[2006] UKSSCSC CDLA_393_2006 (16 August 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State's appeal to the Commissioner is allowed. The decision of the Lancaster appeal tribunal dated 9 September 2005 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision that the appeal tribunal should have given on its findings of fact (Social Security Act 1998, section 14(8)(a)(i)). My decision is that the decision dated 24 April 1994 awarding the claimant the lower rate of the mobility component and the lowest rate of the care component of disability living allowance from and including 14 March 1994 for life falls to be superseded on the ground that it was given in ignorance of material facts (Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 6(2)(b)). The superseding decision, effective from 8 December 2004, is that the claimant is entitled to the lower rate of the mobility component and the middle rate of the care component for an indefinite period.

2.	The claimant (Carolyn) was born on 19 June 1960. She is affected by Down's Syndrome. She lives with her mother, who is her appointee, although I am not sure exactly when the appointment was made. On 20 April 1994 Carolyn signed a disability living allowance (DLA) claim pack that had obviously been completed by her mother. Her illness or disability was described as Down's Syndrome and receipt of invalidity benefit was noted. On help with getting around, it was stated that Carolyn needed help in strange places and needed someone with her outdoors to make sure she was safe and to show her the way. Because of her learning disability she did not always understand signs and directions and might get lost and was likely to get into danger or cause danger to someone else. On help with personal care, the only boxes ticked were for help taking tablets or medicines and with cooking, where this was written:

Would be at a loss over anything like a stew, cottage pie, chicken, meat and vegetables unless very closely supervised. Could be a danger to self and neighbours. Diet has to be watched as inclined to put on weight."

Under keeping safe during the day, it was ticked that Carolyn needed someone to keep an eye on her seven days a week because she could wander off. This was written in the box for roughly how much of the day someone was needed:

"Difficult to say, but can manage fairly well if a routine laid down."

Carolyn's mother completed the page for someone who knows the effect of the disability and wrote this in the small box provided:

"I think Down's Syndrome speaks for itself. Carolyn will always need someone to watch over her, although in many ways she is fairly able. She can find her way in familiar local places, but can get lost in strange places, as happened last year. I had arranged for her to travel to Ambleside by bus where she would be met. But bus was early and no one there, so Carolyn wandered round and finished up at the Police Station and couldn't explain where she should be."

Carolyn's GP confirmed her disabling condition on the relevant page, adding that she had a convergent squint and had been mentally retarded since birth.

3.	On that evidence, without seeking any further information or a report from the GP, the decision was made on 24 April 1994 to award the lower rate of the mobility component and the lowest rate of the care component from 14 March 1994 for life. No appeal was made against that decision.

4.	On 8 December 2004 a supersession application pack was received signed by Carolyn's mother. On having someone with you when you are outdoors, it was ticked that she needed someone with her in places she did not know well to show her the way. This was written:

"Carolyn has Down's Syndrome. She needs accompanying when outdoors as she cannot find her way outside the village, and in places she is not familiar with.

Carolyn cannot travel alone on public transport except for her journey to and from college in Kendal. I have taken her on the bus to Kendal a few times and she is now familiar with this one journey."

In the section on help with personal care, problems with speech, mental health and a learning disability were identified. Supervision and guidance for planning a meal or cooking were again mentioned. The claimant was said to need someone to keep an eye on her all the time for seven days a week, because she would not be aware of danger in any situation and because of that might end up causing harm to herself. Under the heading on the way you feel because of your mental health, this was written:

"Carolyn can cope with a known and strict routine. Outside of this she would certainly experience anxiety and panic.
I try not to let Carolyn be in a situation with which she is unfamiliar."

It was also said that Carolyn's speech was not perfect and some people did not understand her and that her mother accompanied her whenever she went out except for the journey to and from college. Finally, her mother wrote:

"Carolyn has Down's Syndrome which is a life-long disability. It doesn't change. She can do many things herself because she has been encouraged to do so. But she could never live safely without support she gets from me (her mother)."

