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Neutral Citation Number:	2009 UKUT 173 AAC
Reported Number:
File Number:	CAF 3558 2008
Appellant:	MC
Respondent:	Secretary of State for Defence
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	09/09/2009
Date Added:	23/09/2009
Main Category:	War pensions and armed forces compensation
Main Subcategory:	Other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 20. War disablement pension – constant attendance allowance – whether attendance includes supervision – meaning of “continual” – nature of appeal to tribunal The claimant had been in receipt of a war disablement pension for many years in respect of both physical and mental disabilities and at the relevant time the degree of disablement was assessed at no less than 80 per cent. In June 2005 he made a claim for constant attendance allowance, for which the conditions are that the claimant is in receipt of a war disablement pension the degree of which is not less than 80 per cent; and it is shown to the satisfaction of the Secretary of State that constant attendance on the member is necessary on account of the disablement. The Secretary of State rejected the claim for constant attendance allowance and the claimant appealed to the pensions appeal tribunal, which allowed the appeal and made an award of the full day rate of the allowance. The claimant appealed to the Upper Tribunal, relying on the fact that he had an award of the highest rate care component of disability living allowance for the contention that he was entitled to the (higher) exceptional rate of constant attendance allowance. It was argued for the Secretary of State that the use of the words “shown to the satisfaction of the Secretary of State” in article 8(1)(b) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 meant that the role of the tribunal was limited to considering the reasonableness of the Secretary of State’s decision, rather than considering the matter afresh and making its own findings. Held, dismissing the appeal, that: 1. the tribunal stands in the shoes of the Secretary of State and it would be an error of law for the tribunal not to make its own findings on any disputed or unclear matter. To decide otherwise would be to undermine the right of appeal to the tribunal (R(IB) 2/04 cited) (paragraph 10 to 16); 2. an award of the highest rate care component of disability living allowance does not provide any kind of passport to an award of exceptional rate constant attendance allowance as the conditions are different, but any evidence in relation to one might be helpful in relation to the other, as might a tribunal’s statement of reasons and findings, and if they are available they should be taken into account (paragraphs 18 to 22); 3. “constant” for the purposes of constant attendance allowance is not an independent condition or concept to be satisfied but is a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of the allowance and “constant” and “continual” do not mean literally non-stop or uninterrupted (paragraphs 23 and 28); 4. for the purposes of constant attendance allowance, the test is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life and “attendance” can in appropriate cases include what in the disability living allowance scheme is referred to as “supervision”, and can include supervision which is either precautionary or anticipatory and emotional support (paragraphs 26 to 30); 5. the relevant paragraphs of the Secretary of State’s guidelines are not necessarily accurate statements of the law and are capable of leading to decisions being made in error of law (paragraphs 32 to 37); 6. the deficiencies in the tribunal’s reasoning were not, on the particular facts of this case, serious enough to amount to an error of law (paragraph 44).
Decision(s) to Download:	[2010] AACR 20 bv.doc