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Disability Alliance attendance allowance and disability living allowance case law

October 15 2007 at 2:28 PM
morse 

Disability Alliance attendance allowance and disability living allowance case law digest

If you have not used this pack before please go to the introduction first.

Back to digests of commissioner's decisions and case law.

1. Introduction
2. Correct application of the whole test
3. Care needs

3.1 So severely disabled physically or mentally

3.2 Cooking test (Preparing a cooked main meal)
3.2.1 Definition of test
3.2.2 Effect of disability
3.2.3 Meaning of main meal
3.2.4 Use of oven, microwave and other adaptations

3.3 Attention in connection with bodily functions
3.3.1 Direct attention
3.3.2 Domestic tasks
3.3.3 Indirect attention
3.3.4 Meaning of bodily function
3.3.5 Meaning of frequent, prolonged and repeated
3.3.6 Meaning of night
3.3.7 Meaning of significant

3.4 Supervision to avoid substantial danger
3.4.1 Falls
3.4.2 Meaning of continual
3.4.3 Meaning of danger
3.4.4 Meaning of supervision

3.5 Terminal Illness

4. Mobility Needs

4.1 Benefiting from enhanced locomotion
4.2 Lower rate mobility component

4.3 Higher rate mobility component
4.3.1 Unable to walk
4.3.2 Virtually unable to walk
4.3.3 Danger to health
4.3.4 Deaf and Blind
4.3.5 Severe Mental Impairment and Severe Behavioural Problems

5. Specific Conditions

5.1 Alcoholism
5.2 Asthma
5.3 Attention Deficit Hyperactivity Disorder (ADHD)
5.4 Autism and Aspergers
5.5 Blindness
5.6 Chronic Fatigue Syndrome (ME)
5.7 Claustrophobia and Agoraphobia
5.8 Coeliac Disease
5.9 Deafness
5.10 Diabetes
5.11 Dialysis
5.12 Dyslexia
5.13 Epilepsy
5.14 Hysterical paralysis
5.15 Illiteracy
5.16 Incontinence
5.17 Mental Health
5.18 Migraine
5.19 Porphyria and skin complaints
5.20 Sleepwalking

6. Other Issues

6.1 Aids and Adaptations
6.2 Children
6.3 DLA beyond age 65
6.4 Evidence
6.5 Prison
6.6 Refusing treatment
6.7 Religious or cultural beliefs
6.8 Residential Care

""1. Introduction

This is a regularly updated digest of summaries of past case law and commissioners decisions related to adjudication issues. You can search this web page in internet explorer by selecting "Find" from the "Edit" menu.

Should you need to get hold of a copy of any of the decisions described in these packs please see our Finding the Law factsheet.

You may also wish to download our other digests of case law available at www.disabilityalliance.org/digest.htm.

2. Correct application of the whole test

basic definition - starting point

Moyna v Secretary of State for Work and Pensions (formerly against the Social Security Commissioner) (Appellant)(2003) (reported as R(DLA)7/03).

The test involves looking at the whole nine months for DLA, 6 months for AA and saying whether, in a more general sense, the person has sufficient needs to satisfy one of the rules for the care or mobility component. It is an exercise in judgment rather than an arithmetical calculation of frequency. A fuller discussion of this case is on our website at www.disabilityalliance.org/moyna.htm. See also R(A)4/78 and CDLA/492/2004.

duty to consider all evidence

CDLA/14594/1996 states that a tribunal must consider care and/or mobility needs if the evidence indicates those needs exist.

normative not arithmetical test

R(A)4/78 states that you need to look at all the evidence as a whole; whether attention condition is satisfied depends on frequency and pattern throughout the day. Approach should be normative, not arithmetical. See also R(A)2/74.

six months forward test

R(DLA)11/02 (formerly CDLA/3324/2001) states that the 'six month forward' rule only states that conditions must be likely to continue to be satisfied for six months. It cannot be used to refuse an award if a claim ceases earlier, such as if a new claim is made.

In CDLA/1564/2004 tribunals are bound to consider both the claimant's needs at the time of the decision and whether the claimant is likely to continue to satisfy the qualifying conditions for six months.

3. Care needs

3.1 So severely disabled physically or mentally

diagnosis - whether required

CDLA/15467/1996, CDLA/16176/1996, CDLA/1659/1997 and CDLA/22521/1997* (17/99) follows other case law in not requiring this.:

“The fact that no diagnosis has or has yet been made, or that no label has been given or has yet been invented for the condition, does not deprive the tribunal of its jurisdiction and responsibility to decide the issue."

Mental disorder may be defined by reference to behaviour rather than by diagnosis. Behavioural or developmental problems in children may also come within the definition of “disabled physically or mentally”.

See also R(DLA)3/06, R(A)2/92 , CDLA/788/1994, CDLA/4767/1995, C57/1997 (DLA)( 78/98),CSDLA/552/2001 and C42/99-00(DLA)*.

CDLA/944/2001* (157/01) stressed tribunal must identify the mental disorder involved when considering the claimant's behaviour. In CDLA/2974/2004 it was found that mental disablement can lead to the need for attention with bodily functions but stressed the importance of diagnosis when reaching a decision in such cases.

disturbed behaviour

CDLA/3360/1995 states that where a claimant exhibits disturbed behaviour resulting from disability (which could be physical in origin – this claimant was deaf), needs arising from this behaviour constitute attention.

need to establish impairment first before proceeding

CDLA/4767/1995 states that the tribunal need go no further if the claimant does not establish that s/he has a severe physical/mental impairment. CSDLA/531/2000 states a tribunal does not err in law if it fails to state the basis for its decision concerning this in the initial decision notice providing this is done in the full statement of reasons.

pain

CDLA/948/2000* (73/01) states that a tribunal does not have to identify a precise condition in order to conclude that there is physical or mental disability. Physical pain is part of a person's physical condition even if caused by, or a symptom of, psychological factors. See also R(DLA)10/02 (formerly CDLA/3908/2000) and CDLA/1898/2003 (which concerned a claimant with Chronic Regional Pain Syndrome).

the severity of the consequences of having a condition

In R(DLA)3/06 (previously CDLA/1721/2004), a decision of a Tribunal of Commissioners. The phrase “so severely disabled physically or mentally”, does not refer to the severity of the condition but to the severity of the consequences of having that condition.

The decision weighed up the merits of previous decisions including chiefly R(A)2/92, CDLA/15467/1996, CDLA/16176/1996, CDLA/1659/1997 and CDLA/22521/1997 and R(DLA)10/02. They rejected the approach taken by R(A)2/92. CDLA/3831/2004 which discusses anxiety arising out of animal phobia and extends paragraph 29 of R(DLA)10/02 to include the mobility component. See also CDLA/1807/2005 and CDLA/2699/2005 .

3.2 Cooking test (Preparing a cooked main meal)

3.2.1 Definition of test

basic definition - starting point

Moyna v Secretary of State for Work and Pensions (formerly against the Social Security Commissioner) (Appellant)(2003) – (reported as R(DLA)7/03). This is a House of Lords decision stating that an earlier court of appeal decision was wrong to place emphasis on the fact that a person may need or prefer to cook a main meal more or less every day. The cooking test is a theoretical one, “a thought-experiment, to calibrate the severity of the disability”. The test says nothing about how often the person should be able to cook. See also R(DLA)2/05 (formerly CDLA/1670/2004). CDLA/2795/2001* (135/01) states that the ability to cook a main meal on occasions is a matter of fact for the tribunal to use when deciding whether the claimant satisfies the test.

reasonably be expected

In R(DLA)1/97 (Formerly CDLA/902/1994) the test is whether someone can “reasonably” be expected to prepare a cooked main meal. See also CDLA/2267/1995 and CDLA/7374/1995 and CDLA/5686/1999* (38/01).

3.2.2 Effect of disability

changes in circumstance

CDLA/4331/2002 says that tribunals and decision-makers can take account of changes in circumstance when making a decision. This case concerned a girl who was under age 16 when the decision was made but was about to become 16 (when the cooking test would apply).

concentration

In CDLA/3360/1995 impairment of concentration and liability to wander off were factors in the test.

cooking skills

CDLA/2547/1997 states that inability to prepare a main meal must arise out of some physical or mental disablement, not whether someone had learned to cook.

driving a car

CDLA/1572/2005 states that a claimant's ability to drive may be relevant when considering co-ordination in relation to the cooking test.

lack of motivation

CSDLA/80/1996 says that if lack of motivation is a symptom of a mental health problem and prevents the claimant from approaching the ingredients or completing the preparation of a meal, the test may be satisfied. See also CSDLA/725/2004.

nausea

CSDLA/854/2003 says that nausea when cooking is outside the scope of the notional cooking test. See Moyna above.

self harm

CDLA/1471/2004 states

“Safety is an aspect of disability and it is relevant to the issue whether a claimant ‘cannot’ prepare a main meal. If considerations of safety render the claimant incapable of preparing a meal, then he cannot do so.”

speed of preparation

CDLA/14594/1996 states that if a meal can only be prepared slowly and in instalments this may satisfy the test.

steam, heat and fumes

CDLA/4214/2002 states that steam and heat can be a factor in the cooking test e.g. if someone has breathing problems. See also CDLA/20/1994 and CSDLA/50/1995.

3.2.3 Meaning of main meal

a labour intensive main meal prepared on a daily basis on a traditional cooker

R(DLA)2/95 (Formerly CDLA/85/1994) defines the "cooked main meal" as a labour intensive reasonable main meal freshly cooked and prepared on a daily basis on a traditional cooker for one person. Reasonable is what is reasonable for a member of the community to which the claimant belongs e.g.. a vegetarian but a "cooked main meal" is not a snack. The test includes all activities associated with cooking such as reaching for a saucepan, lifting it and filling it with water. "Prepare" includes peeling and chopping. Because the test is objective it is irrelevant that a claimant may never wish to cook such a meal or that it is considered financially impossible.

a meal for one

CDLA/2267/1995 states that the meal is a main meal for one person. Heavy pans or dishes are not necessary when preparing this meal.

3.2.4 Use of oven, microwave and other adaptations

adaptations

CDLA/17329/1996 accepts that a hypothetical ideal condition should not be used to judge cooking test but should take account of claimant's existing adaptations.

microwave ovens

CDLA/20/1994 states that the possibility of cooking fast foods by microwave etc. should be ignored. CDLA/3778/2002 states that a microwave should be regarded as an ordinary piece of kitchen equipment in the same way as other “devices to assist” though a claimant “who is for all practical purposes wholly unable to use a traditional cooker” satisfies the cooking test. CDLA/2367/2004 states that if “the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of a microwave should not be taken into account." CDLA/1212/2005 held that a tribunal was entitled to take into account the use of microwave ovens and heatproof pan handles even though the claimant did not have them though CDLA/17329/1996 disagrees with this in relation to other adaptations. CDLA/5250/2002 contains a bizarre potted history about the development of the microwave and concludes that microwaves will figure more prominently in the cooking of a main meal. See also CDLA/770/2000.

