Secretary of State for Work & Pensions v Hughes (A Minor)

J U D G M E N T

Thursday, 15th January 2004

1. LORD JUSTICE TUCKEY: This is an appeal from a decision of Social Security Commissioner Turnbull in which he allowed an appeal from a Social Security Appeal Tribunal and awarded the respondent (whom I shall call "D") the care component of a disability living allowance to be paid at the middle rate.

2. To explain why I have decided that I do not think we should embark upon the merits of this appeal it is necessary to set out the procedural history which brings it before this court.

3. Section 72(1)(b) of the Social Security Contributions and Benefits Act 1992 sets out the circumstances in which a person shall be entitled to payment of the care component of disability living allowance at the middle rate. So far as is relevant, this section says:

"Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which - ...

(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..."

Section 72(2) says:

"Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless -

(a) throughout -

(i) the period of three months immediately preceding the date on which the award of that component would begin ...

(ii)... he has satisfied or is likely to satisfy [the condition mentioned in subsection (1)(b), which I have already read] and

(b) he is likely to continue to satisfy that condition throughout -

(i) the period of six months beginning with that date..."

These provisions are qualified for applicants aged under 16 by section 72(6)(b), which states, so far as is relevant:

"For the purposes of this section in its application to a person for any period which he is under the age of 16 - ....

(b) ... the condition mentioned in ... subsection 1(b) ... shall not be taken to be satisfied unless -

(i) he has requirements of a description mentioned in subsection (1) ...(b) ... substantially in excess of the normal requirements of persons of his age..."

4. Entitlement to the mobility component of a disability living allowance is prescribed by section 73 of the Act. For present purposes all that it is necessary to say is that a person is entitled to the lower rate if he requires guidance and/or supervision when walking outdoors.

5. D was born on 29th September 1994 and is registered as partially sighted because she suffers from Leber's Optic Neuropathy. On 24th October 2001 she applied for both the mobility and care components of the disability living allowance. The application form, which runs to nearly 40 pages, concentrated, so far as the care component was concerned, upon the care which D required with her bodily functions at home, although there is a reference in the last part of the form, which is headed "Anything else about the way the child is affected by their illnesses or disabilities", to a requirement for specialist assistance at school, as to which contact was to be made with Mrs D Smith, an advisory teacher for pupils with visual impairment.

6. Mrs Smith had prepared a report dated 4th October 2001 which set out in some detail what was required at school to minimise the effect of D's disability. It is not, however, clear whether the Benefits Agency saw this report before they made a decision on behalf of the Secretary of State on 10th January 2002 refusing the entirety of the claim for disability living allowance. Certainly there is no reference to this report or the need for assistance at school in the reasons for the decision.

7. D appealed to the Appeal Tribunal. Such appeals are by way of a full re-hearing before a tribunal of three, chaired by a lawyer. The appeal was allowed to the extent that an award of the lower rate of the mobility component was made. However, the Tribunal concluded that D did not satisfy the statutory criteria for an award of the care component. In its reasons the Tribunal referred to the difficulties which D had at home and the assistance she required there, but made no findings of fact about, or reference to, the assistance she required at school, although there was evidence before them about this, both from D herself and, as we understand it, her father, and in the shape of Mrs Smith's report.

8. D appealed to the Commissioner against the refusal to award the care component. Her grounds complained, among other things, that the Appeal Tribunal had not taken account of the assistance which she required at school. The Commissioner granted leave to appeal on this ground on 29th May 2002. He directed the Secretary of State to make observations on the appeal. In his observations, dated 3rd October 2002, the Secretary of State simply said that the assistance identified in Mrs Smith's report was for D's educational needs, and not in connection with any bodily function and so the Appeal Tribunal had acted reasonably in not taking such assistance into account.

