[2008] UKUT 37 (AAC)

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Blackpool appeal tribunal dated 30 May 2008 under file reference 064/08/00204 involves an error on a point of law.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 12 October 2007 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions at paragraph 35 below.

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1.	The appellant’s appeal to the Upper Tribunal (formerly the Social Security Commissioner) is allowed.  The decision of the Blackpool appeal tribunal dated 30 May 2008 under file reference 064/08/00204 involves an error on a point of law.

T	The impact of the new tribunal system on this case

2.	This case started as the appellant’s appeal to the Social Security Commissioner against the appeal tribunal’s decision.  On 3 November 2008 the Tribunals, Courts and Enforcement Act 2007 replaced the appeal tribunal with the Social Entitlement Chamber of the First-tier Tribunal.  The 2007 Act also replaced the Social Security Commissioner with the Administrative Appeals Chamber of the Upper Tribunal with effect from the same date.  These changes have been made with a view to improving the system of administrative justice as a whole.

3.	A Judge of the Administrative Appeals Chamber of the Upper Tribunal, rather than a Social Security Commissioner, has therefore decided this appeal.  However, in the context of this particular case these changes only affect the procedures (and tribunal titles) involved – the substantive law relating to the appellant’s claim to disability living allowance remains exactly the same as before.

The background to the appeal to the tribunal

4.	In many ways this is a desperately sad case.  The appellant is a young man who is now aged 32.  He was the victim of a vicious assault in May 2005 when he intervened as a “Good Samaritan” in an incident on the street.  He sustained traumatic head injuries and other injuries as a result, including blindness in one eye and substantial hearing loss in one ear.  The severity of his injuries was such that he spent the first nine months after the assault in hospital.  He then moved to supported accommodation, provided by a housing association, where he was still living at the time of the tribunal hearing.  He has obviously been unable to return to his previous job as a sales representative, travelling around the country.

5.	The appellant first applied for disability living allowance (DLA) in December 2005.  In January 2006 the consultant at the rehabilitation clinic confirmed the injuries sustained.  He added that the appellant had “severe impairment of memory, attention, speed of information processing, judgment and planning…[He] requires regular supervision due to cognitive problems.”   In February 2006 the Secretary of State’s decision maker made an award of the middle rate of the care component and the lower rate of the mobility component of DLA for a period of two years from the date of claim (i.e. from 8 December 2005 to 7 December 2007).

6.	In April 2006 a decision maker revised that award, upgrading the care component to the highest rate and confirming the award of the lower rate mobility component.  The revised award took effect from the date of claim.  There was evidence about night needs on the DLA claim pack at the time to justify that increase in the level of the award of the care component.

7.	In August 2007, shortly before the expiry of the award, the appellant (with some assistance) completed a new DLA claim form.  No further medical evidence was submitted at this stage.  However, the project officer for the housing association sent in a covering letter outlining the severity of the appellant’s continuing problems.

8.	The Secretary of State’s decision maker did not seek any fresh medical evidence.  Based on the renewal claim form, in October 2007 the decision maker made a new award of DLA for three years (from 8 December 2007 to 7 December 2010).  The award of the lower rate mobility component was continued, but the level of the care component was reduced from the highest rate to the lowest rate.

9.	The appellant lodged an appeal against the decision to reduce the award of the level of the care component.  In his letter of appeal he said: “I do need support when I am out in the community – I am blind in one eye and have 90% deafness in one ear – both my shoulders are injured as is my left knee.  Adding to this list I have memory problems and can get confused easily.”

The Blackpool appeal tribunal’s decision

10.	A tribunal, comprising a lawyer, a medical member and a disability member, sat at Blackpool on 30 May 2008 to hear the appeal. The tribunal’s decision was to disallow the appeal and to confirm the Secretary of State’s decision to award the lowest rate care component and the lower rate of the mobility component of DLA.

11.	The tribunal chairman subsequently issued a detailed Statement of Reasons for its decision.  The appellant applied for permission to appeal against the tribunal’s decision.  A District Chairman refused permission to appeal on the ground that no error of law had been shown.  However, Mr Commissioner Mesher (as he then was, now Judge Mesher) granted permission to appeal.

The proceedings before the Commissioner and now the Upper Tribunal

12.	The appellant’s representative has argued that the tribunal should have made an award of the care component of DLA at the middle rate on the basis of the appellant’s day-time supervision needs, citing Commissioners’ decisions R(A) 1/73 and R(A) 6/89.  He also asks “How he [the appellant] would cope with his bodily functions living on his own is also a question as he has people around now to make sure he does them”. Mr Commissioner Mesher gave permission to appeal on the basis that it was arguable that the appeal tribunal had erred in law, given the nature of the appellant’s condition.  Mr Commissioner Mesher also suggested that it was arguable that the tribunal had failed to give adequate reasons for the difference in the outcome of the renewal claim as compared with the previous award (see Commissioner’s decision R(M) 1/96). 

