DJ v SSWP (DLA)

For a child claiming night-time care under section 72 of the Social Security Contributions and Benefits Act 1992, the comparison is with the normal requirements of an average child of the same age. It is insufficient to ask whether some children of that age may require similar attention.

Regular attention lasting 30 to 60 minutes, together with substantially greater needs on other nights, may amount to prolonged or repeated attention substantially in excess of normal requirements. A rigid calculation based on whether the test is met on a majority of individual nights is not ordinarily appropriate; the overall nature and extent of the night-time needs should be considered.

The claimant was a five-year-old child with hyper-extensive mobility expandable joints and intrusive joint pain. His mother claimed disability living allowance on his behalf.

The First-tier Tribunal awarded the lowest-rate care component, but refused the mobility component and a higher care award. It found that the claimant needed attention for 30 to 60 minutes on four nights each week and for five to six hours on three nights, but held that the night-time requirements were not substantially in excess of those of other children.

The claimant appealed only the treatment of his night-time needs. The Upper Tribunal had to decide whether the First-tier Tribunal had applied the correct comparator and whether the established facts satisfied the night-time care conditions.

1. Appeal allowed. The First-tier Tribunal had erred in law and its decision was set aside. The Upper Tribunal remade the decision, awarding the middle-rate care component from 14 October 2014 to 13 October 2016. There was no mobility-component entitlement.

2. Under section 72(1A)(b)(i) of the Social Security Contributions and Benefits Act 1992, a child’s needs must be compared with the normal requirements of a child of the same age. The relevant yardstick is an average or typical child, not the fact that some children of that age might require comparable attention. The First-tier Tribunal made no finding as to normal night-time needs and therefore asked itself the wrong question.

3. On the unchallenged findings, the claimant required attention for 30 to 60 minutes on four nights weekly and repeated attention for about five to six hours on the other three nights. Those needs comfortably met section 72(1)(c)(i), and were substantially in excess of the needs of a typical child of the same age. The night-time conditions therefore established middle-rate care-component entitlement where the daytime higher-rate conditions were not met.

4. The judge remade the decision rather than remitting it. The factual findings were clear and unchallenged, and remittal would cause further delay.

5. Obiter: a rigid arithmetical approach which asks whether the statutory test is met on a majority of separate nights is inappropriate. The proper approach may be an overall assessment of the nature and extent of needs on both better and worse nights.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision of 11 September 2015, and remade it to award middle-rate care-component disability living allowance.
• First-tier Tribunal: Allowed the appeal in part, awarding the lowest-rate care component from 14 October 2014 to 13 October 2016, but refused the mobility component and a higher care award.