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[2003] UKSSCSC CSDLA_65_2003 (06 October 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

1. The decision of the Glasgow appeal tribunal (the tribunal) held on 18 October 2002 is wrong in law. I set it aside and refer the case to a differently constituted tribunal for determination.

Background

2. The appeal relates to a renewal claim for disability living allowance (DLA). The previous entitlement of the appellant was to the higher rate of the mobility component of DLA (higher mobility) and to the highest rate of the care component of DLA (highest care), in each case from at least 4 April 2000 to 3 April 2002.
3. The appellant was registered blind in 1983 due to a detached retina. It appears undisputed that at the time of a visit by an examining medical practitioner (EMP) on 1 February 2002, he had lived in the same house for thirty-four years.
4. The appeal papers contain a mobility allowance medical report dated 1 April 1992. The date of the claim is ticked as being 17 February 1992 and there is no tick in the box marked "renewal claim". The doctor was of the opinion that the appellant was virtually unable to walk from the date of the claim, 17 February 1992, and that that was likely to continue for two years. There is no information on the subsequent claim history until April 2000, but in the lack of that one may assume that he has received mobility allowance or higher mobility continuously from 1992.
5. The appellant told the doctor on 1 April 1992 that he could walk ten yards and then would have to stop because of pain. He had a lumbar disc problem as well as cervical spondylosis, in addition to his blindness. It was the doctor's opinion that the appellant would only walk forty yards out of doors without severe discomfort, taking five minutes with about three halts because of lumbar pain.
6. In the renewal claim in issue before the tribunal, the claimant said this about his physical problems with walking out of doors:-

"I am registered blind and have no vision whatsoever. Consequently I need support and guidance at all times to move about indoors and outdoors. I also have osteoporosis and this affects my knees and impedes my ability to walk."

He added that he would feel severe discomfort after ten metres/yards and that it would take him three minutes on average to walk that far.

7. The first claim form in the appeal papers relevant to the care component is one received by the Department on 15 May 2000. This resulted in a supersession decision by a decision maker (DM) making the award referred to above at paragraph 2. I am unsure whether this was the first application with respect to care needs.
8. In the claim received 15 May 2000, the appellant stated that he required assistance when moving about indoors, getting up from his chair, on stairs, getting in and out of bed, when he was in bed to make sure his pillows were in position, being taken to the toilet by day and by night, getting in and out of the bath and help with drying his arms, help to dress and undress, to prepare a cooked main meal, to cut up his food, to read the paper to him and any correspondence, with medication (and that might include during the night) and someone generally to keep an eye on him. Some of these difficulties he attributed to his blindness and others to pain in his limbs. The general practitioner (GP) endorsed the 2000 claim form by confirming the appellant's blindness and noting that he had osteopenia of the cervical spine which "can be associated with neck pain and arm pain".
9. In the renewal claim, the appellant described essentially the same situation so far as care needs are concerned. This time, however, the Department commissioned the EMP report already referred to. The appellant was seen with his wife.
10. The appellant emphasised that after only twenty yards walking his knees became very painful. He used a white stick and walked slowly. He accepted he could toilet himself but reiterated a requirement for help on the stairs when using the toilet during the night. He said that he needed all correspondence read to him and any replies written and that his wife administered his medication. He now said he could get out of bed himself and did his best to wash his own face but his wife had to help him move about the house because he became disorientated, especially if he had been asleep, and needed his wife's help in dressing and in getting in and out of the bath because his joints were so sore.
11. The EMP observed the appellant go up and down the stairs holding the handrail, rise from his chair and walk around his home and climb on and off the bed, all of these tasks unaided, although it was noted that:-

"He was rather slow and hesitant, feeling his way around and through doors".

12. The EMP accepted a very restricted range of movement of both shoulders causing substantial impairment of function but otherwise found full function of all limbs, in particular noting that there was a full range of movement of all other joints and no evidence of muscle wasting and no gross evidence of arthropathy of the knees. The EMP found no evidence of disorientation and commented that the appellant:-

"…exhibited a degree of uncertainty and hesitancy, not expected of someone who has lived in his house for thirty-four years – blind in the last nineteen."