In CDLA/4351/2006 the combined use of a Baby Belling and microwave can count for the cooking test if they are used to produce a labour intensive main reasonable daily meal.

ovens

CDLA/5686/1999* (38/01) states that the test does not necessarily involve the use of an oven. See also CDLA/770/2000* (39/01) which discusses coping mechanisms considered reasonable such as the use of tinned foods, use of oven chips instead of a chip pan, peeling and chopping sitting down and microwaves used to prepare food rather than heat up cooked food. See also CDLA/4958/2002, CDLA/2259/2000*(55/00) and CDLA/2267/1995.

perching stool

CDLA/2259/2000* (55/00) states that if a claimant cannot stand (in this case because of disablement to the right leg) then it is possible to cook a main meal safely by using a chair or a perching stool. R(DLA)8/02 states that tribunals must investigate the reasonableness and effectiveness of using such a stool as well as investigating the claimant's needs in relation to her/his disability in a kitchen with normal facilities. See also C41/98(DLA)* (4/01 Northern Ireland decision)

slotted spoon

CDLA/1714/2005 says that tribunals should take into account those aids that might be reasonably used such as, for example, a slotted spoon but must consider the claimant's ability to use them in the light of his or her disability.

3.3 Attention in connection with bodily functions

3.3.1 Direct attention

attention and supervision overlap

R(A)1/73 states that attention and supervision can overlap and be provided at the same time. The main issue is not whether help was provided but whether it was needed.

close attention

In R(A)3/78 close attention was what a disabled person would normally do for themselves rather than something which could be done by anyone in the household. By this definition, selecting clothes to wear and applying Braille labels is attention but the sorting of clothes for laundering or checking food labels for sell by dates was not.

in the presence of the disabled person

R v NI Commissioner ex parte the Secretary of State for Social Services (1981) (The Packer Case, published as an appendix to R(A)2/80) states that attention is more than just personal service - it involves care, consideration and vigilance for the person being attended. Involves "service involving personal contact carried out in the presence of the disabled person". Includes definitions of "bodily functions" and other terms. See also CDLA/492/2004.

See also R(A)3/74 which states that attention "denotes a concept of some personal service of an active nature". . The Mallinson and Fairey decisions extend this definition.

meaning of requires

R(A)3/86 states that this means reasonably requires rather than being restricted to medically requires.

3.3.2 Domestic tasks

cooking, shopping and cleaning

R v NI Commissioner ex parte the Secretary of State for Social Services (1981) (The Packer Case, published as an appendix to R(A)2/80) states that attention does not include “cooking, shopping, or any of the other things”….done as part of domestic duties. Cockburn v CAO (1996) states that cooking, shopping and cleaning are not attention in connection with a bodily function.

must be closely associated with a bodily function

Cockburn v CAO (1996) (reported in R(A)2/98) states that a domestic task that is closely associated with a bodily function and which is performed as part of a “continuous single episode of attention” can count as part of that attention even if the carer and disabled person are briefly separated (e.g. washing clothes or sheets after spillage or leakage). See also CSDLA/1095/1999* (99/00). CDLA/267/1994 discusses attention (seeing or lifting), which enables someone to perform domestic duties.

See note to CDLA/1148/1997 concerning changes to regulations. See also Stewart v Advocate General for Scotland (1999) and R(A)1/91. In Margaret McPhee v Advocate General for Scotland it was held that attention to the need to urinate can also take account of the attention following the completion of the bodily function of urinating – e.g. washing sheets, washing the claimant.

Gregory Ramsden v Secretary of State for Work and Pensions (2003) (reported in R(DLA)2/2003, previously CDLA/651/2001) suggests that Cockburn is not “a formula or litmus test which can be applied as a matter of rote”. In relation to incontinence it discusses what might count as attention – e.g. immediate removal of soiling from clothes, bed linen or adjacent surfaces. See also CSDLA/629/2002.

3.3.3 Indirect attention

attention over the phone

Following the result of Foley vs Chief Adjudication Officer (CDLA/1148/1997* (19/00) remitted back from the court of appeal case Foley vs CAO) the government amended the regulations (SI 2000 No 2313) to read that “the attention the severely disabled person requires from another person is required to be given in the physical presence of the severely disabled person”. See CDLA/4333/2004 which considers the use of attention over the phone as evidence of attention needs in the presence of another person.

cajoling or persuading

CSDLA/309/1998* (2/99) states that cajoling or persuading is not attention. This case concerned a child who had post traumatic stress. Also argued that reassurance may not help with sleep. Doubted whether this was close personal intimate contact. But see R(A)3/78, CA/177/1988 and CDLA/3680/1997* (59/98), CA/508/1992, CDLA/895/1994, CDLA/12912/1996 for alternative viewpoints.

help with bodily functions

In CDLA/3376/2005 he tribunal excluded evidence by applying a test of context (Not considering help with cooking, cleaning, shopping, domestic duties etc) rather than considering whether it was help with bodily functions.

help with communication

In Mallinson v Secretary of State for Social Security (1994) (Reported in R(A)3/94) guiding or reading to a blind person can count as attention in connection with the bodily function of seeing (Can apply this ruling to other bodily functions and also to those with other conditions e.g. deafness). See CDLA/3607/2001 which discusses the inability to read and write in relation to physical or mental disability. See also Secretary of State v Fairey and sections on particular disabilities such as deafness or blindness.

locking doors

CSA/993/2002 states that locking doors is not normally help reasonably required.

preparation, cooking and serving of food

R(A)1/91 (Formerly CSA/17/1989) states

“A person may suffer from a disability necessitating such involved and complex preparation and cooking of food which may well in my view render these matters relevant to the attention condition.”

The decision concerned a child.

Quoted R(A)1/87 as an example of special dietary preparation. See also CSDLA/98/1994* (59/95) and Cockburn v CAO (1996). CSDLA/160/1995 takes the opposite view to these decisions.

Secretary of State for Work and Pensions v June Batty (2005) overturned CA/2034/2004 where the commissioner decided that help with getting drinks ( the claimant could make them but not carry them) could count as attention in connection with bodily functions. A fuller discussion of this case is on our website at www.disabilityalliance.org/batty.htm.

In CSA/993/2002 carrying food and shopping is not normally help reasonably required.

social activities

In Secretary of State v Fairey (originally CA/780/1991, now reported in R(A)2/98) attention which enables a profoundly deaf person to perform 'reasonably required' social activities counts. Guidance suggests that decision maker should consider:

  • Which bodily function is impaired?
  • Whether someone could provide attention in the disabled person’s presence to compensate for the impairment?
  • Whether the disabled person can perform the activity in question with that attention?

Help from a third person in connection with hearing or speaking counts as attention but not if the signer is reasonably skilled. The need to speak loudly or clearly may also not count. CDLA/16668/1996 states that these attention needs should not only cover social activities undertaken but also those that the claimant wished to do. See also CDLA/240/1994. CSA/83/1990 looks at the amount of effort required.

social contact to prevent panic attacks

In CDLA/3890/1997 help to overcome cognitive or other functions of the brain unrelated to physical functions is not attention. They are emotional psychological needs rather than bodily needs (see also CA/22/1993).

stimulation

In CA/177/1988 stimulation such as encouragement to prevent self neglect as a result of depression can be attention.

3.3.4 Meaning of bodily function

communication and social integration as a bodily function

In R(DLA)1/07 (CSDLA/133/2005), a decision of a tribunal of commissioners, communication is not a bodily function but an activity involving a number of separate bodily functions. It involves many organs of the body, including the mouth, vocal chords, face and limbs and the bodily functions of hearing, seeing, speaking and movement. You need to look at how all of these are affected to ascertain the attention needed. Social integration should be "unbundled" in the same way as communication and the bodily functions involved identified by the tribunal when making a decision.

This decision overrides CDLA/17189/1996 which states that communication as a bodily function and CSDLA/867/1997, CSDLA/840/1997 (3/97) and CSDLA/860/2000 (91/01) which state the opposite.

help with cooking

In CDLA/450/1995 help with a bodily function (e.g. seeing, lifting) reasonably required to enable someone to cook for his or her self counts as attention (claimant with schizophrenia).

length of time

CDLA/2481/1995 states that the length of time taken for a person to attend to their bodily functions can determine whether help is reasonably required. There comes a point where it takes so much longer that help can only be considered to be reasonably required.

normal fit man's bodily functions

In Woodling v Secretary of State for Social Services (1984) it is attention if it is in connection with the performance of functions which a normally fit man performs for himself.

play

In CDLA/13824/1996 playing is defined as a bodily function. See CSDLA/655/2002 for an opposing view.

prompting and motivation

CDLA/2495/2004 states that prompting to dress, wash and shave is not necessarily required every day to if the claimant does not habitually perform these activities every day. See also CDLA/14696/1996 which discusses prompting and eating. R(DLA)1/07 (CSDLA/133/2005) below considers that prompting and motivation are capable of constituting attention in connection with an impaired bodily function within the meaning of the law.

sleeping

R(A)3/78 states that sleeping is a bodily function and soothing someone back to sleep could constitute attention (para 12 of the decision). CDLA/12912/1996 discusses attention in the form of calming someone who suffers from mental illness and has disrupted sleep patterns. See also CSDLA/309/1998.

thinking as a bodily function

R(DLA)1/07 (CSDLA/133/2005) states that functions of the brain are included within the term "bodily functions", disapproving of CSDLA/867/1997, CSDLA/832/1999, CDLA/4295/200* (123/01) and CSDLA/860/2000 which take an opposing view. See also CDLA/1983/2006 which concerns a person with dyslexia.

types of bodily function

R v NI Commissioner ex parte the Secretary of State for Social Services (1981) (The Packer Case, published as an appendix to R(A)2/80) lists some bodily functions - e.g. bathing, hearing, sleeping, getting in or out of bed, dressing, undressing and the like. (The speech of Lord Slynn concerning Fairey and Cockburn suggest that not all of these were separate bodily functions. Some, such as walking, dressing, sitting and getting out of bed were all actions concerned with the bodily function of movement.

R(DLA)1/07 (CSDLA/133/2005), a decision of a tribunal of commissioners, states that the term bodily function refers to the normal action of an organ of the body - e.g. the action of the jaw. It is also appropriate to extend the term bodily function to the organ's immediate purpose - the mastication of food. Bodily functions can also be the actions of an organ acting with other organs - the jaw carries out the function of eating because it acts in concert with the rest of the digestive system. An activity performed by the body is not a bodily function if it isn't a normal action or purpose of that organ or set of organs - e.g. shopping, cooking, dressing, undressing or getting in or out of bed. But even if an activity is not itself a bodily function the "discrete" bodily functions involved with this activity can be "unbundled" to ascertain a claimant's impairment in order to decide whether they are relevant to the test for DLA. Functions of the brain are included within the term "bodily functions".

3.3.5 Meaning of frequent, prolonged and repeated
(note: these definitions should be considered in the light of Moyna)

basic definition - starting point

R v NI Commissioner ex parte the Secretary of State for Social Services (1981) – (The Packer Case, published as an appendix to R(A)2/80) defines these as:

  • Frequent - Several times. Not just once or twice.
  • Prolonged - Some little time (not defined but taken to mean 20 minutes – used by the old attendance allowance boards). See also CDLA/4024/2003.
  • Repeated - More than once.

Stewart v Advocate General for Scotland (1999) – (reported in R(DLA)2/00) rejects the idea that more than two incidents of help throughout the day necessarily was a rigid definition of the frequency test. See also CDLA/492/2004. For the night condition C/34/98(DLA) (Northern Ireland decision).

