CDLA/899/1994

Social Security and Child Support Commissioners 
SOCIAL SECURITY ACTS 1975 TO 1990
SOCIAL SECURITY ADMINISTRATION ACT 1992
CLAIM FOR DISABILITY LIVING ALLOWANCE
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
MR COMMISSIONER M ROWLAND
Tribunal :
Tribunal Case No : 
 
1. I dismiss the claimant's appeal against the decision of the Hull disability appeal tribunal dated 6 December 1993.

2. The claimant claimed disability living allowance on 13 February 1992 and was awarded the care component at the lowest rate from 6 April 1992 for life. On review, that decision was not revised and the claimant appealed to the tribunal. The tribunal confirmed the decision in respect of the care component but also awarded the mobility component at the lower rate from 6 April 1992 to 5 April 1994. The claimant now appeals against the tribunal's decision with the leave of a Commissioner.

3. Before the tribunal, the claimant conceded that he did not satisfy the night attendance conditions set out in section 72(1) (c) of the Social Security Contributions and Benefits Act 1992 and so the issue in respect of the care component was whether the claimant satisfied the day attendance condition set out in section 72(1) (b) which provides that a person should be entitled to the care component for any period throughout which -
  
"he is so severely disabled physically or mentally that, by day, he requires from another person -
  
(i) frequent attention throughout the day in connection with his bodily functions; or
(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others".
In respect of this issue, the tribunal said:-
  
"In relation to the claimant's care needs the claimant himself with complete honesty and frankness has explained that he attempts as much as he possibly can in relation to his day to day needs. There are many tasks in connection with his bodily functions which are completed by him unaided, albeit in a slow clumsy or awkward fashion, but nevertheless are completed and in respect of which he does not apparently need any regular assistance. He refers to the fact that he has now mastered the ability to put on his leather glove much more speedily than previously although he still has to bathe his arm at regular intervals. Although, undoubtedly, the claimant does require some assistance in the home and receives such assistance from his home help and, presumably, from friends and neighbours, in the Tribunal's view it could not be said that the claimant needs "frequent attention from another person in connection with bodily functions throughout the day". Similarly the Tribunal do not believe from the evidence it has heard and seen in the papers that the claimant needs "continual supervision" to prevent "substantial danger to himself or others.
In particular the claimant does manage (albeit with some difficulty) to get in and out of bed, get in and out of his usual chair, walk on the level indoors, dress and undress, wash, shave and clean his teeth, take a bath or shower, get to and use the toilet, cut up food (with the aid of a special instrument) eat and drink and use taps. It has already been acknowledged that the claimant would not be able to peel/chop vegetables or use a cooker or cope with hot pans, in particular because of the difficulty with his left arm/hand. He is not taking any medication but he does need to put on and take off a special heated leather glove on his left hand and bathe his arm in warm water at regular intervals. He now manages to accomplish both these tasks on his own and within a reasonable time.
. . .
In relation to day conditions the claimant through his own perseverance has progressed to the point where it could not be said he needs frequent attention or continual supervision throughout the day.
There are clearly some tasks with which the claimant does require assistance but not on a daily basis. Similarly there is no question of the claimant indicating that he needs "continual supervision". He relies upon his ability to summon assistance using his telephone should the need arise. The Tribunal were most impressed with the claimant's determination to be independent and it is undoubtedly through his own perseverance that he has now reach the stage of not requiring frequent attention with his bodily functions or continuous supervision".

4. I draw the claimant's grounds of appeal from letters and submissions at documents 110, 111, 114 and 116. There are really three complaints: firstly that the tribunal did not take into account the claimant's needs to have someone do domestic tasks (such as laundry, changing the bed and cleaning his razor) for him, secondly that a note dated 5 December was provided only at the hearing and that further material was not available to the tribunal and thirdly that the tribunal did not take account of his liability to fall.

5. The first of those grounds of appeal is, I regret, hopeless. Section 72(1) (b) (i) refers to "attention ... in connection with his bodily functions" and, in Re Woodling [1984] 1 WLR 348 (reported also as appendix 2 to R(A) 2/80 in the 1983 to 84 volume of decisions), the House of Lords has held that a person is not receiving attention in connection with his bodily functions when someone is doing domestic tasks for him. The need for someone to cook for this claimant is acknowledged by the award of the lowest rate of the care component. Any need for other domestic assistance is not relevant to a claim for disability living allowance.

6. I also consider that the second ground of appeal is not sustainable. The tribunal had the document of 5 December 1993 before them and there were no grounds for supposing that the claimant was in any way prejudiced because the document was not available earlier. All tribunals and courts receive documents during the course of hearings. The other document to which the claimant referred on document 111 was not written until 2 February 1994 and so the tribunal's decision, which was given earlier, can hardly be said to be erroneous in point of law on the ground that they did not have it.