13. The EMP considered that the appellant was unlikely to experience any severe discomfort when walking. He would however require guidance out of doors due to his blindness. The EMP accepted that the appellant would need help in cutting up food, in some of the tasks essential for preparing a main meal, with medication and with reading and writing. He further accepted that the appellant would have difficulty handling hot utensils. Otherwise, it was the EMP's opinion that the appellant could safely carry out the usual activities and there was no clinical evidence to support a history of falling.
14. On 20 February 2002, the adverse decision by a DM under appeal to the tribunal was made. An award of the lower rate mobility component of DLA (lower mobility) and the lowest rate care component of DLA (lowest care) was made on an indefinite basis from 4 April 2002.
15. The appellant's wife, in correspondence which was before the tribunal, took issue with the adverse decision on various points. In particular she maintained that supervision was still required on a constant basis because things are always changing within a house and that his sleep pattern was very disrupted so that food and drinks might be required in the night as well as in the day. She and her husband attended the hearing and were represented by Mr Kelly, a Welfare Rights Officer with East Dunbartonshire Council. The appellant said that he often went out visiting by car, and that walking out of doors he used his cane and his wife's arm. He mentioned that his wife looks after the medication but no reference was made to any help with written material being read to him.

The tribunal decision

16. The tribunal confirmed the decision under appeal to it.
17. The tribunal's statement which, to give credit to the tribunal, was a detailed one, included the following:-

"3. With regard to the appellant's ability to walk, there is no physical reason (apart from his blindness) why his walking ability should be anything but normal for a man of his age.

4. With regard to his care needs, the tribunal find that the appellant would need assistance on a daily basis with dressing in the morning and undressing at night due to his arthritic shoulders. A reasonable estimate of the time taken on each occasion would be 5 minutes. He may require assistance in cutting up food, a reasonable assessment of the time taken being at most 3 times a day for less than a minute on each occasion. That assistance is required due to his blindness. He cannot cook a main meal. He may require assistance once per day to wash and dry parts of his body due to his arthritic shoulders. A reasonable assessment of the time required is 10 minutes per day. He does not reasonably require any other care during the day. He does not reasonably require any other attention or supervision during the day or night. He does not require any supervision day or night in order to avoid substantial danger to himself or others.

………

7. The reasons for the appeal tribunal's decision are as follows. As regards the mobility component the tribunal were mystified as to why the appellant should have a physical problem with walking. The only explanation advanced was the problems with his knees. However, there is no diagnosis of any physical problem with his knees. The clinical examination by the EMP revealed no defect whatsoever. Indeed, the EMP concluded that there was no clinical sign that the appellant could not walk normally or did not walk normally. The tribunal note that the appellant claims a maximum walking ability of 20 yards at a time before having to stop because of discomfort. The tribunal also noted that the appellant was rather vague as to whether his GP was aware of this difficulty. The tribunal considered that if such a difficulty had truly existed to the extent claimed, the appellant would have sought advice and treatment from his GP for it. However, apart from some physiotherapy 2 or 3 years ago, no treatment has been sought or given. The tribunal considers that either the appellant is unconsciously exaggerating his account of his walking ability or perhaps is confusing the limitations on walking imposed by his blindness (for which the lower component is now payable) with his assessment of his ability to walk apart from that disability. The tribunal accepts the EMP's assessment of the appellant following physical examination being that there are no observable clinical reasons for impairment of the faculty of walking and the EMP's assessment that the appellant's account of his walking ability is inconsistent with the clinical findings. Unfortunately, the EMP made no specific assessment of distance. The tribunal conclude that as the appellant can walk normally for a man of his age (disregarding the effect of his blindness) he is not virtually unable to walk. The tribunal did not accept he had any balance problems associated with his blindness.

