RT-v-Department for Social Development (DLA) [2016] NICom 43

Decision No:  C19/15-16(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

2.	For the reasons I give below, I allow the appeal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I refer the appeal to a newly constituted tribunal for determination. 

	REASONS

	Background

3.	The appellant is a child.  He claimed disability living allowance (“DLA”) from the Department for Social Development (“the Department”) from 4 June 2008 and was awarded the low rate of the mobility component and the high rate of the care component from 6 June 2008 to 18 October 2012.  He made a renewal claim for the period from 19 October 2012 on the basis of needs arising from nocturnal enuresis and behavioural problems.  The Department obtained a report from the claimant’s general practitioner (“GP”) on 6 December 2012.  On 17 December 2012 the Department decided on the basis of all the evidence that the claimant satisfied the conditions of entitlement to the middle rate of the care component of DLA from 19 October 2012 to 18 October 2013. 

4.	His mother (“the appointee”) was appointed to act on his behalf by the Department on 17 December 2012.  The appointee requested a reconsideration of the decision of 17 December 2012. On 14 January 2013 the Department reconsidered the decision 17 December 2012 and decided that DLA should be disallowed from and including 19 October 2012.  Following some further requests for reconsideration which did not result in a change to the decision, the appointee appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 14 February 2014 the tribunal disallowed the appeal. The appointee then requested a statement of reasons for the tribunal’s decision and this was issued on 9 July 2014.  The appointee applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 3 February 2015.  On 13 February 2015 the appointee applied to a Social Security Commissioner for leave to appeal. 

Grounds

6.	The appointee submits that the tribunal has erred in law on the basis that:

(i)	it failed to adequately record the proceedings;

(ii)	it found that changing a child out of wet pyjamas and washing the child was not reasonably required attention;

(iii)	 it had no evidence on which to base a finding that it would take no more than 15 minutes to change and wash the claimant.

7.	The Department was invited to make observations on the appellant’s grounds. Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department. Mr Hinton submitted that the tribunal had erred in law and indicated that the Department supported the application for leave to appeal. 

	The tribunal’s decision

8.	The tribunal had access to the appellant’s medical records and heard evidence from the appointee.  The tribunal was told that the appellant suffered from nocturnal enuresis and behavioural problems.  There was evidence that the appellant had been attending a Paediatric Behaviour Support Clinic for a period with problems of low self-esteem and anxiety. He attended a mainstream school and was said to be of very good academic ability.  His GP reported that he has “tantrums and difficult behaviour at home if parents will not do as he wants”. 

9.	It was submitted on his behalf that the appellant required guidance or supervision out of doors.  The tribunal did not accept submissions that he could not ask for directions, could not walk safely beside a busy road, could not cross a road safely, could not understand common dangers outdoors, would become anxious, confused or disorientated, and would display unpredictable behaviour, needing physical restraint, or refuse to walk.  The panel found that to the extent that the appellant required guidance or supervision out of doors, it would be no more or less than his peers. 

10.	On care, the panel decided that the appellant did not reasonably require to be changed from wet pyjamas and wet bedclothes at night.  It estimated that, even if it was reasonable for the appellant to be changed into clean bedclothes, this would take a maximum of 15 minutes.  It found that this did not amount to prolonged attention. 

	Relevant legislation

11.	The legislation governing entitlement to the care component is set out at section 72 of the Social Security Contributions and Benefits (NI) Act 1992. This provides:

	72.—(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—

		(a) he is so severely disabled physically or mentally that—

		(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

		(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

		(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; or

		(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

		(c) he is so severely disabled physically or mentally that, at night,—

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

		(ii) 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.

	Submissions

12.	The appointee has submitted that the tribunal has not adequately recorded its findings of fact and the reasons for its decision.  She further submits that the tribunal has erred in law by finding that changing wet clothes at night is not attention reasonably required in connection with bodily functions.  To the extent that the tribunal accepts that it is reasonable attention, she submits that the tribunal has made an irrational finding on the amount of time which attention will be given at night. 

13.	As observed above, Mr Hinton for the Department accepted that there was an arguable case on the point regarding whether any attention received by the appellant was reasonably required.  I grant leave to appeal on the issue of whether attention waking the appellant at night and changing nightclothes and bedding, as opposed to letting him sleep and to wash and change himself in the morning, is attention reasonably required. I issued a direction to the appointee and to the Department asking:

(i)	Whether there had been any previous relevant jurisprudence on the question of whether waking a person with nightclothes and bedclothes wet with urine in order to change them is attention reasonably required, asking for relevant citations. 

(ii)	Whether waking a child in order to change nightclothes and bedclothes wet with urine would be reasonably required for any medical reason, requesting that a submission to this effect would be supported with relevant evidence. 