7. The third ground of appeal has more force in it and, indeed, it is supported by the adjudication officer. The tribunal did not refer specifically to the claimant's liability to fall when they were dealing with the care component but, when considering the mobility component, they said:-
  
"In relation to the mobility component the claimant is clearly not unable to walk. He can walk reasonably long distances - he has walked to the Tribunal today from his home on the other side of Hull - although it is accepted that he walks slowly and awkwardly - he does so without using a stick or other walking aid.
The Tribunal accept the claimant's evidence that he has in the past had falls - the Tribunal do not believe, however, that these are of sufficient seriousness or regularity to cause walking to put his life at risk or to lead to a serious deterioration in his health".
The adjudication officer now submits:-
  
"9. There was evidence before the tribunal that the claimant tended to fall when he lost his balance outdoors and this had happened once in a period of 6 months to a year (Doc 44). However, the claimant had stated that he had occasional falls indoors and these had occurred on average once a month (Doc 44). The examining medical practitioner had considered that the claimant was safely mobile throughout his own home (Doc 53). In a report dated 1-8-89 (Doc 92) the claimant's GP had remarked that there was no history of any falls. In his submission to the tribunal the claimant explained that he tended to fall over furniture (Doc 96).
. . . .
  
12. I submit that on the question of 'continual supervision' it is incumbent on the tribunal to make findings on the four elements involved in the 'continual supervision' test set out in Commissioner's decision R(A)1/83.
  
1. The claimant's medical condition must be such that it may give rise to substantial danger to himself or others;
2. The danger must not be too remote a possibility, the fact that an incident may be isolated or infrequent is immaterial;
3. There must be a need for supervision on the part of a third party to avoid the danger;
4. The need for supervision must be continual.
13. In Commissioner's decision R(A)3/89, The Commissioner held that:-
  
'... where there is evidence that a claimant may fall, the adjudicating authority should consider:
  
1. whether the falling was predictable,
2. if predictable, whether the risk of falling was avoidable without supervision,
3. if predictable, whether falling would result in substantial danger,
4. whether the substantial danger is too remote ...'
  
In decision R(A)5/90, a Tribunal of Commissioner's held that although the 4 questions in R(A)3/89 were not statutory requirements, they would doubtless assist the adjudicating authority to apply the legislation correctly and give adequate reasons for its decision.
14. I submit that the tribunal have failed to explain why the evidence presented to them about potential falls did not satisfy the criteria set out in Section 72(1) (b) (ii) of "the Act" thus rendering the decision of the tribunal erroneous in law".

8. Paragraphs 12 to 14 of the adjudication officer's submission are in a fairly standard form. The submission is frequently made in appropriate circumstances and I myself have accepted it in other cases. However, in my view, a tribunal does not err in law in failing to deal with an issue if that issue does not fairly arise on the facts of the case. Before a tribunal can properly be criticised for failing to deal with the significance of a claimant's falls to the issue of entitlement to the care component, it is necessary to show that the evidence before the tribunal was such that a tribunal could conceivably have reached the opposite conclusion. That requires consideration of the evidence in some detail. In the present case, the claimant was very seriously injured in a road accident in 1971. He has fought to achieve a considerable level of independent despite his serious disabilities. He has lost the use of one arm and he has also lost some vision and hearing. He has suffered from depression. He also lacks co-ordination and therefore is clumsy and sometimes loses his balance. Further, he drops his left foot when walking, which does not help. It is his clumsiness and loss of balance which cause him to fall from time to time. He does not use a stick because that makes matters worse. Most of the falls he has had seem to have been when he has been outdoors but he has also fallen at home, most notably when he fell downstairs at an earlier address. There are no stairs in the home where he has lived since making the present claim. He has chosen to live alone for understandable reasons, wishing to maintain his independence. He receives support and assistance with domestic tasks from his parents and others. He was 42 at the time of the hearing before the tribunal.

9. A person satisfies the condition mentioned in section 72(1) (b) (ii) only if he reasonably requires continual supervision throughout the day. The fact that this claimant requires guidance and supervision when outdoors is recognised in the award of the lower rate of the mobility component. In order to show entitlement to the middle rate of the care component, the tribunal had to be satisfied that the claimant also required continual supervision when he was at home. They were clearly conscious of the issue because the chairman's note of evidence and submissions contains the following brief passage:-
  
"In answer to Dr Ali he says that he lives alone, therefore he needs help if he falls. He does not have an emergency lifeline but he does have a telephone and would rely upon crawling or getting to it to summon help".
It is noteworthy that, in his grounds of appeal, the claimant has said that he needed the telephone for supervision. In his claim form, the claimant had said:-
  
"I am quite safe indoors/outdoors as I can recognise dangerous situations v well. I am aware of dangers".

