DECISION
OF THE UPPER TRIBUNAL
ADMINISTRATIVE
APPEALS CHAMBER
Before: Upper
Tribunal Judge Paula Gray
DECISION
This
appeal by the claimant succeeds.
Permission
to appeal having been given by me on 12 January 2015 in accordance with the
provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act
2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I
set aside the decision of the First-tier Tribunal sitting at Sutton and made on
20 May 2014 under reference SC 154/13/09453 and remake it as follows:
The
appellant is entitled to the middle rate of the care component of disability
living allowance for day attention between 28 January 2013 and 27 January 2018.
The
respondent is entitled to set-off money now due under this award against money
paid under the lower rate care award in the interim.
REASONS
Background
- This appeal
concerned the appellant’s entitlement to the care component of DLA. There
was no dispute about entitlement to the mobility component.
- The case was
dealt with at an oral hearing, and an award of the lowest rate of the care
component was made for attention needs for a significant portion of the
day under section 72(1)(a)(i) Social Security Contributions and Benefits
Act 1992. The statement of reasons prepared by the presiding judge set
out the various needs found to exist. The needs were occasioned by the
functional effects of the appellant’s mental health problems and broadly
comprised encouragement and supervision with washing, dressing, eating and
drinking, getting out of bed, managing medication, communicating and engaging
in social contact with others. Meeting those needs would, it was said,
occupy a significant portion of the day.
- I
granted permission to appeal saying that the grounds of appeal in relation
to the frequency of care and the view of the FTT as to the meaning of the
phrase “throughout the day” seemed to me to be arguable.
The issue
before me
- In essence
the issue was whether the FTT had applied too high a test in relation to
the reasonable requirements for attention frequently throughout the day, which
was the only potential route to the middle rate of the care component in
the circumstances of this case.
- The parties
are now agreed that the decision of the FTT was made in error of law. Neither
has sought an oral hearing of the appeal, and in the circumstances a
hearing is not required.
- The
respondent asks me to remit the matter to the FTT for further
fact-finding. The appellant says that the FTT facts are sufficient to enable
me to apply the law to them and make the decision on entitlement myself.
The
statutory provision
- The parties are
fundamentally agreed in relation to the error of law, but as I am
re-deciding the issue it is important in order to understand the facts and
the legal principles that I set out the relevant provision which is
section 72 (1) of the Social Security Contributions and Benefits Act 1992.
This provides for a person’s entitlement to the care component
72 (1) …. for any period throughout which--
(a) he is so severely
disabled physically or mentally that –
(i)
required
in connection with his bodily functions attention from another person for a
significant portion of the day (whether during a single period or a number of
periods); or
(ii)
he
cannot prepare cooked main meal to himself if he has the ingredients; or
(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;
(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; or
(ii)
in
order to avoid substantial danger to himself or others he requires another
person to be awake for a prolonged period or at frequent intervals the purpose
of watching over him.
The
other parts of that section are not applicable in the circumstances of this
case.
Should I remit or re-decide the appeal?
- If I feel
that I am able fairly to make a decision then I should do so. A
first-tier tribunal hearing DLA appeals comprises a judge, a medical
member and a member with experience of disability. It is important for me
to consider whether any decision that I make will be deficient in some way
for the lack of that expertise. The FTT, of course, is the fact-finding
body and it is in that aspect that the expertise of the members is so
valuable. I feel that I am able to make this decision without the benefit
of that expertise because the FTT in this case, using the expertise of the
judge and the members, made sufficient findings of fact; it went wrong in
its analysis of the legal test involved, and in its application of that
erroneous test to the facts found.
- The
appellant’s representative is right in saying that the facts found are
sufficient for me to apply the correct legal test, and make the decision
myself.
The Facts as
found by the FTT
- I rehearse
the facts found by the FTT in this case, as set out by the presiding judge,
omitting as unnecessary for my considerations the supervision and night
needs issues and some of the reasons behind the fact-finding:
5. The
tribunal found that [Ms B] suffered from depression and anxiety, bowel
incontinence and migraine headaches….. There was a suggested diagnosis of
emotionally unstable personality disorder made during 2013. She suffered from
low self-esteem, changes of mood, and associated memory problems. Her mental
condition was variable. She had good days and bad days but was also subject to
rapid mood swings. The ratio of good to bad days was c. 50/50. On good days she
was quite functional and could catch up on things she had neglected, but even
on good days found social interaction difficult.
