experiencing ‘severe discomfort’ rather than before stopping.”

I would say rather that the correct approach is set out in paragraphs 20 – 25 of R(DLA)4/03.  When a claimant stops and how far such a claimant walks before it triggers severe discomfort are both evidentially relevant, but not legally determinative, of the real issue, which is the maximum distance a claimant is able to walk out of doors without suffering severe discomfort then or afterwards, and yet in an acceptable speed, distance and time and whether, having regard to such findings, the claimant cannot properly be described as “virtually unable to walk”.  The onus of proof to establish the contrary lies on the appellant in a new claim, as here.  That a claimant suffers severe discomfort at times during his walking does not necessarily mean that he is virtually unable to walk if, overall and having regard to all the relevant factors, he is able to walk to an appreciable extent and in a reasonable way without causing such severe discomfort.  Walking achieved only at the expense of severe discomfort is discounted.  

3.	Albeit in its reasoning rather than its primary findings of fact, the tribunal accepted the opinion of an examining medical practitioner (EMP) who reported on 31 December 2004.  The EMP considered that the appellant is able to walk at least 100 metres before the onset of severe discomfort with brief halts during that distance because of discomfort and at a slow speed.  The halts were thus not, in the EMP’s opinion, occasioned by severe discomfort before 100 metres and, standing that the required halts were brief and the EMP estimated he could walk 100 metres in 1½ minutes without them, the tribunal’s conclusion that he was not virtually unable to walk was not perverse.  However, given the tribunal’s criticism of the letter from the general practitioner (GP), that the GP “… did not come to an opinion on the distance the Appellant could walk and the time and speed required to walk a distance”, where the GP had stated:

“[h]e is in constant pain in his left leg and his leg is constantly swollen”,

I would have expected the tribunal to make clear primary findings on the matters which must be balanced in evaluating virtual inability to walk.  Therefore, although borderline, in my judgement the tribunal gave inadequate findings and reasons on why the appellant’s case with respect to the higher rate mobility component of disability living allowance (DLA) was rejected.  

The relevance of prompting and encouragement to carry out bodily functions

4.	These cases are difficult and require careful fact finding.  Having regard to the evidence, the tribunal gave inadequate facts and reasons also to this aspect of the appeal.  It is not determinative that the claimant is physically able to carry such functions out unaided.  If his disablement prevents him from doing so because it induces lack of motivation, which exhortation from another is able to overcome, then this is capable of constituting attention with the independent bodily functions which a claimant is thereby enabled to carry out.  It must, of course, be the claimant’s mental disablement which causes the lack of motivation and not, for example, a character defect.  Nor does it count if it is the physical environment in which a claimant unfortunately finds himself which is the sole cause of his difficulties.  While the EMP noted that the appellant lay on the couch under covers all the time the EMP was there, it was also recorded that the accommodation was extremely cold, so that it was not surprising the claimant spent his time in that way.  The appellant’s disablement must, at minimum, be a material cause of the need for care.

5.	In his DLA claim form, the appellant had written:

“I suffer from severe depression.  I will often spend days at a time in my bed or lying on the settee.  I often cannot motivate myself to get up, get dressed, wash or take a shower.  I neglect both myself and my living environment.  Family members visit throughout the day to help about the house, encourage me to do things for myself and give physical assistance when required.

I rely on my family to arrange my medication.  I lack the concentration to be able to remember what to take and when.  I have taken the wrong medication in the past and ended up in hospital as a result.

I lack the motivation and concentration to be able to safely cook and prepare a meal for myself.”

6.	The EMP recorded the appellant’s statement:

“I did get mixed up recently and took too many warfarin by mistake for valium and ended up in hospital.”

7.	In the note of the examination, the EMP records:

“He became addicted to prescribed sleeping tablets and painkillers and started to take them to excess.”

8.	The EMP diagnosed, amongst other conditions, “depression and anxiety with panic attacks” but, having found full function of all limbs except the left lower leg, was of the opinion that the claimant could safely carry out all the usual tasks, including cooking activities.  Unfortunately, I cannot read what was said by the appellant at the hearing about his problems.  However, the tribunal concluded:

“The Appellant may suffer from lack of motivation but there was no evidence to show that the Appellant was not able to manage his own care needs.”

It relied on the EMP’s opinion for this view and also that “no care needs were specified by the appellant’s own doctor”.  If, by this, the tribunal means that the GP did not separately identify the care needs with which the appellant required help, this is correct.  But the tribunal’s comment is somewhat ambiguous given what the GP actually said, viz. “he has little motivation to care for himself due to his pain and depression”.

9.	The tribunal paid insufficient overt regard to whether the appellant reasonably required assistance due to lack of motivation; an ability to undertake activities safely is relevant but not conclusive.  Where a claimant needs motivation to carry out bodily functions, the starting point is that he is physically capable of carrying them out himself.  Therefore, in order to establish the necessary causal link between the exhortation, which it is said is the required ‘attention’, and the bodily function, it must be demonstrated that the claimant would probably not perform the bodily function unless he was so encouraged, or at least not perform it within an acceptable and useful time.  “Bodily functions” does not include domestic chores but only those actions which the well person usually performs for himself.

