DC v The Secretary of State for Work and Pensions (DLA)

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

A new claim was made for Disability Living Allowance (‘DLA’) by GC on behalf of her daughter DC. DC was born on 31 December 2013. The claim was made on 13 September 2022. A decision was made on 12 December 2022 that DC was entitled to the lower rate of the mobility component and the lower rate of the care component.

GC appealed against this decision on the basis that DC needed continual supervision throughout the day to avoid danger and she needed frequent attention with bodily functions and /or needs attention at nights and is at risk of danger if left alone at night. Therefore, the appellant was seeking the middle or higher rate for care.

The appeal to the First-tier Tribunal (‘FtT’) was heard on 13 August 2024. The appeal was refused. A statement of reasons was provided on 15 October 2024. GC applied for permission to appeal on behalf of DC on 7 November 2024. This was considered by the FtT and refused on 30 January 2025.

The FtT stated in its reasons that ‘The tribunal accepted that DC did need attention for a significant portion of the day’ (at §7) and that DC’s needs were covered by the existing award.

The FtT concluded ‘…she may need some attention at the start and end of the day. However, this attention was not in the tribunal’s view substantially in excess of the normal requirements of a child of the same age’. The FtT went on to find that DC ‘does have need for some support with reading due to her dyslexia, and maths due to her dyscalculia and this support was considered by the tribunal in assessing entitlement to the care component’. There were however some aspects of the support in school which the tribunal accepted did constitute attention that could come within the requirement for attention, where she had one to one support.

In addition, ‘the tribunal did accept that [DC] may need an extra session of settling some evenings, before the household went to bed, and took this into account in looking at the appeal in terms of care. However, taking the support provided which came within the requirements of daytime care, the tribunal did not find that this constituted frequent attention throughout the day’.

The FtT went to conclude, ‘It also appeared unlikely that there was a risk of substantial danger. Further whilst DC may require supervision some of the day, the tribunal did not find that she needed continual supervision substantially in excess of that required by a child of the same age without her issues related to her disability’.

The test for eligibility for DLA is set out in the Social Security Contributions and Benefits Act 1992 (‘SSCBA’).

Section 72 concerns the criteria for eligibility for the care component, it provides, as follows:

The appellant renewed her application before the Upper Tribunal (‘UT’). Permission was granted on 10 April 2025 by Upper Tribunal Judge Wright.

The reasons given for permission helpfully set out in some detail why it was arguable that there was a material error of law in the reasons of the FtT. The reasons provided were that ‘it is arguable that the FTT erred in law in failing to reason out adequately why on its findings of fact [DC] did not require frequent attention throughout the day in connection with her bodily functions’. This was in light of the fact the FtT ‘accepted that [DC] needed attention for a significant portion of the day’ and that ‘It is arguable that it [the FtT] needed (but failed) to identify what that attention was and when it occurred, in order to assess what other qualifying attention [DC] needed and when she needed that other attention, so as to decide whether she needed ‘frequent attention throughout the day’’.

Judge Wright concluded, that ‘it is arguable the FTT failed to make clear: (i) what the attention was that was needed for a significant portion of the day and met section 72(1A)(b) of the SSCBA; and (ii) why the attention it found was needed (and met section 72(1A)(b)), at school, in winding down and in settling on some evenings, was not frequent attention throughout the day’.

In addition as a second ground Judge Wright gave permission for the argument that ‘the FTT may have erred in …not separating out, first, whether [DC] in fact required continual supervision throughout the day in order to avoid substantial danger (section 72(1)(b)(ii) of the SSCBA), and, secondly, whether that need for continual supervision was substantially in excess of the normal supervision requirements of a child of [DC’s] age (per section 72(1A)(b) pf the SSCBA).

Both parties made written submissions. The Appellant’s appointee provided written submissions on 15 June 2025. The Respondent did the same on 6 June 2025. Neither party requested an oral hearing.

By way of her written submissions the Secretary of State supports the appeal.

She submits as follows:

I allow this appeal. My reasons for this are the same as those set out by Judge Wright in the permission decision, which are again echoed by the Secretary of State in her submissions.

The FtT did not give adequate reasons or alternatively failed to ask itself and address what attention was required throughout the day and exactly when it was required.

The FtT accepted that [DC] ‘needed attention for a significant portion of the day’ and that these ‘needs were adequately met within the existing award’. On this basis the FtT’s reasons appeared to be that there was a need for attention for a significant portion of the day, that met the requirements of section 72(1A)(b) of the SSCBA.

The FtT did set out a few of the types of attention DC required, for example ‘There were, however some aspects of the school support which the tribunal accepted did constitute attention that could come within the requirement for attention, where she had one-to-one support’. Despite this, the FtT statement of reasons does not adequately set out how DC needed attention for a significant portion of the day. In so doing, the FtT failed to identify what that attention was and when it occurred. These were important findings so that the FtT could go on to assess what qualifying attention DC needed and when she needed it.

The FtT’s concluded ‘Further whilst DC may require supervision some of the day, the tribunal did not find that she needed continual supervision substantially in excess of that required by a child of the same age without her issues related to her disability’. This conflates the two questions that must be asked under section 72 when considering applicants who are under 16. Those questions are whether 1. [DC] in fact required continual supervision throughout the day in order to avoid substantial danger (section 72(1)(b)(ii) of the SSCBA), and 2. whether that need for continual supervision was substantially in excess of the normal supervision requirements of a child of [DC’s] age (section 72(1A)(b) pf the SSCBA). It is not clear on the factual findings and reasoning of the FtT if this was a material error. However, I do not consider this further on the basis of my findings on ground 1.