5.	Once again a decision was made, not to supersede the existing decision, without seeking any further information. However, this time there was an appeal. Carolyn's mother gave some more details about a need for continual supervision. She said that the journey to and from college, for a special course for people with learning disabilities, was usually done by the local taxi firm, with the bus used only on the rare occasions when the taxi was not available. Letters of support were put in from Carolyn's GP (who said that she could not be left on her own due to learning difficulties), her optician, the minister of the Methodist church in the village (who said that she needed constant supervision and gave some details of the tasks which she could not safely be left to do alone), from a neighbour who stayed with his wife in the house on the rare occasions when Carolyn's mother had to go away (who stressed her unawareness of potential dangers) and from a neighbour who was a retired paediatric physiotherapist (who went into some detail on the limits of Carolyn's understanding). Representation was obtained from Helen Wild, a welfare benefits adviser for the Down's Syndrome Association, who put in a written submission.

6.	Carolyn attended the hearing on 9 September 2005 with her mother and a number of friends, including the authors of some of the supporting letters. However, the appeal tribunal decided that there was no need to take oral evidence. It accepted as accurate all of Carolyn's mother's written evidence and the contents of the supporting letters. It said this in its statement of reasons:

"7. We have no doubt whatsoever that [Carolyn] satisfies the day supervision condition because of her mental disablement. Of course efforts are made to allow her to be `independent' but this is within the context of a strict routine. A practised bus journey from home to a day centre is not necessarily `unsupervised'. This is to overlook, for example, the natural protection afforded by other passengers and the bus driver.

 8. The point is made forcefully in the DLA Handbook which we consulted before the hearing. Even in the context of moderate learning disabilities the following appears at paragraph 20.4.1(i):-
`A person with learning disabilities living at home may appear at first sight to have achieved a degree of independence in that he goes out alone. However, it may be that he goes only to a local shop where he is known. Considerable training may have been required to enable him to do this; he may be unable to cope with any deviation from this routine. When a carefully structured and limited environment has been created in which a person with learning difficulties can operate with an apparent degree of independence, but cannot cope with any deviation from the routine he is in effect requiring continual supervision even though he may be out of sight of the carer for short periods of time.'

[Carolyn] reasonably requires continual supervision from another person to avoid substantial danger."

7.	The appeal tribunal did not merely award Carolyn the middle rate of the care component from the date of the application for supersession, but went on to find that the proper method of altering the decision of 24 April 1994 was by way of revision on the ground that the decision arose from official error, so that the revised award took effect from 14 March 1994. The appeal tribunal took the view that Carolyn had in fact satisfied the conditions of entitlement to the middle rate of the care component from 1994 and that there had been no material change of circumstances since. The statement of reasons continued as follows:

"11. Looking at the information which was before the adjudication officer in 1994, we all of us concluded that the decision to award lowest rate care component rather than middle rate care component on day supervision grounds was one which no reasonable adjudication officer properly instructed as to the law could reach on the facts before him. We were aware that such a finding is unusual and requires a very high threshold. We cautioned ourselves that people with Down's Syndrome do vary in their abilities. On the other hand they vary within the characteristics of the syndrome. [Carolyn's mother] was right to observe that:- `Down's Syndrome speaks for itself'. Any parent who did not arrange continual supervision for [Carolyn] would be criticised if she came to any harm, cf R(A) 2/89 paragraph 5.

 12. We checked our view of the 1994 decision against the most recent decision of the Secretary of State at page 95. Although the decision maintains the 1994 award, it seems to accept that [Carolyn] needs `someone to keep a general eye on her and offer support if necessary'. It then concludes that she does not need continual supervision. It may be that that reasoning is incomplete but as it stands it has an air of irrationality which tended to reinforce the strong conclusion we had reached in respect of the 1994 decision.

 13. We concluded that the 1994 decision was erroneous in law because it was Wednesbury unreasonable and that this was an `official error' as defined in regulation 1(3) Decisions and appeals Regulations since no person outside of DWP contributed to the error and the error of law involved does not depend on any subsequent decision of a Commissioner or the Court."

