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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> FAMcA -v- Department for Social Development (DLA) [2012] NICom 307 (19 July 2012) URL: http://www.bailii.org/nie/cases/NISSCSC/2012/307.html Cite as: [2012] NICom 307

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FAMcA-v-Department for Social Development (DLA) [2012] NICom 307

Decision No: C95/10-11(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 16 March 2010 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 16 March 2010 is in error of law. The error of law identified will be explained in more detail below. The error, however, is in respect of the appeal tribunal's decision with respect to the care component of disability living allowance (DLA). Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
2. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.
3. My decision is that the claimant has an entitlement to the highest rate of the care component of DLA for the period from 22 July 2009 to 21 July 2012. The appeal tribunal had made an award of entitlement to the lower rate of the mobility component of DLA for the fixed rate period from 22 July 2009 to 21 July 2012. I have found no error with respect to the appeal tribunal's decision with respect to the mobility component and confirm the award which it made.

Background

4. On 22 July 2009 a claim form to DLA was received in the Department in respect of the appellant. The claim had been made on his behalf by his mother who had been appointed as his official appointee in 2005. On 17 September 2009 a decision-maker of the Department decided that the claim should be disallowed from and including 22 July 2009. The decision was disputed by way of a telephone call on 28 September 2009 and a written explanation for the decision was requested on the same date. A letter disputing the decision dated 17 September 2009 was received on 14 October 2009. A report was completed by the general practitioner on 16 November 2009. On 19 November 2009 the decision dated 17 September 2009 was reconsidered but was not changed. A letter of appeal was received on 16 December 2009.
5. The appeal tribunal hearing took place on 16 March 2010. The appellant's mother was present and was accompanied by a friend. There was no Departmental presenting officer present. The appeal tribunal allowed the appeal to the extent of making an award of entitlement to the lower rate of the mobility component of DLA for the fixed rate period from 22 July 2009 to 21 July 2012. The appeal tribunal decided, however, that the conditions of entitlement to the care component of DLA were not satisfied from and including 22 July 2009.
6. On 2 April 2010 correspondence was received in The Appeals Service (TAS) in which the appointee requested a statement of reasons for the appeal tribunal's decision as she also wished to apply for leave to appeal to a Social Security Commissioner. On 28 August 2010 the legally qualified panel member of the appeal tribunal refused leave to appeal.
7. On 13 and 16 September 2010 further correspondence was received in TAS from the appointee. On 23 November 2010 the LQPM set aside his earlier refusal of leave to appeal and, on this occasion granted leave to appeal, identifying as a point of law the issues raised by the appointee in the correspondence received on 13 September 2010.

Proceedings before the Social Security Commissioner

8. On 14 February 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 14 March 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 8 April 2011. In these initial written observations, Mr Hinton, for DMS, supported the application for leave to appeal. Written observations were shared with the appointee on 28 April 2011.
9. On 9 June 2011 I directed an oral hearing of the appeal. For various reasons, the oral hearing could not take place until 24 November 2011. At the oral hearing, the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland), and the Department was represented by Mr Hinton. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions. At the oral hearing I directed further submissions on a further issue which arose during the course of the hearing. Further submissions were received from Mr Hinton on 1 December 2011 and from Mr Hatton on 18 December 2011. Once again I am grateful for the care and attention which both representatives have taken with the preparation of these submissions.

Errors of law

10. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
11. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

Why was the decision of the appeal tribunal in the instant case in error of law?

The appeal tribunal's decision with respect to the mobility component of DLA

12. As was noted above, I find no error with respect to the decision of the appeal tribunal in connection with entitlement to the mobility component of DLA.

The relevant legislative background

13. The conditions of entitlement to the care component of DLA are to be found in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. Section 72(1)(a) provides that:

'… 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.'

