[2007] UKSSCSC CA_3943_2006 (17 May 2007)

CA/3943/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Birkenhead Appeal Tribunal given on 21st September 2006.  By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 8th May 2006 that she was not entitled to attendance allowance at either rate.  The appeal is supported by the Secretary of State, who invites me to remit the matter to a fresh tribunal for a further hearing.  For the reasons given below, I accept that that is the correct way to deal with this case.

2.	The claimant made a claim for attendance allowance by a claim pack received on 20th March 2006.  She said that she was suffering from a number of medical conditions and gave a detailed account of the medication she was taking and of how her problems affected her.  Her G.P. provided a report dated 27th March 2006 stating that the claimant suffered from hypertension, chronic dizziness, angina, left ventricular impairment, anxiety and depression.  He also listed the claimant’s medication.  It is considerable.

3.	For the purposes of this appeal it is not necessary to consider in detail all the claimant’s care needs.  The tribunal found that she would reasonably need assistance when taking a shower, getting out of bed and dressing, and that when taking a main meal she would need someone to cut up meat for her.  On three or four nights a week she would need help going to the toilet, usually once on each such night.  Otherwise she was able to carry out all her other bodily functions safely and unaided.

4.	The tribunal referred in its statement of reasons to having considered carefully whether the claimant needed assistance in connection with toileting during the day.  It was undisputed that the only toilet in the claimant’s house was upstairs and it seems to have been accepted by the tribunal, although no express finding of fact on the point was made, that the claimant had difficulty with stairs.  As a matter of practice, if her husband was not at home to help her, she coped with her daytime toilet needs by using a bucket in the kitchen.  It was argued in front of the tribunal that she reasonably required assistance to help her use the toilet upstairs and so she had care needs in that respect.  The tribunal, however, rejected the argument, stating:

“It was not unusual for appellants who have difficulty with stairs to cope with toileting independently by use of a bucket or a commode in a downstairs room.  Apart from having to have someone empty the bucket [the claimant] was in a similar position to someone who had a downstairs toilet installed and would not therefore need to climb stairs for toilet facilities.  In reality she was able to cope with toileting during the day by using the bucket and the tribunal concluded that the only assistance she would need with toileting during the day was someone to empty the bucket at one point during the day.”

5.	The claimant, by her representative, appealed against the tribunal’s decision on the ground that on the facts found, with regard to toileting, no tribunal acting judicially and properly instructed as to the relevant law could have concluded that attention was not required.  Leave to appeal was granted by the chairman on 25th October 2006.  

6.	The submission on the appeal made on behalf of the Secretary of State, dated 8th January 2007, stated that the Secretary of State agreed with the grounds of appeal, but reformulated the ground as being that the tribunal did not consider whether the use of a bucket during the day was reasonable.  Reference was made to the decision CSA/580/2005, in which it was said that in deciding whether assistance is reasonably required the question of physical ability is not determinative.  Consideration must be given to what the claimant might reasonably want, including his wish to preserve his dignity, together with what might reasonably be demanded from the carer.  It was submitted that further findings of fact were necessary to determine the case and the evidence was not available from which I might make such findings.

7.	In a further submission in reply, received on 2nd February 2007, the claimant repeated that the tribunal had considered the question of reasonableness but had misdirected itself on the law and submitted that there were sufficient findings of fact to enable me to substitute my own decision.  It was further submitted that if I were to find that attention was reasonably required in connection with toileting, then, taking into account the attention that the tribunal had found the claimant to require, the day attention condition set out in section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 was satisfied.  The claimant did not seek to appeal against the tribunal’s decision as respects the night attention condition in section 64(2)(b).

8.	It is to be observed that the claimant’s written evidence before the tribunal was that the Bisoprolol and Furosemide which were included in her medication caused continence problems of frequency and urgency.  Those problems led to regular accidents which the claimant needed help to clear up.  She said that the problems were such that she could not go out in the mornings.  This evidence is not referred to in the statement of reasons and no findings of fact have been made about the frequency with which the claimant uses the toilet during the day, the frequency of accidents and whether the claimant particularly requires to use the toilet at certain times of day.