The appeal tribunal then concluded, applying paragraph 78 of Tribunal of Commissioners' decision R(IS) 15/04 (and see paragraph 55 of decision R(IB) 2/04), that on the appeal against the refusal to supersede the decision of 24 April 1994 it had the legal power to substitute a decision revising for official error.

8.	The Secretary of State now appeals with leave granted by Mr Commissioner Turnbull. When granting leave, the Commissioner said this:

"It is arguable that the Tribunal erred in law in finding that the decision by the 1994 adjudication officer was one to which no reasonable adjudication officer could on the evidence before him reasonably have come, and therefore in revising the 1994 decision for official error.

It may further possibly be arguable that, in deciding that on the evidence before it Carolyn does (and always has) required continual supervision throughout the day the Tribunal erred in law in not taking oral evidence at the hearing as to the precise extent to which Carolyn can in practice be left unsupervised at home."

9.	Following the exchange of written submissions, Mr Commissioner Turnbull granted Ms Wild's request for an oral hearing of the appeal. This took place on 3 August 2006 at Bury County Court. Carolyn attended with some companions from Langdon Down's Centre. Her mother also attended with Ms Wild. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Solicitor to the Department for Work and Pensions. I am grateful to all present for their assistance. At the beginning of the hearing I mentioned an aspect of my family history which had brought me into some contact with children with Down's Syndrome. No-one raised any objection to my dealing with the appeal.

Official error
10.	It has now clearly been decided (in R(CS) 3/04) that an adjudication officer under the pre-1999 adjudication system was "an officer of the Department ... acting as such", so that an error by an adjudication officer can be an official error to ground a revision under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 of a decision that arose from the error. The Secretary of State did not I think dispute that if an adjudication officer or now a decision-maker made a decision that no reasonable person properly instructed as to the law could have made on the evidence before him or her, ie a Wednesbury unreasonable decision, that would be an official error. The exclusion to the definition in regulation 1(3) of the Decisions and Appeals Regulations (about errors of law revealed as such by later decisions) shows that errors of law are capable of grounding a revision under regulation 3(5)(a). The Secretary of State's submission was that the evidence before the adjudication officer on 24 April 1994 fell well short of what would be necessary, particularly in terms of identifying whether supervision was necessary to avoid a substantial danger and whether it was needed on a continual basis, to conclude that only one decision could reasonably have been made. As Mr James put it, if it was at least a possible reasonable decision on the evidence before the adjudication officer of 24 April 1994 not to award the middle rate of the care component, the decision could not be Wednesbury unreasonable. He criticised in particular the use by the appeal tribunal of the phrase "Down's syndrome speaks for itself". He submitted that there was so much variation within the characteristics of the syndrome that that approach to the "substantial danger" and "continual" issues was not legitimate. In reply, Ms Wild stressed the elements of limitation set out in the claim pack, that I have summarised above, and submitted that any reasonable adjudication officer faced with that evidence would have consulted the Disability Handbook, as quoted by the appeal tribunal, which would have pointed towards an award of the middle rate of the care component.

11.	On this aspect of the case I accept the Secretary of State's submission. I remind myself that, as the question that the appeal tribunal asked itself was not wrong in law, I can only interfere with its conclusion that there was an official error if satisfied that no reasonable appeal tribunal properly instructed as to the law could have reached that conclusion. I am so satisfied. In my judgment it was simply not possible to say that on the evidence before the adjudication officer of 24 April 1994 the only decision that could have been made in accordance with the law was to award the middle rate of the care component. Even if one accepted, for example, the general statement in the claim pack that Carolyn needed someone to keep an eye on her because she could wander off, there were still significant gaps in the evidence about whether Carolyn needed day-time supervision to avoid substantial danger to herself or others, rather than to promote her general well-being and quality of life, and whether, if it was so needed, it was needed for that reason continually or whether Carolyn could be safely left on her own for non-trivial periods. The gaps could not be filled in by resort to Down's Syndrome speaking for itself. While it was perfectly understandable for Carolyn's mother to use that phrase (see below), it was not legitimate for the appeal tribunal to reason that everyone with Down's Syndrome who had the particular limitations already accepted for Carolyn had to qualify for the middle rate of the care component under the continual supervision head. While a reasonable adjudication officer could have made an award, accepting the general statements of Carolyn's mother without investigating in any more detail, an equally reasonable adjudication officer could have declined to make an award.