10.	Moreover, attention has to be reasonably required.  It must therefore be established that, if the claimant did not carry out these functions on a regular basis, the impact on his wellbeing is sufficiently adverse such that it justifies the impact which providing the service has on the carer’s life: in evaluating what is reasonable, consideration is paid to both the giver and the recipient of the attention.  As was said by Miss Commissioner Fellner at paragraph 6 of CDLA/2495/2004:

“The evidence before the tribunal was that the claimant got out of bed unprompted, but then waited until his mother returned from work before doing anything else, including eating.  I am willing to accept that the claimant does require prompting, but not that this equates to his mother carrying out for him all the specified functions.  Prompting may be momentary.  The evidence was that bathing/showering required more persuasion, but that shaving was done only every four days.  So long as the claimant sometimes washes and shaves, it hardly matters that he does not do so every day.  Nor would it particularly matter if he did not dress every day.  He is not, on the evidence, going out much.  I decline, therefore, to accept that all the functions that would be performed by a person going out and about to work or study reasonably require a person who is doing neither of these to be prompted to do every one of them every single day.  Even if I did, there would be no question of the prompting being frequent throughout the day, it would be clustered at the beginning and end of the day.”

11.	The above passage also illustrates the need to consider carefully what attention is required, when and for how long.  It is well established that “attention” involves a close, highly intimate and personal service carried out in the claimant’s presence and directed to assist bodily functions.  Shouting to a claimant from a distance is unlikely to count.  The necessity for physical presence is underscored by regulation 10C of the Social Security (Disability Living Allowance) Regulations 1991 (as amended in 2000): the attention required must be “… required to be given in the physical presence of the severely disabled person”.  

12.	Furthermore, as is pointed out in CDLA/5465/2002 and CDLA/492/2004 (to be reported as R(DLA) 5/05), the nature, duration, number and pattern of occurrences are all relevant to the question whether, even if it is accepted that attention with bodily functions is reasonably required because of disablement, the incidence of such need is “frequent … throughout the day” or “for a significant portion of the day”.  Moreover, that the appellant takes a certain amount of time to carry out activities unaided indicates whether help might be reasonably required but, in itself, provides no estimate of the time it would take another person to provide appropriate assistance.

The cooked main meal test

13.	The tribunal held, as it was entitled to do, that:

“There is no evidence to show he had any problems with his grip or his concentration.”

However, as the passage above (see my paragraph 5) from the claim form indicates, he also relied on lack of motivation.  Lack of motivation can be relevant to the cooked main meal test too, despite the fact that the test focuses on a claimant’s own capabilities rather than the help from another he can reasonably expect. 

14.	In CSDLA/725/04, I said this at paragraphs 17 to 19:

“17.	...  With respect to what a lack of motivation might demonstrate, the point was dealt with as long ago as 1996 by Mr Commissioner Walker QC at paragraphs 8 and 9 of CSDLA/80/1996:

	‘8.	… In a physical disability case, it might be said that arthritis prevented performance of certain of the tasks necessary to preparation of a main meal.

	Equally … if it could be shown what the lack of motivation resulted in, by way of preventing the same preparation, then the test might be satisfied.  The relevant questions concern whether the psycho-neurosis induced lack of motivation prevented this claimant from even approaching the provided ingredients or, for example, having done the preparation whether his motivation tended to lag and fail so that the ingredients would never be cooked.  I think a determination about any such link is of critical importance … .

	9.	If that be correct, and is the consequence of the neurosis and if it explains how lack of motivation prevents the preparation of a cooked main meal then, I consider, that a tribunal would be entitled to conclude that the lowest rate care component award was justified …’.

18.	In CSDLA/80/1996, the claimant complained of lack of motivation, panic attacks, hallucinations, voices and impaired concentration, … I emphasise that each individual appeal must be decided on its own particular circumstances ...  At paragraph 10 of CSDLA/80/1996, Mr Commissioner Walker QC said:

	“It will be for the new tribunal to consider with appropriate care, the evidence about the claimant’s mental condition; what if anything it produces, symptomatically or otherwise, which could prevent the claimant from preparing a cooked main meal given the ingredients …”.

19.	I have always accepted that it is not a simple issue of whether a claimant has the physical ability to perform all the activities in connection with planning, preparing and cooking a “…labour intensive, main reasonable daily meal for one person …” (R(DLA) 2/95) but rather it is relevant whether, through disablement, the claimant lacks the motivation to do so on a sufficiently regular basis.  Mr Bartos too agreed, and I consider that he was right to do so, that if a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity  to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test; the claimant’s abilities are assessed throughout the relevant statutory nine month period (taking a broad view in exercising judgement on whether, in a general sense, the claimant can fairly be described as a person who is unable to cook a meal).  …”.

15.	In its reasons, the tribunal notes that the appellant “can use a microwave”; however, it is not clear whether that use is merely to heat up meals or to cook them from scratch.  If, through lack of motivation due to disablement, he is capable only of the former, he may satisfy the cooked main meal test.  What matters are, of course, his real capabilities, not what he actually does, although the latter is evidentially relevant to establish the former, as is also the care which his family provides.  The tribunal failed in this area also to provide adequate facts and reasons with respect to the case put.

Supervision

16.	Having excluded a risk of falls, the tribunal determined that there were no supervision problems, noting that he could “… manage his own medication”.  However, the tribunal does not state, as it should have done, what view it takes of the evidence suggesting he could not safely be left to do so nor whether “continual” supervision is reasonably required for this purpose.  “Continual” means “frequently recurring”: the condition is satisfied if the claimant may safely be left alone only for short periods, but not if he can be so left for long periods.

17.	There is also a possible issue of requiring supervision because of self-neglect.  However, while encouragement and support to prevent self-neglect is capable of constituting supervision, it has likewise to be shown that such (or when added to other supervision needs) is reasonably required on a continual basis throughout the day in order to avoid substantial danger.  As I said at paragraph 37 of R(DLA)10/02:

“Such danger is unlikely to arise with respect to self neglect because it is probable that encouragement to wash, dress and eat would be enough if provided for part of the day only.”

Summary

18.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

				(signed)
				L T PARKER
				Commissioner
				Date:  26 August 2005