Decision No: C27/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	DISABILITY LIVING ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 14 November 2002

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application, by the claimant, for leave to appeal against the decision dated 14 November 2002 of an Appeal Tribunal sitting at Belfast.  That Tribunal had allowed the claimant’s appeal against a Departmental decision dated 16 August 2000.  The Department decided that the claimant was not entitled to disability living allowance (DLA) from and including 26 November 2000.  At the time of the Department’s decision the claimant was in receipt of an award of DLA which was due to expire on 25 November 2000.  This existing award was for the higher rate of the mobility component and the middle rate of the care component.  The Tribunal allowed the appeal and decided that the claimant was entitled to the lowest rate of the care component and not entitled to the mobility component of DLA from and including 26 November 2000.  I grant leave and with the consent of both parties treat the application as an appeal and proceed to determine any question arising thereon as if it arose on appeal.

2.	The claimant, as she was entitled to do under regulation 13C(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, made a renewal claim for DLA within six months prior to the expiry of the existing award.  The Department treated the claim as made on the renewal date (26 November 2000) and by a decision dated 16 August 2000 refused the renewal claim.  The claimant appealed to the Tribunal which made the decision set out above.  It is noteworthy that the Tribunal’s decision did not uphold that of the Department but did make an award of DLA, albeit not one with which the claimant is satisfied.

3.	Before me the claimant is represented by Mr Crawford of McFadden, Perry, Solicitors and the Department by Mr Toner of the Decision Making and Appeals Unit.  I am obliged to both for their assistance.
4.	Both the Department and the claimant are of the view that the Tribunal erred in law in relation to the care component for night needs albeit for slightly different reasons.  The Tribunal had found that the claimant’s attention needs at night were assistance to get out of bed once or twice most nights.  It found that this help would be for a period of only a few minutes and it considered that it could not be reasonably said that this amounted to prolonged or repeated attention at night.  The claimant contends that the Tribunal erred by not finding attention two times per night to be repeated and the Department considers that the Tribunal erred in not explaining why this amount of attention was not considered as repeated.

5.	The claimant also put forward other grounds of appeal which the Department does not support.  However, the Department considers, based on my decision in C12/03-04(DLA) that the Tribunal erred by treating the Department’s decision of 16 August 2000 as valid.  Despite being given an opportunity to do so the claimant’s representative has made no observations on that matter.

6.	I do consider that the decision of 16 August 2000 was ultra vires.  The Department had no power to make it and the decision was not valid.  This is for the reasons which I gave in decision C12/03-04(DLA).  The Tribunal erred in law in treating it as valid and I set its decision aside for that reason.  The renewal claim made by the claimant therefore remains to be decided by the Department.  It is to be hoped that the Department will decide on this matter without delay.  Once its decision is issued, should the claimant be dissatisfied with that decision, she will have appeal rights against it.

7.	It is not necessary, in light of the above, that I deal in any detail with the claimant’s grounds of appeal but, for the benefit of future decision makers and tribunals, it may be helpful if I make some remarks about the ground involving the words “repeated attention” as used in section 72(1)(c)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  Section 72 sets out the attention and supervision conditions which need to be satisfied before an award of DLA can be made in respect thereof.  The grounds of appeal put forward by the claimant in relation to this matter are that the Tribunal stated that attention twice per night could not be said to have been prolonged or repeated.  Mr Crawford’s submission was that in this latter aspect the Tribunal was clearly incorrect in that two or more times can be regarded as repeated.  In this connection he referred to decision C4/98(DLA), paragraph 12 (from which I quote later in this decision).  He contended that there was an error on the Tribunal’s behalf in this respect.  The Department also referred to this decision, one by the Chief Commissioner in Northern Ireland which itself referred to reported decision R1/72(AA), a decision of the then Chief Commissioner and in particular to paragraph 24 thereof (from which I quote later in this decision).  The Department referred also to Great Britain decision R(A)2/80, the Appendix to which reported the decision on appeal of the Court of Appeal in England and Wales which referred to the word “repeated” as meaning “more than once at any rate”.  

8.	I would comment by stating firstly that the Tribunal’s conclusion was that attention was required once or twice per night most nights.  It stated: -

“We do not consider it could reasonably be said to amount to prolonged or repeated attention at night.”

The Tribunal here did not find that attention twice per night was required on most nights.  It found that on most nights attention either once per night or twice per night was required.

