Man has grand mal epileptic seizures when asleep (not status epilepticus). These are still dangerous and result in ambulance attendance and even hospitalisation, on occasion. GP not very supportive because she didn't personally know him and could only go from case notes (these did not include at least monthly ambulance attendances not involving hospitalisation). So, DM said not frequent enough to justify night-time supervision - no award.

Tribunal appeared to accept greater frequency and that the fits were severe and life-threatening. As a matter of fact, he sleeps with his wife in a double bed. She doesn't have to stay awake or wake herself up to check him from time to time, because he's right alongside and she wakes instantly if he starts fitting (noises, movements, etc) - she knows from experience and 'tuning' that he needs her. Well then, said the tribunal. He doesn't need someone AWAKE at night to supervise, does he! No award.

I thought that the claimant's need for supervision was to be judged OBJECTIVELY (what he needs in principle, given his condition) rather than SUBJECTIVELY (how he in fact copes with the problem). For example, when his wife went to a conference recently and was away for a couple of nights, his mum 'babysat', staying awake for long periods to keep checking him. Do we have an error of law for the Commissioner here?

PS - a full statement of reasons was asked for and back came a copy of the refusal notice with the long-hand words added: "Unfortunately, the requirement of someone being awake at night is not met." The word "awake" was underlined. That was it. Does this count as a 'full statement of reasons'? Another error of law, or should I demand a fuller account?

Jim

If this is supposed to be your full statement i'd apply for leave on insufficient reasons for the decision and the Tribunal has failed to make sufficient findings of fact on the key questions.

Did they make ANY findings on Section 72 (c) (i) ?

Jim

I think the problem you have is indicated in your own words “what he needs in principle”. A tribunal (and I think, the Commissioner) would start from the premis what he needs in practice. In other words is the care or supervision reasonably required? In principle, maybe. In practice, maybe not. Most of the time that is.
Even if you got the decision set aside (for failure to make insufficient findings of fact) would another tribunal reach the same decision?

I would really love to be wrong on this. It would give all of us much more scope to argue at tribunal across the whole spectrum of DLA.

Regards
Paul

The test should be the standard four step test for continual supervision. If the Tribunal haven't applied that test, and examined the evidence in relation to each stage of it, then they have arguably erred in law. The stages of the test should be asked assuming he lives alone. This creates the difficulty that any evidence of the risk to him has to be hypothetical.

Is there anyone who could supply such evidence of the risk? e.g. epiplepsy nurse, consultant. If so, you could apply for a new supersession, in addition to applying for LTA.

Surely if you look instead at section 72(c)(i) of the Act instead of 72(c)(ii) this is a less severe test in that the person only has to be awake as and when the client requires attention:-

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SS (C&B) Act

s72 (c)

He is so severely disabled physically or mentally that, at night,

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

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I've only quickly looked in the first Bonner non means legislation I came across, so I stand to be corrected if the above section has since been repealed or otherwise messed about with ................

I recently got high rate care (& Mob) for a very similar case where the attacks were quite frequent and unperdictable.

As a proviso to my last musing on this subject, I should have also said that the night time attention requirement would obviously depend upon the frequency of attacks.

There is a Tribunal of Commissioners decision which may be helpful, in
which the question of supervision/attention was covered:-

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R(A)1/83

“continual” is not synonymous with “continuous” and that the former is wider than the latter. Short gaps in the supervision do not necessarily prevent it from being “continual”.

The Chief Commissioner also said:

“If a person is liable to require attention at unpredictable intervals it may be necessary for someone to be continually available to provide attention when it is needed. In such a case the requirement of continual supervision could properly be found.”

The chief Commissioner further stated that: -

"The issue is about what is reasonably required; not what is in fact received."

======================================================================

OK, I'm confused now ! I'm reluctantly content that s. 72(c)(i) can't apply, because for the great majority of nights the guy needs no 'attention' at all. So it's 72(c)(ii).

I now have two opposing lines of thought from you folks, both perfectly reasonable: one being to adopt my line about what the man needs, in isolation from what actually happens (Jim McK); and the other being Paul's point that it may not be reasonable to have someone awake if his circumstances are such that he doesn't need this.

My line seems to be supported by Mike's extract from R(A) 1/83.

Is it best to go for the Commissioner anyway?

I'm so lonely I'm replying to myself now !

Two more conflicting views:

Bonner agrees with Paul (nevip) in his notes to section 72 on night attention:

"Under this para it is no longer possible for the carer to be asleep 'on call'. They must be awake and watching over the claimant. As to the requirement of being awake there can be no compromise."

He doesn't say where this came from, so I presume it's the change in wording from the old secton 35 of the SS Act to section 72 of the SSCBA Act, when the 'awake' bit came in.

But, both the old and new provisions talk about what is 'required'. Bonner is taking the subjective line - what my man needs in his actual prevailing circumstances (his wife is threatening to move to the spare bedroom, by the way!). BUT, see page 15 paras D to F of the Appendix to R(A) 1/88 (Moran) - the CoA bit:

"Section 35, of course, is concerned with what a claimant requires, not with what he or she receives. Thus evidence of what he or she receives is only relevant so far as it assists in determining what the claimant requires, for he or she may be receiving more, or less, than what is required."

That's the subjective argument in a nutshell - Mr Moran slept with his wife with "antennae tuned", as the court put it. Now that the 'awake' part is in the Act, is this decision obsolete? I would think the matter needs to have been revisited with the Commissioners or higher to decide. Has this happened? Any more views?

Jim

Sorry - I meant to say that the Appendix to R(A) 1/88 puts the OBJECTIVE argument in a nutshell.

Jim

That has to be a first - having a conversation with yourself on the internet - and I thought some of my clients were slightly strange.......................

See here, Shermer! I'm VERY strange, I'll have you know! And why aren't you giving me words of wisdom on R(A) 1/88?

Jim 'Oddball' Pepin

Actually, I am drawn, nay, fascinated by the arguement the Commissioner puts forward in that appendix - the last para relating to sleeping etc seems overly helpful - particularly in your client's case


PS - that's Mr Shermer by the way

Sorry, sir. And thanks for the support. Love you really.

Jim