9. On 10th December 2002 the Commissioner issued directions. They said:

"A. My provisional views on this case, having considered the parties' submissions, are as follows:

(1) That some at least of the assistance which the Claimant receives at school [and he then referred to Mrs Smith's report] qualifies as 'attention in connection with' the bodily function of seeing, notwithstanding that it is necessary for educational reasons, and that the Tribunal's decision was erroneous in law and must be set aside on the ground that the Tribunal appears to have failed to take such attention needs into account;

(2) That I should myself find:

(i) that on school days (a) the Claimant requires frequent attention throughout the day in connection with her bodily functions (i.e. the extra attention required at school in connection with seeing and some attention at home (dressing, cutting up food, running bath water etc as found by the Tribunal) and (b) the aggregate attention is (because of the extra attention required at school) substantially in excess of the normal requirements of a person of her age

(ii) on days when she is not at school the Claimant's attention needs (as found by the Tribunal) are not substantially in excess of the normal requirements of a person of her age

B The question would then arise as to what, if any, award of the care component could be made on those findings.

B was a reference to the problem created by the fact that attention was only needed during school terms and the need for the three month and six month qualifying periods prescribed by section 72(2).

10. In response to this direction the Secretary of State's representative put in a one and a half page submission in which he repeated his earlier submission and submitted that the use of different forms of written material at school did not provide a substantial method of providing what the bodily function would provide if it were not impaired.

11. In his final decision the Commissioner rejected these submissions, saying:

"9. In my judgment there can be no doubt that the measures referred to in the report are 'in connection with' the bodily function of seeing. They enable the Claimant to see more easily materials which she would otherwise have difficulty in seeing. The point made by the Secretary of State, as I understand it, is in effect that any school child would require a substantial degree of attention by a teacher, but that would be with reference to the function of education, not in connection with any bodily function. However, that in my judgment misses the point that the specific measures outlined in the report are either to enable the Claimant to see more easily exactly the same materials which the other children see, or to enable her to see substitute materials imparting the same information. If the measures amount to 'attention' for that reason they in my judgment clearly amount to attention 'in connection with a bodily function', namely the function of seeing.

10. Further, there can in my judgment be no doubt that the Claimant's reason for wishing to see that information, namely in order to be educated at school, is well within the range of purposes for which assistance with bodily functions can reasonably be required for disability living allowance purposes."

12. As I understand it, these conclusions are not challenged on this appeal. The part of the Commissioner's decision which is challenged however is paragraph 11, where he went on to say that the only question of difficulty was the extent to which the relevant measures constituted 'attention' for the purposes of the statute. On this question he had received no submissions from the Secretary of State, subject to one point which I will come to later. After reviewing the case law the Commissioner decided that some, but not all, of the needs set out in Mrs Smith's report amounted to attention for the purposes of the Act and that such attention was required frequently throughout the day. What he said was:

"I have ... come to the conclusion, looking at the matter broadly, that measures of the nature indicated in the report are likely to involve a teacher or classroom assistant actually intervening, with specific reference to the Claimant, in a manner which amounts to 'attention', on a significant number of occasions throughout the average school day. The sort of examples I have in mind, arising from the measures outlined in the report, are (a) the need actually to hand to the Claimant desk copies of board work etc on each occasion on which it is required, (b) the need actually to alter the Claimant's seating position, whether in class or (perhaps more particularly) in other school activities, when it is found that she is not in fact in the most appropriate position (c) the need to check the Claimant's work while she is doing it, to a perhaps greater extent than would be normal, to make sure that she is not in fact being disadvantaged (particularly in relation to the specific examples mentioned in the report of literacy and numeracy) and (d) the need to provide additional support during games and other communal activities. On balance, I conclude that attention of this nature would be needed frequently throughout the average school day, and would be required to an extent which is substantially in excess of that required by a child of the Claimant's age without disability."

13. The Commissioner then went on to address the section 72(2) question which he had posed in paragraph B of his directions. Again on this point he had been provided with no helpful submission on the part of the Secretary of State. On this issue he reached a conclusion that D did qualify for the disability living allowance from 26th September 2001. Finally, he had to decide for how long that award should be made, and decided that, because the claimant's requirements at school might be changing, the award should be limited for a period of two years. That means, of course, that the award which he made is no longer current.

14. The Secretary of State then applied for permission to appeal. His grounds assert, firstly, that D's needs at school, which the Commissioner relied on in paragraph 11 of his reasons, did not amount to "attention" within the meaning of the Act; secondly and thirdly, that there was no evidence that such attention was required frequently or throughout the day; fourthly, that there was no basis for concluding that the identified needs were substantially in excess of those of other children; and, fifthly that there was no basis for concluding that those needs required to be met for the whole of the year.