6. She
suffered migraines on average about twice a week each lasting c. 2 - 3 hours.
When they were occurring, these were debilitating and undermined her ability to
self care.
7. In
relation to [Ms B’s] care needs, the tribunal found that she could physically
undertake tasks of day-to-day personal care, but that motivation to do so was a
recurrent problem. She ate fairly regularly, but sometimes skipped meals. She
cooked sometimes, but having started might not complete it. She would wash and
get dressed if going out, but would tend not to if staying in. She sometimes
needed reminding about her medication despite using an alarm, and found herself
with tablets left over at the end of prescribed courses. She found social
relations difficult, and would not always answer the phone or the door.
Although in her claim form, she had stated that she had left the door unlocked
and on one occasion left the gas on, the tribunal found that this was not a
risk most of the time, and accepted her oral evidence that she could be safely
left alone. She needed encouragement to manage her bills and paperwork. She
found it difficult to manage problems with housing: there had been long-running
dispute their problems at her house, but she had not been able to engage with
the landlady about these.
9. (omitted).
10 (omitted)
11.
Reviewing the evidence, the tribunal’s assessment was that to meet [Ms B’s]
need for attention with her bodily functions would occupy a significant portion
of the day. It did give consideration to whether the need for attention could
be considered to arise frequently throughout the day, but it did not consider
that this test was met. The encouragement she required with getting up, getting
washed and dressed, taking meals and medication and dealing with communication
and social engagement could reasonably be considered to require on average one
hour or so a day, taking account of the fact that she would require less or no
encouragement on good days (which were half of all days)….. it could not be
said that the encouragement was required throughout the day since it was by its
nature episodic, and cumulatively would not require another person to be there
throughout the day.
- On the basis
of those facts and that legal analysis the tribunal made an award of the
lower rate of the care component for a five-year period on the basis of
section 72 (1) (a) (i), attention being reasonably required for a
significant portion of the day. The matters for which she required attention,
getting up, getting washed and dressed, taking meals and medication and
dealing with communication and social engagement, might be said to require
on average one hour or so a day, bearing in mind that on some days she
required no such attention.
- There were
findings which I have not rehearsed, as to the reasons why the appellant
did not require continual supervision throughout the day, and why she had
no relevant night needs within the terminology of the legislation. I
proceed in my task on the basis that those conclusions were correct as a
matter of law; the error of law in relation to the frequency test did not
arise. I limit myself, therefore, to a decision as to whether there was
entitlement beyond the lower rate care award; practically in this case the
issue is whether the appellant was entitled to the middle rate of the care
component for day attention.
The
respective positions of the parties
The
appellant
- Sam Walsh, a benefits adviser for
Lambeth Council acts for the appellant, and has argued that although there
was a general principle that in applying the law to the facts of the case
the tribunal must take a broad view, the decision in R (DLA) 5/05
meant that the phrase “frequently throughout the day” should be read as a
single phrase, and in broad terms. It was submitted that the extent of
somebody’s care needs is not solely defined by the aggregate period of
time that they require care, but matters such as whether that care was
required predictably at given hours of the day should be taken into
account, more care perhaps being required in a situation such as existed
here on the basis of the tribunal’s findings, where the reasonable
requirement for care was variable. Additionally the representative
disputed that there was any requirement, as was implied in the statement
of reasons, that for care to be reasonably required throughout the day
meant that somebody would need to be there all day. The principle, it was
said, was that somebody who required “episodic” care throughout the day
could require attention throughout the day for the purposes of the
legislation.
- The
submission, which was extremely careful and measured, concluded by
conceding that this was not a case in which it could be said inevitably
that the lower rate care award was wrong in law, but the approach to the
tribunal in making that award was; alternatively the process of reasoning
was insufficiently explained.
