KK (appointee LW) v Secretary of State for Work and Pensions (DLA)

1. I must begin by apologising for how long it has taken to make this decision. According to the Case Management System, the case was ready for decision and referred to me on 22 January 2025. Either the automated alert system failed to work or I failed to notice the alert. Either way, I am sorry for the delay and apologise to KK, LW and their representative.

2. KK, by his appointee LW, appealed against the decision of the First-tier Tribunal. The Secretary of State’s representative has supported the appeal, saying that there was an error of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. KK, by his representative, has agreed. Given that agreement, all I need do is to say why I have set aside the tribunal’s decision and explain what is meant by a rehearing. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail. A. Why I have set the First-tier Tribunal’s decision aside

3. KK’s representative identified two grounds of appeal to the Upper Tribunal. I gave permission to appeal on both. They relate to day-time and night-time. I cannot improve on the detailed analysis of the Secretary of State’s representative, which I gratefully adopt and repeat. It will benefit the First-tier Tribunal at the rehearing. 4.2 The following paragraphs will address the two grounds of appeal raised by the representative, upon which the UT Judge has granted PTA. The representative’s first ground of appeal concerned the fact that the FtT may not have made adequate findings of fact in relation to whether the claimant requires prompting throughout the day and whether it is reasonably required. The representative’s second ground of appeal concerns the fact that the FtT may have failed to properly assess the claimant’s need for attention during the nighttime. 4.3 It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how it assessed the claimant’s functional abilities appears limited in its reasoning. It seems that what the FtT has provided at paragraph 34 and 35 of the SOR in relation to whether the claimant met the statutory requirements for an award of the care component appears to be no more than a rehearsal of evidence and a conclusion without an adequate explanation. I submit that my views are generally aligned with those of the UT Judge that the FtT has arguably erred materially in law for the reasons set out below. 4.4 In the present case, as noted by the FtT at paragraph 5 and 7 of the SOR, the claimant suffers from hypermobility, anxiety, dyspraxia, dysgraphia and Autism Spectrum Disorder (ASD). It is noted at paragraph 6 that the claimant had been assessed by an occupational therapist (OT) and a clinical psychologist. 4.5 The representative’s first ground, detailed at p. 6 – 7 of the UT bundle, concerns whether the FtT may have erred in law by failing to make adequate findings of fact in relation to the prompting provided to the claimant. When determining whether the claimant met the statutory requirements for an award of the care component, the FtT assessed many individual elements of how the claimant’s mother assisted him with his care needs during the day (paragraphs 25 – 29 of the SOR), including the help he required with brushing his teeth; using the toilet; dressing; bathing and washing his hair; activities using his hands; shaving; washing his face and taking his iron supplement. In each case, when assessing whether the help required would take up a significant portion of the day, it found that the help needed would not take a great deal of time – for example, when considering washing the claimant’s face and helping him to take his iron tablet, the FtT noted at paragraph 28: “The Tribunal found that although [appointee] gave evidence that she washed her son’s face, the Tribunal found that this activity would not be for a significant portion of the day because washing his face would take no more than a couple of minutes. This activity would be undertaken twice a day in less than 10 minutes in total. The Tribunal found that [claimant] would only need to spend less than a minute taking his iron supplement, he was able to eat and drink, he would be able to take his iron supplement within this period of time.” This informed the FtT’s conclusion that these activities were not “activities of a personal nature requiring a significant portion of the day,” (SOR paragraph 29) and therefore that the claimant was not entitled to the care component. 