(iii)	Whether waking a child in order to change nightclothes and bedclothes wet with urine would be reasonably required for any other reason, requesting that a submission to this effect would be supported with relevant evidence. 

14.	Mr Hinton for the Department referred to C70/97(DLA) – a decision of Mrs Commissioner Brown in which I had appeared as the representative for the appellant – where she had said at paragraph 16 that:

 “Apart from the natural justice issue there was a broader issue as to the legal standard.  The standard is not whether or not something is medically necessary or necessary for hygiene reasons but whether it is reasonably required.  Hygiene is not the only factor to be considered.  The Tribunal have considered hygiene solely and not whether a bath is reasonably required.  This would indicate that they may have had an incorrect view of the law.  Had they applied the correct standard they would have considered other matters that hygiene e.g. comfort, feelings of cleanliness, need to protect the skin etc.”

15.	Mr Hinton submitted that the tribunal’s reasoning with regards to this issue is inadequate in that it failed to consider matters such as comfort and the need to protect the appellant’s skin.  He further submitted that the tribunal would be wrong in law to focus on what is medically required, as opposed to what is reasonably required. 

16.	Mr Ferris, for the appellant, referred more specifically to the emotional and behavioural problems of the appellant.  His submissions focused on the psychological aspects of nocturnal enuresis when linked to issues of the appellant’s self-esteem and emotional stress. 

	Assessment

17.	The appointee had submitted that the statement of reasons prepared by the tribunal had not fully documented the oral evidence at hearing.  I do not expect that a legally qualified member of a tribunal will be able to record verbatim what has been said at a hearing. It is likely that the legal member will focus on recording the oral evidence most relevant to the issues which it has to determine. 

18.	In her criticism of the tribunal the appellant has focused on the lack of recording of her account of contacts with medical professionals. However, these would be documented in the medical records and I do not consider that there is anything untoward in this.  She makes further comments which appear to be a gloss on the oral evidence she gave to the tribunal.  The tribunal has made findings which accept the appellant’s account of nocturnal enuresis.  Whereas the appellant and tribunal differ on the reasonableness of the requirement for attention in connection with this, and the duration of any attention, I do not consider that the tribunal has erred in law by reason of any inadequacy of reasons or of findings of fact. 

19.	The main issue in the appeal is whether the tribunal has adopted an approach to nocturnal enuresis which is in accordance with the law. It stated that it did not understand why the appointee “feels the need to check on her son a first or even a second time during the night.  If, as is the usual pattern, [the appellant] is wet almost every night, why not use protection on the mattress and let the issue of wet pyjamas and wet bedclothes be sorted in the morning when [the appellant] gets up for school”. 

20.	In C70/97(DLA), Mrs Commissioner Brown emphasised that what is to be considered is what is reasonably required.  Such matters go beyond questions of medical necessity in terms of maintaining hygiene.  As Mr Hinton submits, in C70/97(DLA), the Commissioner held that the tribunal has erred in law by not considering the issue in terms of comfort, feelings of cleanliness and the need to protect the skin.  It is clear that personal dignity and psychological well-being fall to be considered in determining whether attention is reasonably required. 

21.	Mr Ferris submits that the present case involves more than just issues of comfort and feelings of cleanliness.  The appellant had been attending a consultant at the Community Paediatric Department for issues of low self-esteem and anxiety.  He submits that the experience of leaving the appellant in wet bedclothes would have an impact on his psychological well-being.  I accept the submission that the psychological stress and emotional repercussions on the appellant of leaving him in wet bedclothes must be taken into account.  The experience of waking in wet night clothes could affect his psychological well-being.  It appears to me that the question of whether attention was reasonably required by the appellant to minimise or prevent feelings of low self-esteem and anxiety resulting from enuresis is a matter relevant to the statutory test.  The tribunal assessed that the appellant could be left without any night time attention several nights per week “without any harm being caused”.  In terms of physical health, that statement may well be accurate.  However, it would not seem to be based on any evidence of the effect on the child’s emotional health. 

22.	I consider that the tribunal has not addressed all matters relevant to the statutory test and that it has erred in law accordingly. 

23.	The tribunal has stated that any attention would not be likely to be prolonged in any event, estimating 15 minutes duration.  This would suggest that any error of law is not a material error in that it would not have made a difference to the outcome of the appeal.  However, the tribunal’s estimate of 15 minutes is disputed by the appointee.  I further observe that the record of proceedings does not contain a record of the appointee’s evidence as to the duration of night time attention.  I consider that actual evidence of the duration of such attention is required to determine the appeal, rather than the tribunal’s estimate. 

24.	In all the circumstances, I consider that I should set aside the decision of the appeal tribunal and refer the appeal to a newly constituted tribunal for determination. 

(signed) O Stockman
Commissioner

16 June 2016