9.	The letter of appeal further states that the record of proceedings is incomplete in that the claimant in fact explained that when she used the bucket she held it up to herself and after use emptied the bucket down the sink and disinfected both the sink and the bucket.  This is borne out in part by the reference in the record to the use of plenty of disinfectant.

10.	In my view, the claimant is right in submitting that the tribunal considered the question of reasonableness and made a finding that the claimant did not reasonably require attention in using the toilet during the day because she was able to cope by means of the bucket.  Further in my view, however, before one comes to consider whether, on the facts found, a tribunal could properly have concluded that attention was not required, it is necessary to consider whether the tribunal had made sufficient findings of fact to address the issue in the first place.  I accept, of course, that the relevant legal principles will indicate the matters on which findings of fact are required.

11.	It is well established that to answer the question what attention a claimant requires for the purposes of section 64(2) (the Act itself does not use the word “reasonably”) involves consideration of what is reasonably required to enable him or her as far as possible to live a normal life:  see Secretary of State for Social Security v. Fairey [1997] 1 W.L.R. 799; R(A)2/98.  The decision in CSA/580/2005 helpfully illustrates how the test may be applied in circumstances of some similarity to the present case.  That being the relevant legal principle, I have come to the firm conclusion that the findings of fact made by the tribunal were insufficient to enable it to answer the question posed.  It follows that the tribunal’s decision was erroneous in point of law.

12.	I reach that conclusion on the basis that there are no express findings of fact on the following matters:

(1)	the medical conditions from which it is accepted that the claimant suffers.  This is a general point, but it should be noted in particular that there is evidence that the claimant suffers from dizziness, which is relevant to her ability to cope with stairs described as steep;

(2)	the general consequences of the drugs the claimant takes.  As I understand it, it is not disputed that the claimant takes diuretics and she says she is also on medication for constipation which can produce diarrhoea;

(3)	the particular consequences of those drugs as respects frequency, urgency, pattern of use of the toilet and the frequency of accidents.  I have every sympathy with the claimant’s embarrassment about this aspect, but it seems to me to be significant evidence;

(4)	whether the claimant could use a commode downstairs as an alternative to her preferred course of going upstairs with assistance when she needs to use the toilet.  This will, of course, depend not only on the claimant’s physical abilities but on the practical questions raised (but not answered) at p.58 in the report completed by the examining medical practitioner about the availability of commodes and the claimant’s home environment.

The tribunal which hears the case in due course may wish to make other findings of fact as a preliminary step to answering the question whether the claimant reasonably requires attention in connection with using the toilet during the day.

13.	When the tribunal is ready to answer the question, it must of course do so having regard to what is said in paragraph 11 above about the law.  I comment, however, that my present view is that there is a considerable difference between the use of a commode in an appropriate location and the use of a bucket as, in effect, an emergency measure.  Further, if the tribunal really meant to say that in assessing the reasonableness of the claimant’s requirement of attention a bucket in the kitchen was to be regarded as broadly similar to a downstairs toilet, in my view the tribunal fell into error.  Such a proposition ignores both the physical distinctions and the emotional considerations involved.

14.	For the sake of completeness I should say that even if I had formed the view that there was sufficient evidence for me to make my own findings in relation to the matters set out in paragraph 12(1) to (3) above, there is virtually no evidence in relation to the use of a commode and it would have been impossible for me to make findings on that issue, despite its obvious materiality.  In those circumstances, it is preferable to leave the tribunal rehearing the appeal to consider the first three matters without further comment from me.

15.	In conclusion, then, I set aside the decision of the tribunal and remit the matter to be heard by a fresh tribunal.  That tribunal should have regard to what is said above in its consideration of the claimant’s appeal.

	(signed on the original)	E. Ovey	
		Deputy Commissioner
							           17th May 2007