CC-v-Department for Social Development (DLA) [2012] NICom 273
Decision No:  C5/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 January 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The appellant has brought an appeal against the decision of the appeal tribunal sitting at Newry on 28 January 2011.

2.	Leave to appeal was granted by the legally qualified member of the appeal tribunal on 1 May 2011.

3.	No hearing of the appeal has been requested and I am satisfied that it can properly be determined without a hearing.

4.	I disallow the appeal for the reasons which I set out below.

REASONS

	Background

5.	The appellant was awarded the high rate of the mobility component and the high rate of the care component of disability living allowance from 19 June 2008 to 18 June 2010.  She made a renewal claim and a decision was made on 18 August 2010 to award her the high rate of the mobility component but only the low rate of the care component (on the basis of the main meal test) from 19 June 2010 to 18 June 2012.

6.	She appealed and the appeal was heard by a tribunal sitting at Newry on 28 January 2011.  The tribunal made a decision to the same effect as the Department, maintaining the award of high rate mobility component but replacing the award of the low rate of the care component on the basis of the “main meal” test with the same rate of the care component on the basis of the “significant portion of the day” test.

7.	The appellant requested a statement of reasons, which was issued to her on 12 April 2011 along with a record of the tribunal proceedings.  The appellant then sought leave to appeal to the Social Security Commissioner, essentially on the basis of a change of circumstances, relying upon evidence of a spinal fusion operation on 8 April 2011 and enclosing lists of medication.

8.	This material was not before the original tribunal.  They could not be faulted for not having taken a future event into account and, in any event, were constrained by Article 13(8)(b) of the Social Security (NI) Order 1998 to a consideration of the circumstances obtaining at the time of the original decision made by the Department.  A more appropriate approach might have been to apply to the Department for a supersession of the appeal tribunal’s decision on the basis of a relevant change of circumstances. I do not know if this was also done.

9.	The legally qualified member of the appeal tribunal did not grant leave to appeal on the ground submitted by the appellant, no doubt rightly considering that a tribunal could not err in law by a failure to consider an event which had not yet occurred.  However, the legally qualified member felt that it might be arguable that the care needs which the tribunal had accepted as giving rise to a need for attention for a significant portion of the day might amount to a need for frequent attention throughout the day, and granted leave on the basis of that question on 1 May 2011.  Her grant of leave was in the form of a question “Would care needs as listed in points 1-4 in reasons for decision amount to (1) attention for a significant portion of the day or to (2) frequent attention”.

10.	The appellant was notified of the decision granting leave to appeal on 18 May 2011.  The appeal was submitted to the Office of the Social Security Commissioners on 7 June 2011.

	Submissions

11.	In her appeal, the appellant did not attempt to develop the grounds on which leave had been granted by the legally qualified member, but rather sought to reiterate the issue of recent spinal fusion and argued that she had greater care needs than accepted by the tribunal.  These submissions were centred on questions of fact rather than questions of law.

12.	The Department was invited to make observations on the appeal.  Mrs Hulbert for the Department submitted that the recent surgery could not have been taken into account by the tribunal.  She further submitted that the tribunal had properly considered the appellant’s care needs and was entitled to come to the conclusion which it did.

13.	Mrs Hulbert however, did seek to further the argument along the lines on which the legally qualified member had granted leave to appeal.  In her submissions, she was critical of the tribunal’s approach to the record of findings of fact made in relation to attention needs.  Relying on R(DLA)5/05, a decision of the former Great Britain Chief Social Security Commissioner, she referred to paragraph 12 of that decision as authority for the proposition that the tribunal should have recorded the time and the rate of the occasions when attention was required in order to arrive at an adequate assessment of the frequency of those attention needs.

14.	The appellant was given an opportunity to respond but made no reply.

	Legislation

15.	The relevant provisions relating to the care component are set out in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  These read:

72.—(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 (whether during a single period or a number of periods); or

(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients;

(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; or

(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 for the purpose of watching over him.

16.	The tribunal had made its award under section 72(1)(a)(i).  The question posed by Mrs Hulbert was whether it had recorded enough in the way of findings to enable the person looking at those findings to evaluate whether the decision not to award under section 72(1)(b)(i) was correctly made.

	Assessment

17.	The decision in R(DLA)5/05 addresses the approach to an assessment of the frequency of attention needs in light of the House of Lords decision in Moyna [2003] UKHL 44.  The former GB Chief Commissioner refers to Lord Hoffman’s well known words at paragraph 19 of that decision where he advocates taking a “broad view of the matter”.  He reiterates the point that the law lays down a “conceptual test line” but, having done so, the question of whether particular facts fall one side or other of that line is a question of fact.  It is only where the tribunal has failed to recognise the correct legal line, or has made a decision as to which side of the line the case fell which was “outside the bounds of reasonable judgement”, that it will make an error of law.