Suggests that watching over at frequent intervals implies a substantial disturbance of the carer’s sleep. Therefore the frequent intervals must be more than twice at least.

frequency - fluctuating conditions

CDLA/12315/1996 looks at good and bad days and suggests ways of calculating frequent attention. Basically the approach is to assess an average over a given period of weeks.

frequency over the whole day

CA/140/1985 that you must look at the whole of the day. Discusses cases where there are gaps in attention during the day. CA/281/1989* (8/91) states that this frequency should be "at intervals spread over the day. See also CDLA/12315/1996.

frequency - total time spent

In CDLA/12150/1996 attention required briefly but frequently throughout the day could qualify for middle rate DLA even though the total time spent might be less than that for low rate DLA. CSDLA/590/2000* (82/01) states that the duration of attention may be brief but must be more than de minimis. See also CSDLA/24/1998.

moyna

CDLA/492/2004 states that Moyna should be used to determine attention needs. Definitions for prolonged and frequent attention should be considered in relation to this but also should not be followed slavishly.

"prolonged attention cannot be expressed in a given number of minutes (e.g. 20 minutes), beyond which attention is invariably prolonged and within which it is invariably not prolonged."

"..whether occurrences can properly be said to be "frequent" - therefore depends upon a number of factors, particularly the number and pattern of those occurrences over time. The nature of those occurrences is also relevant."

Following this approach, failure to need frequent attention in a given week will not prevent someone satisfying the frequent attention test if they have these needs most weeks over a period of time.

3.3.6 Meaning of night

dialysis

R(A)1/93 states that definitions of night time can be modified in the case of dialysis patients.

margins of day and night

CDLA/3242/2003 follows R v NI Commissioner ex parte Secretary of State for Social Services in deciding that day and night are to be determined for the household as a whole rather than individually for each member. But it stresses that unusual or extreme household arrangements cannot override the core element contained within the words 'day' and 'night' - a household cannot "make their night light and the dark their day". Basically this means that night is generally defined the time when an adult is in bed but this period must be more or less within nighttime hours. See also CSA/322/2003.

a reasonably average household

CSA/322/2003 states that night time is not necessarily the point at which the household goes to bed.

"the word "night" in the legislation must have an objective content and not be restricted purely by the claimant's own particular sleep pattern".

Night for a reasonably average household is between about 11pm and 7am. In this case the claimant was out walking before 7am and any help needed before this time was considered night attention. See also CDLA/3242/2003, CDLA/997/2003, CDLA/2852/2002.

time when the household goes to bed

R v NI Commissioner ex parte Secretary of State for Social Services (1974) (reported as an appendix to R(A)4/74) defines "night" as the period "from the time at which a household, as it were, closed down for the night". See also R(A)1/78 for a similar view which also suggests that “household” is the adult part of the household rather than children. CA/15/1981 discusses this approach in relation to a husband and wife who habitually went to bed late (night would begin when they both went to bed). CA/4/1980 discusses whether it is relevant to consider the retirement of individuals rather than the household in certain cases. States that the relevant time is when the attendant goes to bed but also considers what is generally accepted as night-time – i.e. after midnight which constitutes a new calendar day. See R(A)1/93 for cases where dialysis is involved.

Note that the approach taken in this decision has now been modified by CDLA/3242/2003 and CSA/322/2003.

3.3.7 Meaning of significant portion of the day
(note: these definitions should be considered in the light of Moyna)

around an hour

CDLA/058/1993* (94/94) defines "significant portion" as a minimum of an hour (in a House of Lords debate, Hansard, 25th March 1991. Col. 884 – significant portion was commented as “an hour or thereabouts”). See also CSDLA/29/1994 which discussed the disruption to the carer when attention is provided for short periods on a number of occasions. See also CDLA/206/1994.

meaning of day

CDLA/1463/1999 states that the term day in “significant portion of the day” means a 24 hour day – e.g. attention during both day and night. CDLA/5419/1999* (46/00) and R(DLA)8/02 take a different view – ‘significant portion of the day’ refers to the daytime only.

moyna

CDLA/492/2004 states that attention needs must be considered over a period of time.

significant portion

CDLA/206/1994 states that when deciding a "significant portion":

  • Significant - could mean at least an hour.
  • Portion - implied a fraction or percentage of the day rather than a time period.

3.4 Supervision to avoid substantial danger

3.4.1 Falls

continual supervision and falls

CA/127/1988 states that the supervision would be continual unless it was possible to isolate one or two activities which led to falls in order to prevent them.

four questions in relation to falls

R(A)3/89 asks these questions;

  • Are the situations where the person may fall predictable?
  • If predictable, can the fall, or the risk of a fall, only be avoided by supervision?
  • If the falling is unpredictable, will it give rise to substantial danger?
  • Is the substantial danger too remote a possibility?

CA/4332/2003 provides a rewritten version of the first two rules:

(i) Is there a risk of substantial danger due to a fall only in certain situations?
(ii) If so can the claimant reasonably be expected to avoid those situations or to expose himself or herself to them only when adequately supervised and, if supervision is required, does the claimant reasonably require it to be "continual..throughout the day"?

See also CDLA/16484/1996 which asks tribunal to ascertain if claimant actually has falls, then decide whether disablement is a result of physical or mental condition and finally to assess how far these falls contribute to the need for supervision. R(A)5/90 states that adjudicating authorities are not bound in law to answer the four questions above. There may be circumstances where different questions need to be asked. CA/4332/2003 follows this and stresses the importance of avoiding discrimination by treating differently those who have done without supervision because they live alone. The test is what is reasonably required.

frequency of falls

CSDLA/858/2005 noted that when examining the frequency of falls the tribunal found that three or four were insufficient for the test. It was not further obliged to go on and explain why it did not consider such a frequency amounted to a "significant risk of falling".

likelihood of serious injury from falls

CA/4332/2003 states that the test is not the frequency of falls but the likelihood of serious injury. CDLA/2896/2000 states that the claimant does not actually need to have experienced a serious injury in order to be at risk of substantial danger from falls.

measures to avoid risk of falling

CA/40/1988 states that it will be unreasonable to expect this if it meant imposing too great a restriction on the claimant e.g. forcing them to remain in bed or stay in a chair. See also CSA/46/1989, CA/127/1988 and CSA/4/1987.

need for supervision for falls

R(A)1/96 (formerly CA/233/1995) states that not every person who falls needs supervision. Must look at the "propensity" to fall by reason of his or her condition.

CSDLA/858/2005 states that it is rational to judge that it is not reasonable to expect someone to be on hand on a continual basis if someone can rise unaided from a fall, albeit slowly and with discomfort.

3.4.2 Meaning of continual

four parts to the continual supervision test

R(DLA)1/98 (formerly CSDLA/126/1996) says that these are:

    1. Claimant's medical condition must give rise to danger to self or others
    2. Danger must not be remote
    3. Must be need for supervision by a third party to avoid this danger
    4. Supervision must be continual.

less than continuous

R(A)1/73 states that continual supervision is less than continuous.

3.4.3 Meaning of danger

avoidance of risks

R(A)1/87 states that the Decision Maker should explain how any suggestions regarding the avoidance of risks “is practical and compatible with the evidence of (the disabled person’s abilities and) agility and with anything resembling normal domestic arrangements.

can the claimant be alone?

R(A)6/89 states that the correct starting point for assessing the need for continual supervision might be whether the disabled person could be alone in a house without being in substantial danger.

CDLA/468/2006 discusses situations where someone may be left for short periods yet still need continual supervision. However, such supervision does require the carer to be "attuned to the needs of the person cared for and to be in a position to respond to the onset of danger."

danger to others

R(A)5/81 states that you must look at danger from others as well as to others.

not “too remote” a possibility

Moran v Secretary of State for Social Services 1987 (reported in R(A)1/88) states that the frequency of the event of danger is immaterial to the question of whether the supervision is continual so long as the risk of substantial danger arising is not “too remote” a possibility. R(A)1/83 agrees with this and states that the fact that an incident is isolated or infrequent is immaterial. See also R(A)2/75 and R(A)3/92.

R(A)2/89 says that tribunals have to decide whether the risk of an incident occurring is not too remote a possibility e.g. the risk of fire was considered “remote” but not “fanciful”. See also CA/60/1991* (73/91) which discusses the need for supervision in the event of fire. CA/194/1987 considers the tribunals duty to take account of unexpected happenings and their potential for danger.

reducing risk

R(A)3/92 says that the test for Supervision is about reducing the real risk of harm. It does not require the person supervising to eliminate danger altogether.

substantial danger

R(A)1/73 states that substantial danger should not be too narrowly construed. It can arise from many things - such as exposure or neglect.

3.4.4 Meaning of supervision

indirect supervision by friends, neighbours and others

CDLA/393/2006 says that "Natural protection" provided by bus drivers, shopkeepers, friends and neighbours were all thought to be relevant to the test.

passive but ready to intervene

In R(A)6/72 supervision is defined as something more passive than attention, such as being in the same room, ready to intervene in the event of emergency. Moran v Secretary of State for Social Services 1987 states that the supervision may be precautionary and anticipatory. R(A)2/75 agrees with this and states that this must be considered with reference to the frequency or regularity of occurrence of danger, though for the purposes of the test the danger may never actually arise.

supervision must be needed

R(A)1/73 states that the question is not the actual supervision (or attention) provided but the amount of supervision needed. Attention and supervision can overlap and be provided at the same time. The main issue is not whether help was provided but whether it was needed.

3.5 Terminal Illness

children

R(DLA)1/1999 (Formerly CDLA/1304/1995) states that the substantially in excess care rule does not apply to a child who is terminally ill.

4. Mobility needs

4.1 Benefiting from enhanced locomotion

a liberal interpretation

In R(M)2/83 someone would come under this rule if they were incapable of benefiting all the time but could do so from time to time. See also CDLA/42/1994.

to an extent that would not otherwise be possible

CDLA/2364/1995 states that you must demonstrate on the balance of probabilities that they could, with guidance or supervision, be able to walk out of doors to an extent that would not otherwise be possible. See also CDLA/757/1994, CDLA/2364/1995, CDLA/2643/1998 and CSDLA/12/2003. For a conflicting approach see CDLA/42/1994, CDLA/52/1994 and CDLA/3360/1995.

a walk in the garden

CDLA/2142/2005 concerned an agoraphobic claimant who could only venture into the garden (but not further) with guidance or supervision. The decision say that the claimant may benefit from enhanced facilities for locomotion and satisfy the test for lower rate mobility component. See also CDLA/2364/1995.

4.2 Lower rate mobility component

anxiety, communication and interrelationship with middle rate care component

R(DLA)4/01 (CDLA/714/1998, CDLA/2560/1998, CDLA/414/1999 and CDLA/823/1999, a Tribunal of Commissioners decision. made the following points:

  • Supervision needs taken into account for middle rate care component could also be taken into account for the low rate mobility component test although there is no automatic passport to low rate mobility component. See also CDLA/52/1994, CDLA/835/1997, CDLA/1684/98 and CDLA/2643/1998 .
  • The test is satisfied where someone is too frightened or nervous to walk out of doors on unfamiliar routes as a result of their underlying disability. Note: amending regulations state that fear and anxiety must be a symptom of mental disability which is severe enough to prevent someone from taking advantage of the faculty of walking without guidance or supervision on unfamiliar routes. See R(DLA)3/04 (formerly CDLA/4438/2003) and CDLA/1457/1998.
  • Where someone is profoundly deaf (or has some other disability) and also has limited ability to communicate or receive information, guidance in order to ask for directions may count. Claimant may need someone with them in unfamiliar places even though the need to intervene is only occasional. See also CDLA/1684/98.