15. The Commissioner granted permission to appeal to this court, but did so in the following terms:

"I grant permission ... because I consider that there is an arguable issue, which is probably capable of being described as an issue of law, and which may be of some general importance, as to the extent to which the steps referred to in para 11 of my decision are capable of constituting 'attention in connection with' the bodily function of seeing.

The Court of Appeal may, however, wish to have regard to the very limited basis on which the matter was argued before me on behalf of the Secretary of State, despite my having given an indication of my provisional views in my Direction dated 10th December 2002."

As I read it, that permission is limited to the first of the five grounds of appeal to which I have referred. But even if the permission granted is not so limited, in the light of the history, which I have set out at some length, I do not think it would be right for this court to embark upon consideration of what amounts to a root and branch attack on parts of the Commissioner's decision which were not the subject of any real submissions to him.

16. D's needs at school were not considered at all by the initial decision maker or the Appeal Tribunal and were not relevantly addressed by the Secretary of State before the Commissioner, despite the fact that he had ample warning of what the Commissioner might decide and ample opportunity to make the points which he now wishes to make.

17. The point identified by the Commissioner which he described as "probably capable of being described as an issue of law" does not, so far as I can see, raise any issue of principle. The relevant statutory provisions have been the subject of two House of Lords decisions (Mallinson and Farey ). Looking at the skeleton arguments prepared for the purposes of this appeal, as far as I can see there is no real issue between the parties as to what they mean. The Secretary of State's complaint is, in essence, about the Commissioner's application of those provisions to the particular facts of this case. That is an exercise which the specialist tribunals in this field perform day in and day out. A complaint can be elevated into a question of law if it is said that something is not capable of falling within the statutory definition, but if that is the case this court would expect the considered views at least at Commissioner level of such a submission before testing it on appeal. That has not happened in this case.

18. Mr Forsdick, counsel for the Secretary of State, urged us to hear the appeal. First, he said that permission to appeal has been granted by the Commissioner, who was well aware of the limited submissions which he had received. That is true. There is permission, but it is permission granted in a less than wholehearted way. The fact that the Commissioner has granted permission does not mean that we must hear the appeal. This court considers it of utmost value, on an appeal from a specialist tribunal, to have the considered views of the points at issue of that specialist tribunal before testing them on appeal.

19. Mr Forsdick also argued that in the Secretary of State's short submissions the point about "attention" had been raised. It is just possible to spell the point out of those submissions, but the point was not clearly raised, and certainly not raised in a way which remotely resembles the way in which the Secretary of State wishes to put the matter before this court.

20. Finally, Mr Forsdick says that if we do not proceed to hear this appeal the Commissioner's decision will stand as an unfortunate precedent for cases of this kind in the future. If his decision is wrong, it should not stand as a precedent and may have considerable consequences for future cases. The answer to that is that if this is an important case it must be important because there are many other similar cases where this point has arisen. If that is the case then it will not be difficult to find a case in which the point can be properly tested, at least at Commissioner level, and then taken to this court if that is considered necessary. It is not a reason for our embarking upon this appeal. If of course there are no such cases, then that demonstrates that this case will not cause a worrying precedent for the future. I should add however that in the light of our decision, and the limited assistance which the Commissioner had in reaching his decision, I do not think this case will be considered to be an important precedent for other similar cases.

21. Accordingly I reject Mr Forsdick's submissions. I do not think we should embark on this appeal.

22. My inhibition to do so is supported by the decision of this court in Cooke v Secretary of State [2001] EWCA Civ 734. That case also concerned a claim for disability living allowance, the detail of which does not matter. Hale LJ, who gave the leading judgment, with which the other members of the court agreed, after noting that this was a highly specialised area of the law where there was an independent two-tier appellate structure, said:

"... the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life... In my view the Court of Appeal should take an appropriately modest view..."

That is the view I think we should take of this appeal.

23. I would therefore dismiss this appeal.

24. LORD JUSTICE JACOB: I agree.

25. SIR MARTIN NOURSE: I also agree.

Order: Appeal dismissed with costs. Order for public funding assessment of the respondent's costs.