14. Section 72(1A)(1) of the 1992 Act provides that:

'(1A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) above has effect subject to the following modifications—

(a) the condition mentioned in subsection (1)(a)(ii) above shall not apply, and

(b) none of the other conditions mentioned in subsection (1) above shall be taken to be satisfied unless—

(i) he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii) he has substantial requirements of such a 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 proper approach to consideration of entitlement to the care component of DLA where the claimant is under the age of 16

15. In CSDLA/535/07, Commissioner Parker said the following about the proper approach to consideration of entitlement to the care component of DLA where the claimant is under the age of 16, at paragraphs 11 to 20 of her decision:

'11. How to approach care needs for a child is excellently set out by Mr Commissioner Rowland at paragraph 9 of CDLA/4100/2004:

"9. As a matter of strict analysis, it was necessary for the tribunal first to consider whether, as a result of disability (i.e., ignoring needs due to simple immaturity), the claimant required attention, supervision or watching over sufficient to satisfy any of the conditions in section 72(1) (other than section 72(1)(a)(ii)) and, if so, whether the amount of such requirements was sufficient to satisfy the condition of section 72(6)(b) having regard to the needs that a claimant of her age in normal physical or mental health would in any event have had through simple immaturity. Of course, there is no reason why a tribunal should rigidly apply that two-stage process if it appears unnecessary to answer the first question because the second question can clearly be decided against the claimant. Nonetheless, it can be useful to bear in mind that there are two stages and not just one and that in dealing with the first stage care needs due solely to immaturity are to be ignored".

12. I agree with the above, except to note that it is actually a three stage process because the first stage itself correctly splits into two; as the Tribunal of Commissioners put it at paragraph 42 of R(DLA)3/06:

"Therefore, in our view, section 72 raises two issues. (i) Does the claimant have a disability, i.e. does he have a functional deficiency, physical or mental? (ii) If so, do the care needs to which the functional deficiency give rise satisfy any of paragraphs (i) or (ii) of section 72(1)(a) to (c), and if so, which? ...".

13. I call the third stage "the additional child condition". As Mr Commissioner Rowland rightly says, the process does not have to be rigidly sequential; this is because a "no" at any stage negates entitlement. It can, however, be useful for a tribunal to keep in mind the converse position: that entitlement requires a positive answer to each of the three questions, and that the first two steps in the process are the same whether a claimant is an adult or a child. I am not, of course, suggesting that the taking of evidence during the hearing is constrained by the above process; but in making its determinations on the totality of that information, the above statutory framework must underpin a tribunal's decision.

14. However, evidence on the difference in this child's needs to that of other children may itself inform the tribunal's conclusions, when it answers the correct statutory questions in sequence; thus it may assist on the question whether he or she does indeed have a functional deficiency which cannot be avoided such that it amounts to the necessary disability, or on the incidence of any resultant reasonable requirements for help and whether they fit the strict statutory criteria on the necessary pattern of help.

15. So far as the additional child condition is concerned, Mr Commissioner Rowland has made further valuable comments in other cases. Thus, at paragraph 7 of R(DLA)1/05, the Commissioner quotes from paragraph 9 of his earlier unreported decision, CA/92/1992, in which he said:

'Attention or supervision is not to be regarded as 'substantially' in excess of that normally required unless it is outside the whole range of attention that would normally be required by the average child.'

16. The point is further well made by Mr Commissioner Rowland at paragraph 10 of R(DLA)1/05:

'The word in the legislation is 'normal' and requirements may be normal notwithstanding that fewer than half the total number of children have them. However, there comes a point where the proportion of children who have the requirements is so small that the requirements can no longer be said to be normal, even though the total number of children affected may still be quite substantial.'

17. An observation of Mr Commissioner Rowland in CA/92/1992 (at paragraph 5) which was not repeated in his later case, but neither did he retract from it, was the following valuable comment:

'… attention or supervision may be required 'substantially in excess of that normally required' either by virtue of the time over which it is required or by virtue of the quality or degree of attention or supervision which is required.'

