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Neutral Citation Number:
Reported Number:	R(DLA)5/05
File Number:	CDLA 492 2004
Appellant:
Respondent:
Judge/Commissioner:	His Honour Judge G.R. Hickinbottom
Date Of Decision:	30/06/2004
Date Added:	09/07/2004
Main Category:	DLA, AA: personal care
Main Subcategory:	attention: daytime
Secondary Category:	DLA, AA: personal care
Secondary Subcategory:	attention: night
Notes:	Care component - application of Moyna to the middle and higher rate care component - meaning of "frequent throughout the day" and "prolonged" The claimant in CDLA/5465/2002 had a number of physical conditions as well as learning difficulties. Her renewal claim for disability living allowance was refused and she appealed to a tribunal, which awarded her lower rate care component (as satisfying the "cooking test" criteria in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992) and lower rate mobility component. The tribunal found that she did not satisfy the criteria of section 72(1)(a)(i) (requirement for attention for a significant portion of the day). She appealed to the Commissioner on the ground that the tribunal had not properly considered whether she required "frequent attention throughout the day" within the meaning of section 72(1)(b)(i). The claimant in CDLA/492/2004 had epilepsy, high blood pressure and dizziness. He appealed against a tribunal decision that, although he satisfied the day-time supervision condition of section 72(1)(b), he did not satisfy the night-time criteria of section 72(1)(c)(i) for the highest rate, as he required attention at night only once or twice a week. Held, allowing the appeals, but substituting a decision to the same effect in both cases, that: 1. in considering the proper approach to any section 72(1) requirements, the starting point must now be Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, R(DLA) 7/03 (paragraph 7); 2. in respect of each component, therefore, an exercise in judgment has to be made taking account of all relevant factors; in respect of none can a determination be made upon an arithmetical formula or by reference to an invariable benchmark (paragraph 9); 3. consequently a Commissioner cannot interfere with a tribunal's decision unless it failed to recognise the proper conceptual test line drawn by the law or, having recognised it, made a decision as to which side of the line the case fell that was "outside the bounds of reasonable judgment" (paragraphs 10 and 11); 4. applying the above approach to CDLA/5465/2002, a failure to satisfy the lowest rate criteria in section 72(1)(a)(i) did not logically mean that the claimant would be bound to fail to meet the criteria for a higher rate of benefit; the tribunal had erred in failing to consider whether the claimant satisfied the criteria of section 72(1)(b)(i), which had been expressly raised on her behalf in the appeal (paragraph 29); 5. applying the above approach to CDLA/492/2004, the fact that attention was required only once or twice a week was one factor that the tribunal ought to have taken into account when considering whether the criteria had been satisfied, but it was not the only, necessarily determinative, factor (paragraph 40); 6. in the context of section 72(1), the characteristic of frequency is not simply the number of times something occurs, but the rate at which it occurs (paragraph 12). The Chief Commissioner took the opportunity to review the authorities and set out the correct approach to the section 72(1) requirements.
Decision(s) to Download:	R(DLA) 5_05 bv.doc