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[2000] UKSSCSC CDLA_1148_1997 (11 April 2000)

MJG/CW/6

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CDLA/1148/1997

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF A DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER M J GOODMAN


 


1. I allow the claimant's appeal against the decision of the disability appeal tribunal dated 30 September 1996 as that decision is erroneous in law and I set it aside. Having made further findings of fact, and considering it expedient to do so, my decision is as follows:-

The claimant is entitled from and including 6 November 1995 (date of claim) for life to:-

(a) the middle rate care component of disability living allowance because she is so severely disabled physically or mentally that by day she requires from another person frequent attention throughout the day in connection with her bodily functions: Social Security Contributions and Benefits Act 1992, section 72(1)(b)(i);

(b) the mobility component of disability living allowance at the lower rate because the claimant is able to walk but is so severely disabled physically or mentally that, disregarding any ability she may have to use routes which are familiar to her on her own, she cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time: Social Security Contributions and Benefits Act 1992, section 73(1)(d).

2. This is an appeal to the Commissioner by the claimant, a woman born on 18 March 1947, against the unanimous decision of a disability appeal tribunal dated 30 September 1996. That decision was on appeal from a review decision (notified on 13 May 1996) of an adjudication officer, in connection with the claim to disability allowance dated 6 November 1995. That officer's decision was that the claimant was not entitled to either component of disability living allowance. The disability appeal tribunal dismissed the claimant's appeal, so far as concerned the care component but awarded the claimant mobility component at the lower rate from the date of claim, 6 November 1995, to 5 November 1998.
3. The claimant's appeal was originally the subject of a Decision by another Commissioner, dated 3 March 1998. The claimant, with the leave of Lord Justice McCowan, appealed to the Court of Appeal against that decision. On 22 December 1999, the Court of Appeal made the following Consent Order,

"1. The appeal herein be allowed for the reasons set out [in a statement of reasons signed by Counsel for the appellant and the respondent].

4. The decisions of Mr Commissioner - dated 3 March 1998 and the Disability Appeal Tribunal held on 30 September 1996 be both set aside.
5. The appellant's claim for Disability Living Allowance be remitted to a different Social Security Commissioner."
6. The statement of reasons for the Consent Order recited that the disability appeal tribunal had not given adequate reasons in connection with their rejection of the claim to the lowest rate care component, on the basis that the claimant could not "..prepare a cooked main meal for [herself] if [she] has the ingredients" (Social Security Contributions and Benefits Act 1992 Section 72(1)(a)(ii)). At the hearing before me on 4 April 2000 (see below), it was conceded on behalf of the Secretary of State that the claimant did in fact satisfy the "cooked main meal" test and was therefore entitled to the lowest rate of care component. However, in view of my decision that she is in fact entitled to the middle rate care component, that concession is not material to this decision.
7. In pursuance of the Court of Appeal's Order of 22 December 1999 (see above) the appeal was reheard by me on 4 April 2000. The claimant was not present but was represented by Mr R. Drabble QC and the respondent Secretary of State was represented by Ms A. Main Thompson of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Mr Drabble and to Miss Main Thompson for their assistance to me at the hearing.
8. At the outset of the hearing I pointed out that the Court of Appeal had not only set aside the decision of Mr Commissioner Howell (dated 3 March 1998) but had also set aside the decision of the disability appeal tribunal (dated 30 September 1996) and yet had remitted the case to a different Social Security Commissioner". The jurisdiction of the Commissioner is appellate only, in this area, and is not a first instance jurisdiction. That jurisdiction, and in particular the fact finding jurisdiction under section 23(7) of the Social Security Administration Act 1992 depends on the Commissioner holding that the decision of the tribunal below (in this case the disability appeal tribunal) "was erroneous in point of law" (ibid.). The parties were anxious for the case to proceed before me. I suggested to them that I should myself also set aside the decision of the disability appeal tribunal as erroneous in law, since I agree with the reason on which the Court of Appeal's Order was based (cooking main meal - see above). That would give me the necessary jurisdiction under section 23 of the 1992 Administration Act. Mr Drabble and Ms Main Thompson accepted this suggestion and my decision in paragraph 1 above reflects this. I appreciate that it could be said that the disability appeal tribunal's decision having been set aside by the Court of Appeal there is nothing left for me to set aside. However, with respect, it would seem that the setting aside by the Court of Appeal of the DAT's decision may have been per incuriam and I am willing to proceed on the above basis.
9. The question of the mobility component was not really in issue and I deal with that later in this decision. The only contention was whether or not the claimant is entitled to the middle rate care component of disability living allowance. It was conceded (see above) on behalf of the Secretary of State that she is entitled to the lowest rate of care component because of her inability to cook a main meal. It was not contended on her behalf that she satisfied the "night" requirements of section 72(1)(c) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Benefits Act").
10. As to the facts of the case, the summary by the adjudication officer for the tribunal stated that the claimant "has chronic anxiety and panic attacks, agoraphobia, and long term mental health difficulties". That description was in fact given by her then community staff nurse Mr RJM. It is also stated in the documents that she has suffered or is suffering from a "paranoid type illness".
11. The disability appeal tribunal of 30 September 1996 (before whom the claimant did not appear) accepted the adjudication officer's summary of the appeal and then made their own findings of fact as follows;