18. The Commissioner then continued with an example of what he meant by the above at paragraph 6 of CA/92/1992:

'The idea of a greater quality or degree of attention can be illustrated by considering meal times. A young child may require attention in connection with eating because he or she requires the food to be cut up. A disabled child of the same age may require attention in excess of that normally required by a child of the same age because he or she not only requires the food to be cut up but also requires it to be spooned into the mouth …'

19. The tribunal did not tackle the initial question of how far the child's sleeplessness related to her functional impairment. Only care needs to which a functional deficiency gives rise may be taken into account. It appears (but this is now an issue for the new tribunal) that the child's continued wearing of nappies at night, and screaming when she was changed, was not linked to a relevant disablement. However, there was evidence that, at least to a degree, her sleeplessness related to her disability (see for example page 26, where in the claim it was said: "restless if her leg is sore") and this needed to be addressed by the tribunal. I held in CSDLA/567/2005 that soothing a child back to sleep can count as attention with a bodily function, provided the sleeplessness is linked to a disability.

20. The extent and type of supervision or attention (and the two may not be aggregated for the purposes of the statutory tests) required by a child of the same age as the claimant but in normal physical or mental health, may be different to that which arises on account of disability. It then becomes an issue of fact for a tribunal whether the claimant child requires a greater quality or degree of supervision or attention, as distinct from the duration of this help, such that it can be considered outside the whole range of what would normally be required by the average child. The tribunal went wrong because it did not address and make findings on the evidence that (see page 13) the child required more help getting in and out of bed because of her leg problems, and, indeed might fall out of bed when trying to get up on her own. Is this usual for a nearly 3 year old? Precisely what help was required? This is for a tribunal: but because falls had been raised with respect to mobility needs and the tribunal decided that she was ineligible for that component, it then failed to give sufficient consideration to the evidence on falls so far as the care component was concerned.'

16. It is important to note that in all of the analysis above what was then section 72(6) of the Social Security Contributions and Benefits Act 1992 has become section 72(1A) of the same Act and which has a direct equivalence in section 72(1A) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which applies in the instant case.

What did the appeal tribunal decide in connection with the conditions of entitlement to the care component of DLA?

17. The appeal tribunal began its consideration of the principal issue which was before it by stating:

'(The claimant) is a boy of 14 with Asperger's syndrome. He also suffers from chronic constipation. The Tribunal recognises that both of these conditions impact significantly on (the claimant's) daily life, and also that living with and caring for a young person with Asperger's syndrome can be extremely wearing for a parent. It does not however automatically follow from the fact that a person has one or more significant health problems which may impact significantly on his life that the statutory conditions for any rate of the care component will be met.'

18. I would say, at this stage, that I find no error (and neither does Mr Hinton) in the final statement of the introduction cited above.
19. The appeal tribunal then arrived at the following conclusions with respect to satisfaction of the statutory conditions of entitlement to the care component of DLA:

'(The claimant) is academically bright but has difficulties with dressing and toileting, and generally organising himself when not at school. The Tribunal recognised that in the course of the day (the claimant) does require more attention in connection with his bodily functions than a normal boy of his age and considered whether this amounts cumulatively to attention for a significant portion of the day, for the purposes of the statutory criteria, which is substantially in excess of the normal requirements of a child of his age. There will be cases which come close to but do not meet this threshold and the conclusion of the tribunal after careful consideration was that this is such a case. The Tribunal also concluded that the evidence did not support a finding that (the claimant) requires continual supervision throughout the day to prevent substantial danger to himself or others.

At night (the claimant) sometimes sleep walks, sometimes wakens his mother or siblings because he wants to talk, and more recently has wanted to take the dog for a walk at 2.00 or 3.00am. He may also sometimes soil himself during the night and need assistance. These occurrences however are not every night or most of the time. The statutory conditions for award of the care component based on night needs are that at night the person requires prolonged or repeated attention from another person in connection with his bodily functions, or he requires another person to be awake for a prolonged period or at frequent intervals to watch over him to avoid substantial danger to himself or others. The Tribunal recognised that there are difficulties at night as outlined, but considered that the difficulties described did not meet the statutory criteria.

The Tribunal accepts that (the claimant) benefits greatly from the care and support provided by his mother, and that caring for him is demanding, but had to conclude that the statutory criteria for award of any rate of the care component are not met.

