[2005] UKSSCSC CSDLA_829_2004 (14 February 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/829/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Appellant:				          Respondent:  Secretary of State

Tribunal:  Edinburgh			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	The decision of an appeal tribunal sitting in Edinburgh on 23 August 2004 (the tribunal) is wrong in law.  I therefore set its decision aside and remit the case for rehearing by a new tribunal.  

2.	Leave to appeal was granted by the District Chairman.  The appeal is not supported by the Secretary of State but the submission does not address all the relevant issues.  

Background

3.	The new claim for disability living allowance (DLA) was made on 13 February 2004 by a mother (the mother) on behalf of her daughter (the daughter).  The daughter’s date of birth is 3 August 1996.  She was therefore seven years of age both at the date of claim and also at the date of the wholly adverse decision on entitlement made on 18 May 2004 by a decision maker (DM) on behalf of the Secretary of State, to which date the consideration of circumstances is restricted.  

4.	In the claim form, the daughter’s disabilities are listed as “Lincoln sclerosis and chronic constipation”, conditions later accepted by the tribunal.  However, the only medical evidence in the case, that from a consultant (the consultant) dated 13 May 2004 at the Royal Hospital for Sick Kids, although in manuscript and somewhat difficult to read, seems to state “lichen sclerosis and is under dermatologist for this” which appears a more likely diagnosis; the consultant confirms the condition of “constipation” with “no evidence of faecal impaction” and says that the daughter is not incontinent by day or in the night.  

5.	The mother attended the hearing with the daughter and with a local welfare rights worker as her representative (the representative).  No case law was cited to the tribunal, although subsequently references were made to cases on the application to the Commissioner.  I am at a loss to understand why the representative was not able to produce these at an earlier stage, which might have assisted the tribunal.  

6.	The tribunal refused the appeal.  Its statement of reasons for its decision included the following:

“Findings in Fact

4	[The daughter] suffers Lincoln sclerosis and constipation.  She attends the constipation nurse at the Sick Children’s Hospital and the dermatologist at Edinburgh Royal Infirmary.  She takes medication each night and she has to have Dermovate cream applied twice a day.  Her mother puts the cream on and dispenses the medication.
5.	… She can go to the toilet herself at school.  She can dress herself and wash herself.  
6.	She has a restricted diet and is not allowed to eat or drink dairy produce or coke.  Her mother has to report to the constipation clinic what she has eaten.
7.	Sometimes when she is in pain trying to pass a stool her mother has to sit in the bathroom with her and comfort and encourage her.
Reasons for Decision

8.	In order to qualify for the care component of DLA, an appellant must be so severely disabled physically or mentally that they need (for the care component at the lowest rate) attention with bodily functions for a significant portion of the day; or, (for the care component at the middle rate for day conditions) frequent attention with bodily functions throughout the day from another person, or that they need continual supervision throughout the day to avoid substantial danger to themselves or others.  Where the appellant is a child there is a further requirement that they must require substantially more care from another person than children of their age would normally require, or that they require care that children younger than them in normal physical health may need, but a child of their age in normal physical and mental health would not require.
9.	The tribunal accepted the evidence of the consultant surgeon from the Royal Hospital for Sick Children that [the daughter] has had a good response to treatment in respect of the constipation, that there was no faecal impaction and that the prognosis was good.  Whilst the tribunal accepted that at times [the daughter] suffered considerable pain and difficulty in passing stools, it noted that when [the daughter] gave evidence herself she stated that she did not have a problem at school and was able to go to the toilet herself.  Further, when [the daughter] was asked directly if she went to the toilet at school, her mother asked the child ‘Do you go at school?’ in such a manner that the tribunal understood her not to know whether or not the child ever did the toilet at school.  This was inconsistent with the mother’s assertion that she always had to help and monitor whenever the child went to the toilet.
10.	The tribunal accepted that the mother had to ensure that [the daughter] ate a diet appropriate to her condition.  They did not consider that this reflected attention substantially in excess of that required by another child of her age.  Any mother of a child of 7 or 8 has control of that child’s diet.
11.	The mother had to ensure that [the daughter] took 5ml of liquid medication at night and had to prepare and sure [sic] that she drank a sachet of Movacol.  She had to administer cream to her bottom twice a day, morning and night.  There was no evidence that there was any problem in [the daughter] accepting her medication or allowing the cream to be applied, or that these took a long time.  The tribunal did not consider that the time taken to do these tasks could be considered to take up a significant portion of the day.
12.	On occasion, [the daughter] has considerable pain and difficulty passing stools, and the tribunal accepted that at such times her mother has to spend time with her holding her hand and encouraging her.  At times she will shout from the bathroom for her mother.  There was an inconsistency with the evidence of the [mother] and the hospital regarding incontinence.  The tribunal accepted the evidence of the mother that on occasion [the daughter] would soil herself and require to change and that she may need help in cleaning herself.  The frequency of these incidents is not sufficient to be considered to be frequent attention throughout the day.
13.	In general, the mother has to be aware of the child’s bowel movements, and monitor whether she has passed a stool or not.  The tribunal did not consider that this could be considered to be frequent attention throughout the day, or constant supervision.  It was of particular note that the mother did not know of the child’s habits at school.
14.	In all the circumstances the tribunal did not consider that the evidence satisfied the test for either the middle or the lowest rate of the care components, nor that attention given was substantially in excess of the attention required by another child of her age.  Accordingly, the tribunal concluded that she was not entitled to the care component at either the middle or the lowest rate.”