8. As regards the care component, standing the findings made at paragraph 4, above, the conditions for the middle rate care component are not satisfied in respect of the day conditions since the appellant does not require "frequent attention throughout the day in connection with his bodily functions." The tribunal find that although attention was required for several short periods during the day, those periods amounted to a significant part of the day (qualifying the appellant for the lowest rate), rather than attention "throughout" the day which is the test for the middle rate. The tribunal did not accept any of the appellant's evidence that he required supervision in order to avoid substantial danger.

He has been blind for 19 years. He has lived in the same house for all that time. He knows the house well. He has no mental impairment. He can go up and down the stairs unaided as in fact the EMP observed. It may be that his family are over-anxious and protective of the appellant and do in fact supervise the appellant. However, the tribunal conclude that there is no objectively justifiable requirement for supervision during the day in the house. When out walking, which the appellant does fairly infrequently, he requires guidance for which the lower mobility component is in payment. It cannot be said that the appellant requires supervision throughout the day in respect of any supervision he may require outdoors. The tribunal did not accept that during the day the appellant had any other care or supervision needs. In particular, the appellant can shave himself using an electric razor and there is no need for anyone else to shave him using an open razor. Since the tribunal find he can move around the house unaided, it follows he does not require assistance walking to the bathroom. Once in the bathroom he can attend to all his own bodily functions. He does not reasonably require help getting in and out of bed.

9. At night the appellant may wish to get up from time to time. He can do so unaided. He does not require help or assistance or supervision of any kind to do so. Since he can move around the house unaided during the day he can do so at night. Although the appellant's wife may sometimes get up with him at night and drink coffee with him, that is not assistance or supervision reasonable required for the purposes of qualification for DLA."

Grounds of Appeal

18. As noted by the Secretary of State in a written submission, the claimant's grounds of appeal are essentially that he disagrees with the tribunal's estimate of the supervision and attention that he requires by day and night. In granting leave, I asked the Secretary of State also to consider CSDLA/590/00, R(A) 3/94 and R(M) 1/96. The Secretary of State does not support the appeal.

Oral Hearing

19. The case came before me at an oral hearing on 2 October 2003. The appellant remains represented by Mr Kelly and the Secretary of State was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General. I am genuinely grateful to them both for their contributions to a very helpful debate.

My conclusion and reasons

CSDLA/590/00: frequent attention throughout the day (middle rate day attention)

20. At paragraph 43 of CSDLA/590/00, I said:-

"….the episodes of attention, even if brief, should arise very often over the course of a whole day. Different kinds of reasonably required attention are included, whatever their length (provided not de minimis), and irrespective of whether the spread is uneven or that some acts of attention may seem more important than others. But to justify middle rate day attention it seems essential that appropriate help is needed very often over the course of the whole day, whereas such occurrence and pattern has no relevance to lowest rate day attention".

21. Similarly, in R(DLA) 10/02, at paragraph 33, I said:-

" 'Throughout' means across the whole span of the day. Individual episodes may only be brief but it is the frequency and pattern of the attention which is important. Only if the claimant reasonably requires attention with her bodily functions, very often across the whole span of the day albeit each episode may be short, will he/she qualify for middle rate care through the attention route."

22. Mr Kelly argues that the tribunal did not adequately explain to the appellant why the accepted acts of attention were not 'throughout the day'. Mr Brown submitted, however, that the explanation was implicit in the tribunal's findings set out at paragraph 4 of its statement (see my paragraph 17 above). The tribunal found that he only requires help six times a day and two at least of those times are in the morning and at night. It was enough then for it simply to conclude that 'attention was required for several short periods during the day' which did not amount to 'throughout' the day.
23. I prefer Mr Kelly's submission. Nowhere does the tribunal consider when the accepted needs occur during the day and thus the required distribution of help. The dictionary definition of 'during' gives two meanings. The first is 'throughout the whole continuance of' and the second is 'in the course of'. Standing this, to say that 'several short periods during the day' does not equate with 'throughout the day' is ambiguous, particularly starting from the premise that the total time involved is relevant only to lowest care. Presumably the tribunal was using 'during' in its second sense, that the several short episodes were only needed at some points in the day and not across the whole span, but without any specification of how the required assistance would be reasonably spread its conclusion cannot be analysed.
24. In CA/140/1985, the Chief Commissioner held a decision to be erroneous in law, basically because it was found that a blind claimant required help with dressing and undressing and with food being cut up, yet without investigating the real pattern of those needs it was concluded that he did not qualify. It had been assumed that help was only required with dressing in the morning and undressing in the evening and with eating and drinking in three meals each day, without clarifying whether he needed help with dressing and undressing at other times, for example when going out, or with food or drink outwith the ordinary three meals a day.
25. Mr Brown may be right that there are practicable aids, not considered in this case, which could help a blind person, for example to make a hot drink for himself. The issue is what help from another person is reasonably required and if the need could reasonably be obviated by the use of an aid, then it no longer remains relevant. But on the case accepted by the tribunal, I cannot be satisfied that the middle rate day attention test was properly applied. For this error of law, the tribunal decision must be set aside.