12.	The appeal tribunal's identification of an official error thus cannot be accepted. But Ms Wild's submission that the contents of the claim pack should have sent the adjudication officer to the Disability Handbook perhaps suggests another sort of error. As she put it at the oral hearing, if she had read the 1994 claim pack as an adjudication officer it would have sent alarm bells ringing and she would have made further enquiries. Could it therefore be argued that no reasonable adjudication officer could have given a negative decision on the middle rate of the care component without having first obtained further evidence, for instance from Carolyn's mother or her GP or from some other source? There is a powerful case to be made. The claim pack had been completed in a restrained and dignified way. There was none of the over-the-top elaboration and repetition that is sometimes seen. Officers must be familiar with the difficulty that parents (as Carolyn's mother said in a letter of May 2005, pleased and proud about what she could do for herself) often have in setting down in black and white what a son or daughter cannot do. A need for guidance or supervision when walking outdoors (ignoring familiar routes) had been accepted. The evidence clearly suggested a general need for supervision, subject to the gaps mentioned above. Carolyn's mother, by saying that she thought that Down's syndrome spoke for itself, immediately before saying that she would always need someone to watch over her, was in effect saying that there was much more detail that she could give if needed.

13.	In my view, it was at the least a failure in the proper standards of administration for the adjudication officer of 24 April 1994 to have treated the claim pack alone as a sufficient basis for giving a negative decision on the middle rate of the care component. More information should have been obtained and could easily have been obtained. I venture to think that if the GP had returned a factual report form indicating a need for continual supervision to avoid danger to Carolyn or others, without much in the way of supporting detail, an award would have been made. But was there an error within the definition of official error? It could well be said that the context made this the kind of clear and obvious mistake talked of in Commissioners' decisions R(SB) 10/91 and R(SB) 2/93. This was not an allegation of a failure to follow up some matter of which there was no real hint in the existing evidence. But, as noted in R(SB) 2/93 and more recently in R(H) 1/04 and R(H) 2/04, it is part of the definition of official error that no person outside the Department has caused or materially contributed to the officer's error. And in judging what was a material contribution a common sense approach should be taken, rather than a highly refined analysis of causation. An argument could be constructed that the way that the 1994 claim pack was completed merely provided the setting for the adjudication officer to make his or her own mistake about not obtaining further information and did not contribute to that particular mistake. But in my judgment that would be too refined. In common sense the way that Carolyn's mother completed the claim pack did materially contribute to the adjudication officer's error in making a decision without obtaining further information, as submitted on behalf of the Secretary of State. I stress that in reaching that conclusion I am not thinking at all in terms of fault or blame. It is just an expression of the factual situation in the context of the restrictions that the legislation has put on the definition of "official error".

14.	Therefore I conclude that the appeal tribunal's conclusions on revision for official error cannot be saved by characterising the error in a somewhat different way. The appeal tribunal erred in law in a way that requires the setting aside of its decision.

Middle rate of the care component from 8 December 2004
15.	I need to deal with the second part of the Secretary of State's submissions, maintained by Mr James at the oral hearing, that the appeal tribunal failed to deal properly with the issue of whether Carolyn currently met the conditions of entitlement to the middle rate of the care component, in that it should not have declined to take any oral evidence on 9 September 2005. I reject that part of the Secretary of State's submissions.

