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Neutral Citation Number:
Reported Number: R(DLA)1/04
File Number: CDLA 3737 2002
Appellant: Secretary of State for Work and Pensions v. Hughes (a Minor) [2004] EWCA Civ 16
Judge/Commissioner: Judge C. Turnbull
Date Of Decision: 26/02/2003
Date Added: 20/06/2003
Main Category: DLA, AA: personal care
Main Subcategory: attention: children under 16
Secondary Category:
Secondary Subcategory:
Notes: Care component - child under 16 - attention required whilst at school Commissioner - appeal to the Court of Appeal - whether court should consider arguments from the Secretary of State which were not developed before the Commissioner The claimant was partially sighted. She made a claim for disability living allowance, which was refused. She appealed and an appeal tribunal awarded lower rate mobility component, but concluded that she did not meet the statutory criteria for care component. She then appealed to the Commissioner against refusal of care component on the ground, among others, that the tribunal had failed to make findings of fact about her attention needs at school. The Secretary of State submitted that the assistance provided at school was for the claimant's educational needs and not in connection with any bodily function. The Commissioner issued directions giving his provisional view that some at least of the assistance at school qualified as "attention in connection with" the bodily function of seeing and that the claimant required frequent attention during term-time substantially in excess of that required by a child of her age without disability. The Secretary of State responded briefly in a submission which did not clearly raise any issue as to whether the need for assistance identified by the Commissioner constituted a need for "attention". In his final decision the Commissioner allowed the appeal and decided that assistance provided in the classroom was in connection with the bodily function of seeing, was reasonably required for the claimant's education, and was of a sufficiently personal nature to count as "attention". The attention she needed during the school holidays was not, in the Commissioner's view, significant enough to qualify, but taking a broad view, he decided she met the conditions for an award of the middle rate care component of disability living allowance, which he awarded for two years. The Secretary of State applied for permission to appeal, submitting that the classroom assistance did not constitute attention, was not required frequently, was not substantially in excess of that required by a child of her age without disability and was not required throughout the year. The Commissioner granted permission on the ground that the issue as to whether the classroom assistance constituted attention was probably an issue of law of wider importance. Held, dismissing the appeal, that; 1. it would not be right for the court to embark upon consideration of what amounted to a root and branch attack on parts of the Commissioner's decision which, despite the ample opportunity provided, had not been the subject of any real submissions to him (paragraphs 15-16); 2. the issue as to whether the classroom assistance constituted attention raised no new issue of principle. The issue between the parties was not as to the meaning of the statutory provisions but merely as their application to the facts of the case (paragraph 17); 3. the ordinary courts should approach the complex area of social security law with an appropriate degree of caution (following Cooke v. Secretary of State [2001] EWCA Civ 734) R(DLA) 6/01) (paragraph 22); 4. despite the Commissioner's grant of permission to appeal the Court declined to embark on the merits of the appeal (paragraph 21).
Decision(s) to Download: R(DLA) 1_04 bv.doc R(DLA) 1_04 bv.doc