DJ v SSWP (DLA)

The claimant, in this appeal, is a child who was born on 10 February 2009. At the date of the decision under appeal he was aged five years. His mother has been his appointee with respect to the appeal to the First-tier Tribunal (hereinafter “the tribunal”) and the appeal to the Upper Tribunal.

The claimant suffers from a condition known as hyper-extensive mobility expandable joints. This has the consequence of him suffering what appears to be, on any view, quite intrusive joint pain. An application for disability living allowance was made on his behalf by his mother. In completing a claim pack she said that, amongst other things, he experiences pain during the night, he lacks strength and co-ordination and he suffers from joint stiffness in the morning. She indicated that she had to provide him with assistance with a range of functions. In particular, at night-time, she referred to him often waking with leg and hip pain.

The application was made on 25 November 2014 but treated as having been made on 14 October 2014. However, on 19 January 2015, the respondent decided that there was no entitlement to disability living allowance. Ultimately, after an unsuccessful application for a mandatory reconsideration, this led to the lodging of an appeal to the tribunal.

There was an oral hearing of the appeal which was attended by the claimant’s mother. The claimant was represented by one Jenny Baldwin who is from an organisation known as Hull Advice. There was no attendance on behalf of the respondent. It is clear that the claimant’s mother gave quite extensive oral evidence and, indeed, the tribunal found that evidence to be persuasive in part. Hence, it allowed the appeal to the extent that it decided there was entitlement to the care component of disability living allowance only, at the lowest rate, from 14 October 2014 to 13 October 2016. That was in consequence of its finding that he required attention for a significant portion of the day. The tribunal was subsequently asked to, and did, provide its statement of reasons for decision (“statement of reasons”).

The statement of reasons is a careful and thorough document which demonstrates that the First-tier Tribunal went about its task with obvious care. It explained, in some detail, why it considered the tests for the mobility component of disability living allowance not to be met. It also explained why it thought the test for the middle rate of the care component on the basis of daytime conditions was not met. As to the night-time conditions it accepted that there were difficulties at night but not such as to establish any entitlement on that basis. By way of explanation it said this:

“ 13. With regard to night-time care the tribunal again has to look at whether the criteria of prolonged or repeated attention is met as well as the extra criteria concerning the need to be substantially in excess than other children of a similar age as explained above. The evidence is that [the claimant] has four good nights a week when he is awake and needing attention for 30-60 minutes. This would not be unusual for some five year olds. On the other three nights which are bad nights he is awake on several occasions that can total five or six hours. He has however never missed any school as a result of being too tired. Five or six hours may be substantially in excess to care needed by children of a similar age who have no mental or physical health problems but this is not for most of the time which is the test. For most of the time therefore [the claimant] does not require prolonged or repeated attention during the night and does not therefore fulfil the criteria for any award of the care component at night-time.”

Section 72 of the Social Security Contributions and Benefits Act 1992, insofar as it is relevant to this appeal to the Upper Tribunal, provides as follows:

- (1) 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 –

he requires from another person prolonged or repeated attention in connection with his bodily functions; or

in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

It follows, from the above, that in deciding as it did with respect to the situation at night-time the First-tier Tribunal had in mind, in particular, the content of section 72(c) and section (1A)(b)(i). I also note, at this stage, that where a claimant meets the night time test as set out above but does not meet the day time test for the care component as set out in section 72(1)(b) (frequent attention or continual supervision throughout the day) he establishes entitlement to the middle rate of the care component subject to the “significantly in excess” test in 72(1A)(b).

The claimant’s representative applied for permission to appeal to the Upper Tribunal. The grounds did not take issue with the parts of the tribunal’s decision which were to the effect that there was no entitlement to the mobility component and no entitlement to the middle rate of the care component on the basis of daytime needs. The attack was upon the tribunal’s treatment of the test relating to night-time needs. It was noted that the findings were to the effect that the claimant had four “good nights” a week when he would need attention for 30 to 60 minutes and three “bad nights” a week when he would need more attention. It was said, in effect, that the First-tier Tribunal had concluded without any evidence that it would not be unusual for some five year old children to be awake and needing attention at night for 30 to 60 minutes. It was further said that, on its findings, it had been wrong to conclude that the requirement at section 72(1A)(b)(i) operated to prevent the satisfaction of the test relating to night-time care as contained in section 72(1)(c).

I granted permission to appeal to the Upper Tribunal on those grounds. I also observed, when so doing, that I thought the tribunal might have erred, in light of what is said in R(A) 2/74 in adopting an arithmetical approach based on counting the good nights and bad nights rather than taking a broad overall approach to night-time difficulties.

I have subsequently received a submission prepared by Ms S Suttenstall, who now acts on behalf of the respondent in connection with this appeal to the Upper Tribunal. She says that she agrees that the First-tier Tribunal did err in law in the ways suggested in the grounds and my grant of permission. She urges me to set aside the F-tT’s decision and suggests that further findings of fact will be necessary in order to properly decide the appeal so that the proper course of action will be remittal to a new and differently constituted First-tier Tribunal. I have also received a submission from Ms Baldwin on behalf of the claimant. She takes no issue with the suggested set aside and, indeed, it would be most surprising if she did. However, she urges me to remake the decision myself because, in her view, the facts are sufficiently well established on the basis of the findings of the First-tier Tribunal for me to properly do so.

Neither party has requested an oral hearing before the Upper Tribunal and I have decided not to hold one. There is nothing to suggest that one would assist or take matters further in any way.

I have concluded, as is now agreed by the parties, that the First-tier Tribunal did err in law. It did so in my judgment, first of all, by failing to explain its view, which does not seem to me to be sufficiently obvious to be assumed, that it would not be unusual for some five year old children to require attention for 30 to 60 minutes per night. Further, and perhaps more importantly, it seems to have lost sight of the point which was made clear in CSDLA/3737/2000 that what is under consideration is whether any attention received by a child claimant is substantially in excess of that which would be required normally by a child of the claimant’s age. Additionally, and on the same theme, it was said in CA/92/92;