16.	First, I should clear away a flaw in the approach taken in the Secretary of State's written submission of 6 April 2006, acknowledged as such by Mr James. Paragraph 6 of that submission noted the evidence from the 1994 claim pack set out by Ms Wild in her written submission to the Commissioner as supporting entitlement to the middle rate of the care component and continued:

"[I]t is submitted in response that much of that evidence relates to a requirement for guidance or supervision when taking advantage of the faculty of walking out of doors over unfamiliar routes and this is catered for in the award of the lower rate of mobility component which is not in dispute."

17.	That approach embodies the mirror-image of the error identified by the decision of the Tribunal of Commissioners in R(DLA) 4/01. It was held there that in considering whether a person qualified for the lower rate of the mobility component the fact that elements of the guidance or supervision needed when walking out of doors might also constitute attention or supervision going towards qualification for the care component was to be ignored. Part of the Tribunal's reasons for rejecting the Secretary of State's arguments to the contrary was as follows (paragraph 11(g) of the decision):

"We note (from the printed cases) that a submission was made to the House of Lords both in Mallinson [[1994] 1 WLR 630, R(A) 3/94] and 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 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."

I apply that convenient summary of the principle, which applies as much to supervision as to attention, to the present case. The question of whether Carolyn requires continual supervision throughout the day has to be answered independently of qualification or otherwise for the lower rate of the mobility component and taking into account the supervision needed when walking out of doors. However, that principle also requires the taking into account of the occasions when Carolyn can walk out of doors without supervision. There is no exclusion within the conditions of entitlement to the care component for walking on familiar routes. Thus, as the evidence was that Carolyn did go out on her own, to familiar places within her home village and on the bus to college, that would have to be taken into account in considering whether there was a need for continual supervision.

18.	Bearing that in mind, did the appeal tribunal err in law in concluding that Carolyn did require continual supervision throughout the day to avoid substantial danger, and had done so from March 1994? In particular, did it err in law by basing that conclusion on its acceptance of the written evidence? Mr James submitted that the 2004 claim pack gave little more detail than the 1994 claim pack and that the supporting letters, while giving general support to the supervision given to Carolyn, did not go into the necessary detail to show that supervision to avoid substantial danger, rather than for other reasons, was needed continually throughout the day. He said that as all the letters displayed that same feature, the cumulative effect of a number of letters was no greater than that of one or two. It was not a case where, although any individual letter left gaps, they were filled in by other letters. Mr James submitted that the issue raised by Mr Commissioner Turnbull, of how far in practice Carolyn could be left unsupervised at home, constituted a significant gap. I do not accept those submissions. The appeal tribunal did not go outside the area of reasonable judgment given it in the evaluation of evidence.

19.	First, the Secretary of State's submission took too limited a view of the value of the supporting letters in the light of the proper approach to supervision to avoid substantial danger. Without going into any great detail, I refer to paragraph 5 of Commissioner's decision R(A) 2/89, relied on by the appeal tribunal in the present case, where Mr Commissioner Monroe said:

"The claimant is a tetraplegic and if he were left alone in a house would be unable to fend for himself in the event of an emergency as a fire or to stop a fire spreading. This may be a remote contingency but it is not fanciful. And anyone who left the claimant alone in a house where such an emergency actually arose would be criticised. The result could be catastrophic."

I also refer to the following guidance about the day-time continual supervision test, given very early on in the attendance allowance scheme by the then Chief Commissioner, Sir Robert Micklethwait (paragraph 15 of decision R(A) 1/73):

"[T]here is a danger of not starting the enquiry at an early enough point. If one starts with the fact that the disabled person is living with relatives who are looking after him, and then asks oneself to what extent he requires supervision, that is beginning at the wrong point. It might indeed be helpful to ask also whether without substantial danger the disabled person could be by himself in a house at any rate for periods long enough to make any supervision that there was not continual."