His mother has to lay out his clothes for him each morning and make sure he dresses appropriately. He is described as fastidiously clean to the point of excess, but may need help with cleaning after a bowel movement. He may need verbal prompting or direction, and has been given written instructions in relation to bodily functions such as washing …' He can cook but some supervision is required while doing so.

From the school report, as qualified by Mr Cluff's letter, it does not appear that frequent attention in connection with bodily functions is required during school hours.

The Tribunal's conclusion taking account of the totality of the (the claimant's) requirements, both disability related and non-disability related, was that he does not require attention frequently throughout the day in connection with his bodily functions.'

The submissions of the parties

20. In the original application for leave to appeal and in the case summary prepared for the oral hearing of the appeal, the appointee and, subsequently, Mr Hatton, has submitted that the decision of the appeal tribunal in connection with the care component of DLA was in error of law on the basis of the following submitted grounds:

(i) The reasons for the appeal tribunal's decision were inadequate to explain its decision not to make an award of entitlement to the care component. More particularly, the reasons did not provide sufficient clarity to explain why, having accepted that the claimant had attention needs more than would normally be required by a boy of his age, the help which he needed with personal care was not required for a significant portion of the day or why he did not satisfy the conditions of entitlement based on night time needs. Without a clear breakdown of the attention required and the time required to provide that attention, it was impossible to have confidence that the law was applied correctly.

The appointee had provided additional evidence, in the claim form to DLA, in the letter disputing the decision under appeal, in the letter of appeal and in the form of the further factual report from the general practitioner (GP) concerning the claimant's requirements for attention in connection with his bodily functions both by day and by night.

(ii) The appeal tribunal erred in failing to consider the role of the 'attender' when deciding that the claimant did not have attention needs for a significant portion of the day. In connection with this submission, Mr Hatton submitted that the decision of the Court of Appeal of England and Wales in Ramsden v Secretary of State for Work & pensions ([2003] EWCA Civ 32) which followed the guidance given by the Social Security Commissioner in Great Britain in CSDLA/29/94 should be followed in preference to the decision of Mrs Commissioner Brown in C35/98 (DLA). There was nothing to suggest that the appeal tribunal had addressed the question of the extent to which the appointee was involved in the claimant's care or whether this input produced a disruption to her own affairs. It was not also clear that the appeal tribunal was aware of the need to consider the appointee's role, which, on the evidence, was significant when deciding whether the statutory tests were met. The appeal tribunal's failure to take this factor into account meant that its decision was in error of law.

21. In his original written observations on the appeal and in the case summary prepared for the oral hearing of the appeal, Mr Hinton has supported the application for leave to appeal on the grounds cited by the appointee and her representative.

Analysis

22. Having reminded itself of the age of the claimant, the appeal tribunal was alert to the requirement to consider section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, in its entirety. That included the requirement to consider what the Commissioner in CSDLA/535/07 called the 'third stage' or the 'additional child condition'. Looking at the statement of reasons for the appeal tribunal's decision, I am not sure that the appeal tribunal adopted the sequential approach advocated by the Commissioner in CSDLA/535/07. To repeat what was said by the Commissioner in paragraph 13 of her decision, the adoption of a sequential approach:

'… can, however, be useful for a tribunal to keep in mind the converse position: that entitlement requires a positive answer to each of the three questions, and that the first two steps in the process are the same whether a claimant is an adult or a child. I am not, of course, suggesting that the taking of evidence during the hearing is constrained by the above process; but in making its determinations on the totality of that information, the above statutory framework must underpin a tribunal's decision.'

23. In the first substantive paragraph in the statement of reasons which deal with the conditions of entitlement in section 71(1)(a)(i) and 72(1)(b)(i) of the 1992 Act are met, the appeal tribunal, in my view, has adopted an incorrect approach. It noted that:

'… The tribunal recognised that in the course of the day (the claimant) does require more attention in connection with his bodily functions than a normal boy of his age and considered whether this amounts cumulatively to attention for a significant portion of the day, for the purposes of the statutory criteria, which is substantially in excess of the normal requirements of a child of his age. There will be cases which come close to but do not meet this threshold and the conclusion of the tribunal after careful consideration was that this is such a case.'

