KH (by CH) v Secretary of State for Work and Pensions

In social-entitlement proceedings, natural justice does not ordinarily require a tribunal to put every inference or observation to a claimant. However, a hearing is unfair where the tribunal decides the case on a new and determinative matter which the claimant had no fair opportunity to address.

For disability living allowance, night-time attention in connection with bodily functions may include immediate and essential cleaning after incontinence. This can include stripping a bed and changing linen where done in the claimant’s presence or vicinity. It does not extend to laundering performed away from the claimant.

A child who needs prolonged or repeated night-time attention substantially exceeding the normal requirements for children of that age satisfies the relevant care condition under the Social Security Contributions and Benefits Act 1992.

The appellant, a child represented by her father as appointee, had previously received disability living allowance care-component awards. The Secretary of State refused her 2019 renewal claim. The First-tier Tribunal dismissed her appeal on 26 February 2021, finding that she could manage night-time incontinence and related care independently if her routine were adjusted.

Permission to appeal was granted on the confined issue of her night-time needs. The issue was whether the First-tier Tribunal had acted unfairly by relying on proposed strategies, including alarms, incontinence wear and protective sheets, without giving her father a fair opportunity to explain that they had been tried and had failed.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal re-made the decision under section 12(2)(b)(ii).
2. The applicable requirement of natural justice was contextual. As explained in CC v Secretary of State for Work and Pensions [SSWP] (ESA) [2019] UKUT 14 (AAC), a social-entitlement tribunal need not ordinarily put matters of inference, credibility or demeanour to a claimant. But it must give a party a reasonable opportunity to address a new, unforeshadowed matter which is determinative of the appeal.
3. The First-tier Tribunal had accepted the father’s evidence as credible. Yet it relied on proposed night-time management strategies which may not have been put to him, and which he said had been tried unsuccessfully. The evidence was sufficiently ambiguous for those proposals to have denied him a fair opportunity to address a determinative basis for refusing the claim.
4. The Tribunal also applied Ramsden v SSWP [2003] EWCA Civ 32. Immediate and essential cleaning following incontinence may constitute attention in connection with bodily functions if performed in the young person’s presence or vicinity. The distinction between urinary and faecal incontinence did not alter that principle.
5. On the credible evidence and the Secretary of State’s concession, the appellant reasonably required prolonged or repeated night-time attention in connection with her bodily functions. Her requirements were substantially in excess of those normally required by persons of her age, satisfying sections 72(1)(c)(i) and 72(1A)(b)(i) of the Social Security Contributions and Benefits Act 1992.
6. The substituted decision awarded the middle rate of the DLA care component from 23 April 2019 to 22 April 2021. No mobility-component award was made.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and substituted an award of the middle rate of the DLA care component for 23 April 2019 to 22 April 2021: [2022] UKUT 303 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s appeal against the Secretary of State’s refusal of a DLA renewal claim on 26 February 2021. That decision was set aside for error of law.