20.	With the assistance of that helpful guidance from Commissioners renowned for their wisdom, the relevance of the written evidence to what might happen if Carolyn were left alone and something untoward or out of routine, not necessarily anywhere near as serious or uncommon as a fire, happened becomes much clearer. There was sufficient evidence there that Carolyn was in practice not left alone at home for non-trivial periods of time and a sufficient suggestion of the dangers that could arise in the hypothetical circumstances of her being left alone. I note again the opinion expressed by the current GP that Carolyn could not be left alone due to learning difficulties and my suspicion that if such an opinion had been expressed on a questionnaire issued by the Department an award of middle rate care component would have followed. I have no doubt that the appeal tribunal was entitled to evaluate the written evidence so as to conclude that Carolyn required continual supervision when at home to avoid substantial danger.

21.	There might in fact have been more difficulty with the evidence of Carolyn going out on her own on familiar routes. That might have been frequent enough for it to be concluded that the need for supervision was not continual. And I am not at all sure that the reasoning in the Disability Handbook quoted in paragraph 8 of the appeal tribunal's statement of reasons could alter such a conclusion. However, the appeal tribunal dealt with this point adequately in paragraph 7 of its statement when it said:

"Of course efforts are made to allow [Carolyn] to be `independent' but this is within the context of a strict routine. A practised bus journey from home to a day centre is not necessarily `unsupervised'. This is to overlook, for example, the natural protection afforded by other passengers and the bus driver."

In my view, the same could apply when Carolyn was out in her village without an immediate companion, by taking into account the natural protection of neighbours, friends, shopkeepers etc who all knew her well. That is form of supervision from other people. Accordingly, I am satisfied that it was within the ambit of reasonableness for the appeal tribunal to evaluate the written evidence so as to conclude that there was a need for continual supervision to avoid substantial danger throughout the day.

22.	There remains the point that the appeal tribunal should not have declined to take any oral evidence. In my judgment that element of the procedure was also within the area of reasonable judgment given to the appeal tribunal and its chairman. I do not agree that the written evidence was as deficient as asserted by the Secretary of State. The Secretary of State chose not to send a presenting officer to the hearing on 9 September 2005, so that there was no-one apart from the members of the appeal tribunal to ask questions of Carolyn's mother or any of the other potential witnesses who were present. In those circumstances, the appeal tribunal, having taken the view it did of the written evidence, was not obliged to take oral evidence. Another equally reasonable appeal tribunal might have taken a different view but that does not mean that there was an error of law.

The Commissioner's conclusion on the appeal
23.	I therefore conclude that the only way in which the appeal tribunal erred in law was in its reliance on revision for official error to alter the decision of 24 April 1994 with effect from 14 March 1994. That requires me to set its decision aside. However, as there was no error of law in the way in which the appeal tribunal reached its findings of fact, it is expedient for me to substitute the decision that it should have given on those findings. It is not necessary for me to make fresh findings of fact and I do not need to consider the evidence that I heard from Carolyn's mother on 3 August 2006 (in case I needed to make fresh findings).

24.	On the basis of the appeal tribunal's findings of fact and the inevitable consequent conclusion that Carolyn had in fact met the conditions of entitlement to the middle rate of the care component on supervision grounds from at least three months before 14 March 1994, the only method of altering the decision of 24 April 1994 was by way of supersession on the ground that the adjudication officer was ignorant of material facts, ie the true extent of Carolyn's supervision needs and of the substantial dangers that would arise if she did not receive continual supervision throughout the day. There could not be revision under regulation 3(5)(b) of the Decisions and Appeals Regulations because the ignorance of material facts did not make the decision of 24 April 1994 more advantageous to Carolyn than it would otherwise have been. Although that ground of supersession obviously bites on the circumstances from the very beginning of the award of DLA, there is nothing in regulation 7 of the Decisions and Appeals Regulations to displace the default rule in section 10(5) of the Social Security Act 1998 that a superseding decision takes effect from the date on which the decision is made or, where applicable, the date the application for supersession was made. The superseding decision in the present case, including the middle rate of the care component with the lower rate of the mobility component, can only take effect from 8 December 2004.

25.	Accordingly I allow the Secretary of State's appeal and give the decision set out in paragraph 1 above.

(Signed)          J Mesher    
Commissioner

Date:    16 August 2006