Adequacy of facts and reasons

26. A major difficulty, connected with the above, is that the tribunal did not address the full case put. I disagree with Mr Kelly that the tribunal failed to address the points relevant to higher mobility. The tribunal cannot detail all the evidence and may expect an informed reader, who has read all the appeal documentation. If a claimant is represented, it may be assumed too that the representative has explained the relevant law as well as pointing out pertinent facts.
27. Against that background, the explanation for the refusal of higher mobility was sufficient, even in the context of a renewal claim. The appellant had previously relied upon pain in his back in addition to blindness. The representative would have explained to him that the test for higher mobility is an ability to put one foot in front of the other. The appellant now advanced a problem with his knees but that was rejected by the tribunal on the basis of the clinical findings. The claimant would in no way be in the dark about why he previously was held to satisfy higher mobility but no longer did so.
28. Although the tribunal does not say so expressly with respect to care, as it does with mobility, the implication of its statement is that it accepts the EMP's assessment on his care needs. On that basis, and as it had formed part of the appellant's case (certainly in the relevant claim form) that he required help with reading and writing, and with medication, all of which the EMP accepted, then findings by the tribunal were necessary on this and how they fitted into the frequency and pattern of the need for attention. Inevitably there will be a variation in the reading needs from day to day so that a tribunal has to reach a judgement, after balancing all the possibilities, on how much help with reading is needed each day. But the tribunal erred in law by failing to investigate and then to make and record clear findings of fact on these important care matters.

R(A) 3/94

29. The tribunal accepted that the appellant required guidance when walking out of doors, though it did not specify if this was only on unfamiliar routes. But it did not attempt to clarify how far this might also assist his attempt to establish sufficient overall attention needs to justify a higher rate of care, in addition to qualifying him for lower mobility.
30. The tribunal thereby clearly erred by failing to take account of the decision of the House of Lords in Mallinson v Secretary of State for Social Security (Mallinson) reported as an appendix to R(A) 3/94. Nor do I agree with Mr Brown that the case does not take the appellant much further forward. It may not in practice (depending on the findings in his particular case) but in theory it is a very important case, both in identifying the bodily function primarily impaired in the case of a blind person as that of 'seeing', and in underscoring the need to categorize correctly the constituents of an activity as either 'attention' or 'supervision'.
31. In Mallinson, the House of Lords held that attention is in connection with a bodily function, if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired. Therefore, reading to a blind man or guiding one with that disability is attention in connection with the bodily function of seeing. Findings are therefore required on the extent to which a person with a sight handicap actually and reasonably requires assistance to enable him to do what he could physically do for himself if he had sight. As Lord Woolf put it:-

"If, for example, a person with a sight handicap receives correspondence, someone has to read their contents to him if he cannot read them for himself. That I would regard as being the active personal assistance which constitutes the attention which a normal person does not require which the sub section demands."

