[2008] UKSSCSC CA_2574_2007 (16 June 2008)

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the Newcastle appeal tribunal dated 17 May 2007 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the Secretary of State's decision dated 3 November 2006 having made the necessary additional findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). That decision is that the appeal is disallowed and that the claimant is not entitled to attendance allowance from and including 27 September 2006. Thus, although the appeal to the Commissioner achieves a technical success, the claimant does not gain any practical benefit.

2.	This appeal raises some difficult questions about the limits of the conditions of entitlement to attendance allowance, and to disability living allowance (DLA), especially in cases where claimants follow a highly restricted lifestyle as a result of their disabilities. There was an oral hearing on 15 May 2008. The claimant was represented by Mr Desmond Rutledge of counsel, instructed by Newcastle Law Centre. The Secretary of State was represented by Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions. Their oral and written submissions have been of considerable assistance.

The factual background accepted by the appeal tribunal
3.	The appeal tribunal was concerned with the claim for attendance allowance made on the form signed on 2 October 2006, when the claimant was aged 67. It is obvious that the answers on the form were actually written in by someone other than the claimant and the daughter (Diane) who was her main carer, it appears by someone from the local Citizens Advice Bureau. To some extent the answers on the form are not consistent with what the claimant and Diane told the appeal tribunal, the answers on the form indicating more extensive needs for assistance. The appeal tribunal based itself very much on what it was told at the hearing. It was entitled to do that and I adopt the same basis. It was not in dispute that the claimant suffered from depression/anxiety, severe agoraphobia and stomach problems, plus some dizzy spells. Her GP confirmed that the depression was not well-controlled, previous anti-depressant medication not having been tolerated, and that the claimant had been completely housebound for several years due to fear of leaving the house. His opinion was that she could get up from a chair and was not incontinent and that she could wash and dress herself with supervision from Diane.

4.	The appeal tribunal made these findings about the claimant's daily life:

	"7. The Tribunal note that [the claimant] lives alone in her home and spends most of the time in the bedroom on her bed. She has a radio and two televisions that appears to occupy her most of the time. She has a very poor appetite and told the Tribunal that she has no breakfast and will have a cup of tea at midday and no lunch, but will have a meal in the evening consisting solely of 4 fairy cakes. She drinks water throughout the day and takes a drink supplement which is prescribed for her. This has been her pattern for some time certainly since her husband died [three years ago] and realistically there seems little prospect of that situation improving although [the claimant] did tell the Tribunal that she would like to be able to eat more and be stronger but the smell and thought of food makes her feel sick. She acknowledged, however, the reason she is housebound is principally due to her anxiety and fear.

	 8. The Tribunal accept that her daughter is her main carer and she does have regular access to her daughter by telephone when she is not actually visiting. Her daughter lives some mile and a half away but will travel by bus to see her and told the Tribunal she visits every day. Because her daughter has her own house to attend when she visits is variable, but she would normally try to visit her mother by 10.30 am. Her mother will be in her bedroom and although she may have already got up to go to the toilet her daughter Diane will be with her when she washes. She doesn't generally have to wash her physically, but she is on hand in case her mother has a dizzy turn. There have, however, been no incidents of falls in the recent past and certainly not in the period covered by the claim or 6 months preceding. The Tribunal accept that sometimes she may assist her mother with her clothes but as her mother does not dress to go out and basically according to her evidence remains throughout the day in her night clothes there is realistically very little need for personal attention with either washing or dressing. [The claimant] told the Tribunal that she is able to take her medication herself and she is able to get to and from the toilet which is upstairs near her bedroom by herself.

