[2006] UKSSCSC CDLA_468_2006 (11 May 2006)
CDLA/468/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	  My decision is that the decision of the tribunal is erroneous in point of law.   I set aside the tribunal's decision and, since it is not possible for me to make the findings of fact which are necessary to decide the claimant’s entitlement to benefit, I refer the case for rehearing before a differently constituted tribunal. I allow the appeal for the reasons given in my grant of leave, namely, because the tribunal did not deal adequately with the question of whether the claimant required continual supervision in order to avoid substantial danger to herself, and also because it is not clear why they found that the claimant would not need prompting in connection with self-care and personal hygiene. 

2.	  The Secretary of State’s representative, who has supported this appeal, has submitted that supervision may be “continual” even if a claimant can be left alone for short periods, and further submits that the condition in section 72(b)(ii) of the Social Security Contributions and  Benefits Act 1992 is satisfied if a claimant requires supervision which is frequently recurring.  As the representative has pointed out, in R(A) 1/73 Chief Commissioner Micklethwait drew attention to the distinction between “continual” and “continuous”  to which Mr Commissioner Neligan referred in C.A. 8/7 (unreported). As Mr Commissioner Neligan pointed out, the word “continual” is wider than continuous, so that the fact that in this case the claimant’s partner can leave her alone for a short period of time does not necessarily mean that the supervision required by the claimant is not “continual”.

3.	  However, I do not agree with the representative’s further submission that for supervision to be continual, it is enough that it should be frequently recurring.   Supervision, unlike attention, is by its very nature passive and precautionary, and therefore cannot be calibrated in terms of frequency.  The nature and degree of supervision which a claimant requires will vary from case to case, so that, for example, it may be possible to leave a claimant who has a propensity to fall sitting in an armchair for short periods without any risk of the claimant causing danger to himself or others.   The fact that a supervisor in such a case is able to leave the same room, or even house, as the claimant for a short period of time while the claimant is sitting in the armchair will not prevent the supervision which the claimant requires from being regarded as continual.  However, supervision does require the carer to be attuned to the needs of the person cared for and to be in a position to respond to the onset of danger-see Moran v Secretary of State for Social Services (The Times March 14, 1987 CA), and the condition in section 72 (1)(b)(ii) of the Contributions and Benefits Act 1992 is satisfied only if, in order to prevent substantial danger to the claimant or others, such supervision is reasonably required continually throughout the day. 

4.	  Subject to that, I entirely agree with the Secretary of State’s representative’s submission.  The new tribunal should apply the guidance given in the cases referred to in paragraph 8 of the submission.  The new tribunal may also be assisted by the approach suggested by Chief Commissioner Micklethwait in paragraph 15 of R(A) 1/73.

	(signed on the original)	E A L Bano
		Commissioner

		11 May 2006