9.	It does not appear to me that the Tribunal here was saying that attention two times per night could never be regarded as prolonged or repeated attention but was simply saying that in its view attention once or twice per night on most nights for a period of only a few minutes per night could not reasonably be said to amount to prolonged or repeated attention at night.  In decision C4/98(DLA) at paragraph 12 the Chief Commissioner referred to the claimant, in that case, having given evidence of needing assistance at least three times per night.  He stated: -

“In light of the decision of the Northern Ireland Chief Commissioner in R1/72(AA) on the meaning of the word “repeated” it seems relatively clear that the Tribunal, if it accepted the claimant’s evidence, supported by the Examining Medical Practitioner and Dr K…, could decide in favour of the claimant on the grounds that “she is so severely disabled physically … that, at night, (she) requires from another person … repeated attention in connection with (her) bodily functions.””

10.	In this present case also the claimant gave evidence of needing attention three times per night.  The Tribunal did not accept that evidence.  It was entitled to reject it, the assessment of evidence being a matter for the Tribunal.  It found that the claimant’s attention needs were once to twice on most nights for a few minutes at a time.  The Tribunal concluded that this was not repeated attention within the said sub-section.  It is worthy of note that the Chief Commissioner in C4/98(DLA) referred to the Tribunal, if it accepted the evidence of the claimant of attention needs three times per night, being able to conclude that this was repeated attention within the said sub-section.  The situation here was that the Tribunal found as a fact that the claimant required attention only one to two times per night and that the help would be for a period of only a few minutes at a time.

11.	The Chief Commissioner referred to decision R1/72(AA) and in particular to paragraph 24 thereof.  In that paragraph the former Chief Commissioner observed in obiter remarks inter alia: -

“The penultimate submission made is that attention on two occasions is sufficient to constitute “repeated” attention.  Here again a word is used that can have different meanings in different contexts.  Sometimes it refers to a thing being done for a second time.  Alternatively it may be used, as may the adverb “repeatedly” to refer to something being done on several occasions. I do not propose to say what, in my opinion, “repeated” means in the context of [the legislation] …”.

The Commissioner observes in paragraph 25 of R1/72(AA) that adjudicators must apply the test to the general pattern of the claimant’s disability ascertained by reference to a period of days or weeks or even in exceptional cases, of months.   

12.	The legislature has laid down no number of times which will satisfy the conditions save that it must be more than once.  In this case the finding was of a general pattern of attention 1-2 times per night on most weeks.  Repeated attention means more than once at least, so on most weeks there were nights when on no interpretation of the word “repeated” could it be said that “repeated” attention was given.  Lord Denning in R v National Insurance Commissioners, ex parte Secretary of State for Social Services [1981] 1 WLR 1017, CA stated that “repeated” in the similar legislation relating to the former attendance allowance meant -“More than once, at any rate” [P.1022, paragraph B].  That did not in my view indicate that twice was bound to satisfy the condition or that twice could never satisfy it.  It is necessary, in my view, for the Tribunal to make adequate findings on the night attention needs and reach a commonsense view as to whether this is repeated attention within the context of the legislation.

Some assistance may be obtained from the context in that the full phrase is “prolonged or repeated” and as the same rate of allowance is payable for either prolonged attention or repeated attention, some equivalence of need seems reasonable.  However, it must be borne in mind that repeated attention may be more demanding on the carer than the same amount of attention given for a single period.  It would seem, moreover, that each individual period of attention can be less than prolonged.  However, the equivalence with prolonged attention does to me indicate that the attention required must be considerable and that two brief periods of attention could reasonably be said not to satisfy the condition.  In summary all that can be done is to apply the phrase to the facts and see if the conclusion reached is reasonable.  If so, it should not be disturbed as being in error of law.  It would have been easy for legislative provision to be made for the condition to be satisfied by a certain number of attendance occasions.  This has not been done, perhaps deliberately, in light of the legislative context as indicated above.  In the present case the matter will have to be decided and the Department or, should there be an appeal, the new Tribunal, will not be bound by the views of the instant Tribunal and may or may not reach a different conclusion as to the fact situation.

13.  The Tribunal’s decision is set aside as in error of law.  It is now up to the Department to reach its decision on the renewal claim.

(Signed):  M F Brown

COMMISIONER

30 October 2003