WK-v-Department for Social Development (DLA) [2013] NICom 38
Decision No:  C45/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 23 August 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast on 23 August 2011.

2.	I allow the appeal.  Under Article 15(8)(b) of the Social Security (NI) Order 1998 I set aside the decision of the appeal tribunal and I refer the case to a newly constituted tribunal for determination.

	REASONS

	Background

3.	The applicant was previously awarded disability living allowance by the Department for Social Development (the Department) at the high rate of the mobility component and the middle rate of the care component from 21 May 1998 to 20 May 2000.  He was subsequently awarded the low rate of the mobility component from 21 May 2000 to 20 May 2002.  He made a renewal claim on the basis of needs arising from bladder problems, anxiety and panic attacks, dizzy spells and vertigo.  This resulted in a decision of 12 March 2002 awarding low rate care component (main meal test) for an indefinite period from 21 May 2002.  The applicant applied for a supersession of the award, but the Department refused to supersede on 1 March 2011.  He appealed.

4.	On 23 August 2011 the tribunal disallowed the appeal, holding that grounds to supersede existed but refusing to award mobility component, and changing the basis for the low rate care component but maintaining the identical award.  The applicant sought a statement of reasons for the tribunal’s decision.  This was issued on 25 November 2011.  On 21 December 2011 the applicant applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  Leave was refused by a determination issued on 17 January 2012.  On 17 February 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

	Submissions

5.	The applicant submits that the tribunal erred in law by:

(i)	failing to adequately consider the care needs arising from the applicant’s incontinence;

(ii)	failing to give adequate reasons for refusing low rate mobility on the basis of anxiety.

6.	The Department was invited to make observations on the grounds of application.  Mrs Hulbert responded for the Department.  She indicated that the Department opposed the application for leave.

7.	Subsequently, Mr Hatton of Law Centre (NI) came on record to represent the applicant.  He responded to the Department’s observations on the application.  He further pointed out an additional potential error in the tribunal’s decision.  This was that the tribunal has referred to the test for low rate mobility component as one of whether the applicant required guidance or supervision in order “to walk safely out of doors”.  He pointed out that the word safely was not part of the statutory test.  He made a further submission, namely that the tribunal had failed to address the question of whether, on its findings, the applicant required repeated attention at night in connection with bodily functions.

8.	Mrs Hulbert for the Department replied to the latest submission.  She maintained the position that the tribunal had not erred in law.

9.	On the basis of all the written submissions I considered that the applicant had established an arguable case that the tribunal has erred in law, on the grounds submitted by Mr Hatton.  I granted leave to appeal.

10.	I held an oral hearing of the appeal.  Mr Hatton of Law Centre (NI) appeared for the applicant.  Mrs Hulbert appeared for the Department.  I am grateful to the representatives for their helpful submissions.

11.	Mr Hatton continued to rely on the grounds advanced in writing.  He submitted that it was not clear from the reasons of the tribunal why the day time attention needs did not justify an award of middle rate care component.  In particular, he referred to the tribunal’s acceptance that the applicant needed help with dressing, and suggested that his toilet needs relating to incontinence which occurred throughout the day involved aspects of dressing.

12.	In relation to low rate mobility component, he highlighted the tribunal’s reference to whether the applicant could walk “safely” out of doors.  He submitted that safety was not part of the statutory test and that the tribunal appeared to err in formulating it in this way.

13.	He submitted that night time needs as described by the applicant in evidence amounted to “repeated” attention.  He submitted that the tribunal had not addressed this aspect of the statutory test adequately.

14.	Mrs Hulbert submitted that the tribunal’s findings were adequate to support its decision.  She accepted that the use of the term “safely” in relation to the low rate mobility test needed to be read in the context of the findings on that test as a whole.  In context it was clear that the correct test was addressed.  In relation to repeated attention at night she submitted that even if something occurred two or three times at night, a tribunal was entitled to find that this was not “repeated”.

15.	I was told that the applicant has subsequently been awarded high rate mobility component and middle rate care component from and including 19 December 2012.  The claimant had requested the supersession leading to the current proceedings on 4 January 2011.  Therefore, my jurisdiction is limited to the period from 4 January 2011 to 18 December 2012 inclusive (following C20/04-05(DLA)).

	Assessment

16.	The tribunal made specific findings as to the applicant’s day time attention needs.  These were that he reasonably required help with washing/drying and with dressing/undressing.  In awarding the low rate of the care component on the basis of a requirement for assistance for a significant portion of the day, the tribunal accepted the applicant’s own evidence.  Mr Hatton points to the issue of incontinence and submits that this would lead to a need for attention in connection with adjusting clothes when using the toilet at intervals throughout the day.  On this basis he submits that the tribunal has not explained why the care component was not awarded at the rate relevant to a need for frequent attention throughout the day.

17.	However, the tribunal had recorded that the applicant’s evidence was “Bathroom – can toilet – incontinence, wears pads … Can manage pads himself” and “Manages toilet needs throughout day”.  In its statement of reasons the tribunal recorded that “he is able to manage his own continence difficulties”.  These findings appeared consistent with the fact that the applicant worked part-time as a security man in a large supermarket at the date of decision.  I do not accept that the tribunal has erred in law in this regard.