"There was no further evidence in relation to [the claimant's] personal care needs by day or night. There was no evidence indicating that [the claimant] is unable to prepare a cooked main meal. It was accepted that [the claimant] may have to be motivated in order to do so. There was no evidence that [the claimant] is unable to walk, and it was not argued that she was unable. [The claimant's] agoraphobia is such that she cannot go out of doors without guidance or supervision. The assistance provided is far in excess of being encouragement. The disability appeal tribunal accepted [the social services' witness Mr DP's] evidence that since the provision of guidance and supervision for [the claimant], progress is being made."

12. At the time of the proceedings before the Court of Appeal, there was prepared a lengthy and detailed statement by the claimant (dated 21 October 1999). This statement was the subject of a detailed psychiatric report by Dr D.B., MRCGP, MRC Psych., MPhil, a Psychiatric Consultant and Senior Lecturer in forensic psychiatry. Dr D.B. did not see or examine the claimant. These documents were the subject of considerable quotation and analysis at the hearing before me. I have taken into account what was said about these documents, as well as the entirety of their contents. I have also taken into account the extracts from the 10th edition of the "International Classification of Disease", Chapter 5, "Mental and Behavioural Disorders". They give a detailed account of "phobic anxiety disorders" "agoraphobia" "social phobias" and "depressive episodes". That classification etc., was referred to in detail in the Consultant's report.
13. In her statement, the claimant gives details of "Contact with other people" including the fact that "I do not see many people". She gives details of those persons to whom she speaks on the telephone, for example her friend Judy of whom she says "..we speak twice a day on the telephone - she rings me once and I ring her once". She also phones a befriender Andrea "when I am feeling panicky". She phones Tom from MIND about once a week and used to phone her Welfare Rights Worker from time to time until he moved to London. She concludes as follows,

"The telephone is extremely important to me. I would say that I speak to someone at least 6 times a day, at different times, although sometimes it is more than this. The calls might take between half an hour and two hours in total. I get some contact every day. Most of it is over the phone at the moment". She also states, "I ring the Samaritans about twice a week. I am not presently suicidal but I call them for someone to talk to. I find that ringing them at night helps me to go back to sleep".

14. Under the head "Reassurance and Encouragement", she states,

"All the people with whom I have regular contact give me a great deal of reassurance and encouragement. I do not think I could manage without them and fear I might attempt suicide again. I think I would really go downhill. Indeed, I think my isolation feeds my paranoia. Certainly, I do not feel safe on my own, although I have never been burgled. If I am having a panic attack, most times speaking to someone helps to calm me down. They might tell me 'it's OK and go and make yourself a cup of tea'. They encourage me to get up. Judy encourages me to eat properly. After speaking to her I will sometimes cook. She encouraged me to eat kiwi fruit recently. I believe that if I had more contact from other people, it would help. I find life very difficult. The reassurance they are able to give me makes it a bit easier. It makes me feel more secure, or normal. People tell me that I am not different from other people and that helps (I feel myself to be very inadequate). They tell me not to worry. They also tell me I am being paranoid which also helps. The contact puts me on the right track. The telephone is particularly important to me. I am comfortable on the phone and get information via it. However, I worry about the bills. I put about £10 a week aside. Even then sometimes I am afraid to make the calls I would like to [make]".

