Gregory Ramsden and The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Mance,Mr Justice Sullivan |
| Judgment Date | 31 January 2003 |
| Neutral Citation | [2003] EWCA Civ 32 |
| Docket Number | Case No: A1/2002/0840 |
| Date | 31 January 2003 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 32
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(APPEAL TRIBUNAL)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Potter
Lord Justice Mance and
Mr Justice Sullivan
Case No: A1/2002/0840
Mr Nicholas Blake QC and Ms Sally Robertson (instructed by French & Co) for the Appellant
Ms Julie Anderson (instructed by The Solicitor for the Dept of Work & Pensions) for the Respondent
Introduction
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 s.72(1)(a)(i) of the Social Security (Contributions 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.
S.72 of the Act
In so far as material, s.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 attentions 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
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 applicants' 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
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.
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 minutes at a time, and that once the initial stripping has been achieved and showering has commenced Gregory should now be able to finish the washing process quite satisfactorily by himself. This may be necessary once, or on some days twice in a day. Overall, therefore, we find that attention is not required for a significant portion of the day (whether during a single period or a number of periods).
We therefore dismiss this appeal and confirm the decision of the Adjudication Officer."
The Decision of the Commissioner
The finding of the Tribunal that the applicant required attention once, and on some days, twice a day was not challenged on appeal to the Commissioner. Similarly, the applicant did not challenge the finding that the activities of placing him in a bath after he had soiled himself, removing his clothing and rinsing it, and then showering him until he was clean, took no more than 30 minutes on each occasion. Upon that aspect, considered under s.72(1)(a)(i), the Commissioner observed:
"4. … The tribunal decided that the activities described … took no more than 30 minutes on each occasion. Again, that finding of fact is not challenged on appeal. Having made those findings of fact, the tribunal was fully entitled to decide that the attention described was not required for a significant portion of the day (whether during a single period or a number of periods)."
However, the applicant argued before the Commissioner that the Tribunal had taken an unduly narrow view of what amounted to personal care administered to Gregory in that it had left out of account a number of cleaning operations said by the applicant's mother to be immediately necessary as a result of his condition such as cleaning the toilet and shower area, the immediate washing of towels, sheets and clothing (as opposed to simply rinsing clothes) and the necessity on occasion to clean the floor, carpet or furnishings. However, since these items were not mentioned by the Tribunal, it was to be inferred that they had simply been treated as, and excluded under the rubric of, 'subsequent laundry of his soiled clothes'.
In dealing with that aspect of the matter, the Commissioner stated as follows:
"5. The applicant's representative submits that the tribunal should have taken into account the time which the applicant's mother spent laundering the applicant's soiled clothes and bedding, and in cleaning up carpets and furniture which the applicant might also soil when he had what his GP described as a 'quite dramatic' episode of faecal incontinence. It is clear from the tribunal's reasons for its decision that it did take into account the time which the applicant's mother spent rinsing his soiled clothes after they had been removed but it considered that it could not include anything beyond that such as laundry and the cleaning of carpets and furniture following the decision of the House of Lords in Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 (a case which also concerned incontinence). In my judgment, the tribunal was right to do so and its decision is not erroneous in that regard."
Finally, the Commissioner dealt with the submission for the applicant that he was entitled to the Care Component of DLA because he required frequent attention throughout the day by way of checking and attending to in connection with his incontinence: see s.72(1)(b)(i). The Commissioner stated:
"I have considered the documentary evidence before the tribunal and the oral evidence as recorded in the record of proceedings. There was no evidence before the tribunal to...
To continue reading
Request your trial
-
Ramsden v. Secretary of State for Work and Pensions CDLA 651 2001
...SECURITY ACTS 1975 TO 1990 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/651/200131.1.03 Attention in connection with bodily functions – faecal incontinence – whether washing of clothing and cleaning of ad......
-
Upper Tribunal (Immigration and asylum chamber), 2020-07-08, HU/01690/2019
...in employment in Nepal. In addition, she did not refer or apply the decision in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 32 and Rai v Entry Clearance Officer [2017] EWCA Civ 320. All of these errors undermined First-tier Tribunal Judge Grimmett’s findings in rel......
-
KH (by CH) v Secretary of State for Work and Pensions (DLA)
...(for example, stripping a bed and changing bed linen). As Potter LJ explained in the Court of Appeal’s decision in Ramsden v SSWP [2003] EWCA Civ 32: 37. I do not consider that the decision in Cockburn amounts to a formula or litmus test which can be applied as a matter of rote to a case of......
-
CDLA 2717 2002
...I had reached that conclusion before the Court of Appeal handed down its decision in Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32 on 31 January 2003. Since the judgments in that case do not put forward any interpretation of Cockburn or any test of what constitutes a......