See CSDLA/430/2004 in the "Asthma" section. See also CDLA/1684/1998.

asking directions

In CDLA/1684/1998 a need to ask for directions can constitute a need for guidance (this agrees with CDLA/14307/1996 but see also CSDLA/223/1998 for a criticism of this view. See also CDLA/240/1994 which states that “inability to ask for directions does not, by itself, demonstrate a need for supervision.). See also R(DLA)4/01.

children

CSDLA/76/1998* (53/98) states that, in the case of a child, the tribunal must determine the nature and extent of the guidance that the claimant needed and then make a comparison with a “normal” child of the same age.

choosing not to walk

C/34/98(DLA) (Northern Ireland decision) states that someone may still satisfy the test if he or she is "so disabled physically or mentally that ….it would be completely unreasonable to expect him to walk out of doors without guidance or supervision".

guidance and supervision

CDLA/42/1994* (109/94) looks at the meaning of guidance and supervision.

  • Guidance - Directing or leading a claimant by physical means or oral suggestion or persuasion (See also R(DLA)3/04 (formerly CDLA/4438/2003).
  • Supervision - precautionary and anticipatory yet never result in intervention. There had to be some element of monitoring of the claimant's physical or mental or emotional state. This could include monitoring the route for obstacles, dangers or places or situations which might upset (or be a danger to) the claimant. Encouragement, persuasion or cajoling could also be supervision.

See also CDLA/1684/98.

help given to treat a condition

CSDLA/591/1997 restates that guidance or supervision must improve the capacity to walk. Other help, such as to treat a condition does not count. See also CDLA/282/2002.

must be linked to disability

CSDLA/867/1997 and CSDLA/840/1997* (3/97) states that the ability to take advantage of the faculty of walking must be directly linked to the disability (see CDLA/14307/1996 in “Deafness” section for an alternative interpretation). These two decisions have been superseded by R(DLA)4/01, a decision by a tribunal of commissioners.

persuasion

CSDLA/68/1998 states that persuasion does not qualify as guidance or supervision.

prevention of criminal activity

In CDLA 835/1997* (42/99) supervision to stop a claimant getting into trouble (criminal activity or moral harm) does not qualify for the lower rate. Supervision “must be of a kind needed to remove an inability on the part of the claimant to take advantage of the faculty of walking out of doors”.

propensity to fall

CDLA/757/1994 states that “Supervision not a prerequisite for exercising the power of walking but an additional advantage rendering walking less open to risk.”

See also R(DLA)4/01 and CDLA/1457/1998.

threat of physical confrontation

In CDLA/3781/2003 the claimant argued a need for supervision because of risk of physical confrontation but it was held that the need for supervision was not established. The claimant felt threatened at times when he was walking and had also been involved in physical confrontation but at other times was able to walk on unfamiliar routes.

unfamiliar routes

Paragraphs 28 and 29 of CSDLA/12/2003 set out the steps a tribunal should take when ascertaining the low rate mobility test:

  • determine whether, through disablement, the claimant is unable to walk on familiar routes without guidance or supervision - in which case he satisfies
  • if the claimant can walk on familiar routes consider if he or she can walk on unfamiliar ones - if the claimant cannot the test is satisfied

See also CDLA/4806/2002 and R(DLA)6/03 (formerly CDLA/2106/2002).

CDLA/2377/2002 states that "the question that needs to be asked is what would happen if the claimant went along unfamiliar routes without being supervised."

4.3 Higher rate mobility component

hysteria

Harrison v Secretary of state for Social services (as reported in R(M)1/88) states that if hysteria arises from a physical condition, then the inability to walk may itself may be caused by that same physical condition. See also R(DLA)4/06.

no identifiable physical cause

R(DLA)4/06 (previously CDLA/2879/2004 and CDLA/2899/2004) is a long (41 page) decision made by a Tribunal of Commissioners. It discusses whether pain or dizziness or other symptoms which are found to have no identifiable physical cause can be a 'physical disablement' for the purposes of entitlement to the higher mobility component of DLA. The commissioners decided that they were bound by Harrison v Secretary of State for Social Services (R(M)1/88). As a result pain, dizziness, or other symptoms, are not a feature of the claimant's 'physical condition as a whole' unless they have a physical cause. The commissioners would have arrived at a different conclusion had Harrison not forced them to decide otherwise.

physical and mental disablement

CDLA/3612/2003 concerned someone who had both physical and mental disablement but who could not satisfy the test for high rate mobility component because her physical problems were inadequate and her mental ones irrelevant. States there needs to be a current "organic abnormality, objectively verifiable, which is a necessary link in the causal chain which restricts the claimant's walking to the required degree."

" a claimant may for example have physical back problems and also depression. If depression is due to her physical condition, at least in part, or if her physical condition is a material cause limiting her walking, albeit exacerbated by unconnected depression, then a tribunal is entitled to find any resultant walking difficulties are due to her physical condition as a whole".

CDLA/4125/2000 suggests the test will be satisfied if mental difficulties lead to physical disablement. C8/00-01(DLA)* (49/01) suggests that it is wrong to conclude that failure to walk is not due to physical disablement just because a claimant's condition was predominantly due to his or her mental state.

R(DLA)4/06 discusses the correct test to be applied in cases where claimants have mobility problems arising from a combination of physical and mental factors. The commissioners settled on a "material cause" approach.

"116. In our judgment, therefore, even if a decision maker or appeal tribunal considers that mental or psychological problems are the substantial cause of a claimant’s walking difficulties, it should award the higher rate of the mobility component if it finds that a physical disorder contributes to the claimant’s inability or virtual inability to walk to more than a minimal extent."

It was a majority view of this Tribunal of Commissioners that this would "not include the situation where at the date of the decision the walking difficulty is entirely due to psychological problems, even if those arose from a physical problem which has abated."

Paragraph 120 cites an example where someone may pass the test if the claimant's problems with walking were mental in origin, which in turn led to problems of a physical origin.

physical disablement in relation to the walking test

R(M)1/80 restates that the inability to walk must arise from a physical condition. CSDLA/894/2001 states that tribunals must establish that “a causal chain extends from the claimant’s physical condition as a whole to sufficient limitations on her walking to qualify”.

weather

CM/208/1989 says that the effect of normal weather conditions - which includes cold windy days - should be taken into account. See also CM/247/1987 which held that ordinary weather conditions were relevant factors.

4.3.1 Unable to walk

meaning of walk

Lees v Secretary of State (1985) (reported as appendix to R(M)1/84) states that someone is unable to walk if they cannot use their legs for walking. A person who is bedridden or paraplegic is therefore unable to walk. A person who has a leg amputated may be unable to walk but might be enabled to walk by the use of artificial aids such as a false limb or crutches.

The test is the ability to perform the physical act of walking, not the ability to get from A to B.

R(M)3/78 defines walk as an ordinary English word in common usage meaning to move by means of a person's legs and feet or a combination of both. R(M)/1/90 defines it as advancing in a manner in which at least one foot is on the ground.

refusing treatment

R(M)1/90 held that the claimant’s refusal to have an operation (in this case a colostomy) does not constitute refusal to use a prosthesis. The correct test is whether claimant is able/unable to walk in the light of existing condition.

use of aids

R(M)2/89 states that If crutches or another aid is used you must consider whether they enable the claimant to walk as defined. If simply swinging feet then claimant will satisfy the unable to walk test. See also R(M)1/90 and CDLA/97/2001* (102/01).

4.3.2 Virtually unable to walk

behavioural problems

R(M)3/86 is a decision of a Tribunal of Commissioners. It considers that behavioural problems arising from a physical source can constitute a "temporary paralysis" as far as walking is concerned and therefore be seen as a "virtual inability to walk" See also R(M)2/78 and CM/98/1989. CDLA/4565/2003 (below) discusses some of the problems contained within R(M)3/86.

CDLA/4565/2003 Discusses "could not" versus "would not" arguments i.e. can a child's refusal to walk be resolved by the threat of punishment or promise of a reward. Defers to R(M)3/86. because it is a decision of a tribunal of commissioners but believes their approach was too generalised, their approach. Children who suffer from conditions such as autism, Down’s Syndrome, and William’s Syndrome may have a raft of symptoms which are relevant to their ability to walk but which may make them not wish to walk including clumsiness and lack of coordination, high levels of anxiety and fearfulness, short sightedness, poor balance muscle weakness, tiredness, lack of endurance, breathlessness and embarrassment. To say that a child who can be persuaded or coaxed to walk further (after being promised a reward or threatened with punishment) is not suffering from problems which stem from a physical disablement must be wrong and be based on a generalisation without reference to the evidence of the particular case." Cites CM/98/1989 as a possible approach to the problems caused by R(M)3/86. The decision directs a tribunal to pay careful attention to medical evidence.

CSDLA/202/2007 concerned an autistic child, age three, with behavioural problems. The commissioner states that the higher rate mobility component can be satisfied on grounds of being virtually unable to walk, provided the walking problems stem from the claimant's physical disablement and his physical condition as a whole. see also CDLA/1678/1997.

distance

Baron v Secretary of State for Social Services (1986) (as reported in R(M)6/86) stated that it would be “an intolerable burden” if a tribunal had to record a precise finding of how far a person can walk without severe discomfort. CM/47/1986 states that so long as their decision is not perverse, it is not open to the Commissioners to interfere with a tribunal decision. See also R(M)1/91.

Other decisions have attempted to suggest a distance as a rule of thumb. Currently this distance is 50 yards (metres). CDLA/608/1994 suggested that "in the absence of any special indications from the other three factors (speed, time and manner)" the ability to walk 25 or 30 yards is insignificant whilst someone who can walk 80 or 100 yards is unlikely to pass the test. For distances in between the decision cites CM/379/1989 which suggests that people will fail the test if they walk 60 or 70 yards without discomfort.

CSDLA/252/1994 stated that if someone could walk even 50 yards - albeit slowly, with a limp and taking a rest - before the onset of severe discomfort they would not be virtually unable to walk. CDLA/14594/1996 is more generous. It places a duty on the tribunal to consider how long someone needs to stop and rest before continuing as well as the nature of the discomfort that led to her needing to stop in a case where a claimant could walk 100 yards but stopped once during that distance.

CDLA/11266/1995 stated that walking 50 yards in five minutes is too slow so the claimant would be virtually unable to walk. See also CDLA/4388/1999* (91/00) and CDLA/3875/01 (paragraph 10).