13.	The Secretary of State’s representative now involved in this case does not support this appeal.  In summary, his view is that the tribunal found appropriate facts based on the evidence before it, applied the correct law and gave adequate reasons for reaching its decision that the appellant was not entitled to the middle rate care component of DLA.  He argues also that the tribunal’s decision satisfied the need to explain the difference in the respective outcomes of the previous and current claims.

14.	In a further written submission, the appellant’s representative contends that the tribunal failed to pay sufficient heed to the appellant’s vulnerability and in particular to the risk of “substantial danger” if he were not supervised.  As part of the case management process in the Upper Tribunal, this appeal has been transferred from Judge Mesher for decision by Judge Wikeley.

15.	There are, therefore, essentially two issues on this appeal to the Upper Tribunal.  The first is whether the tribunal erred in law in any way by confirming the award of the lowest rate care component (rather than by making an award at the middle rate).  The second is whether the tribunal erred in law in terms of the level of explanation required, given that there was a previous award of benefit at a higher rate.

The tribunal’s award of the lowest (and not the middle) rate care component

The tribunal’s findings and reasoning

16.	In the present case the tribunal made findings about the appellant’s routine in his daily life in paragraph 5 of the Statement of Reasons.  The tribunal also found that there had been two accidents with a microwave in two years and that he could not safely prepare a main meal for one person (paragraph 6) – which warranted the confirmation of the award of the lowest rate care component.  In addition, the tribunal found that “His self care is prompted; he does his own laundry and is not watched over at night. He has his own room which he keeps tidy”.  The tribunal also referred to the risk of the appellant being the subject of financial exploitation.

17.	In its final substantive paragraph (paragraph 7), the tribunal concluded that the claim pack “indicated no care needs beyond the need for assistance with the preparation of the main meal because of his poor memory.  Whilst accepting that the appellant is supported at [the supported accommodation] there is no evidence to support a claim to middle rate care”.  The tribunal “accepted that he needs to have a structured pattern of behaviour because of his memory deficit but beyond that he does function independently.  He is not constantly supervised when at [the supported accommodation]… help and reassurance is available if needed and the appellant does access this but not to the extent that it is continual.  He is not in substantial danger provided he follows his routine which he does.”

The parties’ submissions

18.	The appellant’s representative argues that the tribunal’s decision involves an error of law as the tribunal should have found that he was at risk of “substantial danger” in the absence of continual supervision. He also refers, in passing, to the appellant’s inability to cope on his own as regards his bodily functions.

19.	The Secretary of State’s representative argues that although the evidence showed that the appellant needed support to help him cope, it fell short of meeting the statutory test for the middle rate care component of “continual supervision throughout the day” (Social Security Contributions and Benefits Act 1992, section 72(1)(b)(ii)). He refers to the guidance given by Mrs Commissioner Parker in decision CSDLA/343/2005 on the meaning of this term. The Secretary of State’s representative does not directly address the argument that the appellant reasonably requires “frequent attention in connection with his bodily functions”, a point that admittedly the appellant’s representative makes almost as an afterthought.

The Upper Tribunal’s decision on this ground of appeal

20.	Entitlement to the care component of DLA is governed by section 72 of the Social Security Contributions and Benefits Act 1992. The particular rate of benefit in any given case is determined by section 72(4).  There is no suggestion in the present case that the appellant still had significant night care needs – the relevant boxes were all ticked “No” on the DLA renewal claim form.  This meant that the appellant could only qualify for the middle rate care component if the day care needs test was met.

21.	The day test is contained in section 72(1)(b) of the 1992 Act, which provides that the care component of disability living allowance is payable where:

“(b) 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;”

22.	There are therefore two alternative limbs for the statutory test: the “frequent attention” test and the “continual supervision” test.  A person may satisfy one or both heads of entitlement, but either is sufficient to ground entitlement.

23.	In the present case the focus has principally been on the “continual supervision” test – both at the tribunal and in the submissions on this appeal.  On balance, I am not persuaded that the tribunal erred in law on this point.  The tribunal noted the two incidents with the microwave in two years but the award of the lowest rate care component met any risk here.  It is perhaps arguable that the tribunal should have made more specific findings about the level of risk posed by possible financial exploitation by undesirable characters taking advantage of the appellant, and whether this amounted to “substantial danger”.  However, the tribunal’s finding that the appellant was not receiving, and did not reasonably require, “continual supervision” was a conclusion it was entitled to reach on the evidence before it.

24.	Much less attention has been devoted to the “frequent attention” test.  However, it is here that the tribunal’s decision involves an error of law.  The tribunal found as a fact that the appellant’s “self-care is prompted”, but there are no findings as to the nature, extent and frequency of this prompting.  Similarly, the tribunal noted that the appellant accessed “help and reassurance” but found only that it was not “continuous supervision”, without considering whether it might amount to “frequent attention”. Thus the tribunal has not made sufficient findings of fact or given adequate reasons as to why the input that the appellant receives with his cognitive processes does not amount to “frequent attention throughout the day in connection with his bodily functions”.

