R v Secretary of State for Social Services, ex parte Connolly
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE NEILL,LORD JUSTICE MAY |
| Judgment Date | 19 December 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1219-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0873 |
| Date | 19 December 1985 |
[1985] EWCA Civ J1219-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Woolf)
Royal Courts of Justice
Lord Justice May
Lord Justice Slade
and
Lord Justice Neill
85/0873
MR. RICHARD DRABBLE (instructed by Roger Smith, Esq., Child Poverty Action Group) appeared on behalf of the Appellant/Applicant.
MR. DAVID LATHAM and MR. ROBERT JAY (instructed by the Solicitor to the Department of Health and Social Services) appeared on behalf of the Secretary of State for Social Services.
MR. DUNCAN OUSELEY appeared on behalf of the Social Security Commissioner.
This is an appeal by Mr. Simon Connolly from a judgment of Mr. Justice Woolf given on 24th January 1985, refusing an application for judicial review. His father is acting as his next friend on the appeal because, sadly, he himself is severely mentally handicapped. Though he is now aged 25 years, he has the mental age of a young child. Though trainable to a limited extent, he is not capable of being educated. He lives with his father, who is a senior serving Army officer, his step-mother and other children. With the help of his family's constant concern and support, he has attained a measure of normality in family life, which he clearly would never have attained in a less supportive environment.
The case concerns the amount of attendance allowance to which Mr. Connolly is entitled. The relief sought by the application which Mr. Justice Woolf refused was an order of certiorari quashing a decision of the Attendance Allowance Board dated 11th May 1983 and a ruling of a Social Security Commissioner, given on 30th September 1983, refusing leave to appeal against that decision.
Section 35(1) of the Social Security Act 1975 ("the 1975 Act") sets out the qualifying conditions for attendance allowance. So far as material, it provides:
"A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence in Great Britain and either—
(a) he is so severely disabled physically or mentally that, by day, he requires from another person either—
(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; or
(b) he is so severely disabled physically or mentally that, at night, he requires from another person…..
(ii) continual supervision throughout the night in order to avoid substantial danger to himself or others."
It is thus possible to be awarded attendance allowance in respect of either or both of day time and night time. A person who qualifies in both respects receives the allowance at the higher rate.
By virtue of Regulations 6(1) and 6(2) of the Social Security (Attendance Allowance) (No.2) Regulations 1975 ( S.I. 1975 No. 598), which I will call the 1975 Regulations, subsection (1) of section 35 has effect in relation to a child subject to certain modifications, one of which is that as if, after the word "others", in both places where that word appears, there were inserted the words "(being supervision substantially in excess of that normally required by a child of the same age and sex)".
Section 105(3) of the 1975 Act provides that, subject to section 106, any question whether a person satisfies the conditions set out in paragraph (a) or (b) of section 35(1) of the Act falls to be determined by the Attendance Allowance Board ("the Board"). Section 106(1) of the 1975 Act gives the Board certain powers to review a determination of theirs under section 105(3). Paragraph 5, Schedule 11 to the 1975 Act empowers the Board to delegate any of their functions in respect of any individual case to one or more medical practitioners.
Regulation 10(1) of the 1975 Regulations provides that, subject to the following provisions of the Regulation, "the claimant or the Secretary of State may appeal to a Commissioner, with his leave, or that of another Commissioner, against a determination by the Board of any question of law arising on a review by the Board in pursuance of section 106(1) of the Act, or arising in connection with a refusal by the Board to review a determination made in pursuance of section 105(3) of the Act."
Up to 2nd June 1980 Mr. Connolly was accepted as satisfying both the day time and night time requirements for attendance allowance. However, on 11th June 1980 a delegated medical practitioner, acting on behalf of the Board, decided that he only satisfied the day time conditions. There were then reviews of that decision by a medical practitioner on 27th October 1980 and on 23rd February 1981, but with the same result.
A Commissioner then granted Mr. Connolly leave to appeal from the latter decision. Following an oral hearing by a Commissioner, Mr. Edwards-Jones Q.C., it was set aside by his decision of 1st June 1982 as being erroneous on a point of law. The Commissioner directed that the claimant's request for a review of his claim for attendance allowance be referred afresh to the Board or to a different delegate on their behalf. The reasons why the decision of 23rd February 1981 was set aside were that there was doubt whether two material medical reports had been put before the delegated medical practitioner and considered by him. In these circumstances the Commissioner did not consider it necessary to express any conclusion on a submission that the delegated medical practitioner had failed to ask himself the right questions in law. However, since he had heard argument on the point and it had appeared that there was no real dispute between the parties' representatives about how the relevant law stood, (embodying as it did, a number of recent clarifications by Commissioners' decisions upon the points of construction involved), he thought it would be helpful to summarise the legal position. His summary has indeed been helpful and I would like to pay tribute to it. Its correctness has not been challenged by any counsel appearing before us. Reference can usefully be made to paragraphs 10—15 of his decision for the full summary. I will merely refer to part of it for present purposes. In paragraph 13 he quoted a passage numbered 7 from a recent decision on Commissioner's File CA 26/1979, reading as follows:
"Furthermore, in my judgment, the word "required" should be interpreted as meaning "reasonably required". For example, it is generally regarded as unwise to leave young children alone in a house (not of course on account of their physical or mental disablement but on account of their immaturity). If, as sometimes happens, children are left alone in a house and the relatively small chance of the house catching on fire and the children being killed materialises, those who leave them alone in the house are justifiably criticised, and I think that it would be proper to say of the children that they required supervision to avoid danger to them, even though it is well known that they do not always get such supervision."
In paragraph 14 of his decision the learned Commissioner, with reference to the phrase "substantial danger to himself", as used in section 35(1) of the 1975 Act, said that the material question was in his view to be approached and answered on the following basis:
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"(1) the answer is to be sought by reference to all the circumstances of the individual claimant's case, and not by reference merely to generalisations
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(2) in assessing whether or not supervision by night is required to avoid "substantial danger" to a claimant, regard is to be had to all risks which are relevant (i.e. not remote)
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(3) in assessing whether a particular risk constitutes a "substantial" danger the risk is to be evaluated by reference in conjunction: with each other, to:
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(a) the likelihood of it eventuating; and
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(b) the gravity of its probable consequences if it does occur
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(4) in assessing whether supervision is "required" that term should be read as meaning "reasonably required"."
In paragraph 15 of his decision the Commissioner concluded his observations thus:
"Whilst it is not for me to pre-empt any conclusion which may be reached by the Board or delegated medical practitioner before whom the review application in the present case next comes, the passage numbered 7 which I have cited in paragraph 13 above may be thought of relevance in the cases of claimants who although adult in calendar age have, as an incident of such disablement, only the mental age of a young child."
The learned Commissioner thus, as Mr. Justice Woolf pointed out, came very close, in the course of his careful reasoning, to a conclusion on the merits in Mr. Connolly's favour. Pursuant to his direction, the case was referred to the Board to review the decision of 27th October 1980 for the purpose of confirming or revising it. Mr. Connolly was medically examined on 20th September 1982 and Dr. I. McL Stewart, a psychiatrist and the examining doctor, forwarded an additional report of that date. By a letter dated 25th November 1982, Mr. Connolly's father, Lt. Colonel Connolly, was informed of the Board's present opinion that the day time condition only was satisfied. He was invited to comment on the existing evidence and to produce further evidence before they reached a conclusion. Lt. Colonel Connolly replied in three subsequent letters, with one of which he enclosed further medical evidence from Dr. Stewart and from a psychologist, Mr. Bowdler.
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