4.6 I would respectfully submit here, the FtT has erred in law by failing to consider the comorbid nature of the claimant’s health conditions and how this affected his ability to carry out basic tasks, and the resulting frequency with which his mother needed to prompt him to be able to complete these. There is extensive evidence in the FtT bundle which would appear to suggest that the claimant’s mother had to repeatedly prompt and assist her son with numerous care tasks throughout the day. For example, at p. 58 of the FtT bundle in the DLA1 form, the claimant’s mother states: “[Claimant] needs prompting to get out of bed in the morning every day, I will have to prompt him once to get up, he will need prompting twice if he has had a worse night than usual, this can take from five minutes each time but can take longer if he is still in pain from previous days walking or activities. [Claimant] will need to be repeatedly reminded to get changed into his clothes or out of them and into his pyjamas each day.” At p. 63 of the bundle, she goes on to add: “[Claimant] needs to be reminded about what time it is because he cannot confidently tell the time…[Claimant] struggles to understand or recognise when he is overheating even if he is sweating so I will also have to tell him…” (p. 63) At p. 65, she also notes how: “I need to remind [claimant] to change his underwear everyday and he will always need help and reassurance to pick an appropriate outfit. [Claimant] does not recognise when clothing is dirty or is too small for him, so I need to tell him. [Claimant] will need help adjusting his clothes like, for example, covering his ankles with the trousers or he will put a t-shirt on inside-out or backwards.” P. 65) 4.7 As per paragraphs 5, 6 and 7 of the SOR, the claimant’s health conditions (detailed at paragraph 4.4 of this submission) and subsequent OT and clinical psychologist involvement are not in dispute by the FtT. It seems erroneous, therefore, that the FtT do not consider the evidence from the OT which would seem to explain the claimant’s difficulties with sequency and carry out basic, everyday care tasks – particularly those involving sequencing and fine motor control. For example, in the OT report at Addition N p. 14 of the FtT bundle it is stated, “be aware that [claimant] does have decreased hand and finger strength and he may find heavy equipment or beakers full of liquid or drinks tricky to manoeuvre and any repetitive actions difficult to sustain.” At Addition N p. 13, the OT also notes how the claimant: “displays immaturity and some significant difficulties to his skills, for example his coordination and fluency of movement, alongside weaker core, trunk stability, hand eye coordination and trunk rotation (important to strengthen the trunk muscles as they are vital in any motion the body performs, i.e., walking, balancing and body stability) and difficulties in his fine motor skills. Some of the above assessments really didn’t capture the difficulties [claimant] had in his motor planning and execution of a lot of the tasks asked of him. [Claimant] has some significant perceptual difficulties and struggles with his graphomotor skills and handwriting, with having the distinct possibility of Dysgraphia as well. All elements appear to be working against him…[claimant] has very mobile joints which will impact across the board on all areas not just those mentioned above.” At the same page, the OT stated that these difficulties were, “affecting all aspects of his daily life, with heavy scaffolding needed from his family throughout his day.” In addition, the OT recommends several therapies and strategies to improve the claimant’s fine motor and sequencing skills, including specialist typing equipment, adapted cutlery and plates, hand exercises, the use of mind maps and smaller-step instructions. 4.8 This extensive evidence from the OT which appears to suggest that the claimant’s health conditions gave rise to difficulties with sequencing and fine motor skills and “affected all aspects of his daily life”, combined with his mother’s evidence concerning the frequency with which she had to prompt and aid her son to complete tasks such as shaving, washing his face, bathing, dressing and taking medication, does not appear to have been considered by the FtT. Instead, it appears that the FtT has taken a somewhat narrow view of the evidence, choosing to focus on individual tasks and the time taken for each one. Here, I respectfully submit that the FtT have erred in law by failing to engage with the evidence before it in a holistic manner, taking into account the claimant’s health conditions and how these affected him in combination. 4.9 The second ground of appeal concerns the fact that the FtT may have failed to properly assess the claimant’s need for attention during the nighttime. 4.10 On this matter, the FtT found at paragraphs 30 – 34 that: “30. The Tribunal considered [appointee’s] explanation that she needed to talk to her son during the night if he was thinking about things that had happened to him. The Tribunal found [claimant] lacked self-esteem, and he would want to talk through issues that arose in his life with his mother.

