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	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CA_1481_2003 (29 August 2003) URL: http://www.bailii.org/uk/cases/UKSSCSC/2003/CA_1481_2003.html Cite as: [2003] UKSSCSC CA_1481_2003

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[2003] UKSSCSC CA_1481_2003 (29 August 2003)

 


1. This appeal, brought with leave of a district chairman, succeeds. The decision of the tribunal on 31 1 03 was erroneous in law, as explained below. I see no need to remit the case to another tribunal for rehearing, as I find myself able on the evidence before me to make some further findings of fact and substitute my own decision for the tribunal's, in accordance with s14(8)(a)(ii) of the Social Security Act 1998. This is that the claimant is entitled to attendance allowance at the lower (daytime) rate from 26 7 02, the date of claim.
2. The claimant was born on 10 4 23, and she suffers from chronic obstructive pulmonary disease. She has been taking steroids for about two years to counter extreme breathlessness, and this puts her at high risk of osteoporotic fractures. From some date in 2001 she became unable to go to her GP's surgery, and needed home visits. I take this information from the GP's letter of 20 12 02. Shortly after this letter was written the claimant grazed both lower legs. These grazes would be slower than usual to heal because of the oral steroids, and she was unable to dress them herself. This information comes from the further GP letter of 20 1 03. This accident was after the date of the decision appealed against, and therefore could not in itself be taken into account by the tribunal, but the Secretary of State's officer submits that the correspondence should have been taken as suggesting that the claimant's breathlessness might so have slowed her in performing bodily functions that she might qualify for attention in connection with these: CDLA/2481/95.
3. Attendance allowance is awarded to people who reasonably require (even if they do not actually get) help, from another person, with "bodily functions". These are intimate functions like washing/bathing, dressing, and using the lavatory. Cleaning the house is not a bodily function because, although extremely important to people like this claimant who have always had high standards of cleanliness, they are not intimate. The charming young man at the DWP was right. The law does not, whatever Mr Milburn may have said or promised, cater for them, and it is the existing law that decision-making authorities like the attendance allowance unit, the tribunals, commissioners and the courts have to apply. The other qualification for attendance allowance is where a claimant reasonably requires (again, even though she may not actually get) continual supervision throughout the day to avoid substantial danger to herself or others. These provisions are in s64 of the Contributions and Benefits Act 1992. There are other ways of qualifying available to people under 65, including virtual inability to walk outdoors and a need for help with cooking a main meal; but the claimant obviously could not be considered for these.
4. This claimant, who is clearly, as she has said, a "very VERY feisty old woman", did not at all help her case by her own evidence. In her claim pack she denied any need for help from another person with any of her personal care. So of course she did not get the benefit. Her appeal form showed that the help she wanted was with cleaning but, as I said above, that is not covered by this benefit. In her oral evidence to the tribunal she stressed her breathing difficulties but denied that she needed any help with personal care from another person by day or by night, said she could manage to walk to the Post Office with halts on the way, and said she had not had to call out her GP for six months. It is not entirely surprising that in face of this emphatic evidence the tribunal also decided, with a full explanation, that she did not qualify; and I doubt that any more detailed questioning would have prompted her to admit that she might need more help than she was getting. She had said in her appeal form that she did not need help with washing herself, she would wash herself on the day she died, and I have no doubt that she would if she possibly physically could.
5. However, such splendidly fierce independence should not be allowed to obscure genuine, even if unacknowledged, needs. Tribunals are more often required to determine, in the face of evidence of a huge amount of help actually given and the willing adoption of a chronic invalid role, where the medical indications may not warrant it, how much of that help is actually reasonably required. In these cases the medical evidence is often heavily relied on in preference to that of the claimant and his or her carer(s). This case is the reverse. The claimant's GP is clearly supportive of her needs and stresses the severity of her condition and the high risk of fractures. Home visits by GPs are rare nowadays, yet were clearly taking place at a period probably straddling the date of claim and satisfying the six months pre-date of claim qualifying period. But the tribunal accepted the claimant's evidence without doing more than recite the GP's.
6. I am always unwilling to second-guess tribunals which are judges of fact as I am not (my jurisdiction extends to points of law only), which contain a range of relevant expertise which I do not have, and which have seen and heard a claimant as I have not. However, here I am satisfied that the tribunal did not properly turn its mind to the effect of the GP's evidence. Certainly the claimant does not receive either frequent attention with her bodily functions or continual supervision, and might well decline either. But that does not mean that her extreme breathlessness does not cause all her bodily functions to take a much longer time than normal, nor that the risk of fractures would not warrant continual supervision to safeguard her when moving around or (from what I see of her from the papers) attempting to keep her house clean.

(signed on original) Christine Fellner

Commissioner

29 August 2003