DN v Secretary of State for Work and Pensions (DLA): [2016] UKUT 233 (AAC) [2016] UKUT 0233 (AAC)
[1992]Section 72(1A)(b) requires either(i) that the child has needs of a description substantially in excess of those of the normal requirements of a person of the claimant’s age; or(ii) that the child has substantial requirements of such a description which a younger person in normal physical and mental health may also have but which persons of the claimant’s age and in normal physical and mental health would not. This will be a matter for the next F-tT. 12 The main issue in this appeal will probably turn on the aggregation of the special educational needs the child reasonably requires, as shown in his SSEN, and those arising from his absences. I do not have enough facts before me to make this decision. 13 Faecal leakage: The F-tT dealt with D’s asserted problems of incontinence, both night and day, in two ways. Its main reasoning (paragraphs 13 – 18), based on a careful analysis of objective medical evidence provided by the appellant herself and by D’s school, undermined her account of D’s problems. Its findings were that insofar as D had a problem, it was mostly during the day; and as regards the night, it was infrequent and in its view as a specialist Tribunal, D could wear nappies to minimise the need for attention. The findings were rational on the evidence before the Tribunal and I am unable to see any ground on which I could have interfered with them. 14 The second strand of the F-tT’s reasoning was where the error arose. It related to a misinterpretation of section 72(1A)(b). The requirements of the sub-section are set out in paragraph 11. The misinterpretation needs to be corrected. 15 Section 72(1A) is aimed at deciding whether the needs arising from the child’s particular problem(s) are, put briefly, in excess of those of other children of the claimant’s age (or only seen in normally in younger children). 16 In this case the appellant’s evidence was that D (aged 4 at the material time) suffered from faecal incontinence at night even more frequently than during the day. This meant that he would have been having accidents at least 4 – 8 times every night. The appellant said D needed help changing himself and his bedding every time. 17 The Tribunal essentially asked itself ‘what four year old wouldn’t need that help?’ 18 By basing its decision on the view that all under-5s would need help with cleaning and changing themselves and their bedding during the night, the Tribunal missed the main point, which is that only a very small percentage of children of this age are faecally incontinent.1 The real question to ask was whether the child’s requirements arising from his faecal incontinence at night were substantially in excess of those of ‘normal’ children his own age or were substantial requirements normally seen in younger children. 19 The Secretary of State agrees that the F-tT did indeed miss the main point. ‘The cause of the pro9blem – the faecal incontinence – is what makes this substantially in excess’, not the actual changing of the clothes/bedding itself. 1 1 The research of Issenman, Filmer and Gorski, published as Review of Bowel and Bladder Control Development in Children: How Gastrological and Urologic Conditions in Children Relate to Problems in Toilet Training (Paediatrics, June 1999 Vol 103, supplement 3 by the American Academy of Paediatrics) indicates that only 1.5% of children in early elementary grades suffered from encoparesis (night-time faecal incontinence). (Elementary grades in the US are between approximately 5 years – 12 years old.) DN v Secretary of State for Work and Pensions (DLA) [2016] UKUT 0233 (AAC) CDLA/56/2016 4 20 Even though the F-tT did make an error of law on this point, I consider that the error was immaterial because of the facts found by the F-tT. These were that the incidents of incontinence at night were simply insufficient to meet the conditions of entitlement and could be offset by using nappies. That was more than sufficient to dispose of this matter. 21 A final matter to raise is no more than a reminder to First-tier Tribunal of the power to make advance awards where the conditions of regulation 13A(1) of the Social Security (Claims and Payments) Regulations 1987 are satisfied. This regulation allows a Tribunal to make an award even though the claimant does not satisfy the conditions of entitlement on the date on which the claim is made, if he will satisfy those requirements beginning on a day…not more than 3 months after the date on which the claim is made. 22 D was 4 years and 7 months old when the claim was made, so the F-tT was correct in deciding that an award was not possible. However, tribunals should bear in mind the advance award provisions where it is clear that claimants shall meet the conditions of entitlement within the 3 month period. 23 Disposal: I have come to the conclusion that it is necessary to remit the appeal as a matter of fairness to the appellant. She should be given the opportunity to provide evidence to the Tribunal regarding the provision made for D’s special educational needs at the material time and to discuss with the Tribunal the extent of D’s absences. Taken together, there may be enough for some award of the care component to be made for day needs. It is very difficult, however, to see how the appellant could successfully argue that any night needs are established. Nor is it possible for an award of the lower rate of the mobility component to be made on this claim. [Signed on original] S M Lane Judge of the Upper Tribunal [Date] 12 May 2016