18.	The former GB Chief Commissioner indicates that phrases such as “frequent… throughout the day” consist of ordinary words not used in any unusual sense.  He indicates that the word “frequent” requires consideration of not just the number of occasions something occurs but the time over which they occur – the word having the characteristic of recurrence at intervals which are not long.  In his view, although the duration of individual occurrences is not necessarily irrelevant, the number and pattern of occurrences will usually be the most relevant – indeed the overriding factors – in relation to “frequency”.  The former GB Chief Commissioner states that “frequent” does clearly require there to be several occurrences.  I consider that no exception can be taken to any of these statements.

19.	When making findings as to what attention was reasonably required by the appellant, Mrs Hulbert criticises the appeal tribunal for not making specific findings as to the time involved and the rate of occurrences.  She submits that the implication of this failing is that an assessment of whether the attention was frequent or not cannot properly be made.

20.	The tribunal in the present case found four types of attention which were reasonably required and recorded them as follows:

1.	A little assistance in the morning rising from bed;

2.	Dressing and undressing;

3.	Taking a shower;

4.	Cooking a main meal.

21.	Of these, only three are relevant to the question of frequent attention throughout the day, as cooking is a separate matter to be considered under the legislative test in section 72(1)(a)(ii).  It is long established that assistance with cooking does not amount to attention in connection with bodily functions (see Woodling [1984] 1 WLR 1017).

22.	The tribunal record of proceedings indicates that, during the period under consideration, the appellant rose with assistance at 8am.  It is correct as Mrs Hulbert points out, that they do not record the time intervals at which the remaining attention in terms of showering, dressing and undressing occurs.  However, it is reasonable to assume from the record of the evidence, which contains no suggestion to the contrary, that showering occurs once daily, and that dressing and undressing occur once daily.  One would also reasonably assume that dressing or undressing would be closely linked to showering in terms of the interval between them.

23.	The requirement to record findings of fact is really a tool to help in the assessment of whether the appeal tribunal has made its decision “on the right side of the line” to borrow GB Chief Commissioner Hickinbottom’s analogy.  The tribunal here has not recorded enough information to enable me to determine exactly at what time of day the attention occurred and therefore at what frequency.  Therefore it is certainly arguable that an error of law may have been made by the tribunal.

24.	However, common sense must also be applied and the question must be asked whether any shortcoming by the tribunal in recording its findings would have made a material difference to the outcome of the appeal.  As stated above, it is clear from the findings of the appeal tribunal that a relatively small number of instances of attention were accepted as reasonably required.  These involved assistance with getting out of bed, showering and dressing and with undressing.  The duration of the attention required in each instance was not recorded, but common sense again dictates that these would be relatively short.  No other attention in connection with bodily functions was accepted as reasonably required.

25.	Addressing the examination-style question posed by the legally qualified member, “Would care needs as listed in points 1-4 in reasons for decision amount to (1) attention for a significant portion of the day or to (2) frequent attention”, I would respectfully point out that this question is misconceived.  Identical findings of fact by two different tribunals can lead to different judgments as to which attention test is satisfied.  Neither will be wrong in law, as long as the conclusion is based on the facts and is not irrational.  Further, the Commissioner is not charged with deciding whether the tribunal’s decision was right or wrong, in the sense of agreeing or disagreeing with it, but whether the tribunal’s decision was in error of law.  On the basis of the findings of fact made by the tribunal, the only answer which I can give is that it was not in error of law for it to have concluded that the “significant portion of the day” test was satisfied.

26.	Returning to Mrs Hulbert’s point, I need to consider whether the failure of the tribunal to record the interval between the different types of attention would have amounted to a material error.  It is evident from the documentary evidence, including the examining medical practitioner’s report, and from the record of proceedings that the attention required by the appellant was principally upon rising and in preparation for retiring for the night.  Apart from difficulty in preparing meals, she was assessed as largely independent of care throughout the day.

27.	An assessment of frequency is not to be regarded as an arithmetical calculation of frequency but as an exercise in judgment.  Nevertheless, I accept that the concept of frequent attention requires there to be several occurrences of attention.  From dictionary definitions of the word “several” it appears to me that the number of separate instances of attention reasonably required may be quite small and still meet the requirement of the legislation.  Assessing the frequency of attention will require a finding on the interval between the various instances of attention which are reasonably required.  There may be cases where a fine analysis is required and the interval between the different instances of attention might require close consideration.  However, in my view, this is not one of them.  To meet the requirement of the legislation attention must be frequent but also “throughout the day”.  Here, once helped to rise, dress and wash for the day, the appellant is assessed as being relatively independent until requiring help to prepare for bed at night.  What attention she receives is not “throughout the day”.  The interval between the attention she reasonably requires on rising and on preparing for bed could hardly be any longer.  For that reason, in the circumstances of this appeal, I do not consider that the tribunal has made a material error of law by failing to make express findings on the time of the attention received in order to assess its frequency.

28.	I disallow the appeal accordingly.

(Signed):  O Stockman

Commissioner

2 April 2012