	...
	 11. The Tribunal then considered the question of supervision. The Tribunal recognised that her daughter Diane does visit on a regular basis. A typical day would involve her arriving about 10.30 am and staying until approximately 3.30 pm. She would then return to her own home to attend to her daughter coming home from school and on 3 or 4 nights she would return to her mother's at about 6.30 pm to check that she was alright. She seemingly would not stay very long because quite often her mother would as Diane told the Tribunal `kick her out' when Coronation Street started. The Tribunal accept that sometimes but only when her mother is bad will Diane actually stay over and this is not on her own evidence more than once a week at the most. The question then is what is being provided by Diane during these visits. The Tribunal readily accept that she is of enormous support to her mother. She attends to her shopping including and collecting prescriptions and no doubt does some of the housework. When asked specifically what she does the Tribunal understood that she basically checks that her mother is OK and then spends most of the day in her mother's bedroom talking to her. This clearly does not qualify for personal attention with her personal care needs."

5.	The appeal tribunal was perhaps being a little generous to the claimant in some of those findings. I am not sure from the chairman's record of proceedings that Diane had said that the normal pattern was for her to stay until 3.30 pm, rather than to be at her own home when her daughter arrived home from school at 3.30 pm. And her evidence had been that she only returned in the evenings if the claimant wanted to go downstairs. If the claimant telephoned to say that she did not want to go down, Diane would not go back. The claimant had given evidence that she tried to go downstairs in the evenings, if Diane was there. She would then need to build her strength up again to get back upstairs, which she would do about midnight.

The appeal tribunal's decision
6.	The appeal tribunal's view that the night-time conditions of entitlement were not satisfied and that there was no need for continual supervision during the day has rightly not been challenged on appeal to the Commissioner. In relation to attention in connection with bodily functions during the day, the appeal tribunal said this, after correctly noting that the question was of what attention was reasonably required, not what was actually provided:

	"Given her mental state it was clear to the Tribunal that no amount of more active intervention is going to persuade her to eat more. There is, therefore, very little assistance needed with meal preparation and as observed by the Tribunal very little help required for washing and dressing and none with getting to and from the toilet nor with taking her medication. To be entitled to Attendance Allowance for personal care needs there needs to be attention of a personal nature with someone's personal care and having reviewed the evidence the Tribunal cannot be satisfied that [the claimant] requires that level of personal care. She leads a very quiet and effectively bedridden existence and nothing realistically is likely to change that. Within that existence she is generally in the Tribunal's view on the evidence from both her and her daughter able to manage most of her personal care that she actually needs by herself."

The appeal to the Commissioner
7.	The claimant now appeals against the appeal tribunal's decision with my leave. When granting leave, I asked whether the appeal tribunal had applied the right principles of law on attention in connection with bodily functions and given an adequate explanation of its decision in the light of the decision of the Tribunal of Commissioners in R(DLA) 1/07 holding, amongst other things, that bodily functions include the functions of the brain. I also asked whether the principle expressed about supervision by the Chief Commissioner in R(A) 1/73 might have some application to attention in connection with bodily functions:

	"I think too that there 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 whether without any 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."

8.	I need not now go through the round of written submissions and the questions I posed when directing an oral hearing. I accept Mr Rutledge's submission for the claimant that the appeal tribunal applied a wrong principle of law in stating that Diane's talking to the claimant clearly did not qualify as personal attention in connection with personal care needs. The appeal tribunal began to go wrong in using that formulation of the test, instead of considering the statutory test of needs for attention in connection with bodily functions. It may well have been right that, if one looked only at personal care needs (by which I think that the appeal tribunal probably meant tasks of the kind printed on examining medical practitioner report forms), talking to the claimant was not of relevance. But if bodily functions in the wider and proper meaning as confirmed in R(DLA) 1/07 are looked at, such a sweeping conclusion is plainly wrong.

