[2006] UKSSCSC CSDLA_916_2005 (08 September 2006)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Glasgow on 4 August 2005 is erroneous upon a point of law.   I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.

2.	This appeal came before me for an oral hearing on 18 July 2006.  It was continued until 6 September 2006.  Mr Orr, a Welfare Rights Officer of the City of Glasgow Council appeared on behalf of the claimant.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Mathieson, Solicitor, of the Office of the Solicitor to the Advocate General.

3.	Both parties were in agreement that the tribunal’s decision erred in law.  They made specific reference to the tribunal’s treatment of the lower rate of the mobility component.  They have persuaded me that there was an error in law on the part of the tribunal in that respect.  In these circumstances I have taken the course I have in paragraph 1.

4.	The substance of the appearance before me by the parties was in relation to the directions that I should give the freshly constituted tribunal, particularly having regard to the recent decision of a Tribunal of Commissioners in CSDLA/133/2005.  Mr Orr indicated to me that the scope of the appeal before the freshly constituted tribunal would be the lowest rate of the care component – section 72(1)(a)(i) – significant portion of the day attention condition and the lower rate of the mobility component, section 73(1)(d) of the Social Security Contributions and Benefits Act 1992.  Mr Orr also submitted that the claimant was relying upon two identifiable and recognised medical conditions in relation to disablement, namely depression and Asperger’s disorder.  In these circumstances it was accepted that the tribunal need not go into issues of “functional impairment” referred to in CSDLA/133/2005.

5.	Mr Orr also indicated that in the written submission to the Commissioner at page 108, the areas in which the claimant seeks to assert a requirement of attention in connection with impaired bodily functions are as follows:

“At page 18 of the papers the claimant says
‘I suffer from depression, which can mean my wife has to tell me to get up, get washed, brush teeth, and shave every day.  I don’t place any importance on these things.  My wife has to force me’.

A second type of care need is then set out.

‘I have massive problems with communication.  I cannot make facial expressions.  I have a lack of sympathy and lack of social skills’.”

6.	It was accepted by both parties that the effect of the Tribunal of Commissioners decision was that “communication”, “social integration”, washing, brushing teeth and shaving are not bodily functions.  I refer to paragraphs 36, 45 and 46 of CSDLA/133/2005.  It is not asserted that the claimant has any physical disability.

7.	However, if the claimant is accepted by the tribunal to experience the difficulties asserted, then they are left with the difficulty of identifying what bodily function is impaired.  Mr Orr submitted that the bodily function impaired was simply “the brain”.  Mr Brodie, on the other hand, said that that was not sufficient.  The brain is an organ not a function.  It would not do, in his submission for example, to identify an impaired bodily function as being “the leg”.  The same applied to “the brain”.  What neither of them was able to do was to make a submission which specifically identified an impaired bodily function.  Yet that is the essence of what requires to be identified.  Mr Orr suggested that the type of evidence set out in paragraph 46 of R(DLA) 3/06 might be sufficient.  Little assistance in determining the impaired bodily function in the instant case by the Tribunal of Commissioners.  At paragraph 39, all they were able to say was:

“However, even where an activity is such that it cannot itself properly be described as a bodily function, that will not be the end of the matter - because recourse will then have to be had to the discrete bodily functions which are involved in the activity and the extent to which they are impaired, and particularly as to whether the functions or any of them are so impaired that assistance to the level of any of the provisions of section 72 is required in respect of the disablement.  In these circumstances, the relevant discrete bodily functions will have to be identified and “unbundled”, considered and assessed.  Indeed, given the purpose of identifying the relevant bodily functions given above (paragraphs 36-37), in functionally complex activities which may be borderline, we regard this “unbundling” exercise as the correct approach in any event, and warn against the temptation of considering in very fine detail whether the complex activity can truly be described as a single bodily function or not.  We consider the potential dangers of such an arid exercise are well illustrated in this very case.  As the various House of Lords opinions referred to above (but notably that of Lord Slynn in Cockburn) make clear, in borderline cases it cannot be incorrect to unbundle functions in this way, and it is likely to be helpful in approaching the issue of assistance reasonably required.” 

They then went on to say in paragraph 46:

“This suggests that he considered some form of social interaction may amount to a complex bodily function, as he apparently did “communication”.  But, again, even if that be the case, in the context of section 72 the functions may need “unbundling” so that the nature and degree of attention reasonably required to address the relevant functional deficit can be assessed.  Again, in our view, it was insufficient for the tribunal merely to find that “social integration” was not a bodily function.  They erred in law in failing to identify the specific bodily functions that were deficient in the claimant’s case, and in failing to assess the attention reasonably required in respect of that deficiency.”

8.	Mr Brodie’s submission was that the matter is to be left to the new tribunal on the basis of the evidence led before it to reach a conclusion.  That, he said, was their responsibility as a fact finding body.  He did however say that if the evidence was such that a bodily function could not properly be identified, the claimant would not satisfy the condition.  I consider that this must be right.  If a bodily function cannot be identified by the “unbundling” exercise referred to by the Tribunal of Commissioners, section 72(1)(a)(i) cannot operate.  It would probably in these circumstances be necessary to consider, though it was no part of Mr Orr’s case, whether in the light of findings along the lines asserted in the submission to the Commissioner quoted above, the claimant satisfied the day time supervision condition on the basis of the submission made to me I am unable to direct the tribunal as to what the nature of any impaired bodily function might be.

9.	If a bodily function which is impaired is identified, the question then arises as to whether attention is reasonably required and what falls within the scope of attention.  In respect of the activities referred to such as getting up, washing and brushing teeth if the tribunal are satisfied that the lack of the claimant’s ability is caused by an impaired identifiable bodily function and not simply apathy, then they have to determine whether instruction to carry out the activities referred to falls within the scope of attention.  If they accept that the claimant manifests the type of behaviour asserted at pages 5 and 18 in relation to lack of inhibition etc and it is caused by an identifiable impaired bodily function they then have to determine, with such assistance as they can divine from the Tribunal of Commissioners, whether there is attention of the requisite type which can be proffered.    It is difficult for me in abstract and without knowledge as to what evidence will be led, to give directions as to the exact approach which should be adopted.

10.	The parties did not submit that I should make any specific directions in relation to the lower rate of the mobility component and I do not do so.

11.	The appeal succeeds.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  8 September 2006