CIS/4312/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. This appeal by the claimant, brought by leave of the District Chairman of the tribunal granted on 30th October 2007, succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Basildon tribunal of 13th July 2007, made under reference 919/07/01077. I substitute my own decision. This is that to the effect that, subject to the satisfaction of other conditions of entitlement, the claimant continued to be entitled to income support from and including 4th December 2006. I remit to the Secretary of State questions relating to calculation and payment of arrears on this basis. 

Background and Procedure

2. The claimant was born on 1st January 1965. She has children and during the relevant period lived with them and with her husband, who was admitted to the United Kingdom with entry clearance on condition that he have no recourse to public funds. Her husband had kidney problems and underwent renal dialysis three times a week. He was on the waiting list for a kidney transplant and at the relevant time had been so for about three years. It seems to be agreed that if and when he has a transplant he will in due course recover from the illness caused by his kidney problems. 

3. The claimant was in receipt of income support. Her youngest child was born on 21st August 2006 and, as the Secretary of State has put it “her income support claim was closed on 4th December 2006”. I assume that this means that the award of income support was superseded as from that date. The decision to do this was made on 9th November 2006.

4. On 13th February 2007 the claimant appealed to the tribunal against the decision made by the Secretary of State. The tribunal considered the matter on 13th July 2007 and confirmed the decision of the Secretary of State. On 30th October 2007 the District Chairman of the tribunal granted the claimant leave to appeal to the Commissioner. The Secretary of State opposes the appeal and supports the decision of the tribunal, although not on precisely the same grounds.

The Legal Provisions

5. Section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 provides that (subject to the satisfaction of certain other conditions, which do not appear to be in dispute in the present case) a person is entitled to income support if she falls within a prescribed category of person. So far as concerns the present appeal, regulation 4ZA(1) of the Income Support (General) Regulations 1987 provides that any person to whom schedule 1B of those regulations applies falls within a prescribed category of person.

6. Paragraph 3 of schedule 1B is headed “Persons temporarily looking after another person” and applies to:

	3 A person who is – 

(a)	looking after a child because the parent of that child or the person who usually looks after him is ill or is temporarily absent from home; or
(b)	looking after a member of his family who is temporarily ill.

“Temporarily Ill”

7. The claimant argues that she comes within paragraph 3(b). The tribunal accepted the argument of the Secretary of State that the claimant’s husband was not “temporarily ill” and also decided that, in any event, the claimant was not “looking after” him.

8. The tribunal took the view that the use of the word temporarily “excluded” the case of a person who was being looked after “either permanently or long term”. It meant that there had to be a “normal form of recovery” and “what, in the tribunal’s view, could not be a temporary condition was something which could continue unless medical intervention occurred”. Otherwise “the only conditions which would be regarded as not making someone temporarily ill would be those that were incurable”.

9. The Secretary of State argues that: “Renal failure is not a disease or a period of sickness by its very nature lasting only for a limited period. Renal failure is life threatening and can only be treated by dialysis or resolved by a transplant …”.

10. However, I agree with the claimant’s argument that the focus of the wording of the regulation is not on the permanence of the condition which a person has. It is on the duration of the “illness”, or the way that the condition is manifested or the effect that it has at any one time. A person may have a permanent condition (such as heart disease) but not be ill except at particular times (such as during the weeks following a heart attack or during or following a severe attack of angina). Such an approach is consistent with that taken by the Commissioner in CIS/3890/2005, to which reference is made in the grounds of appeal (page 46 of the Commissioners’ file).

11. The Secretary of State refers to the decision of Deputy Commissioner White in CIS/0866/2004 (pages 58 to 59 of the file). I do not find that decision helpful for the purposes of the present case. In that case the claimant’s son had “a long-term disability which is well documented in the case papers”. The Deputy Commissioner stated that it was a fair conclusion for the tribunal to have decided that “the son was not temporarily ill but has a long term problem which would require treatment over an extended period of time”. I cannot really extract a statement of law from those conclusions, and if the tribunal was saying that an illness could not be temporary because a condition would require long term treatment, that does not necessarily follow.

“Looking After”

12. The tribunal accepted that the claimant cooked special food for her husband (although it made the unlikely finding that he was “fully” able to cook for himself without taking account of periods of fatigue or those when he would be in need of or undergoing or recovering from dialysis), washed his clothes, got his medicines from the pharmacist, and seemed to accept her evidence that she sometimes had to take him to the toilet, and that he slept a lot, and suffered from nausea and vomiting. 

13. In the submission of 14th March 2008 to the Commissioner, the Secretary of State stated that: “It is my submission that the question for determination is not whether the claimant is looking after her husband, I submit there is no doubt she is …” (paragraph 8 on page 56). I agree. The tribunal’s conclusion that she was not looking after her husband was unreasonable on the facts that it had found and in the circumstances of this case.

Conclusion

14. It is commonly the case with those who need dialysis that they feel better once they have recovered from the procedure and then feel ill as the need for further dialysis increases, and the tribunal seems to have accepted that this was the case with the claimant’s husband, and that there are periods when they feel better and periods when they feel worse. An overall view must be taken of any particular period and I accept that as from the date of the decision of the Secretary of State that was under appeal to the tribunal (9th November 2006) and as from 4th December 2006 (the day following the cessation of entitlement to income support on a different basis) the claimant was looking after a member of her family (her husband) who was temporarily ill.

15. It is then for the Secretary of State to reconsider the matter periodically to decide whether there has been a change of circumstances, taking a broad view of the period under consideration.

16. However, for the above reasons this particular appeal by the claimant succeeds.

H. Levenson
Commissioner

4th July 2008