9.	The Tribunal of Commissioners in that case was particularly concerned, because of the terms in which the appeal had previously been referred back to the appeal tribunal by a Commissioner, with what was described as prompting and motivation. The appeal tribunal had, in response to an argument that the claimant (a girl of eight at the date of claim) needed help because of her learning difficulties and behavioural problems to keep her motivated in respect of her lessons and to integrate socially with her classmates, concluded that neither communication nor social integration were bodily functions. The Tribunal decided that there was an error of law in failing to identify the specific bodily functions involved in the complex activities of communication and social integration and to consider whether there were any deficiencies in those functions giving rise to a need for attention. It was conceded on behalf of the Secretary of State that prompting and motivation were capable of constituting attention in connection with impaired bodily functions. In the course of its discussion of such forms of attention the Tribunal showed that the existing House of Lords authority supported the proposition that contact by the spoken word can constitute attention, but must have the necessary active, closing, caring and personal characteristics to count for the purposes of satisfying the condition of entitlement.

10.	Mr Heath for the Secretary of State here accepted that "in principle ... the category of potentially qualifying attention in the general form of speech is not limited to such activities as prompting and motivating." But he stressed that that was subject to the accepted principles on what sort of activity counts as attention, to the rule in regulation 8BA of the Social Security (Attendance Allowance) Regulations 1991 that attention must be given in the physical presence of the disabled person and to the proper approach to the circumstances in which attention is reasonably required. At the oral hearing he maintained the earlier submission that the appeal tribunal had not erred in law in the particular circumstances of the case. He put that first on there not having been sufficient specific evidence of anything happening while Diane was talking to the claimant that went beyond mere social contact and had the necessary active, close, caring and personal characteristics to count as attention. And, second, he submitted that there was still insufficient evidence of a need for frequent attention throughout the day for attendance allowance to be awarded.

11.	I have given particularly close consideration to that second point, because, as will be seen below, it forms the basis for my substituted decision that the claimant is not entitled to attendance allowance from 27 September 2006. However, in relation to both points, it seems to me that the appeal tribunal, by asking itself a legally wrong question and approaching the case from that wrong starting point, closed itself off from the necessary factual enquiries. There are no doubt many difficulties stemming from the necessary acceptance that attendance allowance and the care component of DLA can be awarded in cases of mental disablement giving rise to needs for attention in connection with the functioning of the brain, especially in working out how specific functions can be identified and what might count as attention. In the end I have not had to grapple with those difficulties in order to decide this case. But the appeal tribunal did not make any investigation of those difficulties. In my judgment, its adoption of a legally wrong approach was so fundamental that it should be accepted as a material error of law justifying the setting aside of its decision.

12.	The other main element of Mr Rutledge's submissions was that:

	"attention given to a claimant who leads a highly restricted lifestyle as a result of disablement can qualify as personal attention where it can be shown that without that attention the claimant would be less capable of maintaining even their very restricted lifestyle and/or that it prevents a serious deterioration in their condition."

That submission was perhaps more in response to the written submission for the Secretary of State dated 25 September 2007 than directed at the appeal tribunal's statement of reasons. It had been said in that submission that Diane's conversations with the claimant were unlikely to consist of regular and repeated encouragement and that even if encouragement and prompting was being given it was not having an effect (considering the claimant's very limited lifestyle and diet) and did not come within the definition adopted in paragraph 27 of R(DLA) 1/07. There the Tribunal had approved a statement of Mrs Commissioner Parker in the earlier appeal in the same case (CSDLA/190/2004) that, if a component of a claimant's mental disablement was a lack of motivation which exhortation from another was able to overcome, that is capable of amounting to attention in connection with bodily functions.

13.	I do not think that paragraph 27 of R(DLA) 1/07 should ever have been regarded as laying down some exhaustive definition, rather than merely providing one example in the particular context of the circumstances of that case. The agreement in the present case that other forms of speech are also capable of amounting to such attention illustrates the variety of possible different contexts. I say no more now than that it seems to me that all that Mrs Commissioner Parker was acknowledging was that only attention in connection with bodily functions that is reasonably required is to count. If the evidence is that exhortation or prompting has no effect, it can hardly be said to be reasonably required. But that is not inconsistent with Mr Rutledge's submission. Attention which prevents a deterioration in the claimant's condition is plainly capable of being reasonably required.