15. Leave to appeal to the Court of Appeal was given by Lord Justice McCowan, who gave the following reasons for granting leave,

"Since the case of Mallinson v. Secretary of State for Social Security, the view seems to have been accepted by the Commissioners for Social Security that encouragement by a spouse living with the claimant to cook, eat or wash can constitute 'attention' within the statute. In the present case, however, some of the encouragement was over the telephone and the Commissioner held that encouragement over the telephone is not of a sufficiently close personal or intimate nature to qualify as 'attention'. I can see that the view might be taken that the line has to be drawn somewhere and that the right place to draw it is at actual presence. On the other hand I think it very arguable that there is no logical distinction between encouragement of that nature given in person and on the telephone. In consequence I am of the view that the applicant has a realistic prospect of success in an appeal to the Court of Appeal."

As things have turned out, the Court of Appeal itself has not expressed a view on the particular point as the proceedings were disposed of by way of a Consent Order based only on the cooking test (see above). Nevertheless I consider that I am entitled to take into account the above-cited reasons of McCowan L.J.

16. The question therefore for me to decide is whether the claimant "is so severely disabled physically or mentally that, by day, [she] requires from another person..frequent attention throughout the day in connection with [her] bodily functions". (1992 Benefits Act, s.72(1)(b)(i)). It was rightly conceded at the hearing before me by both Counsel that the claimant was severely disabled mentally. I therefore have to decide whether that causes her to "require" from another person "frequent attention throughout the day in connection with [her] bodily functions"
17. Ms Main Thompson for the Secretary of State contended that the symptoms of the claimant's mental disablement, such as panic attacks, fear of going outside and staying in bed all day were not "in connection [her] bodily functions" but were rather "cognitive" functions; that in any event reassurance etc., given on the telephone could not constitute "attention" in law; and even if it were otherwise such attention was not "frequent". Mr Drabble contended to the contrary in all three respects. Both Counsel referred me to the decision of the Court of Appeal in R v. National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 W.L.R. 1017 (the "Packer case") and the decisions of the House of Lords in Mallinson v. Secretary of State for Social Security [1994] 2 All E.R.295 and in Cockburn v. Chief Adjudication Officer; Secretary of State for Social Security v. Fairey (also known as Halliday), [1997] 3 All ER 844. I was also referred by Ms Main Thompson to two unreported Commissioners' decisions on files CA/022/93 and CSA/389/97 respectively.
18. The first question for me to consider is whether the 'assistance' (to use a neutral word) given to the claimant over the telephone could in law constitute on the facts of this case assistance with her "bodily functions". In the Mallinson case Lord Woolf said, [1994] 2 All E.R. at 306),

"In the case of mental, as opposed to physical, disabilities the position would usually be different. If a mental disability is not serious it will be a case of a supervision, which if it is to qualify must meet the requirements in the second limb of the section. However, a severe case of mental disability may well require attention with a wide range of independent bodily functions as opposed to primarily one function".

19. In the Cockburn/Fairey case Lord Slynn said, [1997] 3 All E.R. at p.858,

"Although movement of the limbs (including their use for walking and running) is a bodily function, so also in my view is the operation of the senses. The reception of sound is communication to the brain and the brain's 'instructions' to the limbs or other parts of the body to act or refrain from acting are all as much bodily functions as the movement of the limbs and the actions of the digestive or excretory organs".

Lord Slynn then cited with approval Dunn L.J. in the Packer case, who said, [1981] 1W.L.R. at p.1023,

"To my mind the word 'function' in its physiological or bodily sense connotes the normal action of any organs or set of organs of the body, and so the attention must be in connection with such normal actions."