10. In the light of all that evidence, it seems to me that the tribunal were bound to conclude that the claimant did not satisfy the condition of section 72(1) (b) (ii). Supervision must be provided by "another person" and being on the end of a telephone will seldom amount to the type of supervision contemplated by the legislation. Turning to the questions suggested in R(A) 3/89, it seems to me that the falling is unpredictable. This is not a case of a person who is so unsteady that he requires to be supported whenever he stands, which may have been the case in R(A) 3/89. It is always possible that a person who falls may suffer some injury. However, that is far more likely in the case of a person who falls due to a fit or loss of consciousness and who therefore cannot take any steps to mitigate the effects of the fall. In the present case, the risk of falling at home is slight and the risk of serious injury when falling at home is even slighter. This is not the case of an elderly person who is particularly frail. It really cannot be said that the claimant reasonably requires someone to be so close to him the whole time as to be able to catch him should he fall.

11. It is of course theoretically possible that a person falls and the effects of the fall are made worse by the lack of immediate response. Supervision may be required in some cases in order to avoid the risk of danger arising after a fall. However, one must have regard to the relative frequency of falls and the likelihood of serious injury, of a type that might be avoided if there were supervision, arising from them. In the present case, it is clear that the risk of substantial danger of that type was too remote and that the claimant was acting quite reasonably in living alone. Although a decision to live alone does not necessarily imply that a claimant does not reasonably require continual supervision, it is a strong indication that such supervision is not really required. On the facts of the present case, I do not think that it is arguable that the claimant reasonably required continual supervision throughout the day to avoid substantial danger to himself or others.

12. Therefore, I take the view that the tribunal could not possibly have come to any conclusion in respect of section 72(1) (b) other than the one they did. The factual basis upon which they made their decision is quite clear because they expressly accepted the claimant's evidence. The fact that they did not in detail analyse the relevance of the fact that the claimant fell from time to time to his entitlement to the care component is not, in my view, material in the particular circumstances of this case.

13. In his correspondence since the decision of the tribunal, the claimant has referred to a fall that occurred on 17 January 1994 in which he broke a rib and crushed his paralysed arm. The evidence of that fall was not available to the tribunal but, in any event, I infer from his reference to the fact that he had fallen at the same time of year in 1993 that the accident occurred while he was outside in icy conditions, so that it does not throw any light upon his need for continual supervision when at home.

14. The claimant does not complain about the tribunal's decision in respect of the mobility component. Nevertheless, the adjudication officer submits that:-
  
"... the tribunal have not clearly accepted or adopted any medical report and were therefore obliged to make their own findings in order to enable the claimant to see how they arrived at their decision. The tribunal have failed to make, accept or adopt complete findings on all the factual tests of Regulation 12(1) (a) (ii) of the "DLA Regs" in relation to the statutory provision of severe discomfort. I submit that these omissions constitute an error in law. I draw support from paragraph 6 of unreported Commissioner's decision CSM/84/92".
On the facts of this case, the only ground upon which the claimant could conceivably have qualified for the mobility component at the higher rate was on the ground that he was unable or virtually unable to walk and so satisfy the condition of section 73(1) (a) of the 1992 Act and the only ground upon which it could be said that he was unable or virtually unable to walk was that regulation 12(1) (a) (ii) of the Social Security (Disability Living Allowance) Regulations 1991 applied to him because:-
  
"his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk".

15. The tribunal were satisfied, on the basis of the claimant's own oral evidence, that:-
  
"he can walk reasonably long distances - he has walked to the tribunal today from his home on the other side of Hull - although it is accepted that he walks slowly and awkwardly - he does so without using a stick or other walking aid".
It was not suggested to the tribunal that those substantial distances were achieved only with severe discomfort. What was suggested was that they were achieved with substantial difficulty due to the claimant's unsteadiness and his need for guidance due to the loss of vision and hearing. The tribunal accepted those submissions and recognised them in the award of the lower rate of the mobility component. It might have been better had the tribunal specifically referred to the fact that the claimant could walk without severe discomfort but, in the particular circumstances of this case, I do not consider that the omission renders the decision erroneous in point of law. It is plain the tribunal's understanding was that the distances could be achieved without severe discomfort.

16. This appeal must therefore be dismissed. The claimant may feel that the decision is harsh because he is undoubtedly severely disabled. However, entitlement to disability living allowance does not depend simply upon the severity of a person's disability. The care component is payable at the middle or higher rate only if the claimant can show a substantial need to depend upon others for attention with bodily functions (and not just domestic tasks) or for supervision. The relevant condition for the higher rate of the mobility component requires that the person should be virtually unable to walk and not merely that he has some difficulty in walking. It is those limitations to the scope of the legislation that required the tribunal to reach the decision they did.

M. Rowland
Commissioner 
04 January 1996