CDLA/4580/2003 states that where a general practitioner states "unknown" in response to the request for information as to the distance the claimant can walk before the onset of severe discomfort, the tribunal must treat the reply as neutral, in the absence of further qualification or amplification, and the doctor's comment is not a basis for a finding of fact.

fluctuating conditions

CM/139/1988 states that if a claimant has a fluctuating condition they will still satisfy the test if taken as a whole they are virtually unable to walk. See also CM/171/1988.

help from someone else

R(M)/1/90 states that if a claimant needs physical support from someone in order to walk a tribunal must decide whether the need arises from physical causes and would the claimant be virtually unable to walk if the support was withdrawn?

severe discomfort

Cassinelli v Secretary of State for Social Services (1991) (as reported in R(M)2/92) states that severe discomfort should not be taken to suggest "severe pain" or "severe distress" . Breathlessness could constitute severe discomfort.

CDLA/1832/2002 states that severe discomfort is "discomfort that it is not reasonable to expect a claimant to endure on a day-to-day basis". CSDLA/554/2005 considers cases where a claimant suffers severe discomfort at times during his walking but overall is not virtually unable to walk.

R(DLA)4/98 (formerly CDLA/12940/96) differentiates between pain and discomfort. Pain encompasses a wide range of intensities from mild to severe. Discomfort defined according to the dictionary as "the condition of being uncomfortable; uneasiness". So someone in pain may not be suffering severe discomfort but a claimant may suffer severe discomfort without pain e.g. breathlessness (see also R(M)1/83). However someone in severe pain does suffer severe discomfort.

R(M)1/81 states that severe discomfort being a lower concomitant of severe pain; doesn't mean "excruciating agony" and CM/1/1981 states that severe discomfort includes pain, fatigue and unease of all kinds.

R(DLA)4/03 (Formerly CSDLA/667/2002) follows R(DLA)4/98 and says that the stage at which pain amounts to severe discomfort is left to the judgement of the tribunal. See also CSDLA/252/1994. Tribunals should take into account discomfort that arise from a subsequent bout of walking following a period of rest. CDLA/608/1994 considers cases where the effects of the discomfort do not set in until later. CM/267/1993 considers that discomfort does not necessarily become severe at the point at which the claimant is forced to stop walking. He or she may be in severe discomfort whilst walking. See also CM/166/1988 and CM/87/1989. CDLA/3896/2006 states that the tribunal should consider both the discomfort during walking and any discomfort incurred as a result of walking that occurs after the walking has ceased.

R(DLA)6/99 reiterates that the severe discomfort has to be brought on by the act of walking and not by any other cause. See also CDLA/13955/1996. R(DLA)4/04 (Formerly CDLA/2139/2003) reaffirms that the walking must be outdoors from walking out of doors rather than some other factor. However this does not preclude someone who has severe discomfort prior to walking.

CDLA/19/1994 places a duty on the tribunal to establish the extent a claimant can walk without severe discomfort to avoid an error of law due to inadequate findings. See also CM/171/1988.

speed

CM/145/1988 states that someone walking 90 yards in five minutes would be too slow and therefore virtually unable to walk. CDLA/5214/2001 states that the walking test does not involve a minimum speed. Speed should be considered as a factor in the claimant's ability to "make progress on foot without severe discomfort".

CDLA/2715/2006 discusses the use of evidence of normal walking speeds as produced by the Road Research Laboratory (100 metres can be walked by a fit person in 1 minute 16.9 seconds).

“The quoted figure provided a benchmark of a “normal” speed against which the tribunal’s view of the expected speed of the claimant’s walking, expressed in an easily understood form, could be compared.”

symptoms and medication

CDLA/1389/1997 states that the tribunal should obtain evidence of the symptoms then relate that evidence to the legal test. This includes diagnosis, medication, medical evidence of disablement, the claimant’s credibility as a witness, the claimant’s pain threshold and his/her ability to report symptoms accurately. The tribunal must then decide whether these symptoms constitute severe discomfort. CDLA/3188/2002 says tribunals have to assess the extent of the claimant's walking ability taking account any medication that is normally and reasonably used to "reduce, avoid or postpone the onset of discomfort".

time taken to recover from walking

CDLA/805/1994 gave a hypothetical example where a tribunal could conclude that someone who could walk 400 yards but who then had to wait for two hours before walking another 400 yards was virtually unable to walk.

tribunal findings

CDLA/8462/1995 states that tribunals are only required to make findings of fact on all four points i.e. distance, time, speed, manner, if each point is at issue in the appeal. CDLA/4388/1999 states that tribunals must not place undue emphasis on distance. CSDLA/504/2003 states that an error of law only occurs where findings fall outside reasonable judgment.

type of surface

R(M)1/91 sates that walking should be judged in relation to a type of surface normally expected out of doors, such as pavements and roads on level ground. The ability to walk on hills etc. is irrelevant but CSDLA/44/2002 states that the consideration of kerbs are part of the test.

virtually

R(M)3/78 states that virtually unable means "unable to walk to any appreciable extent or practically unable to walk. See also R(M)1/78.

walking out of doors

CM/103/1984: The test is the claimant's ability to walk "out of doors". See also R(DLA)4/04 (Formerly CDLA/2139/2003).

4.3.3 Danger to health

danger to life or serious deterioration in health

R(M)3/78 states that the exertion required to walk; must lead to danger to life or serious deterioration in health, including a condition which might be induced or aggravated by walking. CM/158/1994 states that serious deterioration in health can only be deemed to have arisen where no recovery is possible, or only after period of 12 months or through medical intervention. The need to take a few days rest after walking is not enough. CM/23/1985 contradicts this by saying deterioration need not last for any length of time.

diabetic ulcers

CDLA/2973/1999* (21/01) states that diabetic ulcers on the feet may constitute a danger to life or be likely to lead to a serious deterioration in health (possible amputation) when walking. See also CDLA/3941/2005 where knee problems and was advised to limit walking in order to prevent a worsening of her condition.

4.3.4 Deaf and Blind

legal definitions

R(DLA)3/95 (formerly CDLA/192/1994) notes that there is no definition of deafness or blindness in DLA regulations or the Social Security Contributions and Benefits Act. It suggests the definition should be tied to Schedule 2 of Social Security (General Benefit) Regulations 1982 (item 4) for blindness and to para 34 Schedule 3 of Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1995 for deafness. See also CDLA/7090/1999 which states that this is no longer applicable as amendments were made to reg 12(2)(b) of SS (Disability Allowance Regulations) 1991.

4.3.5 Severe Mental Impairment and Severe Behavioural Problems

arrested development or incomplete development of the brain

R(DLA)2/96 states that arrested development or incomplete development of the brain must take place before the brain is fully developed – before the age of 30. The case referred to someone with Alzheimer’s disease who developed this after the age of 30.

intervention and physical restraint

CDLA/2054/1998 held that taking hold a claimant's arm to "stop him causing further complications" counts as restraint. Also included the following definitions:

  • Regularly - Requires the tribunal to consider how often the help is required with a view to deciding whether the claimant's condition is such as to require intervention and physical restraint in the ordinary course of events.
  • Requires - Means reasonably requires. The purpose of such intervention must be to prevent physical injury or damage to property from occurring. There is no requirement that injury or damage would inevitably result.

need for a diagnosis

CDLA/4475/2004 follows R(DLA)3/06 and states that a diagnosis was not necessary when deciding a claim for DLA but remains important as a matter of evidence because a tribunal will more readily accept that difficult behaviour is a manifestation of a disability if there is a formal diagnosis than if there is not.

severe behavioural problems

CDLA/17611/1996 states that the consideration of severe behavioural problems is not confined to those experienced when walking out of doors. See also CDLA/2054/1998 and CDLA/2470/2006.

severe impairment of intelligence and social functioning

CDLA/12148/1996 hold that the words "intelligence" and "social functioning" are "ordinary words of the English language which have no technical meaning" so it was up to the tribunal to decide if there was an impairment to them.

severe mental impairment and useful intelligence

M(a child) v Chief Adjudication Officer (1999) (reported as R(DLA)1/00) states that severe impairment of intelligence should not be defined exclusively by reference to an I.Q. test. This is one of a number of factors to be taken into account when determining whether intelligence has been “severely impaired”. Of equal importance is the claimant’s “useful intelligence” – their ability to function in a real life context. Intelligence included the qualities of “insight and sagacity” in addition to the functions of “understanding and intellect”. See also CDLA/57/2003. CDLA/3215/2001 suggests that if the child has no sense of danger this can be considered to be severe impairment of intelligence.

Note that I.Q. tests can still be used where appropriate. For such cases CDLA/1678/1997*(21/98) and CDLA/8583/1995* (72/97) state that there cannot be severe impairment of intelligence unless the claimant has an IQ below 55.

watching

R(DLA)7/02 (formerly CDLA/6701/1999) states that watching when awake is not restricted to being outdoors. The test is not satisfied if environment or carer prevents disruptive behaviour taking place. See also R(DLA)9/02 where it was held that the claimant did not require another person to be watching over him because of his specially adapted room.

CDLA/2054/1998 states a carer must be awake and available to intervene but does not have to be watching the claimant all the time.

5. Specific Conditions

5.1 Alcoholism

anti social behaviour or defective character

R(A)2/92 states that only conditions which were defined medically could be assessed. Needs resulting from “anti social behaviour not related to mental illness” or as a result of a “defective character” cannot be taken into account. When representing claimants with alcohol or drug related problems you will need to stress that he or she has a mental or physical disability.

See R(DLA)3/06, a decision of a Tribunal of Commissioners for a more favourable decision as well as a discussion of the faults of this one. See also R(DLA)6/06, CSDLA/171/1998* (71/98) CDLA/2408/2003 and CSDLA/268/1995.

dependency - relevance to care and mobility components

R(DLA)6/06 (formerly CDLA/1365/2005) is a decision of a Tribunal of Commissioners. Its main findings are:

  • Alcohol dependence has a mental cause.
  • Physical symptoms or manifestations flowing from alcohol dependence alone do not result from an identifiable physical cause for the purposes of satisfying the mobility component.
  • Separate medical conditions arising from alcohol dependence may be taken into account for the purposes of satisfying the mobility component if they have a physical cause.
  • The transient and immediate effects consequent on a person choosing to consume too much alcohol should not be taken into account when considering entitlement to DLA. See also CDLA/396/2004, CDLA/362/2003 and CDLA/2408/2002 .
  • Consumption of alcohol as a result of dependence where the claimant cannot reasonably avoid alcohol can count towards consideration of the care component. See also CDLA/2228/1999.
  • Decision makers/tribunals should consider whether the assistance the claimant needs is to help them stop drinking rather than help to deal with the consequence of drinking - can the claimant realistically be expected to reduce his or her consumption of alcohol so as to avoid the need for attention or supervision?
  • Decision makers/tribunals should also take account of the possibility of the claimant taking advantage of professional assistance to control alcohol consumption, including referrals on a rehabilitation programme. See also CDLA/778/2000* (32/01).
  • Where rehabilitation is not a realistic possibility the transient effects of being drunk will seldom, if ever, entitle a person to DLA by themselves.
  • A claimant may be so intoxicated that any intervention would be impossible or impractical and assistance for the purposes of DLA would not reasonably be required.
  • The claimant's own evidence on alcohol consumption and its effects may require some scrutiny.

In reaching this decision the commissioners relied on R(DLA)3/06 as the correct approach when determining care needs and R(DLA)4/06 when determining mobility needs. See also C4/06-07(DLA) which adopts a similar approach in Northern Ireland.

