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Neutral Citation Number:
Reported Number: R(DLA)2/00
File Number: CSDLA 512 1998
Appellant: Stewart-v-Advocate for Scotland
Respondent:
Judge/Commissioner: Judge D. J. May Q.C.
Date Of Decision: 30/05/2000
Date Added: 21/06/2002
Main Category: DLA, AA: personal care
Main Subcategory: attention: daytime
Secondary Category: DLA, AA: personal care
Secondary Subcategory: attention: night
Notes: Care component - whether attention was required in connection with the bodily function of urinating and in particular, following completion of that function The claimant, a child whose disability was described as being “chronic asthmatic - bed wetter” claimed the care component of disability living allowance. A disability appeal tribunal decided that he did not qualify for either the day time or the night time conditions in section 72(1)(b)(i) and section 72(1)(c)(ii) respectively. In particular, it was accepted by the tribunal that enuresis was a disablement to which section 72 applied but that the level of attention required was neither repeated nor prolonged. The claimant appealed to a Commissioner who upheld the appeal, substituting his own decision to the same effect. The Commissioner held that inter alia the tribunal had not determined whether enuresis was a mental or physical disablement and that was an error. However the Commissioner also considered further if for the sake of argument it was accepted that the claimant had a disablement they had erred in failing to identify any impaired bodily function and, by inference, in accepting that attention could be given in connection with the bodily function of urinating. The claimant appealed to the Court of Session. Held, allowing the appeal, that upon the assumption that the requirements for disablement were met: 1. the Commissioner was wrong as a matter of law to exclude attention provided following completion of the bodily function of urinating merely because the attention did not assist in the actual bodily function of urinating. The attention did not have to be “in the performance” of the bodily function. The Court agreed with the observations of Lords Goff, Mustill, Slynn and Clyde in Cockburn v. Chief Adjudication Officer [1997] 1 WLR 799 [R(A) 2/98]; 2. whether attention following completion of the bodily function of urinating will qualify for an award of care component is a matter for consideration in the circumstances of each case under reference to the statutory requirements as a whole. The Court stated that the appeal before them was not concerned with what was required by disablement to meet the statutory conditions. The Court of Session set aside the Commissioner’s decision and remitted the case to the tribunal for rehearing. [Note: In the course of the Opinion of the Court of Session, a passage from the speech of Lord Hope of Craighead in Cockburn v. Chief Adjudication Officer [1997] 1 WLR 799, 823 is wrongly attributed to Lord Clyde]
Decision(s) to Download: DLA2_00.doc DLA2_00.doc