[2007] UKSSCSC CSDLA_563_2007 (10 December 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of an appeal tribunal sitting in Edinburgh on 11 June 2007 (the tribunal) demonstrates no error in law.  The tribunal’s decision therefore stands.

2.	Leave to appeal was given by the district chairman.  The Secretary of State does not support the appeal and I agree with that lack of support.  The tribunal could only consider circumstances up to the date of the decision (by a decision maker (DM) on behalf of the Secretary of State) under appeal to it, which decision is dated 16 February 2007.  It may be that the appellant has deteriorated since that time but the tribunal could not take such deterioration into account.  Moreover, if the worsening relates to the appellant’s difficulties during the day, then this does not entitle him to any higher rate;  he is already in receipt of the middle rate of the care component of disability living allowance (DLA) on account of daytime needs.

Background

3.	It is not in dispute that the appellant, whose date of birth is October 1966, is unfortunate enough to suffer from schizophrenia, depression and anxiety.  Following on his initial claim made in 2004, he is in receipt of the lower rate of the mobility component of DLA and the middle rate of the care component (for supervision needs), in each case from 3 April 2004 to 2 April 2008.  On 1 December 2006, an application for supersession was lodged.  

4.	The supersession application was completed by the appellant’s community psychiatric nurse (the CPN).  To a question about getting out of bed in the morning and into bed at night, the CPN wrote:

“[the appellant] tends to sleep quite a lot, partly this is due to the sedative effects of medication.  He relies on family members to call him to ensure that he is up for appointments, visits etc”.

5.	The CPN specifically stated on the application that there were no problems for the appellant when in bed and he did not answer the question about help with toilet needs during the night.  To the rubric (“the way you feel because of your mental health”), and the further one, “more about the way your illnesses or disabilities affect you”, mention was made of various increased difficulties in the day, but not at all of any night needs.  

6.	On 16 February 2007, a DM decided not to supersede the award made on 15 March 2005.  That refusal to supersede was appealed to the tribunal. The CAB representative (the representative), who has represented the appellant throughout these proceedings, stated on his behalf on 14 March 2007:

“I believe the decision not to award me high rate of care is wrong because I need repeated help during the night.  This is because I have very disturbed sleep as a result of my illness, and wake up every 2 hours in an agitated state.  I have to get up and walk around and need someone with me to talk through my problems and calm me down.  This could take at least 10 minutes each time.  As I live alone, I have to ring my mother, and talk to her, which is disruptive to her.  A couple of times a week I try and get a friend to stay overnight, which helps me settle and sleep better.

Sometimes, my dreams are so intense I become disturbed and I wet the bed.  I am unable to change bedding without help because of my weight problems – I weigh 19 stone, and am unable to manage this.  I have also had accidents reaching the toilet in time, and needed help to clear up the mess on the floor and walls.

I believe I should qualify for the higher rate of DLA because I need help from others throughout the night.”

The tribunal hearing and its decision

7.	The representative’s written submission to the tribunal included the following:

“[The appellant] has frequently disturbed sleep.  He wakes in the night several times, with either auditory or sometimes visual hallucinations.  He sometimes thinks the house is haunted, or has other disturbing thoughts.  He is anxious when he wakes up.  He usually, but not always, gets up and will go downstairs to make coffee and try to calm down.  He is usually up for at least 10-20 minutes.  He has relaxation tapes from … his CPN, or will sometimes put on the radio or the television.  Sometimes when he wakes up at night, he will go out into the garden with no clothes on and urinate outside.  He is aware that this is upsetting for other people, but it makes him feel better.  Sometimes after a bad episode he will smoke in bed, although he knows this is dangerous.  At least three times a week he will call the 24hour helpline for the Psychiatric Emergency Team at the Royal Edinburgh Hospital at some point during the night.  He calls them whenever he feels he needs to.  Recently he has been on the phone to them for three hours after a bad episode.  He would find it easier if there was someone in the house for him to talk to.”

8.	A detailed two-page report from the CPN dated 25 May 2007 was submitted on the appellant’s behalf by the representative to the tribunal.  Many of the appellant’s difficulties in daily life were further described.  In relation to night needs, however, the only comment from the CPN was the following:

“Problems with sleep.  Very disturbed.  Wakens every 2-3 hours.  Gets day and night muddled-up due to sleep problems”.

9.	The appellant attended the tribunal hearing with his representative and gave evidence.  The chairman’s record of proceedings indicates that he was accompanied by a friend but I note that from the representative’s record, which she has supplied, that it was the appellant’s sister who came with him.

10.	I will rely on the representative’s record, because this presumably states the appellant’s oral evidence at its highest value for his case, and the representative has asserted that the chairman’s record is incomplete.  The representative’s notes record that the appellant told the tribunal that he slept “badly”.  He often phoned the Psychiatric Emergency Team (PET), who knew his name and that of his general practitioner (GP).  He also left messages with the CPN.  He wakes in the night around 12.00 o’clock, 4.00 o’clock, 6.00 o’clock and then sleeps-in.  He is awake for 20 minutes but it can be for up to four hours.  He feels that if there was someone with him, they could settle him down.  He sometimes has “accidents” when wanting to use the toilet at night.  He “pees in garden”.  

11.	The tribunal confirmed the decision under appeal to it.  The tribunal set out much of the evidence and, having regard to it, was not satisfied that the appellant required help or assistance at night which fulfilled the statutory criteria.