25.	It is clear that the processes of the brain fall within the term “bodily functions” (see the decision of the Tribunal of Commissioners in R(DLA) 1/07 and the guidance in paragraphs 33-39 of that decision, cited in Volume I of the annotated Social Security Legislation).  Giving support and encouragement to a person who is severely disabled can therefore amount to attention in connection with bodily functions.  The issue then is whether that attention is “frequent …throughout the day.”  The tribunal did not address that point adequately with the result that its decision involves an error of law.

The level of explanation required in the light of the previous award of benefit

The relevant legal principles

26.	The case law demonstrates that two principles may be relevant where there has been a previous award of benefit that is not renewed.  First, there is no automatic presumption that a further award will be made (for example, the circumstances may have changed or the previous decision may have been incorrect).  Secondly, however, it may well be necessary to explain why a previous award has not been renewed, unless that is obvious from the tribunal’s findings.  These matters were analysed by Mr Commissioner Howell QC in R(M) 1/96.

27.	At paragraph 15 of his decision Mr Commissioner Howell QC explained as follows:

“while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair. This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit.”

28.	Mr Commissioner Howell QC’s decision in R(M) 1/96 has since been followed and applied by the Northern Ireland Court of Appeal in Quinn v Department for Social Development [2004] NICA 22.  At paragraph 40 the Court of Appeal of Northern Ireland explained as follows:

“The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R (M) 1/96 CM/20/1994. In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine. His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk. The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991. A disability appeal tribunal confirmed the rejection of his claim. The claimant appealed to a Social Security Commissioner. It was held that the fact of a previous award does not raise any presumption in the claimant's favour or result in the need for consistency having to be treated as a separate issue on a renewal claim. However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.”

The tribunal’s approach in the present case

29.	The tribunal in the present case referred to the previous award of the highest rate care component and the lower rate mobility component, effective from 8 December 2005 to 7 December 2007, in paragraph 1 of its Statement of Reasons.  It then referred to the subsequent chronology as regards the renewal claim.  The tribunal also noted in paragraph 2 that the appellant’s representative was now asking the tribunal to consider the award of the middle rate of the care component (on the basis of day needs).  There was no further discussion of the previous award and its level.

The Upper Tribunal’s decision on this ground of appeal

30.	I am not persuaded that the appeal tribunal’s decision is wrong in law on this point.  It was clear that there had been some improvement in the appellant’s condition since the previous award had been made in 2005, albeit that that improvement was not as significant as had been hoped and that he had not been able to move to a more independent form of living.  The appellant’s representative had (rightly) in effect conceded that an award of the highest rate care component was no longer appropriate, given the absence of any further night needs to the extent required under section 72(1)(c) of the Social Security Contributions and Benefits Act 1992.

31.	The issue before the tribunal was therefore plain: was the appellant entitled to the middle rate of the care component, as his representative argued, or was he entitled only to the lowest rate of the care component, as the Secretary of State had decided?  

32.	In R(M) 1/96 the claimant had previously been granted a fixed term award of the former mobility allowance (now the higher rate of the mobility component of DLA).  On the expiry of that award, a renewal claim was rejected.  The observations of Mr Commissioner Howell QC must be seen in that context. In the present case the tribunal was faced with a rather different position.  On the expiry of the previous award of the highest rate care component, a new award at the lowest rate had been made.  However, the appellant’s representative was arguing for an intermediate position, namely that the appellant was entitled to the middle rate of the care component. In those circumstances, I do not think that this tribunal can be criticised for failing to refer further to the previous award.

33.	The tribunal referred to the previous award as part of the background to the appeal.  It noted the position now being advanced by the appellant’s representative.  It correctly identified the live issue on the appeal as being whether the appellant was entitled to the middle rate care component.  On the facts of this case, the previous award was essentially a matter of history.  It was “reasonably obvious” why the previous award was not being maintained at the same level, as the appellant was indeed not arguing for that position, but for an intermediate rate of benefit.  The tribunal’s decision involves no error of law on this point.
Conclusion

34.	However, for the reasons explained above, the decision of the tribunal involves an error of law in its treatment of the “frequent attention” limb of the test for the middle rate care component.  I must therefore allow the appeal and set aside the decision of the tribunal.  The case must be remitted for rehearing by a new tribunal subject to the directions that follow. My decision is as set out above.

Directions

35.	The following directions apply:

(1)	The rehearing will be at an oral hearing. 

(2)	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

(3)	The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 

(4)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision. 

(5)	The new tribunal should consider both potential heads of entitlement under the day care test in determining whether or not the appellant is entitled to the middle rate of the care component of DLA.

(6)	The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may make the same award, a higher award or a lower award.

These directions are subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

Signed on the original				Nicholas Wikeley
on 12 December 2008				Judge of the Upper Tribunal