The
Secretary of State
- Ms Gilfoyle,
acting for the Secretary Of State, essentially agreed with that approach, submitting
that the tribunal may have confused attention required throughout the day
with the requirement for continual supervision throughout the day, or that
the reasoning for their distinction was unclear. She refers to CDLA/12150/1996,
a case which established that attention required briefly but frequently
throughout the day could qualify for the middle rate of the care component
even though the total time spent might be less than that which would be
expected for the lowest rate of the care component. The principle was,
therefore, that care required can be episodic by its nature and still
qualify for the middle rate award, and that the tribunal fell into error
of law in appearing to use that reasoning to determine that the claimant
did not qualify in this case. She further submitted that the approach of
adding up the total time that attention was required did not accord with
the reasoning in R (DLA) 5/05; an exploration of the number of
occurrences throughout the day was required.
- I have
already explained the different views that the parties took about whether
I should remit or decide the case and my conclusions as to that issue. I
am assisted by the information from Ms Gilfoyle that no further claims for
DLA or PIP have been made that would limit my jurisdiction.
The legal framework
- R (DLA) 5/05
[2005] AACR 92 was a decision of the then Chief Social Security
Commissioner, now Hickinbottom J. He considered the meaning of section
72(1) in relation to two cases before him. He determined (at [9]) that,
following the case of Moyna v Secretary of State for Work and Pensions
[ 2003] UKHL 44 (reported also as R(DLA) 7/03) in respect of each of
the criteria in section 72 (1) an exercise in judgement has to be made
taking a broad view of the matter, that is to say taking account of all
relevant factors. A determination could not be made upon an arithmetical
formula or by reference to an invariable benchmark. The case is also authority
for the proposition that there is not necessarily a logical progression
through the rates of DLA by virtue of the extent of disability, that is to
say that it would be possible for somebody not to satisfy the lowest rate
of the care component on the basis of attention for a significant portion
of the day, and yet satisfy the middle rate of that component under the
“frequently throughout the day” provision [12.7] although Parliament
cannot have intended that less disabled people should generally be awarded
DLA at a higher level than those who are more disabled. Accordingly, when
considering the provisions of section 72 (1) (b) or (c) it should be borne
in mind that the middle rate award is in financial terms more than twice
that of the lowest rate, and that has an effect on the construction placed
upon them. Regard might also properly be had to the equivalence of an award
in relation to the different tests under section 72 (1) (b) (i) and section
72 (1) (b) (ii) to inform the construction process, that being informed by
the DLA scheme as a whole, and also where the criteria that must be construed
fall within the particular scheme of section 72 (1).
- The question
as to whether a reasonable requirement for attention arises frequently
throughout the day cannot therefore be decided upon by direct comparisons
with the calibration of the extent of need for a substantial portion of
the day. As Ms Gilfoyle submits, the number of likely occurrences must be
relevant, although whether attention is frequent is not an issue which can
be resolved solely on mathematical principles.
- Judge
Hickinbottom spoke of frequency as a product of the number of times
something occurs over a period of time and an assessment of frequency
depending upon a number of factors, particularly the number and pattern of
those occurrences over time. [12.6]. The nature of the occurrences
themselves is something relevant to the question of whether those
occurrences are “frequent”, and instances of attention that are de
minimis may be excluded [12.6]. The duration of individual
occurrences is not irrelevant; however the number and pattern of
occurrences will usually be the overriding factors in relation to the
issue of frequency.
- The question,
as expressed by Judge Hickinbottom at [12.3] is a composite one; it is
unhelpful to regard the test as comprising a number of stages. As was
said by Lord Hoffmann in Moyna, to take the approach that there
were two discrete questions (i) is the attention required frequently and,
if so, (ii) is it required throughout the day is not helpful, and may lead
to error.
- I bear in
mind all of those factors and I take a broad view as to whether over the
period under consideration-the qualifying period both pre-and post
claim-the person can fairly be described as, on the question in this case,
someone who is so severely disabled physically or mentally that she
requires from another person frequent attention throughout the day in
connection with her bodily functions. The nature of the attention and the
quality, both of itself and in relation to recurrence must all be
considered; the result is perhaps inevitably somewhat impressionistic.
How do the
legal tests apply to the factual matrix found by the FTT?
