CDLA 2717 2002
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 03 February 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 2717 2002 |
| Subject Matter | DLA, AA: personal care |
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant's appeal is allowed. The decision of the Darlington appeal tribunal dated 15 April 2002 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to give to substitute a decision on the claimant's appeal against the decision dated 20 June 2001 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the decision dated 6 March 2001 falls to be superseded on the ground that it was made in ignorance of material facts. The superseding decision is that the claimant is entitled to lower rate of the mobility component of disability living allowance from and including 17 April 2001 and to the middle rate of the care component for the period from 17 April 2001 to 16 April 2006.
2. The claimant, who was born on 5 July 1978, was entitled prior to January 2001 to the lower rate of the mobility component of disability living allowance (DLA) and to the lowest rate of the care component under a decision dated 9 April 1997. The claimant's appointee, his mother, asked for the decision to be looked at again and a DLA form was submitted. The decision, dated 6 March 2001, was not to change the claimant's entitlement. Because of the technicalities of the supersession process that took effect as a superseding decision giving the same entitlement from and including 6 March 2001. On 17 April 2001, the claimant's mother's request for a review of the decision was received. As that request was outside the normal month for applying for revision of a decision, it was treated as a request for supersession of the decision of 6 March 2001. Another DLA pack was submitted. The decision dated 20 June 2001 was made on the ground that the evidence did not show any greater entitlement than provided by the existing decision. There was another superseding decision at the same rate taking effect from 20 June 2001. It was that decision which was under appeal to the appeal tribunal.
3. The claimant and his mother attended the hearing on 15 April 2002 with their representative, Anne-Marie Chappell of Darlington Citizens Advice Bureau. She had provided in advance of that hearing both a written submission and a substantial report on the claimant from a consultant clinical psychologist, produced after interviews and tests. The case made for the claimant was that he should receive the middle rate of the care component on the day-time conditions. No case was made for the higher rate of the mobility component.
4. The appeal tribunal's decision was that the claimant was not entitled to anything in addition to his existing awards from 20 June 2001. There was a detailed and thorough statement of reasons. Among the findings of fact were the following:
"20. According to [the claimant's mother] the Appellant did not always clean himself after he had been to the toilet. This was usually about two times a day and she had to check his rear end every day. Usually the Appellant asked her to do this. This would probably be on at least three occasions per day every day of the week.
21. [The claimant's mother] indicated that this was `a nightmare to her' and that it was `not normal'. She frequently heard `funny noises from the toilet' and she indicated that this `gets on my nerves'.
22. So far as checking the Appellant's behind was concerned, she stated that this occurred three times a day and two times on each occasion.
23. [The claimant's mother] also indicated that the Appellant required [her] to check his `private parts' at the front. He apparently asked `is it dry?' every time he went to urinate. In addition, she had to check his hands after washing to make sure there was no soap on them. [She] indicated that she firmly believed that it she did not do this checking he would lose his temper.
29. In answer to further questions from the Carer member of the Tribunal, [the claimant's mother] confirmed that the appellant washed his own face and hands and underarms and used deodorant. he washed his feet in a bowl. He washed his hands and face more than six times a day and took some five to ten minutes over this. [The claimant's mother] stated that `fortunately' she did not have to assist in this except to check that there was no soap left on his hands. She confirmed that her son would dry every finger three or four times and again she used the phrase that this was `so irritating'.
38. It was patently clear to the Tribunal from all that had been said at the Hearing that the Appellant was obsessional but that in addition he irritated his mother in this regard. It was clear from the evidence given both from the papers and verbally at the Appeal that the `frequent attention' that was required in relation to the Claimant's bodily function was in fact `checking' both in relation to the cleanliness of his behind and as to the presence of soap on his hands or dampness on his clothes. The Tribunal did not consider that `checking' was attention as required by the provision of section 73(b)(i) of the Social Security Contributions and Benefits Act 1992."
Although many of those points were expressed merely as describing the evidence which had been given by the claimant's mother, it is sufficiently clear that the appeal tribunal accepted that evidence. The appeal tribunal also dealt with the evidence on needs for supervision to avoid substantial danger to the claimant or others and concluded that the claimant did not qualify for the middle rate of the care component on that ground either.
5. The claimant now appeals against that decision, with leave granted by a district chairman, who specifically mentioned the question of whether "checking", in the form and circumstances described to the appeal tribunal, constituted attention in connection with bodily functions. The written submission dated 15 August 2002 on behalf of the Secretary of State did not support the appeal. It was said that attention given in connection with the cognitive and other functions of the brain unrelated to physical functions is not within the statutory definition of attention in connection with bodily functions. Ms Chappell disagreed and requested an oral hearing. That request was granted by Mr Commissioner Howell QC.
6. The oral hearing took place at Doncaster County Court. Neither the claimant nor his mother attended, but they were represented by Ms Chappell. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for clear and succinct submissions.
7. In the course of the hearing, Ms Haywood accepted that the...
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