5.2 Asthma

help with walking

CSDLA/430/2004 states:

"Such supervision does not assist walking per se but, without the guarantee that someone is with the claimant who would provide assistance should an attack occur, such a claimant may be unable to use the facility of walking , which is otherwise unimpeded."

5.3 Attention Deficit Hyperactivity Disorder (ADHD)

not “arrested or incomplete development of the brain”

CDLA/5153/1997* (33/99) says that those who have ADHD cannot be considered to have “arrested or incomplete development of the brain” because of the current state of medical knowledge on this condition. CDLA/3994/2001 accepts that ADHD is a mental disablement because of a doctor's diagnosis of it as a personality disorder.

5.4 Autism and Aspergers

severe mental impairment and useful intelligence

See M(a child) v Chief Adjudication Officer (1999) in the Severe Mental Impairment and Severe Behavioural Problems section (High Rate Mobility).

statements by claimants

CDLA/2889/2004 says that the tribunal erred in accepting the claimant's statement that he did not need help at mealtimes without making its own findings on this point.

training in communication and social interaction

R(DLA)3/03 (formerly CDLA/131/2001) sates that assistance in training in communication, social interaction and imagination are too far removed from bodily functions in connection with communication to be attention. Note R(DLA)1/07 (CSDLA/133/2005), a decision of a tribunal of commissioners considered communication and social integration to be activities involving many organs of the body.

virtual inability to walk

CM/5/1986 says that when considering virtual inability to walk, if an autistic child's reaction to walking was to run, stop, lie down and refuse to go any further than these were relevant factors. The tribunal then had to consider whether there is virtual inability to walk and If so, how did it come about - conscious volition or physical disablement?

5.5 Blindness

attention too remote

CDLA/8167/1995 states that attention provided must be intrusive in some form such as steering a person onto a bus or reading their correspondence to them. Telling someone they have gravy on their face or that their clothes do not match or their floor is not hoovered correctly is not attention because the help is too remote, lacking contact and intimacy. See also CSDLA/281/1996 for more examples.

carrying a child

CSDLA/655/2002 states that carrying a child around to introduce him or her to the world by touch counts as attention with the bodily function of sight.

cooking

CDLA/267/1994 says that help with cooking (checking vegetables have been properly peeled or reading instructions) may count as help with bodily functions.

help with domestic chores

CDLA/11652/1995 states that help to see to do domestic chores may be attention. See also CDLA/8167/1995 and CDLA/12045/1996* (49/48) which discusses attention in connection with seeing and assistance in helping the blind person to carry out the domestic chores.

indirect attention

See Mallinson vs Secretary of State for Social Security (1994) and Secretary of State v Fairey in the “Indirect Attention” section.

shopping

CDLA/3711/1995 says that help with shopping can count as attention if it is undertaken in close proximity with the claimant - helping the claimant to shop. See also CDLA/12381/1996, Mallinson vs Secretary of State for Social Security (1994) and Secretary of State v Fairey in the “Indirect Attention” section.

5.6 Chronic Fatigue Syndrome (ME)

mental or physical disablement?

CDLA/2822/1999 states that CFS/ME cannot be classified as either psychological or physical in origin but consisted of a mixture of both. Tribunal could decide that the claimant is entitled to high rate mobility component based on the physical element of CFS/ME. This decision made reference to a report from the Royal College of Physicians, Psychiatrists and General Practitioners. CDLA/4486/2000 follows this adding that the absence of any other explanation for symptoms may be supportive of a diagnosis of ME and that whether a disability is physical depends on the effect of the condition rather than its cause.

CDLA/16484/1996 sets out directions for establishing whether or not CFS has a physical or mental cause when considering high rate mobility component. Tribunals should consider 1) The injury, disorder or disease, 2) consequential disablement, and 3) limitations on mobility. Basically, must establish that the original cause has a physical basis and that what stops a person from walking also has a physical basis. CDLA/5183/1997* (22/99) states that tribunals should not be concerned physical cause but instead should ascertain whether walking difficulties arise from “physical disablement”. See also CSDLA/265/1997* (10/98) and CDLA/1020/97.

5.7 Claustrophobia and Agoraphobia

reassurance and encouragement

CDLA/2364/1995 states that supervision can include reassurance and encouragement but this guidance or supervision must overcome the inability to make use of the faculty of walking. Guidance can be the act of leading or directing the claimant to his or her destination.

5.8 Coeliac Disease

special preparation of food

R(A)1/91 (Formerly CSA/17/1989) concerned a child.

“A person may suffer from a disability necessitating such involved and complex preparation and cooking of food which may well in my view render these matters relevant to the attention condition.”

5.9 Deafness

an attention wish list

R(DLA)3/02 (formerly CDLA/1534/2000) states that following Secretary of State vs Fairey and R(DLA)2/02 the correct approach is to ascertain what attention the individual needs in his or her daily life then consider any possible “wish list” that is reasonable and realistic.

children

CDLA/2268/1999 states that a child who is profoundly deaf will be more at risk of physical injury from dangers (e.g. other children, bike riders, skateboarders) than a child with normal hearing.

communication

CSA/83/1990 says that the question of attention is not determined by “degree of communication” but by the “attention required in order to achieve it”. See also CSA/113/91* (106/92).

disturbed behaviour

CDLA/3360/1995 says that where a claimant exhibits disturbed behaviour resulting from their disability, needs arising from this behaviour constitute attention.

hearing is a bodily function

CA/20/1988 states that hearing (and speaking) are bodily functions and that anything done in connection with these functions is attention.

indirect attention

See Secretary of State vs Fairey in the “Attention in Connection with Bodily Functions” section.

lower rate mobility component

CDLA/240/1994 states that for lower rate mobility component must distinguish between accompanying someone and actual supervision. See CDLA/42/1994.

reading and writing

CSA/721/2000 (90/01) states that reading and writing can count as attention when considering the bodily function of hearing. See also R(DLA)2/02.

signers and interpreters

CDLA/206/1994 held that the need for an interpreter to request or accept assistance on unfamiliar routes amounted to a need for guidance for lower rate mobility component. See also CDLA/14307/1996.

R(DLA)2/02 states that if communicating though an interpreter is significantly more efficient or effective than the use of other methods, this could count as reasonably required attention. However CDLA/16211/1996 says that sign language may not normally count as attention if the signer is skilled at signing but may do so where one signer is not skilled and extra effort is needed (see also CA/780/1991 and CDLA/240/1994 regarding signing and CDLA/15884/1996* and R(DLA)1/02 (formerly CDLA/16240/1996) regarding extra effort).

CDLA/16668/1996 discusses help needed for social reasons including those activities which the claimant would like to do, but cannot because he or she has no interpreter.

unusual efforts to attract attention

R(DLA)2/02 (formerly CDLA/3433/1999) states that unusual efforts – steps that would not be required for someone who is not deaf - to attract the attention of a deaf person can count as attention. CDLA/15884/1996* (31/01) states that if extra effort is required to initiate two way conversation, this could constitute relevant attention.

writing

CDLA/16668/1996 states that you must take into account the extra effort to communicate e.g. in writing caused by the claimant being deaf from birth as these difficulties stem from disability. Note that CSDLA/29/1994 states that writing as a means of communication is not considered attention (see also CDLA/058/93).

5.10 Diabetes

bodily function

R(DLA) 1/98 (formerly CSDLA/126/1996) states that In the case of diabetes mellitus, the bodily function is held to be the metabolism.

continuous ambulatory peritoneal dialysis (CAPD)

CDLA/4134/2001examines in some detail the care needs of someone who has diabetes and kidney problems who has to undergo continuous ambulatory peritoneal dialysis (CAPD).

ulcers

CDLA/2973/1999* (21/01) states that, for high rate mobility component, diabetic ulcers on the feet may constitute a danger to life or be likely to lead to a serious deterioration in health when walking.

5.11 Dialysis

definition of night and day

R(A)1/93 states that the definition of night and day can be modified for dialysis patients.

normative approach

R(A)2/74 concerned a dialysis patient. Upholds the notion of a normative approach (not having to satisfy the conditions every night) but does not like the use of the term “normative” because it is misleading. The preparation and use of a kidney machine (indirect attention) can still constitute attention. See also R(A)4/78.

5.12 Dyslexia

the correct approach when considering needs

CDLA/395/2005 states:

"It is necessary to look at the specific disablements, if any, described under the general label of dyslexia, or associated with it, in a particular case. Only then can it be decided whether bodily functions are affected. And it is necessary to look at the actual needs said to arise from the disablements."

If someone with dyslexia needs help reading labels etc. this can count as attention.

Cites CDLA/1420/2004 and CDLA/2680/2001, both cases concerning dyslexia.

a problem of the bodily function of the brain

CDLA/1983/2006 follows R(DLA)1/07, where thinking is considered as a bodily function. This decision states that previous attempts to link dyslexia to problems with seeing are incorrect. It discusses previous case law referring to dyslexia. See also CDLA/3204/2006.

5.13 Epilepsy

help with walking

McMullan v The Chief Adjudication Officer (1998) states that the tribunal failed to take account of the support given by wife - holding hand - when out walking. Question that if this support was withdrawn would the claimant be "unable to walk"? See also CDLA/52/1994.

lack of warning of attacks

In R(A)4/92 the claimant had epilepsy and narcolepsy. Lack of warning of onset of attacks in itself not sufficient to refuse benefit. If another's presence reduced danger, this could be enough to satisfy the condition.

5.14 Hysterical paralysis

Effect on physical condition - walking

CDLA/3323/2003 states that the test satisfied if hysteria causes physical inability to walk. Disablement is physical if it affects the claimant's physical condition (differentiates between this and agoraphobia or depression that affect the claimant's will to make use of his or her physical ability). Follows CSDLA/265/1997.

5.15 Illiteracy

the need for a diagnosis

CDLA/15467/1996, CDLA/16176/1996, CDLA/1659/1997 and CDLA/22521/1997* (17/99) states that illiteracy itself is not a disablement. Tribunals must look to the cause of that illiteracy to establish whether disablement exists. See also CDLA/206/1994.

5.16 Incontinence

indirect help

Stewart v Advocate General for Scotland (1999) (reported in R(DLA)2/00) says that help with the bodily function of urinating can also apply to help following completion of that function. CSDLA/1095/1999 states that the need to remove and clean soiled clothing could count as attention. In this case the fact that the claimant had learning difficulties prevented the claimant from dealing with the consequences of incontinence. See Cockburn v CAO (1996).

psychological problems

C42/99-00(DLA)* (9/01) is a Northern Ireland decision which states that psychological problems, in this case associated with bedwetting, do not constitute severe mental disablement. See CSDLA/552/2001 above for an opposing viewpoint.

reassurance

CDLA/494/1994 states that reassurance and moral support when a person is suffering from an attack of incontinence could constitute "attention" for care purposes or "supervision for lower rate mobility.

use of a commode

CSDLA/629/2002 says that the only emptying and/or cleaning of a commode which can count as attention is what must reasonably be done immediately for the purposes of hygiene. See also Gregory Ramsden v Secretary of State for Work and Pensions (2003) and Cockburn v CAO (1996). CSA/76/1989 states that some consideration should be given to how a commode is emptied if its use is suggested. See also CSDLA/44/2002 which also considers claimant’s ability to use a commode and whether there is room for one.