31. The Tribunal did not accept it was reasonable that such discussion would have to take place at night. The Tribunal found it was reasonable for a parent to discuss matters of concern with their child, but such conversations were reasonable had during the day.”

32. The Tribunal notes [appointee’s] evidence that [claimant] would sometimes be anxious about an appointment he was due to attend, such appointments did not occur frequently. [Appointee] gave evidence that for some months [claimant] did not have medical appointments.

33. The Tribunal found that [claimant’s] medical conditions would not require him to have frequent appointments…

34. The Tribunal found [claimant] did not require prolonged or repeated attention at night in connection with bodily functions; or for someone to be awake during the night for a prolonged period or at frequent intervals in order to avoid substantial danger to [claimant] or others.” 4.11 These findings by the FtT appear erroneous: there is an assumption made that his mother is not already having these conversations with the claimant during the day. Here, I submit that the FtT have erred in law by failing to use its inquisitorial function and make further fact finding about how the claimant’s mother aided her son with his anxiety during the day and the conversations she had with him – it is entirely plausible that these discussions did take place during the day. It may be due to the claimant’s anxiety that he is remunerating to such an extent that the appointee needs to help the claimant at night to settle, but there is no consideration of this in the SOR. 4.12 There is also evidence in the bundle which would appear to be at odds with these findings by the FtT. In the DLA1 form, the claimant’s mother states at p. 56 of the FtT bundle: “[Claimant] always struggled to settle in bed, when he is anxious or panicking about something it can take one hour to settle him, we could have to talk him through what he is worried about calmly. This could be anxiety about an activity happening the next day or he is still struggling to process, or calm down if something happened which upset him.” At p. 63 of the bundle, the appointee adds: “[Claimant] struggles to…recognise when he is overheating…so I will also have to tell him to remove the covers or put on thinner or looser pyjamas. [Claimant] will also stim by running around his room or will push his body against a wall or door if he is stressed or anxious, so will again need prompting to get back into bed.” 4.13 In paragraph 19 of her ruling on CSDLA/535/2007, Commissioner Parker, as she then was, summarised her findings on the correct approach to care needs in terms of soothing a child back to sleep in relation to attention with bodily functions: “19…I held in CSDLA/567/2005 that soothing a child back to sleep can count as attention with a bodily function, provided the sleeplessness is linked to a disability.” The claimant’s representative has also raised UT Judge Wikeley’s decision on CDLA/1837/2019, which draws upon Commissioner Parker’s findings about soothing a child back to sleep in relation to attention with bodily functions. At paragraph 12 of this this decision, UT Judge Wikeley held that a child’s wakefulness need not be caused by a disability, just linked to it: “12…However, the Commissioner’s precise words were “Soothing back to sleep can count as attention with a bodily function provided that the sleeplessness is linked to a disability” (emphasis added). It seems to me there is a potentially significant difference between the notions of being “linked to a disability” and being “caused by a disability”.” At paragraph 16, UT Judge Wikeley also held that any soothing back to sleep should be considered in the context of the ‘Additional Child Test’, and how the soothing being done may be more protracted because of the child’s wakefulness being linked to their disability: “16. One difficulty with this approach, as Ms Hardwick points out, is that the FTT has not adequately addressed the parents’ argument that if Elliott had age appropriate communication skills then he would not need the extra attention at night in order to settle back to sleep. To say that Elliott’s language delay did not affect his ability to go back to sleep is to miss the point; the parents’ argument was that the language delay meant it was much more difficult to understand what was troubling their child and as such the process of soothing (i.e. the attention in connection with the bodily function) was more protracted. The FTT’s focus should have been on the attention required in connection with the bodily function of communication and not of sleeping. A further difficulty with the reasoning is that the comparison made by the FTT is far too loose – their reference point is phrased in very general terms as a “1 or 2 year old”, when statute requires a comparison with a child of the same age (here 2 years and 1 month). There is, of course, the world of a difference in sleeping patterns between say a 13-month old and a child almost twice that age. 4.14 By asserting that the repeated soothing the claimant’s mother had to do during the night could instead be done during the day, I respectfully submit that the FtT have erred materially in law by failing to properly apply the precedents set out in both CSDLA/535/2007 and CDLA/1837/2019. I would respectfully submit that the FtT have erred in law by taking too simplistic a view of the evidence before it that the claimant’s mother needed to do extensive soothing and prompting back to bed due to her son’s anxiety and ASD. 4.15 The claimant’s wakefulness at night does not appear to be in dispute by the FtT, instead, it has found that the claimant did not require prolonged or repeated attention during the night because, as noted above: “The Tribunal did not accept it was reasonable that such discussion would have to take place at night. The Tribunal found it was reasonable for a parent to discuss matters of concern with their child, but such conversations were reasonable had during the day.” However, while this may be true for another thirteen year-old child without such difficulties, it seems from the appointee’s evidence that because of the claimant’s co-morbidities of his health conditions, he was unable to go back to sleep until matters which were anxiety-inducing had been discussed. 4.16 Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the Appointee which details the claimant’s co-morbidities and longstanding health conditions that affect him. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award the claimant DLA. 4.17 In view of the above, I agree with the UT Judge that the inadequacy of reasons makes it difficult for the appointee to know whether the FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.

4. I do not need to deal with any other error in point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing. B. What will happen at the rehearing

5. For the benefit of LW, this is the effect of the decision in KK to which I have referred in my directions.

6. The tribunal must follow the directions I have given.

7. The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

8. Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

9. The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside. Edward Jacobs Judge of the Upper Tribunal Authorised by the judge for issue on 04 September 2025