24. Looking closely at that reasoning, it would appear that the approach adopted by the appeal tribunal was to conclude that (i) the claimant did require attention in connection with his bodily functions than a normal boy of his age (ii) then consider whether this amounted to attention for a significant portion of the day by (iii) applying, in relation to (ii), what it considered to be a statutory test which is that of attention in excess of the normal requirements of a child of his age. The correct approach should have been whether (i) the claimant has a disability with a functional physical or mental deficiency (ii) whether any resultant care needs to which the functional deficiency give rise satisfy any of the paragraphs in section 72(1)(a) to (c) of the 1992 Act and (iii) whether the amount of such requirements was sufficient to satisfy section 72(1A). It seems to me that the appeal tribunal has conflated the second and third stage. As was noted by the Commissioner in CSDLA/535/07, there is no requirement to even consider the 'additional child condition' if the section 72(1)(a) to (c) requirements are not met.
25. As was noted in both CDLA/4100/2004 and CSDLA/535/07 a failure to apply the two or three-stage process in a sequential manner is not fatal to the appeal tribunal's reasoning if, for example, it is clear that the 'additional child condition' will never be met. I am not sure, however, if the appeal tribunal's conclusions in the instant case are as clear-cut as that. In my view, it was, as was noted above, conflating stages two and three. Further the appeal tribunal has added several brief paragraphs which, if read on their own, would appear to be addressing the issue of whether the section 72(1)(a) to (c) requirements are met.
26. In any event, there is another basis upon which the reasoning of the appeal tribunal is problematic. In the written observations on the appeal, Mr Hinton submitted that:

'Whilst the tribunal has the right to reach its own conclusions on the evidence before it, I would contend that evidence presented in the self assessment form and the GP factual report should have merited further analysis and more detailed comment by the tribunal as it gave information pertaining to the possible level of care (the claimant) required.'

27. Having then set out the detail of the evidence which was contained within the self-assessment form and the GP factual report, Mr Hinton submitted that:

'… However I would contend it has failed to explain in detail how it viewed the needs identified in the self assessment form or indeed to explain how or why it concluded that those needs did not exist. It may well be that the tribunal rejected the level of needs in the self assessment form or in the other evidence presented in the papers. Therefore when the evidence has been presented in such a detailed manner it is my contention that it merited more detailed comment from the tribunal. Consequently its reasoning is inadequate in this regard rendering the tribunal's decision erroneous in law.'

28. I agree with Mr Hinton's submission. The self-assessment form is completed in significant detail. Further I have noted that the appointee provided additional evidence to the appeal tribunal in the correspondence dated 12 October 2009 in which she disputed the Department's decision dated 17 September 2009 and in the letter of appeal against that decision. In addition, she had provided the appeal tribunal with further additional correspondence. All of that evidence sets out in some detail the care needs which the appointee submits are resultant on the claimant's disabilities. It is my view that the appeal tribunal has not addressed or assessed this evidence in sufficient detail. It has not made clear to the appointee what it has made of that evidence or why it has not accepted it. If the evidence was rejected then relevant reasons for that rejection have not been set out. The failure to assess evidence which were relevant to the issues arising in the appeal in an adequate manner renders the decision of the appeal tribunal as being in error of law.

The other issues arising

29. As was noted above, Mr Hinton and Mr Hatton submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal failed to apply the principles in the decision of the Court of Appeal of England and Wales in Ramsden v Secretary of State for Work & Pensions which followed the guidance given by the Social Security Commissioner in Great Britain in CSDLA/29/94. Both representatives had also submitted that the decision in Ramsden, in so far as it applied to the issues arising in the present case, should be followed in preference to the decision of Mrs Commissioner Brown in C35/98 (DLA).
30. At the oral hearing of the appeal I asked both parties to provide additional submissions on the following question:

'To what extent does the approach set out in paragraph 9 of R(DLA) 5/05 impact upon the decision of Commissioner Walker in CSDLA/29/94 which was endorsed by the Court of Appeal decision in R(DLA) 2/03, Ramsden v Secretary of State for Work and Pensions [2003]? Commissioner Walker advocated an arithmetical approach when assessing a significant portion of the day whereas R(DLA) 5/05 stated that regarding the requirements of Section 72(1), an arithmetical formula could not be applied to any of the components.'