- Distilling
from the fact finding paragraphs in the statement of reasons those matters
with which the appellant may need assistance and at what level, it is
clear that on good days she was quite functional, even catching up on
things that she had neglected, although she still found social interaction
difficult on those days. On other days, that is to say some 50% of the
time, she needed motivation to undertake tasks of day-to-day personal
care, that is to say getting out of bed, washing and dressing, eating
regularly (including encouragement to complete the cooking of a meal) and
to deal with her household administration. An example is given of her
failing to engage with her landlady in relation to a long-running dispute
about problems with her house, which seems to illustrate both her
difficulties with the administrative tasks of daily living and in her
interaction with others. Given those circumstances, how do I apply the
test laid down in the case of Moyna and further explained in R(DLA)5/05?
- It seems to
me to be implicit in the findings of the FTT that the range of activities set
out with which it is said the appellant requires attention are bodily functions,
and that the attention is reasonably required. I proceed on that basis
because it is a finding that was open to the FTT. The bodily function in
relation to which attention is required is the activity of the brain; the
appellant’s thought processes, motivation and ability to concentrate being
affected by her mental health problems. CDLA/2974/2004 and CSDLA
/133/2005(T) are authority for the propositions that, where there are
such difficulties. interaction to enable social functioning, communication
and social integration are bodily functions.
- I remind
myself that he yardstick in relation to whether or not attention is
reasonably required is that of enabling someone to live a “normal life”,
per Lord Slynn of Hadley in Secretary of State v Fairey [ 1997] 1 WLR 799 (also reported as R (A) 2/98).
- The key here
is attention for the purposes of motivating the appellant, since she was
physically able to undertake tasks of day-to-day personal care but the lack
of motivation to do so was described as a recurrent problem. That
motivation may take longer on some days than on others; if it was not a
good day it may involve making sure that she got up, washed and dressed, and
assisting in the preparation of food and seeing that she ate it. On better
days when she was more functional and able to cope with her basic personal
care it may mean ensuring that she was trying to deal with routine
administration or going out and engaging with other people; attention that
assists with and reinforces positive patterns of behaviour is reasonably
required in both circumstances. The pattern of the attention required is
variable because on one day she may be minded not to eat lunch and on
another not to eat supper, but her need for regular attention, which is
due to her mental health condition overall, seems to me to be there as
much as anything to assess her mental state, or what has been described as
her mood, on a regular basis and not for attention with this or that task
in isolation. That is because such regular assessment is likely to inform
the person providing the attention as to what attention is required, and
the level of it. Particular difficulties may be ameliorated by specific
encouragement and participation in activities; other more general
anxieties may require a different approach, such as talking matters
through. The high quality of the required attention is apparent both in
relation to making that assessment, and thereafter in reacting with an
appropriately nuanced approach.
- Overall,
given the variability both in relation to the amount of attention, and the
likely quality which will be required at any given time, I am of the view
that the appellant can fairly and properly be described as a person who,
throughout the period under consideration, reasonably required attention
with her bodily functions throughout the day. I will, however, deal
specifically with one other point, which I have borne in mind in that
assessment.
- Materially
her evidence to the FTT was that she could be safely left alone, and the
tribunal so found. I have considered that as a check point, given the
comments in R (DLA) 5/05 which I set out in paragraph 17 above, that one
can look at what care would be provided were the supervision test set out
in section 72(1) (b)(ii) satisfied, the award being financially
equivalent.
- Although
continual supervision throughout the day in order to avoid substantial
danger is a difficult test to satisfy, the supervision need not always be
active; the closeness of the supervision required depends upon the type of
danger and a more passive role may be sufficient, but the provision of
attention in connection with the bodily functions of another person is
always active, and, qualitatively, engagement during the periods where attention
is given may amount to an equally or possibly more taxing role for the
other person providing the attention than would continual supervision. That
may well be the case here.
- Those
comparative considerations were helpful in reinforcing my primary
conclusion.
- Accordingly I
make the decision that the FTT should have made upon the facts that they
found, which is that the award throughout the period that they identified
as appropriate should have been one of the middle rate of disability
living allowance for day attention.
Upper Tribunal Judge Paula Gray
(Signed on
the original on 16 September 2015)