14.	Applying that approach, I cannot see that the appeal tribunal went wrong in law in referring, for instance, to no amount of more active intervention being able to persuade the claimant to eat more and to nothing being likely realistically to change her very quiet lifestyle. The appeal tribunal was not (subject to the error in entirely discounting Diane's talking to the claimant) saying that any of the other attention actually provided by Diane did not count. It was saying that the amount of that attention did not come up to the threshold of "frequently throughout the day" and properly going on to consider if there was any additional attention that she was not currently receiving that was reasonably required. In some cases, the resources that would be provided by an award of attendance allowance or DLA could allow additional attention to be given that would enable a claimant to undertake a more extensive lifestyle and get closer to a normal life. Such attention can then be counted as reasonably required although not currently actually provided. However, in other cases the nature of the particular claimant's disablement may be such that having people available for additional hours and having more money available would have no effect on their lifestyle. The appeal tribunal here reached the judgment that the present case fell into that latter category. It was entitled to reach that judgment on the evidence and conclude that no additional attention was reasonably required.

The conclusion on the appeal to the Commissioner
15.	For the reason given in paragraph 11 above, the appeal tribunal's decision must be set aside as erroneous in point of law. The normal course then would be to refer the case to a new appeal tribunal for rehearing. However, Mr Rutledge submitted that I should substitute a decision on the claimant's appeal against the decision of 3 November 2006. That was particularly in the light of a detailed report prepared on 1 April 2008 by Dr Christine Tyrie, a consultant psychiatrist in general adult psychiatry. She had had access to GP records and correspondence and had interviewed the claimant and Diane in the claimant's home. She had been asked in her instructions from Newcastle Law Centre to consider how far her opinion was applicable to the claimant's condition prior to 3 November 2006, although one purpose of the obtaining of the report was to support a new claim for attendance allowance that has been made. Mr Rutledge submitted that it was unlikely that a new appeal tribunal, even with the expertise of a medically qualified panel member, would obtain much more information that could sensibly be related back to the date of the decision under appeal. Mr Heath submitted that there was much to be said, if the decision of the appeal tribunal of 17 May 2007 were to be set aside, for a rehearing by a body with the expertise and experience of an appeal tribunal. On the view that I have taken of the case as put to the appeal tribunal of 17 May 2007, with the valuable addition of Dr Tyrie's report, it is expedient for me to substitute a decision.

The Commissioner's decision on the appeal against the decision of 3 November 2006
16.	Dr Tyrie's opinion and conclusion in her report of 1 April 2008 was as follows:

	"55. [The claimant is a 68 year old lady currently presenting with Agoraphobia with Panic Disorder ICD10 F40.01 although it is apparent that she has a very long history of anxiety related disorder dating back at least to the mod 1970s when she was prescribed Benzodiazepines and it is apparent that at times her presentation has been coloured by depressive symptomatology.
	 56. Whilst [the claimant] is able to care for herself in a limited fashion, i.e. that she can wash herself, although she cannot take a bath because she is fearful of falls, which are a real risk taking into consideration that she has had a number of minor falls around the house, albeit without serious injury. She can change her clothes, although she only ever wears night clothes and has not worn day clothes for years. She is able to toilet herself.
	 57. As a result of her chronic anorexia it is apparent that [the claimant] has become increasingly frail and physically weak and that as a result of this her daughter Diane's presence on a daily basis has increased over the last eighteen months.
	 58. However, during the period of time under consideration with regard to the appeal it was apparent that [the claimant] was wholly dependent on her daughter for everything bar washing, dressing and toileting and that without her daughter's input her chronic starvation would have become acute starvation and she would have died.
	 59. Similarly without her daughter's input she would not have any clean clothes or clean bedding, toiletries with which to wash herself or indeed paper with which to clean herself at the toilet and therefore if her daughter had not attended, and indeed did not attend [the claimant] on a daily basis, [the claimant] would not be able to cope with her personal needs.
	 60. Bar her telephone conversations with her family, without the attendance of Diane [the claimant would be totally isolated from the world living in her darkened few rooms and whilst her daughter's visits have not led to any improvement in [the claimant's] agoraphobic symptoms I do not doubt that the contact with Diane has meant that in recent years there have been no major problems with depression.
	 61. It is therefore apparent that if Diane had not attended her mother on a daily basis for the many years that she has done that [the claimant] would have dies first and foremost of physical neglect, although with a personal and family history such as hers and a risk of further depression it is possible that [the claimant] could have committed suicide."