20. Applying those dicta to the facts of the present case, the claimant in my view reasonably requires assistance to enable her to live her daily life, including exercise of her arms and legs to any purpose. When she has a panic attack or an attack of agoraphobia or social phobia she is in a sense 'paralysed' being afraid to move or even indeed to get out of bed. I do not accept that these are 'cognitive' functions The activity (or lack of it) is nothing to do with thinking, analysing mentally, or intellectual processes. It is rather a complete near-paralysis of will and action brought on by her severe mental disablement. The medical evidence, including the consultant psychiatrist's report, shows that as well as drug therapy (which can only be given for a limited time because of the tendency to addiction) the accepted medical treatment for such phobias and anxiety neurosis is conversation with, and encouragement and exhortation by the claimant's fellow beings, both lay persons and those who work in the medical field such as community psychiatric nurses. Without that assistance, there is in my view no doubt that the claimant would rapidly go downhill and be at considerable risk of injuring herself or indeed of suicide. She would, moreover, have no quality of life at all. I have no hesitation in finding therefore that on the facts of this case the claimant's bodily functions are in issue and such assistance as is given to her is in connection with those bodily functions.
21. I therefore now turn to the question whether encouragement, exhortation, or just conversation (inter alia) over the telephone can constitute "attention" within section 72(1)(b)(i) of the 1992 Benefits Act. Ms Main Thompson contended that conversations on the phone could not in law constitute "attention" but were merely guidance. She contended that "attention" must be something more active and in particular must be given in the presence of the claimant. She cited Lord Goff in the Cockburn/Fairey case [1997] 3 All ER at page 847, where he said,

"..The relevant service rendered to Mrs Cockburn by her daughter was dealing with the laundry, generated by her mother's incontinence, after she had taken the laundry away from her mother's flat. Lord Mustill has concluded, and in this I respectfully agree with him, that a service of this kind cannot constitute such 'attention' because, having regard to the [statute] and the purpose which it is intended to fulfil, the activities must be performed while in attendance on the applicant, i.e. in the applicant's presence..Obviously, the requirement of presence has not to be applied too strictly, because attention of this kind may inevitably involve brief absences from the dependant person; but it marks a characteristic of attention which is required, and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention."

22. Lord Mustill in the same case said, [1997] 3 All ER at p.850, of the laundering work done elsewhere by the claimant's daughter,

"But the work must also be 'attention', and it is attention which the claimant 'requires'. Whether in some senses of the word it may be possible to furnish attention to someone without being physically proximate I think it unnecessary to decide. But looking at [the section] as a whole and at the purpose which I believe it is intended to fulfil, I cannot escape the conclusion that all the activities comprising the 'day attendance condition' must be performed whilst the other person is in attendance on the applicant: i.e. in his or her presence."

23. In the same case (Cockburn/Fairey) Lord Slynn (who dissented only on a point not relevant to the present appeal) said, [1997] 3 All ER at p.859,

"Providing someone who can explain or translate normal conversation, or radio or film speech, is different from providing physical guidance by an arm. It seems to me, however, that it is also capable of constituting 'attention'. It is the one, or the principal, way in which messages to the brain normally conveyed through hearing can be conveyed by alternative means."

24. At [1997] 3 All E.R. p 863 Lord Slynn is reported as saying,

"In considering these cases it is important to bear in mind that the 'care component' of the attendance allowance is concerned with 'care' and with 'attention'. The question in each case is whether the particular activity said to be 'attention' is reasonably required by the individual because of the severe disability affecting the relevant bodily function and is reasonably required in connection with that function. This function must be answered as a whole and I do not think that it helps to adopt particular categories which cannot ever be capable of constituting 'attention'."

