Simon Osborne considers some recent caselaw about the disability living allowance (DLA) tests for attention/ supervision at night, in the context of the needs of disabled children.
A child with disabilities usually requires extra help, and this may include extra help during the night. But, of course, children without disabilities may also require help during the night, especially when they are very young. How does the law provide for a child with disabilities to gain entitlement to the care component of DLA in such a context? Recent caselaw from the Upper Tribunal has provided some helpful guidance.
This recent caselaw adds to an existing body of authority which has already established some key principles. Some of this earlier caselaw, in particular BM v SSWP (DLA)  UKUT 18 (AAC) (about the ‘extra test’ which a disabled child must satisfy for the care component), was discussed in ‘Evidence, education and extra needs: DLA and children’ (Bulletin 245, April 2015).
The legal tests
The rules create two main tests for the night-time care needs of disabled children. Firstly, the basic test for the DLA care component for night-time needs, applying to any claimant whether a child or not, is in section 72(1)(c) of the Social Security Contributions and Benefits Act 1992. This requires that a claimant is ‘so severely disabled physically or mentally’ that, at night:
‘(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or
(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.’
For a disabled child, there is the ‘extra test’, at section 72(1A)(b), that there is no entitlement to the care component on any ground unless:
‘(i) he has requirements…substantially in excess of the normal requirements of persons of his age, or
(ii) he has substantial requirements…which younger persons in normal physical and mental health may also have but which persons of his age and in normal mental health would not have.’
The recent caselaw
In DJ v SSWP (DLA)  UKUT 169 (AAC) (6 April 2016), the child was five years old at the time of his claim. He had intrusive joint pain. During the night, he often woke with hip and leg pain. The First-tier Tribunal had refused his appeal, recording that the claimant had four ‘good’ nights a week when he is awake and needing attention for 30–60 minutes, but that ‘this would not be unusual for some five year olds’. On ‘bad’ nights, he could be awake for five or six hours, but ‘five or six hours may be substantially in excess to care needed by children of a similar age who have no mental or physical health problems but this is not for most of the time which is the test.’
Judge Hemingway held that the First-tier Tribunal had erred in not explaining its view that it would not be unusual for ‘some’ five-year-old children to require attention for 30 to 60 minutes per night – the correctness of such a view did not seem to the judge to be ‘sufficiently obvious to be assumed’ (paragraph 12).
The extra test: correct approach
Moreover, in DJ v SSWP (DLA), the First-tier Tribunal had lost sight of the point that what is under consideration in the extra test for children is ‘whether any attention received by a child claimant is substantially in excess of that which would be required normally by a child of the claimant’s age’. The judge cited CA/92/92, which held that ‘the legislation contemplates a yardstick of an average child’ in deciding whether the claimant had needs which were substantially more ‘than would normally be required by the average child’. That meant, said Judge Hemingway in the present decision:
‘that the tribunal should have been asking itself whether the claimant had needs significantly beyond those which a normal child of his age would have. The reference the First-tier Tribunal made to the needs of “some five year olds” (my underlining) points to it have lost sight of that… The mere fact that some 5 year olds might need attention for 30 to 60 minutes did not mean that was the normal situation’ (paragraph 12).
On the facts, the claimant in fact did satisfy the relevant night-time test. It seemed to the judge ‘quite obvious’ that, even taking the extra test for children into account, the night-time test was satisfied on the basis that ‘prolonged or repeated attention is required’. Even on his ‘good’ nights, the claimant required 30–60 minutes of attention, which clearly amounted to ‘prolonged’ attention. Taking a common-sense approach, it did not seem right to say that many children aged five will require that sort of attention on anything like a regular basis (paragraphs 15 and 16).
Night-time incontinence and the under fives
In DN v SSWP (DLA)  UKUT 233 (AAC) (12 May 2016), the claimant was four years and seven months old at the date of claim. He had cerebral palsy, developmental delay, dyspraxia and hypertonia. He had incontinence in the form of faecal leakage, which affected him both night and day. The First-tier Tribunal found that those problems occurred mostly during the day and were infrequent at night and could be minimised by the claimant wearing nappies. Judge Lane saw no error of law in any of that; however, the tribunal did err in its approach to the extra test for children.
The tribunal erred, said Judge Lane by ‘basing its decision on the view that all under-5s would need help with cleaning and changing themselves and their bedding during the night’. The tribunal said that any four-year-old child would need help dealing with incontinence. The main point, however was that, according to medical evidence cited by the judge, ‘only a very small percentage o fchildren of this age are faecally incontinent’. Therefore, ‘the real question to ask was whether the child’s requirements arising from his faecal incontinence at night were substantially in excess of those of ‘normal’ children of his own age or were substantial requirements normally seen in younger children’ (paragraph 18).
However, on the facts of this case, the tribunal’s error was not material to the outcome. The judge considered on the facts of the case that ‘the incidents of incontinence at night were simply insufficient to meet the conditions of entitlement and could be offset by using nappies’ (paragraphs 19–20).
Other key caselaw:
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