32. Later in his judgement, Lord Woolf continued:-

"If guiding a person who is blind can be attention in connection with bodily functions, then it does not cease to be attention because the attention is only required in limited circumstances as, for example, when the blind person is walking in unfamiliar as opposed to familiar surroundings. It will usually be the case that, as a person who has the misfortune to lose his sight learns to cope with his disability, the circumstances in which he may need attention will progressively diminish. Initially, he will probably need attention both inside his home and in public with walking, and likewise with reading until he learns to 'read' Braille. As he learns to cope with his disability his needs will be less. However, in those situations when he is still dependent upon help he will require attention. This may mean that he no longer receives 'frequent attention throughout the day' and if this is the case he will not qualify for the allowance because the attention is infrequent, not because the nature of the attention has changed. The section in its first limb provides two safeguards against being applied too broadly: the need for the attention to be frequent throughout the day; and the need for it to be in connection with bodily functions."

33. The circumstances of this particular claimant's case had to be evaluated and his reasonable requirements objectively determined. The appellant and his wife maintain that he requires guidance in familiar and unfamiliar places out of doors and even when he is moving around his own home. The fact that blind people usually adapt and are able to move around familiar places, at least with the use of a cane, is evidentially relevant to the accuracy of the points made on behalf of the appellant. The tribunal took the view that the family were over protective. However, it may be that an appellant genuinely cannot adapt to his blindness and in that case the principle of 'taking the claimant as you find him' must apply.

R(M) 1/96

34. The crux of the reasoning about when, and why, there is a need to refer to an earlier award is in the following paragraph:-

" 16. Relating this to attendance or mobility cases, if a tribunal, in a decision otherwise complying with the requirements as to giving reasons and dealing with all relevant issues and contentions, records findings of fact on the basis of which it plainly appears that the conditions for benefit are no longer satisfied (e.g. a substantial reduction in attendance needs following a successful hip operation, or the claimant being observed to walk without discomfort for a long distance) then in my judgment it is no error of law for them to omit specific comment on an earlier decision awarding benefit for an earlier period. Their reason for a different decision is obvious from their finding. In cases where the reason does not appear obviously from the findings and reasons given for the actual conclusion reached, a short explanation should be given to show that the fact of the earlier award has been taken into account and that the tribunal have addressed their minds for example to any express or implied contention by the claimant that his condition is worse, or no better, than when he formerly qualified for benefit. Merely to state a conclusion inconsistent with a previous decision, such as that the tribunal found the claimant "not virtually unable to walk" without stating the basis on which the conclusion was reached, should not be regarded as a sufficient explanation, and if the reason for differing from the previous decision does not appear or cannot be inferred with reasonable clarity from the tribunal's record, it will normally follow in my view that they will be…..in error of law."