18.	I also do not accept the submission that the tribunal has applied the wrong test in relation to the low rate mobility component.  It is correct to say that in its reasons the tribunal initially used the term “safely” to qualify the ability to walk out of doors.  It subsequently indicated that the applicant “is physical and mentally capable of walking outdoors without guidance or supervision”.  It appears to me that the applicant had advanced possible entitlement to low rate mobility component on two distinct grounds.  The first concerned his obesity, high blood pressure and heart condition, while the second concerned his long term anxiety.  He had referred to a risk of falling as well as of anxiety and panic attacks.  Therefore, I consider that the tribunal was responding to a specific issue raised by the applicant when it used the term “safely”, as opposed to applying the wrong test.

19.	Mr Hatton further highlighted the evidence of the applicant’s general practitioner regarding anxiety, which he submitted was supportive of a case of significant problems.  He submitted that the tribunal did not explain how it had decided not to accept this evidence of a relatively severe condition.  However, the tribunal had referred to a number of factors in the applicant’s lifestyle, such as ability to drive and to work in a supermarket for 21 hours per week.  It is clear that these were relied upon in deciding that the applicant’s symptoms were not sufficiently severe as to satisfy the test for low rate mobility component.  I consider that the tribunal’s reasons are therefore adequate.

20.	In relation to the applicant’s night time care needs the tribunal rejected submissions that the applicant required sufficient attention so as to qualify for the night time care component.  In the recorded evidence, the applicant stated that he required help two or three times at night in order to get to the toilet.  He would call his grandson for help.  He required such help every night.  The attention needed could take ten minutes.  He did not need help out of bed but needed help to get to the bathroom safely and help to pull his clothes up.  He wore pads at night.  He did not have a urine bottle.  The tribunal reasoned that the applicant “may need some help at night, but on his own account it is for around ten minutes, and does not constitute prolonged or repeated attention”.

21.	The relevant legislative provision is found at section 72(1)(c) of the Social Security Contributions and Benefits Act 1992.  This reads:

“72.—(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—
…
(c) 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) …”

22.	It was submitted that the record was unclear as to whether the tribunal found that the aggregate of attention amounted to ten minutes, or whether that was the duration of each episode of attention.  Even assuming that the aggregate of all attention amounted to ten minutes, and therefore it was not prolonged attention, Mr Hatton submitted that the tribunal had not addressed the issue of repeated attention correctly.  He submitted that two or three times a night, regardless of duration, was sufficient to satisfy the “repeated” test.  He referred to Commissioner Brown’s decision in C27/03-04(DLA) at paragraph 12.  He submitted that, if he did require assistance two or three times per night, this would amount to repeated attention.  He submitted that the tribunal had not considered this question adequately.  In addition, he submitted that the applicant further indicated that on some nights help was required with a nebuliser, which would add to the overall amount of attention required.

23.	Referring to Lord Denning in the Court of Appeal in England and Wales in R v National Insurance Commissioners ex parte Secretary of State for Social Services [1981] 1 WLR 1017, who had said that “repeated” meant “more than once at any rate”, Commissioner Brown had said that that did not in her view mean that twice was bound to satisfy it or that twice could never satisfy it.  She said that it was necessary for a tribunal to make adequate findings on the night attention needs and reach a common sense view as to whether this is repeated attention within the context of the legislation.  In the present case the tribunal appears to accept that the applicant “may need some help at night”.  It then reasoned that this did not amount to repeated attention.

24.	I have to accept that there is merit in Mr Hatton’s argument.  The difficulty I find is that if the tribunal had accepted the applicant’s evidence that he required attention three times a night, this would amount to repeated attention.  A contrary conclusion would not be sustainable.  It appears to me that the tribunal did not make specific findings on night time needs on the basis of the applicant’s evidence, but rather that it reasoned that at the height of his evidence he would not meet the conditions of entitlement.  If that is a correct interpretation, then I consider that the tribunal erred in law.  If on the other hand, the tribunal did not accept the applicant’s evidence of night time needs, it should have said so, and by not making a finding in respect of the applicant’s evidence it has erred.

25.	It might be argued that the tribunal had in mind the potential alternative open to the applicant of using a urine bottle.  It was ascertained that he did not use one.  It was not put to him whether he would have any difficulty in using one.  If it was the case that the applicant could reasonably use a urine bottle, there would not be a need for night time attention and any lack of findings by the tribunal would not amount to a material error.  However, I have no evidence on the issue of whether the applicant would have any difficulty using a urine bottle.  As such I cannot conclude whether it may well be reasonable for the applicant to use one.

26.	For these reasons, I consider that the tribunal has materially erred in law.  I set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal for determination.  The new tribunal shall have regard to all issues arising in the appeal.  The new tribunal should note that its jurisdiction is limited to the period from 4 January 2011 to 18 December 2012 inclusive (following C20/04-05(DLA)).

(signed):  O Stockman

Commissioner

29 May 2013