25. I have considered those statements and indeed the whole of the Reports of Mallinson and Cockburn/Fairey. I emphasise that I am of course bound by the rationes decidendi of the decisions of the House of Lords and the Court of Appeal. The speeches of Lord Goff and Mustill in the Cockburn/Fairey case do of course seem, initially, to impose a requirement that attention can be given only in the physical presence of the claimant. That would mean of course that instruction, guidance, supervision encouragement exhortation etc., given over the telephone could not constitute "attention", unless one takes the telephonic reproduction of the voice as being in the claimant's presence. However, I accept Mr Drabble's submission that these dicta must be read in the light of the facts of the Cockburn case where their Lordships were anxious to show that the washing of an incontinent mother's dirty bed linen by the daughter at her own house and away from the mother's dwelling could not constitute attention. That I must accept but I also note that Lord Mustill left open the general question whether physical presence was always necessary for attention in the general sense. Moreover, Lord Justice McCowan, when giving leave to appeal in this case, added that it might be arguable that there was no difference between such assistance given over the telephone (in a one-to-one conversation) and given physically by conversation with the claimant. It is, I believe, well accepted in medical circles that any kind of conversation with another person is beneficial to a person who suffers from the kind of mental disablements to which the claimant is subject. A fortiori, guidance, supervision, encouragement etc. Will also be of medical assistance. I therefore conclude that, in law, conversations by the claimant with others over the telephone, whether conversations initiated by her, or by other persons telephoning her can in law constitute "attention" within the meaning of the statute. Moreover, on the facts of this case, I conclude that they are "attention".
26. I must therefore turn to the question whether such attention is "frequent" on the facts of this case. Ms Main Thompson contended that it was not. She pointed to the fact that the claimant says in her statement that the most that she could be on the telephone in any given day was two hours spread over some 6 telephone calls at different parts of the day, Ms Main Thompson contended that that was not "frequent". I should also point out at this juncture that, in connection with all her arguments, Ms Main Thompson drew attention to the fact that the claim pack completed by the claimant herself did not appear to lay such stress on the need for communication by telephone. However, bearing in mind that the claimant is not well educated and her state of mind, I do not think too much emphasis can be placed on this.
27. Whether the attention was or was not "frequent" involves a mixed question of law and fact. As to the law, my attention was drawn by Mr Drabble to the annotations to section 72 of the 1992 Benefits Act, to be found at page 25 of the 1998 Edition of Rowland, "Medical and Disability Appeal Tribunals. The Legislation". The learned author cites Lord Denning's dictum in the Packer case that "frequent" connotes "several times - not once or twice". He also cites unreported Commissioners' decisions CA/147/84; CA/281/89; and CA/140/85. I have borne in mind that section 72 does not say that what must be looked at is the actual amount of attention given to the claimant but what attention the claimant "requires". That has been held to mean "reasonably required" and, moreover, required in the general sense, not in a restricted medical sense. In my view on the facts of this case, undoubtedly the attention by telephone conversations that the claimant requires is "frequent". The claimant's condition is not just a simple attack of mild to moderate depression or of moderate or transient anxiety. On the contrary, she has been severely mentally ill for many years. Unfortunately the Consultant's Report states that she is likely to continue to be so without any improvement. That is why I have made the awards in paragraph 1 of this case for life and not limited them in time, as did the original tribunal in relation to the mobility component.
28. So far as the mobility component is concerned, I am content to accept the concurring submissions of both Counsel that the tribunal's award of the lower rate of mobility component was correct. However, instead of merely awarding it for 3 years, I have decided in the circumstances that it should be granted to the claimant from the date of claim for life. If contrary to the latest psychiatric report the claimant's mental condition improves, then it is always possible for there to be a review of this award.
29. I should stress that my actual awards in this case depend entirely on the exceptional nature of the facts of this case. The claimant's statement and the Consultant's Report based on it show that the claimant has chronic and severe mental illness. It has caused her on more than one occasion to be hospitalised. Unhappily, many members of the population suffer from time to time from depression, anxiety, panic attacks etc., and may have to seek medical attention for these conditions. But my decision is no warrant for automatic awards to them of either component of disability living allowance or, if they are 65 or over, of attendance allowance. Each case must depend on its own facts. It must be borne in mind that each of these allowances are what Lord Mustill described in the Cockburn/Fairey case as a "tightly constrained non-contributory benefit". ([1997] 3 All E.R. at p. 850).

(Signed) M J Goodman

Commissioner

(Date) 11 April 2000