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Notes:
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Care component - child - comparison with child with normal requirements
Care component severe mental disablement whether late development amounts to mental disablement
The claimant, who was aged six at the time of the decision under appeal, suffered from constipation and encopresis (faecal soiling), mainly during the day, and also bedwetting at night. Her claim for disability living allowance was disallowed by the Secretary of State. The tribunal dismissed her appeal, reasoning that night-time incontinence at her age was within the normal range of development and therefore she did not have attention or supervision needs substantially in excess of those of another child of the same age, as required by section 72(6)(b)(i) of the Social Security Contributions and Benefits Act 1992. As to her day-time problems, the tribunal decided that they were behavioural, rather than the result of a physical or mental health disorder, and therefore the condition in section 72(1) was not met. On appeal to the Commissioner, it was argued on the claimant's behalf that the tribunal had erred in having regard to the fact that some children would be bedwetting at the age of six, when most would not. The Secretary of State argued that the tribunal had erred in failing to consider section 72(1) in relation to the bedwetting, when their reasoning clearly implied that the bedwetting was a developmental issue.
Held, allowing the appeal, but substituting a decision to the same practical effect, that:
1. while the use of the word "most" in CA/92/1992 should not be taken as implying that the "normal requirements" for purposes of comparison in section 72(6)(b)(i) were those of a simple arithmetical majority of children, there came a point where the proportion of children who had the requirements was so small that the requirements could no longer be said to be normal, even though the total number of children affected might still be quite substantial (paragraph 10);
2. however, section 72(6) came into play only where it was accepted that the child suffered from physical or mental disablement and, as a result, had attention or supervision requirements sufficient to satisfy at least one of the conditions of section 72(1), and so the tribunal had erred in failing to consider whether there was evidence of a physical or mental health disorder causing the nocturnal enuresis (following CSDLA/552/2001, where it was held that enuresis is not in itself a disablement) (paragraphs 10 and 14);
3. a young child's inability to perform functions due to immaturity is not disablement within the scope of section 72(1) and so, where there is no identifiable physical problem in an older child, it is necessary to distinguish between unexceptional developmental delay and delay due to some mental disorder (paragraph 15);
4. the tribunal might have erred in finding that it was normal for six year olds to suffer from nocturnal enuresis, but their finding that it did occur in a significant number of cases where there was no physical or mental disablement, taken in conjunction with the lack of other evidence of physical or mental disablement in this case, had the effect that it could not be established on the available evidence that the claimant's nocturnal enuresis was caused by any physical or mental disablement (paragraphs 16 and 17);
5. the claimant's enuresis did not, in any event, give rise to sufficient requirements for attention to satisfy the conditions of section 72(1) because any requirement for attention at night was reasonably avoided through the use of nappies and, while putting the claimant in nappies when she went to bed and bathing her in the morning were activities to be taken into account as day-time attention, they did not amount to the provision of attention for a significant portion of the day or frequently throughout the day (paragraph 17). |