17.	The reference in paragraph 57 of Dr Tyrie's report to Diane's presence having increased over the last eighteen months (ie roughly since the time of the claim and decision in issue in the present case) was based on Diane's statement to her that through 2006 she probably stayed with her mother for about two hours each day and did not stay over (at night) very often, but that since then her mother's health had deteriorated and she was getting weaker (paragraph 27). Diane had also apparently said that she called late morning and stayed for three or four hours. She said that she made the claimant a cup of tea, her only drink of the day apart from build-up drinks left by her bedside. Before Diane left, she would put out a small plate of fairy cakes and a handful of Maltesers, which was all that the claimant had eaten for many years. The claimant was able to go downstairs later in the evening and have a small snack and go back up to bed after midnight. See paragraphs 7 to 9 of the report.

18.	I have no difficulty in accepting Dr Tyrie's opinions and the history taken by a skilled and sympathetic consultant. However, that does cast doubt over whether, when Diane told the appeal tribunal of 17 May 2007 about her usual times of arrival and departure, she was talking about the situation as at that date rather than as at and before 3 November 2006. There is also something of a difference between three or four hours, as stated to Dr Tyrie, and 10.30 am to 3.30 pm, as accepted by the appeal tribunal. If Dr Tyrie's report had indicated a much longer period of presence than had been accepted by the appeal tribunal, I might have referred the appeal to a new appeal tribunal for rehearing. But as it is, I am prepared to make my own decision on the basis of what was accepted by the appeal tribunal, with Dr Tyrie's report supporting the position that that was at any rate not an under-estimate of Diane's hours of presence.

19.	On that basis, I can deal with the conditions of entitlement to attendance allowance fairly briefly. So far as the night-time conditions are concerned, the evidence points clearly against any requirement for attention in connection with bodily functions or for anyone to be awake to watch over the claimant for the great majority of the time. Diane only needed to stay over at night occasionally and otherwise there seems to have be no concern that the claimant could not be left at night without substantial risk. In addition, the claimant seems to have been quite capable of summoning help by telephone if contact over the telephone was not itself enough. So far as day-time supervision is concerned, applying the proper approach of R(A) 1/73, as set out in paragraph 7 above, would inevitably lead to the conclusion that, if one imagined the claimant being forced to manage on her own in the house there would a serious and sharp decline in her health. There is no reason to doubt paragraphs 58, 59 and 61 of Dr Tyrie's report. The claimant required supervision to avoid substantial danger to herself. However, as the appeal tribunal too concluded, she did not require continual supervision. The substantial danger was avoided by Diane's presence for no more than five hours of the day, for the great majority of the time. That presence began after the claimant had got up and would end many hours (perhaps as long as nine hours) before the claimant usually went upstairs on her own to bed.

20.	That leaves the day-time condition of requiring frequent attention throughout the day in connection with bodily functions. I do not in any way devalue the reality of paragraphs 58, 59 and 61 of Dr Tyrie's report or the absolutely vital importance of the burden that Diane has undertaken over the years. However, none of the things mentioned in paragraph 59 could possibly amount to attention in connection with bodily functions within the meaning of section 64(2)(a) of the Social Security Contributions and Benefits Act 1992, quite apart from the rule in regulation 8BA of the Attendance Allowance Regulations about attention having to be given in the presence of the disabled person. Doing things like shopping for essential items or getting prescriptions, instead of those being done by a claimant, is not providing attention in connection with bodily functions. That means providing attention of the necessary intimate kind ("active, close, caring and personal") for the claimant herself to carry out some bodily functions. It is one of the cruel features of the attendance allowance and DLA schemes, built in to the nature of the conditions of entitlement, that some people who are still able to carry on many activities, but only with attention from others, qualify for benefit, while some of those who are much more restricted and can no longer carry on activities even with attention may not qualify.