31. As was noted above, I am grateful for the care and attention which both representatives have taken with the preparation of these additional submissions.
32. It is now clear that I have been able to dispose of the appeal on the basis of my reasoning set out concerning the adequacy of the appeal tribunal's reasoning. Accordingly, I do not have to address the additional submissions concerning (i) the apparent conflict between the decisions in Ramsden, CSDLA/29/94 and C35/98 (DLA); and (ii) the relationship between the decisions in Ramsden, CSDLA/29/94 and R(DLA) 5/05. Having considered the matter further, it is appropriate that I do not make additional comment on the first issue as the resolution of an apparent conflict between a decision of a Social Security Commissioner in Northern Ireland and parallel decisions in Great Britain should be conducted in the context of a case where the issue is extant and relevant to disposal.
33. I would add the following very general comments, however, which, of course, must be read in context. To the extent that there is a conflict in the reasoning of the Commissioner in Great Britain in CSDLA/29/94 and the reasoning of Mrs Commissioner Brown in C35/98 (DLA), I prefer the reasoning of Mrs Commissioner Brown. I accept that the decision of the Commissioner in CSDLA/29/94 was approved of by Lord Justice Potter at paragraph 40 of the decision in Ramsden and that Mrs Commissioner Brown did not have the benefit of the reasoning in Ramsden. It seems to me, however, that the context in which that approval was given was in the proper approach to the meaning of the phrase 'significant portion of the day' rather than whether the assessment of satisfaction of the test should be from the perspective of an attender. I am also not sure whether the Commissioner in CSDLA/29/94 meant that the factor of the disruptive effect of the provision attention on the affairs of the attender was to have such a wide application to be the sole determinate of the test.
34. I am also persuaded by the arguments set out by both Mr Hatton and Mr Hinton in their further post-hearing submissions that the approaches taken in CSDLA/29/94 and R(DLA) 5/05 may not be incompatible. Once again, however, that may require further analysis on another occasion.

My further findings of fact

35. At the oral hearing of the appeal I had the opportunity to take evidence directly from the appointee. I accept all of her oral evidence as being credible and consistent. Her oral evidence accords with the evidence she submitted in the self-assessment form, her letter disputing the decision under appeal and the letter of appeal itself. The appointee's own evidence is supported by the other documentary evidence which has been made available to me. Accordingly, I accept the appointee's evidence as factual and adopt her description of the claimant's requirements for attention in connection with his bodily functions as factual.

My decision in respect of the care component of DLA

36. The claimant satisfied the requirements of section 72(1)(b)(i) and 72(1)(c)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended. I am also satisfied that for the purposes of section 72(1A)(i) of the 1992 Act that the claimant's requirements for attention in connection with his bodily functions are substantially in excess of the normal requirements of a person of his age.
37. Given the claimant's age at the date of the decision under appeal and the possibility that there might be a change in his circumstances as he gets older, I consider that any such award be for a fixed period. I fix that period at three years from the date of claim in line with the award of entitlement to the mobility component which was made by the appeal tribunal.

Disposal

38. The decision of the appeal tribunal dated 16 March 2010 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
39. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.
40. My decision is that the claimant has an entitlement to the highest rate of the care component of DLA for the period from 22 July 2009 to 21 July 2012. The appeal tribunal had made an award of entitlement to the lower rate of the mobility component of DLA for the fixed rate period from 22 July 2009 to 21 July 2012. I have found no error with respect to the appeal tribunal's decision with respect to the mobility component and confirm the award which it made.

(signed): K Mullan

Chief Commissioner

19 July 2012