In CA/3943/2006 the claimant was using a bucket instead of an upstairs toilet. The commissioner's view was that this was an emergency measure rather than the use of a commode in an appropriate location.

5.17 Mental Health

arrested or incomplete development of the brain

CDLA/393/1994* (1/96) says that for a schizophrenic who is under age 30 the tribunal would have to consider whether he or she had full physical development of the brain and if it was arrested or incomplete whether this led to "severe impairment of both intelligence and social functioning" for the purposes of higher rate mobility component. See also R(DLA)3/98 and R(DLA)2/96.

evidence of hospital or institutional confinement

R(A)2/91 says it is wrong to assume that a claimant does not need continual supervision because they have not been placed in hospital or institutional confinement.

risk of suicide

In R(A)3/92 the claimant was a diagnosed schizophrenic and at risk of suicide. Only need to establish supervision required in order to reduce risk rather than to eliminate all substantial danger.

stimulation, encouragement and reassurance

CA/177/1988 states that active stimulation to prevent depression counts as attention with bodily functions. In CSA/68/1989 encouragement, support, comfort and reassurance could be supervision if done to prevent the onset of depression, neglect or self-injury. See also CDLA/14696/1996. CSDLA/554/2005 discusses situations where someone has a lack of motivation "which exhortation from another is able to overcome".

5.18 Migraine

migraines and the mobility component

CDLA/1639/2006 states that the effect of migraines in relation to virtual inability to walk are irrelevant where they affect sight or cause pain (this follows R(DLA)6/99). Migraines affecting balance are relevant to the virtual inability test. However the overall mobility test will fail if, whilst suffering from migraine, the claimant cannot benefit from enhanced facilities for locomotion.

Migraines which come on suddenly and affect sight or balance may indicate the need to consider the award of low rate mobility component. Note that CSDLA/591/1997 states that help walking out of doors when suffering from severe migraine is not guidance and supervision because it could not extend to any material extent the capacity to walk.

5.19 Porphyria and skin complaints

help with walking

Hewitt v Chief Adjudication Officer, Diment v Chief Adjudication Officer (1998) (reported in R(DLA)6/99) states that Porphyria is a condition which precludes exposure to daylight. This decision states that Porphyria alone does not satisfy the mobility component. Argument was that the problem was with daylight and not the actual ability to walk out of doors. See also CDLA/282/2002.

5.20 Sleepwalking

care needs

CDLA/2363/2005 states that the tribunal failed to properly consider care needs arising out of sleepwalking. The fact that there was no injury or actual harm (though the sleepwalker did inadvertently drink a bottle of body lotion) may be evidence that there is no risk of harm but it is not conclusive.

6. Other Issues

6.1 Aids and Adaptations

embarrassment when using an aid

CSDLA/313/2005 states that embarrassment is not a factor to be taken into account when applying the high rate mobility test. In this case the claimant, a teenage girl, did not wish to use a walking stick that would have alleviated her condition. The decision rejects arguments advanced in R(M)1/88 and CDLA/1361/1999.

reasonable coping mechanisms

CA/14336/1996 says that you must consider the reasonableness of measures the claimant takes to overcome attention needs. In this case it was considered unreasonable for a 75 year old woman to use a hooked stick to climb upstairs to the toilet and then come downstairs on her bottom.

suggestions for coping mechanisms

R(A)1/87 states that adjudicating authorities may examine and propose alternative measures to limit or dispose of the need for attention or supervision but R(A)3/90 states that these measures must be reasonable. CSA/101/1988 states that suggestions should be in line with what a fairly minimal normal household could be expected to have available (in this case a commode). See also CSA/65/1989, where the decision maker failed to take account of the ease or difficulty of obtaining a suggested personal alarm to reduce supervision.

In CSA/65/1989 the suggestion of elasticated tracksuit bottoms to obviate help with clothing did not take into account that the claimant, who had emotional problems, was known to be well dressed and had a need to maintain personal standards.

use of alarm systems

R(A)6/90 states that it is not the alarm system but the help that arrives after activating the alarm that should be considered.

6.2 Children

advanced award of mobility component

In CDLA/1190/2006 the decision maker and tribunal erred in law, incorrectly interpreting section 76(1) Contributions and Benefits Act 1992, in not considering a possible advance award of high rare mobility component.

Commissioner Howell cautiously suggests that a practical approach be taken with advance awards. In this case the decision maker could have made an initial award of DLA care component followed by a combined prospective award of both components. The decision cites regulations 13A (power to make an advance award for a change of circumstances within three months) and 13C (cases where a renewal is made in advance of the expiry of an existing award) of the Claims and Payments Regulations 1987. It is not clear what the "practical" approach would be where these regulations do not apply.

assessing care needs for young children (under 5)

CDLA/2699/2005 concerns a four-year-old and covers (and cites) some of the same ground outlined in R(DLA)3/06 in relation to the meaning of "so severely disabled physically or mentally".

Commissioner Williams then goes on to discuss three related decisions, R(DLA)1/05, CDLA/3525/2004 and CSDLA/829/2004 before suggesting the following guidance in relation to decisions concerning young children:

    1. The decision for the tribunal is "an exercise in "drawing the line".
    2. Following R(DLA)1/05 the tribunal must consider whether the child has a physical or mental disablement. If a young child exhibits disruptive behaviour it must consider whether this "evidences some underlying physical or mental disablement".
    3. The tribunal should take into account any medical diagnosis or evidence but should not be confined to this.
    4. Where there is disablement present (and also where there is some doubt about this) the tribunal must consider whether any of the DLA tests are met.
    5. The tribunal should consider whether the child has "requirements …substantially in excess of the normal requirements of persons of his or her age".
    6. The tribunal must take a broad view of the application of the test following Moyna v Secretary of State and R(DLA)5/05.

CSDLA/829/2004 states that there is a three stage process when considering the care needs of a child. Tribunals should whether the child has a physical or mental disablement, whether the child satisfies the criteria for attention and supervision requirements and whether this attention or supervision is ‘substantially’ in excess of that normally required by the average child?

care for mother caring for child

CDLA/5216/1998* (38/00) follows R(A)1/83 and states that a mother would need supervision to prevent her causing substantial danger to her children. It also states that attention in connection with the mother’s bodily functions (she had had rheumatoid arthritis) which enables her to care for her children may count. Where the child(ren) are disabled and are awarded DLA attention or supervision needed for mother cannot count because this will lead to a “double recovery” of benefits.

In CDLA/16129/1996 (*72/98) the decision was allowed because a woman was blind and needed help with the bodily function of seeing in order to care for her baby. CDLA/16996/1996 agrees with this approach. However, CSDLA/314/1997 stated that assistance given to a blind mother to enable her to get her children ready for school was not help in connection with her bodily functions as it was “too remote” (see Cockburn v CAO (1996)). See also CDLA/4352/1999, where the claimant had disability in her leg and back.

The key to these decisions is that the parent must need help with a bodily function in order for her/him to care for the child.

child age 15-16

CDLA/4228/2003 states that tribunals and decision makers should take "the long view" and consider both circumstances where an award is made for a child age 15 who will be16 during the "six month forward" period.

giving evidence

R(DLA)3/06 (previously CDLA/1721/2004) is a decision of a Tribunal of Commissioners. It states the following:

(1) A tribunal should have proper regard to the wishes of a child of sufficiently mature years and understanding who wishes to give evidence about his or her DLA claim. It should however be very cautious before requiring any child to give evidence, and should only call for a child to give evidence if it is satisfied that a just decision cannot otherwise be made based on evidence obtained from another source.

(2) A tribunal should be very slow to exercise its power to require a child to give evidence if that child’s parent or carer takes the view that for the child to give evidence may be detrimental to the child’s welfare, particularly if there is additional evidence from a competent professional.

(3) If those representing the child, wish the child to give evidence, a tribunal has power to disallow this if it is against the child’s interests to do so.

(4) The mere presence of a child at a hearing is unlikely to give a reliable indication of the effect of a child’s disability in normal circumstances.

(5) Where a decision is taken to call a child to give evidence a tribunal should give consideration to precisely how that evidence will be taken, so that the interests and welfare of the child are maintained. In doing so the tribunal will bear in mind that a child may perceive what is said at a tribunal hearing very differently from an adult. It will be necessary for the tribunal to identify any matters that the child ought not to hear and questions that the child ought not to be asked.

(6) In addition, where a child is to be called to give evidence, the tribunal will need to give consideration to practical matters such as the geography of the hearing room, having an appropriate adult in close attendance, whether any of the tribunal (including the chairman) should be selected because of experience in dealing with child witnesses and even (in appropriate cases) taking such steps as taking the child’s evidence by video link if available, giving directions where appropriate.

help needed at school

Secretary of State for Work and Pensions v Jones (2002) was a Court of appeal decision which set aside CDLA/6784/1999. It states that when considering cases where there are insufficient care needs at home but help is needed at school the correct approach should be to assess the claim over a reasonable period (in this case one year) and say whether or not, within that period, the claimant's attention needs overall passed the DLA threshold. See also Secretary of State for Work & Pensions v Hughes (2004) (Reported as R(DLA)1/04).

CDLA/3779/2004 states that a child with a disability may not need supervision over and above that which is normally given to all other children while attending school but may need supervision beyond that needed by other children when outside the school environment in order to avoid substantial danger to themselves or others. .Evidence from a school should therefore be considered along with all the other evidence concerning a child’s care needs in deciding whether the claimant can safely be left unsupervised and whether the child requires substantially more care from another person than children of their age would normally require.

in excess of normal requirements

R(DLA)1/05 (formerly CDLA/4149/2003) discusses child development, with reference to the Disability Handbook and the meaning of the word "most children". Decided that there came a point where the proportion of children who had certain requirements was so small that the requirements could no longer be said to be normal, even though the total number of children affected might still be quite substantial. A young child’s inability to perform functions due to immaturity is not disablement.

CA/92/1992 considers a normal child to be “an average child, neither particularly bright or well behaved.” See also CSDLA/552/01.

6.3 DLA beyond age 65

lower rate care component

R(DLA)5/02 (formerly CDLA/3861/1999) states that a claimant cannot get lower rate care component after age 65 if previously awarded another component. Lower rate must be awarded before age 65. But see CSDLA/388/2000* – (41/01) which allows lower rate to be awarded where the tribunal makes the effective date of review prior to age 65. See also CDLA/754/2000* (12/01) for similar issues and a summary of powers of the tribunal and CDLA/301/2005.

6.4 Evidence

change of circumstances - onus of proof

CDLA/4234/1999 restates the rule that for a change of circumstances review (supersession) done by an decision maker the onus of proof lies with that decision maker.

chaperones at examinations

CDLA/4208/2004 states

"I agree with the secretary of state's representative that it is for each practitioner to decide whether to conduct an examination with no third person present…..But where, as a result, the examining medical practitioner does not conduct a full examination that must be taken into account both by the Secretary of State and a tribunal in weighing the evidential value of findings and opinions in the report."