21.	Thus, only things done by Diane when she was at the mother's home could possibly count as attention with bodily functions. Some of those things, like cleaning or making the cup of tea or setting out the fairy cakes on a plate, are also doing things instead of them being done by the claimant, rather than attention in connection with bodily functions. Even standing by while the claimant washed would be borderline, as that seems to lack the necessary active quality and to be "mere" supervision. Help with dressing would count, but would take very little time. However, for present purposes I am prepared to assume that the bulk of the time spent by Diane with her mother was spent talking to her in the bedroom, not just being somewhere in the house pottering about doing necessary jobs. I am prepared to assume that that, plus the help with dressing, normally took, say, three to four hours out of the period from 10.30 am to when Diane had to leave to be at home for her daughter's return from school. I am also prepared to assume that at the relevant time Diane did go back in the evenings on enough days a week for that to be taken into account in looking at the overall picture (although such visits do not feature in Dr Tyrie's report, as opposed to occasional stays overnight). However, I conclude that all that Diane did on those visits was to supervise the claimant coming down stairs and she did not provide any attention in connection with bodily functions. The evidence was not that she actually physically helped the claimant downstairs. I am then finally prepared to assume, without needing to go into all the difficulties discussed at the oral hearing about what sorts of speech could count as attention of a sufficiently active, close and personal kind in a case like this, that the three to four hours of talking was reasonably required attention in connection with the functions of the brain.

22.	Nevertheless, even on all those generous assumptions, my conclusion has to be that the attention was not required frequently throughout the day, as Mr Heath had submitted. Attention was actually provided only in the block in the middle of the day, starting after the claimant had got up and ending many hours before she usually went to bed. For the great majority of the time, no attention was provided from the time that Diane left in the middle of the afternoon until the claimant's household shut down for the night around midnight. I am satisfied that attention cannot be said to have been reasonably required during that part of the day, or in the part of the day before Diane's arrival. Although the claimant was no doubt reassured in a general sense by Diane being there when she went downstairs, I do not accept that any attention in the form of speech was reasonably required then. I consider that any assistance of that kind regularly needed could reasonably have been provided over the telephone, which cannot count.

23.	Then, I adopt the approach to the meaning of "frequently throughout the day" adopted in Commissioners' decisions R(A) 1/03 (in particular, paragraphs 37 and 38 citing from earlier decisions) and R(DLA) 5/05 (in particular, paragraphs 12.4 to 12.7 and 32). Paragraph 36 of R(A) 1/03 draws attention to the absence from the conditions of entitlement for attendance allowance of an equivalent to the condition of entitlement to the lowest rate of the care component of DLA (requirement for attention for a significant portion of the day). If that test had been in issue here, I would have to have grappled much more closely with the questions of what counts as attention. But there is no rule that, if a claimant requires more attention than would satisfy the significant portion of the day test, she must then satisfy the frequently throughout the day test. The tests are different in nature.

24.	Thus, even if the qualifying attention here in the middle of the day is regarded as a series of many separate provisions of attention (about which doubt may remain), and therefore frequently required within that period, it was not reasonably required throughout the day. For that reason and those given in paragraph 19 above, the claimant did not satisfy the conditions of entitlement to the lower rate of attendance allowance as at and before 3 November 2006. Accordingly my substituted decision must be that her appeal against the decision of that date is disallowed.

	(Signed)      J Mesher
	Commissioner

	Date:   16 June 2008