YY (by his appointee AA) v Secretary of State for Work and Pensions

This is an appeal in a Disability Living Allowance (DLA) case.

The brief factual and procedural background fact is as follows. The claimant is now aged 12. He was previously entitled to the middle rate of the care component of DLA. On 26.1.23 his appointee made a renewal claim for DLA on his behalf. That claim was refused by the Secretary of State on 25.3.23 who concluded that the claimant was not entitled to either component of DLA at any rate. The claimant sought mandatory reconsideration but the decision was maintained on 16.5.23. The claimant therefore appealed to the First-tier Tribunal. The First-tier Tribunal refused his appeal on 3.5.24.

On 30.9.24 District Tribunal Judge Ly granted permission to the claimant to appeal the decision of the First-tier Tribunal. Permission was granted on the basis that Judge Ly was persuaded that it was arguable that the tribunal may have misunderstood the evidence about what was happening at night at the relevant time, and in particular how often the appellant’s mother was waking him up at night, and whether this was the reason that the appellant remained dry at night.

In the usual way the Secretary of State was invited to file submissions in response to the permission grant indicating the Department’s position. Such submissions have now been filed, dated 12.2.25. They support the appeal and consent to a decision without reasons.

In her submissions in reply, the appointee reiterates her case that the appellant is “not dry at night at all” and that “I must wake him up or he will definitely wet himself”. In addition, and notwithstanding that the Secretary of State supports the appeal, she has indicated that she does not consent to a decision without reasons and requests that the Tribunal direct an oral hearing, to be held in private, because, as she explains, she “wants to know directly from the judge the decision they make and why on the hearing”.

It is the appointee’s right to require a decision with reasons and my conventional practice is always to give reasons, although they tend to be relatively brief where the appeal is supported for reasons that I agree with. That being the case here, I will give brief reasons. However, the appointee is not entitled to demand an oral hearing and I have concluded that none is necessary. For the reasons set out below, I will be allowing the appeal and remitting the appeal for re-hearing before a different panel of the First-tier Tribunal. In such circumstances no oral hearing is necessary and the Tribunal Procedure (Upper Tribunal) Rules 2008, specifically r.34, permit me to make a decision without a hearing. I have, of course, considered the appointee’s request for an oral hearing and the reasons for it, but I am not persuaded that an oral hearing is necessary. The claimant had an oral hearing before the First-tier Tribunal. No further oral hearing is required or indeed appropriate at this, the appeal, stage and there is no reason to suppose that oral argument would make any difference to the outcome. The appointee can see from this decision that I have allowed the appeal for the reasons set out below and remitted the case for re-hearing before a new panel of the First-tier Tribunal.

Unfortunately the claimant suffers from constipation, night/daytime wetting and sleep walking. The particular issue in his appeal was whether he satisfied the “night conditions” under s.72(1)(c), SSCBA 1992, so as to qualify for benefit at the middle rate.

The First-tier Tribunal concluded that he did not and explained its decision in the following terms:

“[The appointee] claims that [the claimant] is entitled to the Middle Rate of the Care Component for night needs. We found that at the date of decision, we found that the household closed for the night at about midnight when [the appointee] went to bed and the day started at about 7am when she woke up. [The claimant] was taking medication for his bedwetting and that this medication was working well and that at night he was 'remaining dry' at night (see e.g. pages 80, Addition C page 1, 8). We found that [the claimant] did not need attention with bodily functions at night, although [the appointee] may be waking [the claimant] up occasionally although she had been advised not to do so (see e.g. page addition C1). […]. We found that [the appointee] was recounting [the appellant]'s night need when he was much younger and before he started the medication for bedwetting. We noted that [the claimant] had stopped taking the medication for bed wetting as advised but this was from March 2024, and we make no finding of fact after the cessation of this medication. We found that at the date of decision [the claimant] was remaining dry at night, and did not need any attention at night”.

In agreement with the Secretary of State’s submissions and the observations of the Tribunal Judge who granted permission, it would appear that the First-tier Tribunal have either misunderstood the evidence or not explored it sufficiently to make reliable findings of fact.

As recorded by the Judge who granted permission to appeal, a letter of 7.9.22 from the enuresis nurse, said: "he was being woken up each night by his mother so was remaining dry" (emphasis added). An earlier letter from the same nurse dated 1.2.22 also referred to the appointee waking the claimant each night at around 0300 and surmised this might be why he was able to remain dry on occasion, although it might also be due to the medication he was taking. As noted by Judge Ly, this evidence suggested that the appointee was waking up the claimant every night and this was the reason why he "remained dry". The suggestion is that but for her intervention, he would not have remained dry. Further, that same letter also referred to the fact that the claimant was being treated for bedwetting with Desmo Melts but that:

“He had a week without the medication and reported to be wet 4 nights that week.”

In addition, the appointee noted on the most recent DLA1 claim form that the claimant was waking “every night” and that:

“… the problem is not just waking up and resettling him. But I must wash him, change his clothes, sheets and the bedding. It takes an average of not less than 15-20 minutes.”

As submitted by the Secretary of State’s representative in her submissions, it is not apparent from the Statement of Reasons what the First-tier Tribunal made of this evidence from the appointee and the enuresis nurse that the claimant was still having instances of bed wetting which necessitated his mother’s nighttime care. This lack of reasoning amounts to an error of law. Further, had the FtT fully considered this evidence, it could conceivably have come to a different conclusion about the claimant’s nighttime care needs. The error is therefore material and is sufficient to allow the appeal but there is, as noted by the Secretary of State’s representative, a second (albeit related) strand to the appeal arising out of a failure to explore the claimant’s circumstances in sufficient detail to arrive at a reliable conclusion on his night-time needs. I agree with the submission at paragraph 4.10 of the Secretary of State’s submissions which reads as follows:

“… the FtT has erred in law by failing to exercise its inquisitorial function. While the FtT does acknowledge at paragraph 9 of the SOR that the claimant’s mother was waking him at night and that she had been advised not to, it makes no further findings of fact about this issue. Why was the claimant’s mother waking him at night – did she find that if she didn’t, the claimant would have an accident and render her nighttime care routine … more time-consuming, as it would involve washing of the claimant and his bedding? What was the effect of not waking the claimant at night? Why had the enuresis nurse advised her to stop doing this? Did it find that the routine of waking the claimant to avoid bed wetting constituted nighttime care? If so, how did it reconcile its conclusion that the claimant “did not need any attention with bodily functions at night” with its acceptance that his mother was performing nighttime wakings? […] … [it] is difficult for the reader to know as the FtT does not address these issues, nor does it appear to have used the opportunity of the oral hearing to ask the appointee about them”.

I therefore conclude, in agreement with the Secretary of State’s submissions on this point, that the FTT has failed to make adequate findings of fact about this issue and/or to provide adequate reasons why it concluded that the claimant did not meet the entitlement criteria for the middle or any rate of the care component.

For those reasons I have concluded that the FTT’s decision was made in error of law. I therefor allow this appeal and remit the case for reconsideration by a fresh panel of the FTT. The panel that hears this appeal afresh will need to make detailed findings of fact and then apply the law as to entitlement correctly to those findings. The appointee should understand that her success in this appeal is not determinative of the outcome of the case when it is reheard.