Ramsden v. Secretary of State for Work and Pensions CDLA 651 2001
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 31 January 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA, AA: personal care |
| Docket Number | CDLA 651 2001 |
| Appellant | Ramsden v. Secretary of State for Work and Pensions |
R(DLA) 2/03
(Ramsden v. Secretary of State for Work and Pensions [2003] EWCA Civ 32)
CA (Potter and Mance LJJ, and Sullivan J) CDLA/651/2001
31.1.03
Attention in connection with bodily functions – faecal incontinence – whether washing of clothing and cleaning of adjacent surfaces relevant
Attention in connection with bodily functions – meaning of “significant portion of the day”
The claimant, aged 12 at the date of his renewal claim for disability living allowance, suffered incontinence of the bowel as a result of spina bifida and subsequent corrective surgery. For psychological reasons he did not use incontinence pads. He required attention once or twice a day after soiling himself. On these occasions it was necessary for him to get into the bath and for his mother to help him undress, carefully remove his soiled clothing and shower him until he was clean. It was also necessary to wash soiled clothing, towels and bedding and clean up any soiled furniture, carpets and other surfaces. The adjudication officer refused to renew the award and a tribunal confirmed the decision, finding that the claimant did not require attention for a significant portion of the day. In assessing whether or not the attention given amounted to a significant portion of the day, the tribunal took into account the undressing, showering and rinsing out of soiled clothing, but specifically excluded the washing of clothing, citing Cockburn v. Adjudication Officer [reported as R(A) 2/98]. The tribunal did not mention the cleaning up of furniture, carpets and other surfaces. The claimant appealed to a Commissioner, who upheld the tribunal’s decision
Held, allowing the appeal, that
1. whilst the decision in Cockburn made it clear that the laundering of soiled bedclothes or clothes out of the presence of the claimant could not qualify as attention, it equally recognised that certain acts performed by way of immediate and essential cleaning-up after an incident of incontinence might qualify as attention (paragraph 37);
2. steps taken in the presence or vicinity of the applicant for the immediate removal of soiling from clothes, bed linen or adjacent surfaces were apt to qualify as attention, and in a case of faecal incontinence where the interests of hygiene required thorough washing rather than merely rinsing, the criteria of immediacy and intimacy were sufficiently satisfied (paragraph 37);
3. whether the portion of a day spent in attention was “significant” depended principally upon its size or significance assessed as a percentage of the day as a whole but also upon other factors such as the amount of time available in the day, the extent to which the relevant tasks become a matter of routine, and the concentration and intensity of the activity (paragraph 39).
The Court remitted the case to a differently constituted tribunal.
DECISION OF THE COURT OF APPEAL
Mr Nicholas Blake QC and Ms Sally Robertson (instructed by French & Co) for the Appellant.
Ms Julie Anderson (instructed by the Solicitor for the Department for Work and Pensions) for the Respondent.
Judgment (reserved)
Lord Justice Potter
Introduction
1. This is an appeal from a decision of the Social Security Commissioner (“the Commissioner”) dated 16 November 2001 by which he upheld the decision of an appeal tribunal constituted under regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the tribunal”) dated 31 July 2000 in respect of the claim of the appellant (“the applicant”) that he was entitled to the care component of a disability living allowance (“DLA”) because he required frequent attention throughout the day in connection with his bodily functions so as to entitle him under section 72(1)(a)(i) of the Social Security Contributions and Benefits Act 1992 (“the Act”). The tribunal had in its turn upheld the ruling of an adjudication officer on 16 August 1999 that the applicant was not so entitled
Section 72 of the Act
2. In so far as material, section 72 provides:
“72. The care component
(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –
(a) he is so severely disabled physically or mentally that
(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day … ; 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, …
…
(6) For the purposes of this section in its application to a person for any period in which he is under the age of 16 –
(a) Sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and
(b) Neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless –
(i) he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or
(ii) he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”
The Background Facts
3. The applicant was born on 29 September 1987 and was almost 12 on 14 September 1999, the date as from which he applied for renewal of an award of DLA. He suffered from incontinence of the bowel as a result of spina bifida and subsequent corrective surgery. He also suffered a fractured femur on 14 May 1998 which impaired his mobility. For psychological reasons, the applicant did not use incontinence pads. Medical evidence from his general practitioner before the tribunal made clear that due to lax muscles and poor sensation he was unaware of the need to defecate and, as a result, frequently soiled himself. Because of the applicant’s lack of awareness of his need to defecate and the extent to which he denies his problem for psychological reasons, there are occasions when the applicant’s accidents, as described by his mother to the tribunal, can be “quite dramatic”, leading to soiling not only of his clothes but also of the floor, furniture and carpets nearby. His situation and the extent of the attention and cleaning necessary in relation to it was described to the tribunal by his mother.
The Tribunal’s Decision
4. Before the tribunal, the applicant sought an award not only of the care component of DLA but also of the mobility component. The tribunal held that, on the evidence before them, the applicant was insufficiently limited in his mobility to qualify for the latter. That aspect of the tribunal’s decision was not appealed to the Commissioner.
5. So far as the care component was concerned, the tribunal held as follows:
“There is no dispute over the condition that leads to Gregory’s incontinence. The question for this tribunal is the extent to which attention is required from another person to deal with Gregory’s bodily functions, and secondly, as Gregory is under sixteen, whether that attention is either substantially in excess of the normal requirements of a person of his age, or which persons of his age and in normal health would not have.
We find Mrs Ramsden to have been entirely honest in all her evidence to us today and we base our findings on that evidence. Gregory is generally able to clean himself and dress and undress and put his pants out for washing. Perhaps unsurprisingly for a 12 year-old boy he does not always wash himself thoroughly, but the main problem encountered by Mrs Ramsden is his denial that he needs attention and his refusal to wear any sort of incontinence pads This leads to some extreme situations where it is necessary for him to get into the bath before being helped to undress, for his clothes to be removed carefully and to be rinsed and for him to be showered until he is clean. We find that those activities constitute reasonable attention in connection with his bodily functions and that persons of his age in normal health would not have that requirement. We exclude the subsequent laundry of his soiled clothes from consideration (Cockburn v Chief Adjudication Officer – House of Lords 21 May 1997).
On Mrs Ramsden’s evidence, this attention is sometimes required in the morning when he gets up and most days when he gets in from school. He usually deals with himself when going to bed and just needs to change his pants. We think that on average this well-practised routine may require help for no more than 30...
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