CDLA/4024/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 17 July 2003 and I substitute my own decision that the claimant is entitled to the middle rate of the care component of disability living allowance from 6 September 2002 to 21 November 2004

REASONS

2.	The claimant was born on 22 May 1996 and so was aged six at the date of the claim for disability living allowance made on her behalf by her mother on 6 September 2002.  She suffers from bowel dysfunction, with daytime faecal soiling, and nocturnal enuresis.  The Secretary of State disallowed the claim on the ground that the claimant’s requirements for attention were not substantially in excess of the normal requirements of a six year old.  The claimant appealed.  In an admirably succinct submission to the tribunal, the claimant’s mother’s representative from Newcastle Welfare Rights Service conceded that the claimant’s daytime needs for attention were not sufficient to qualify for disability living allowance but submitted that she did require prolonged and repeated attention at night in connection with her enuresis and that her requirements were substantially in excess of the normal requirements of a child her age.  It was submitted that most children of her age did not wet their beds.  The tribunal dismissed the appeal, saying –

“The Tribunal also felt that the enuresis did not require prolonged or repeated attention to bodily functions, being only once a night, five times a week on average, and lasting no more than 30 minutes.

“The Tribunal further considered whether in any event, washing and changing the bedclothes of a child who had nocturnal enuresis could be attention, bearing in mind the Commissioner’s decision in CSDLA/1095/1999 (Commissioner May).  In the case referred to, it was decided that it was not, and further it was doubted that enuresis was a disability if it could not be shown that it arose from some medically recognised physical or mental condition.  The Tribunal took the view, following this case, [the claimant] would not qualify for middle rate care.”

The claimant now appeals with my leave and the support of the Secretary of State. The claimant’s representative, in grounds of appeal that are even more succinct than the submission to the tribunal, argues that the tribunal erred in law in both the respects in which they found that the claimant was not entitled to disability living allowance.

3.	Section 72(1)(c)(i) of the Social Security Contributions and Benefits Act 1992 provides –

“… 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; …”

4.	It is noteworthy that the two points on which the tribunal decided against the claimant – that the attention required was not “prolonged or repeated” and that the claimant was not “severely disabled physically or mentally” – were not points that had been taken by the Secretary of State.  The Secretary of State had argued that the condition of section 72(6) was not satisfied.  Section 72(6)(b) provides –

“For the purposes of this section in its application to a person for any period which he is under 16 –
	(a)	sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and
(b)	neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless –
(i)	he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or
(ii)	he has substantial requirements of any description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”

5.	It is not submitted that the claimant required repeated attention in connection with her bodily functions at night but it is submitted that the tribunal erred in not accepting that the attention required was prolonged, given that it lasted up to 30 minutes on most nights.  R(A) 4/78 and Regina v. National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 W.L.R. 1017 (also reported as an appendix to R(A) 2/80) are relied upon.  In the former case, it was held that it was not necessary for attention to be required every night.   In the latter, “prolonged” was said by Lord Denning MR to mean “some little time”.  That scarcely amounts to a definition but decision makers normally take anything over 20 minutes to be “prolonged”, which seems reasonable.  In the absence of any resistance by the Secretary of State to this appeal, I am prepared to accept that the tribunal’s decision was perverse or, at any rate, inadequately reasoned.  Consistency of approach is desirable if the social security system is not to be brought into disrepute.

6.	As regards CSDLA/1095/99, it must be emphasised that Mr Commissioner May QC did not hold that a person suffering from nocturnal enuresis could not be regarded as severely disabled physically or mentally and, as a result, in need of attention in connection with his or her bodily functions.  However, enuresis may simply reflect the stage of a child’s normal development or it may be behavioural in the sense of being an emotional response to his or her circumstances.  In neither of those situations would the claimant be regarded as suffering from physical or mental disablement.  Therefore, evidence that a person suffers from enuresis suggests that further investigation is required.  In the present case, the origin of the enuresis is obscure but there was evidence that it was thought possibly to be due to the bowel dysfunction.  It is not clear whether the Secretary of State originally decided not to investigate the cause of the enuresis because it was unnecessary to do so if the claim was to be disallowed on another ground or because he was simply content to accept that it was a consequence of the claimant’s physical disability on the basis of such evidence as there was.  In either event, the tribunal were bound to obtain more evidence if they were minded to take the point against the claimant.  The Secretary of State’s current representative does not suggest that the enuresis might be due to a cause other than physical or mental disablement and I am prepared to accept that it is due to physical disablement in this case.

7.	The Secretary of State’s current representative has also abandoned the stance taken by the decision-maker as regards section 72(6).  No reason has been given but I am prepared to accept that the condition of either section 72(6)(b)(i) or section 72(6)(b)(ii) is satisfied.

8.	 The Secretary of State’s representative submits that I should make an award limited to the claimant’s eighth birthday in May this year.  The claimant’s representative submits that I should make an indefinite award because the claimant still suffers from nocturnal enuresis and there is no indication as to when she will get better.  I do not accept the latter submission.  While it may be the case that an award of one component of disability living allowance for a fixed period should not be made concurrent with an indefinite award of the other component unless there are grounds for expecting a change of circumstances (see CIB/4751/2002 et al at paragraph 152(d)), because the different periods of the award must be justified, I do not consider that any other award for a fixed period implies any finding as to the claimant’s likely entitlement after that period has ended.  A fixed period can be justified simply by the fact that the prognosis is uncertain.  It is not good administration to make awards for indefinite periods in such cases.

9.	In the present case, there is no evidence as to the claimant’s prognosis other than the fact that she has been suffering from the condition for some time and still is, which, in the absence of any evidence of recent or imminent surgery or other new treatment, suggests that she is likely still to be suffering from it for more than another three months.  That is one reason for not fully accepting the Secretary of State’s submission.  Another, more practical, reason is that if an award is made that lasts more than six months after the decision, the Department is less likely to overlook the need to issue a renewal claim form.  On the other hand, it is to be hoped that the claimant’s condition will improve and I know so little about her condition that I cannot justify making an award that will last for much longer than another six months.  In all the circumstances, I consider it right to make an award until the day before the claimant attains the age of eight years and six months.  Accordingly, I give the decision set out in paragraph 1 above.

	(Signed)	MARK ROWLAND
		Commissioner
		9 February 2004