Appeal to the Commissioner

7.	The crux of the grounds of appeal is that the tribunal gave insufficient findings of fact and reasons with respect to the relevant statutory tests.  The Secretary of State submits that this is not so.  

The legislation

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 or 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.
…”

My conclusion and reasons

Failure to follow the correct route in consideration of a DLA claim for a child

9.	There are three separate stages, each of which must be satisfied before one moves to the next. The first two steps in the process are the same whether a claimant is an adult or a child.  Firstly, the tribunal must be satisfied that the claimant has a physical or mental disablement within the scope of s.72(1).  Chronic constipation, and any soiling which may result from it, may or may not amount to such.  The critical point is set out by Mr Commissioner Rowland in paragraph 14 of R(DLA)1/2005, following a case of my own, CSDLA/552/2001 (the case citation is incorrect in paragraph 14 of R(DLA)1/2005).  In CSDLA/552/2001, the claimant’s accepted problem was eneuresis and in R(DLA)1/2005, as here, that of constipation and encopresis (faecal soiling).  

10.	Mr Commissioner Rowland agrees that eneuresis and encopresis can occur without any underlying physical or mental health disorder but rather as an emotional statement made by a child.  In a new claim, the onus of proof on a balance of probabilities lies on the claimant: therefore, the mother must establish that the daughter’s chronic constipation and any resultant problems are due to a physical or mental disablement.  In R(DLA) 1/2005 neither a tribunal nor the Commissioner were so satisfied, primarily because the child had no problems at school.  The tribunal erred in law by failing to address this issue first, which necessarily arose in the particular circumstances.

11.	Secondly, before one reaches the additional child condition, does the daughter satisfy the regular statutory criteria governing attention or supervision requirements set out in s.72(1) (albeit excluding s.72(1)(a)(ii))?  Adequate findings of fact and reasons will be necessary in application of the contended statutory tests.  In the present case, only attention with bodily functions for a significant portion of the day or frequent attention throughout the day appear to be in contention.  Although the tribunal took obvious care with this appeal, it was insufficiently precise and appeared not to realise that attention in connection with the skin condition and with constipation and soiling had to be aggregated together when applying the statutory tests concerned with incidence of such attention.

12.	If the daughter satisfies thus far, then consideration of the additional child condition set out in s.72(6) is required.  At paragraph 7 of R(DLA)1/2005, Mr Commissioner Rowland quotes from paragraph 9 of his earlier unreported decision, CA/92/1992, in which he said:

“Attention or supervision is not to be regarded as ‘substantially’ in excess of that normally required unless it is outside the whole range of attention that would normally be required by the average child.”

13.	The point is further well made by Mr Commissioner Rowland at paragraph 10 of R(DLA)1/2005:

“The word in the legislation is ‘normal’ and requirements may be normal notwithstanding that fewer than half the total number of children have them.  However, there comes a point where the proportion of children who have the requirements is so small that the requirements can no longer be said to be normal, even though the total number of children affected may still be quite substantial.”

14.	An observation of Mr Commissioner Rowland in CA/92/1992 (at paragraph 5) which was not repeated in his later case, but neither did he retract from it, was the following valuable comment:

“… attention or supervision may be required ‘substantially in excess of that normally required’ either by virtue of the time over which it is required or by virtue of the quality or degree of attention or supervision which is required.”

15.	Mr Commissioner Rowland continued with an example of what he meant by the above at paragraph 6 of CA/92/1992:

“The idea of a greater quality or degree of attention can be illustrated by considering meal times.  A young child may require attention in connection with eating because he or she requires the food to be cut up.  A disabled child of the same age may require attention in excess of that normally required by a child of the same age because he or she not only requires the food to be cut up but also requires it to be spooned into the mouth …”

16.	It was therefore an insufficiently specific answer by the tribunal (amounting to error in law), having regard to the fact it accepted the mother must ensure the daughter ate a diet appropriate to her condition, that (with which I agree) any mother of a child of such age has control of the child’s diet; this does not address the argument that what is required to constitute such control may be significantly more laborious.   The mother must demonstrate a degree and extent of such extra effort which is ‘outside the whole range of attention that would normally be required by the average child’.  

17.	I conclude that the tribunal erred in its approach to the present appeal by failing clearly to answer each of the above steps in the affirmative and only then moving to a later stage of the process.  For all these reasons, it is appropriate to set aside the tribunal’s decision.  

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 mother’s case on the merits is entirely for them.  Although the mother has been successful in her appeal limited to issues of law, the decision on the facts in her daughter’s case remains open.

						(Signed)
						L T PARKER
						Commissioner
						Date:  14 February 2005