Refers to section 14.13 of the official "Guidance for Examining Practitioners".

children's evidence

See R(DLA)3/06 in the children section.

complaints about an EMP to the General Medical Council (GMC)

In CSDLA/388/2001 the complaint to the GMC was held to be irrelevant because no reference was made to this at the hearing. Had reference been made it may still have been considered irrelevant if the disputed EMP evidence was adequately dealt with by the tribunal. The GMC response, if received in time, might be relevant depending on its findings.

CDLA/2309/2005 concerned a case where a claimant complained informally about the conduct of the EMP and argued that it was a breach of natural justice to use the same EMP for a subsequent examination. Commissioner Williams suggested it might have been a breach of natural justice had the claimant made a formal complaint about the EMP.

criminal supervision and treatment order - psychiatric medical reports

In CDLA/3899/2006 the claimant had been put under a supervision and treatment order when he was found unfit to stand trial for a crime. The tribunal was held to have properly considered the evidence obtained from psychiatric medical reports in relation to this crime. It also correctly restricted its consideration of the crime itself to to the question of how far it was right to say he was suffering the physical disabilities he had been claiming.

doctor does not know information

CDLA/4580/2003 states that where a general practitioner states "unknown" in response to the request for information as to the distance the claimant can walk before the onset of severe discomfort, the tribunal must treat the reply as neutral.

duty to consider all evidence

R(DLA)3/99 states that tribunals should not accept EMP's opinion over other opinions as a matter of course. Their obligation is to consider the whole evidence of a case. See also CDLA/4234/1999 and CDLA/2961/2004.

Claimant' s evidence - R(M)1/93 requires the tribunal to give reasons for rejecting claimant's medical evidence or preferring one medical opinion to another. See also CIB/2239/98, CDLA/167/1996, CDLA/3017/2002 and CA/1481/2003 (where the tribunal failed to take account of GP's evidence and made a decision based on the evidence of the evidence of a claimant who was fiercely independent). CDLA/11266/1995 states that what the claimant says about “practical difficulties” may outweigh views expressed by the examining medical practitioner. See also CDLA/3989/2002. In CDLA/83/2006 the tribunal wrongly relied on the claimant's evidence because it failed to consider the variability of the claimant's condition.

EMP reports - CDLA/4752/1997 requires a tribunal or decision maker to give adequate reasons for preferring an EMP's report rather than those of the claimant's GP and consultant. See also CM/91/1994, CSDLA/251/1994* (9/96), CDLA/2795/2001* (135/01) and CDLA/925/2002. CDLA/1850/2001 (paragraph 10) suggests that, where the GP's report was rejected, more specific reasons were needed "given the in-depth and long-standing knowledge that GPs may have of their patients' conditions". In CDLA/577/2002 a tribunal erred in giving no credence to one of two submitted EMP reports because the medical services had deemed it unfit and the doctor had refused retraining. They should have reached their own independent conclusions as to its merits.

CDLA/2849/2000 made a number of points concerning the use, by tribunals, of EMP medical evidence:

  • EMP evidence often carries weight because it is independent The downside is that the doctor knows little about the claimant and is only able to spend a short time on the actual examination with no access to medical reports or test results
  • Tribunals should “even matters up” by identifying any deficiencies in the EMP report and then remedying them
  • Tribunals are likely to have more information available to them than the EMP
  • GP reports and statements vary but focused, objective reports from GPs who have been treating a patient for some time may need to be given greater weight than that of the EMP.

GPs - CDLA/2924/2003 states that a tribunal is not bound to obtain medical evidence from a GP based on a claimant's "written" request but should consider the issue and explain its reasoning to the claimant. This was a paper hearing and the tribunal should have offered the claimant an oral hearing and additional time to gather medical evidence.

Representatives - In CDLA/1138/2003 the tribunal was wrong to reject the evidence of a representative.

emp report amended at a later date

CDLA/4127/2003 states that there was an error in law where a signed EMP report was subsequently amended at a later date though (there was no further signature against these alterations). It was also an error in law because the claimant did not have a similar right to amend this evidence until the appeal stage and the tribunal failed to question this evidence.

evidence about one benefit used for another

CDLA/1488/1996 states that there is no general rule that evidence about one benefit may not be used for another. CDLA/5803/1999* (33/01) states that evidence obtained from another benefit e.g. walking test for the personal capability assessment can be used for DLA providing it is "properly comparable".

CDLA/2998/2003, referring to CIB/4331/2001 reached the following conclusions in paragraph 9:

  • medical reports for one benefit can be made available when deciding claims for another benefit
  • in some cases fairness means that it should be made available
  • in appropriate cases where it is not available but has been put at issue the tribunal should obtain it before reaching a decision

In cases such as this full disclosure of an intention to use such a report must be made to the claimant.

CDLA/5803/1999* (33/01) states that evidence obtained from the personal capability assessment may be used to help assess DLA mobility component providing that it is "properly comparable" (see paras 27 and 28 of this decision). CDLA/3896/2006 discussed the pitfalls of using automated electronic IB85s and states that a tribunal is under a duty to look at the whole form.

extra judicial (i.e. after the appeal hearing and decision) observations

In CDLA/141/2001 it was held that observations made by a tribunal are valid evidence for subsequent decisions. In this case, after the hearing, the tribunal observed the claimant walking 70 yards to his car.

late evidence

R(DLA)2/01 (formerly CDLA/2934/1999) states that evidence obtained late must be relevant to circumstances obtaining at the date of decision. See also R(DLA)3/01 (formerly CDLA/4734/1999).

non-disclosure of harmful information

CDLA/1347/1999* (2/00) concerns non-disclosure of harmful information under reg 42 of the D&A regs. The decision maker has to weigh up which is the “lesser evil” – the disclosure of the information or the possible breach of natural justice. Decision maker should consider whether the evidence can be disclosed to a third party such as a representative. CSDLA/5/1995* (19/96) sets down guidance on procedure where such evidence is before a tribunal.

  • Evidence considered harmful to health should only fail to be disclosed if the harm is substantial.
  • The party to whom evidence is not being disclosed is entitled to be told that fact that disclosure has not been made.
  • A decision not to disclose can be changed right up to the hearing and it is the duty of the tribunal chair to consider this even at the hearing itself.
  • If undisclosed evidence is taken into account in reaching a decision then this must be stated.

pain

CDLA/902/2004 has a framework for assessing effect of pain

"it is no longer rational for tribunals to reason simply from clinical findings on examination to the level of pain that a claimant experiences. Tribunals must investigate the evidence of the claimant's pain and explain how they have dealt with it. As there is no direct causal link between disease or injury and pain, the only direct evidence of pain can come from the claimant. This raises potential difficulties."

To alleviate these difficulties Commissioner Jacobs has suggested that tribunals consider the following to ascertain whether reported pain is consistent with facts.

  • Evidence of the activities undertaken by the claimant
  • The claimant's medication
  • Other treatment or referrals actual and considered
  • Informal observations of the claimant's functional ability and activities
  • Opinions of examining medical practitioners

If the claimant is not present at a hearing a tribunal should consider whether it is appropriate to adjourn to allow the claimant to attend.

time spent with claimant

CDLA/810/1998 states that an important consideration in weighing up medical evidence was the amount of time the giver had had with the claimant but an experienced doctor (EMP or GP) should be able to make a reasonable assessment of a claimant within a reasonable period of time. Moreover GP’s have access to patients notes and hospital reports etc.

use of film

R(DLA)4/02 (formerly CDLA/2037/2000) states that the filming of claimant by BA investigators does not infringe Article 8(1) - respect for family and private life - and Article 6(1) - right to a fair hearing - of the Human Rights Act.

use of jargon

CDLA/2115/2003 states that it is possibly unfair, under the Human Rights Convention, for decision-makers to present evidence in coded departmental jargon that is unclear to the claimant.

waddell signs

CDLA/2747/2006 discusses the significance of "Waddell signs". A Waddell sign is an inappropriate physical response during a medical examination which appears inconsistent with the claimant's condition – such as when a claimant is pretending to be in or exaggerating pain. Commissioner Jacobs states that evidence of Waddell signs is often misinterpreted by tribunals.

“I am not saying that a claimant who exhibits Waddell signs is not exaggerating. What I am saying is that the mere presence of those signs is not conclusive of the matter.”

The decision includes Professor Waddell's own thoughts on the significance of these signs.

6.5 Prison

life awards

CDLA/1930/2004 states that imprisonment does not cancel a life award. If imprisonment was the only reason for the suspension of benefit the award should be reinstated on release without the need for a fresh claim or a medical assessment.

6.6 Refusing treatment

right to refuse treatment

R(M)1/95 states that a claimant is entitled to refuse medical treatment. Correct test is circumstances that apply to existing condition. See also CSDLA/171/1998. R(DLA)10/02 states that tribunals should consider whether refused treatment (unless reasonably refused) might mean that needs are not reasonably required. CDLA/3925/1997 adopts a similar line.

6.7 Religious or cultural beliefs

belief system irrelevant

CA/137/1984 states that attention needs must be due to disability regardless of religious or cultural custom.

6.8 Residential Care

move from hospital to local authority home

R(DLA)2/06 (previously CDLA/3161/2003, CDLA/3162/2003, CDLA/ 3164/2003) is a decision of a tribunal of commissioners concerning three claimants with severe learning disabilities who were formerly in-patients at a long-stay hospital but who were subsequently moved into private nursing homes, under local authority care (the NHS met the local authority costs).

An argument was made that the claimants were self funding because their benefits were sufficient to meet their costs (and would be eligible for charges, along with 70 other claimants in the same situation). The Tribunal of Commissioners considered this an artificially created scheme. Since the level of care required was unchanged despite the move to a nursing home and there had been no reassessment the duty to maintain remained with the NHS. Had this not been the case the DWP would have had to pay half a million pounds a year in benefits.

section 117 of the Mental Health Act 1983

R(DLA)6/04 (Formerly CDLA/870/2004) confirms that DLA care component is not payable to people in residential aftercare under section 117 of the Mental Health Act 1983.

self funding residential care

CA/2937/1997 (heard with CA/2604/1998) concerns entitlement to DLA/AA if a claimant is self-funding their residential care home placement but is receiving bridging finance pending the sale of their home. States that where it is clear that the claimant will be able to meet accommodation costs, when their home is sold, s/he should be considered as self funding from the outset (and therefore entitled to DLA/AA). This affirms and develops Creighton v CAO (Northern Ireland court case 15th December 1999). CA/3800/2006 suggests that, where there is a temporary disruption of a self funding arrangement, the decision maker should consider suspending payment of attendance allowance rather than terminating payment on supersession.

In R(A)2/06 (CA/2298/2005) a claimant who ceased to be self funding was not considered to have failed to disclose because the Secretary of State could not furnish any documentary evidence showing that she (or her appointee) was under a duty to inform the DWP of a change in circumstances.

See R(A)1/07 which considers the payment of AA whilst in Scottish residential care where the claimant was in publicly funded accommodation but the local authority is barred from applying certain charges. See also R(A)2/07.

Last updated: 13 September 2007

Author: Martin Inch

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  1. Personality Disorder 8,560 claim DLA in England & Wales 2007 - morse on Oct 15, 2007, 2:29 PM
    1. 6.6 Refusing treatment - morse on Oct 15, 2007, 2:31 PM
      1. waddell signs - morse on Oct 15, 2007, 2:34 PM
     


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