35. R(M) 1/96 illustrates the general principle that what amounts to an adequate standard of reasoning must depend upon the particular circumstances of the case. That this is a renewal claim is one of those particular circumstances. In that context, therefore, adequacy will require an explanation of why the tribunal has reached a different decision, unless the tribunal's primary findings and conclusions on the current period are such that the claimant cannot doubt why a different decision has been reached. In R(M) 1/96, Mr Commissioner Howell QC found that a tribunal had failed to make and record clear findings of fact on the basic constituents of entitlement and so the point was never reached of considering whether it should also have explained why it was not renewing the previous award. The same applies in this case. I therefore comment on R(M) 1/96 only for the purpose of guidance to the new tribunal.
36. Initially, there seems to be a logical conundrum here. Either a tribunal does, or does not, make proper findings of fact to underpin its decision. If the former, how can the R(M) 1/96 duty, to address renewal unless the findings are sufficiently obvious, ever arise? If the latter, what does the duty add? The answer is that what has to be obvious is why the previous award is not being renewed. This is subtly different from a stand-alone determination on current entitlement.
37. A tribunal's findings may be such that any other determination but the one it makes would be perverse. As in the example given by Mr Commissioner Howell QC, in paragraph 16 of R(M) 1/96 set out above, if a tribunal finds that a claimant is able to walk a long distance without severe discomfort (and it seems implicit that time, manner and speed are acceptable) then the only legally possible determination is that he does not presently satisfy the statutory criteria on virtual inability to walk. In such a case it can fairly be said that the findings make obvious why the claimant does not succeed at the same level as before, so that reference to the prior award is rendered otiose.
38. In other situations, opposite but legitimate conclusions on entitlement may be drawn from identical primary facts. For example, a claimant is limited to walking 50 metres out of doors by severe discomfort, a distance which it takes him a minute to walk and with a marked limp; this is a borderline case and a judgement either way is within the bounds of reasonableness so that it is unlikely to be overturned on that basis. But if the tribunal is taking a different view, where the claimant previously succeeded, it follows that an aspect of its overall duty to provide adequate reasoning then necessitates lucidly pointing all this out.
39. Moreover, the precise basis on which a previous award was made is often not clear, because it was given by a DM who provided no reasons. A tribunal may disagree with the earlier outcome given the evidence then available to the DM, perhaps because there was no medical endorsement and it is thought that a claimant's disablement does not justify the asserted needs, or because those asserted needs are considered insufficient to warrant the award made, having regard to the statutory criteria. It may be that the evidence substantiating the previous award is no longer available, or that subsequent evidence throws doubt on it. In all these instances, adequacy of reasoning may well require an explanation of how a tribunal now views the prior award. Plain speaking on possible mistake or dubiety of the previous entitlement is usually unpopular with claimants, but may be essential as part of the obligation to make apparent why a case is rejected.
40. Except to the extent that there has been an acknowledged change of circumstances, it is important that a tribunal demonstrates that it has weighed all relevant matters when considering the issue before it, that of the claimant's entitlement on renewal. If a claimant says that he is no better, or is worse, evidence produced on his earlier award is pertinent when assessing his actual current needs. A tribunal may reject it, saying it is inaccurate or incomplete or out-of-date or an inadquate basis for the award then made. But an express consideration of how it viewed the prior entitlement will normally be required as part of a reasoned justification for the applicable findings and evaluation made for the relevant period.
41. In any event, it seems a basic rule of good practice that a tribunal affords an appellant the express reassurance that it has taken his prior award into account in the totality of the evidence and not overlooked it, before determining that a continuation at that level is inappropriate. Whether to fail to do so also amounts to error in law varies according to the particular background and the clarity of the tribunal's reasoning. But as the explanation can usually be given in a couple of sentences, the courtesy of explaining why the outcome of the case is now adverse might be considered sensible in all cases.

Summary

42. I remit the case to a new tribunal for a complete rehearing on the basis of the evidence and arguments available to the new tribunal and having regard to the guidance which is apparent from the content of my decision. My jurisdiction is limited to issues of law so my decision is no indication of the likely outcome of the rehearing. The new tribunal will make its own findings and use its own judgement on how the legal tests apply to its facts as found. The new tribunal is not bound by the findings or conclusions of the tribunal whose decision has been set aside. The position now restored is that the DM decision awarding lower rate mobility and lowest rate care comes before the new tribunal for a fresh determination on the appeal.
43. How much help is reasonably required and when or for how long are questions of fact. The starting point is the claimant without help. That he already receives help does not preclude it from being taken into account. The yardstick is always what is reasonably required in order to enable the claimant to carry on, so far as is possible in the circumstances, an ordinary life. The help he actually receives, or what he would like to receive, are both evidentially relevant to what is reasonably required but are not determinative. Assessing what is reasonably required is a matter of fact and degree and practicability must play a part. Some needs may arise every day and others only rarely. The new tribunal will have to reach a judgement, after balancing all the possibilities, on his overall reasonable needs for attention with the bodily function of seeing, both by night and by day. It will also consider his walking abilities having regard to the physical disablement in his case. It is unlikely that there will be debate about his entitlement to lower rate mobility.
44. The appellant's wife has produced new information since the tribunal hearing. However, the tribunal could not err by failing to take into account information not before it. That evidence will be relevant to the adjudication before the new tribunal only insofar as it reflects his condition at the date of the adverse decision under appeal. Some of it suggests deterioration. Some of it raises assertions in direct contradiction to what has previously been said. For example, it is now said that he needs help at the toilet whereas this was denied both on the claim form and to the EMP. Evaluation of the evidence and determination of the merits is for the new tribunal.

(Signed)

L T PARKER

Commissioner

Date: 6 October 2003