Appeal to the Commissioner

12.	The grounds of appeal are essentially that the tribunal erred in law by failing adequately to explain its decision.  In a written submission dated 14 November 2007 on behalf of the Secretary of State, a DM does not agree.  The representative has had no further comment to make.

The legislation

13.	s. 72(1)(c) of the Social Security and Contributions Benefits Act 1992 (s.72(1)(c)) sets out the statutory criteria for satisfaction of DLA night needs:
	“…a person shall be entitled to the care component … for any period throughout which − 
	he is so severely disabled physically or mentally that, at night, −

(i)	he requires from 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”.

14.	Regulation 10C of the Social Security (Disability Living Allowance) Regulations 1991 (regulation 10C) reads as follows:

“… a person shall not be taken to satisfy subsection (1)(a)(i) or (b)(i) (day attention) or (c)(i) (night attention) unless the attention the severely disabled person requires from another person is required to be given in the physical presence of the severely disabled person”.

My conclusion and reasons

Burden of proof

15.	Rightly in my judgement, the Secretary of State does not dispute that attention in connection with soothing a person back to sleep may constitute attention in connection with a bodily function, provided the sleeplessness is linked to a disablement.  However, the burden of proof lies on an applicant for supersession, on a balance of probabilities, to establish the primary and inferential facts which demonstrate satisfaction of the appropriate statutory tests in the circumstances of his case.  Put bluntly, the evidence in the present case is insufficient to do so.

16.	In particular, the appellant has not discharged the onus to show that he reasonably requires another person to be physically present so to soothe him and on a “prolonged or repeated” basis.  He would find it easier if there was someone in the house;  but according to his own representative, (see my paragraph 7 above), the appellant can take steps on his own to calm himself, or, alternatively, the need is sufficiently alleviated by chatting to someone on the telephone.  Under regulation 10C, such phone calls do not themselves count as attention, and the appellant has not established on the evidence that he has a reasonable requirement, on other than an occasional basis, for someone to be physically present with him at night in order to settle him sufficiently for sleep.

17.	The tribunal ought to have addressed the claim by the representative that “sometimes … he will smoke in bed”;  however, in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal emphasised the requirement for errors by appellate legal tribunals to be material before an appeal on point of law may succeed: “Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no material difference to the outcome do not matter.”  Importantly for this jurisdiction, that guidance was followed by a Tribunal of Commissioners in R(I)2/06.  If the error would not have affected the outcome, an appeal does not succeed.  No one else, and that includes the appellant himself and his sister at the hearing, has mentioned this problem;  this would strongly suggest that it is too infrequent to make it a night need which arises, as required, “for any period throughout which [an award is made) …” (see s.72(1)(c)).

18.	The same point applies with respect to an asserted requirement for help with urinary “accidents” at night.  There is simply not enough in the evidence to support a case that any such difficulty arises on more than an occasional basis.  While a claimant does not have to encounter the particular problems every day, there nevertheless has to be some consistency in the need over the period of an award, in order for it to be said that he satisfies appropriate statutory criteria “throughout” its duration;  the complete omission to mention any such problem in the application for supersession, combined with the failure to elaborate any real problem at the hearing, lead to a failure to establish the attention case in this respect, either on its own or in combination with other suggested attention needs.  So far as supervision is concerned, while I appreciate that it may well be very upsetting for neighbours if the appellant urinates in the garden, this is insufficient to qualify;  there is no suggestion, nor could there be, of “substantial danger to himself or others” by this practice which could necessitate “watching over” him, even if this was desirable for the different purpose of maintaining good relations with neighbours.

19.	It is complained on the appellant’s behalf that the tribunal seems to find the CPN’s account in the supersession application and then in his report, as “… contradictory, but failed to state which, if either, of these they prefer”.  But the tribunal’s statement has to be read as a whole and assuming an informed reader.  Against that background, it is apparent that what the tribunal is really saying is that it does not regard what the CPN states in the medical report as being credible, or in any event, as existing at the time of the application for supersession, given the very different picture painted in that application when contrasted with the later document.  Furthermore, it is apparent that even what is said by the CPN in the medical report does not support what was stated in the representative’s written submission to the tribunal and nor is the applicant’s later oral evidence wholly consistent with what was there given as the severity of the problems.  I agree with the Secretary of State:  the evidence as presented to the tribunal, and taken in its entirety, does not support an award of the highest rate of the care component of DLA.

Summary

20.	For the above reasons, in my view, no error of law is demonstrated and therefore, the tribunal’s decision stands.  The tribunal did not apply any wrong legal tests.  It made adequate findings of fact, having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no unreasonable approach to the conflict in the medical evidence.  In my judgement, the tribunal paid regard to all the relevant information in the case (it is not required to refer to every item of evidence in repetition of it, if it is clear from the tribunal’s overall reasoning that it has taken such evidence duly into consideration) and took no account of irrelevant factors.  In no respect was its decision perverse.  If there has indeed been a significant deterioration in the appellant’s condition since the decision in issue, it is open to him to make a new claim.  However, it is crucial that the application focuses on deterioration in night, not day, care needs;  for example, getting the applicant up in the morning for appointments, and even if this needs to be done in person, rather than by a telephone call (which is questionable), constitutes a day requirement because it relates to when the appellant starts (or should start) his daily, rather than sleep, routine.

					(Signed)
					L T PARKER
					Commissioner
					Date:  10 December 2007