OU (mother and appointee for SRU) v The Secretary of State for Work and Pensions

In a disability living allowance appeal, later events will not ordinarily establish the claimant’s needs during the relevant qualifying period or the forward-looking assessment required at the decision date. The First-tier Tribunal may prefer independent evidence to an appointee’s account where that choice is open on the evidence.

The phrase “for any period throughout which” in unknown, section 72(1), requires a broad, ordinary-language assessment. It does not require need every day, or necessarily on most days, but a need arising on fewer than two school days a week could rationally be found insufficient. A valid in-time request for reasons engages the mandatory duty in rule 34(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008; it cannot be made conditional on a further confirmation.

SRU’s mother and appointee sought permission to appeal from a First-tier Tribunal decision dismissing SRU’s appeal against the refusal of disability living allowance. The First-tier Tribunal had found that SRU’s asthma and allergies did not give rise to the requisite care, supervision or mobility needs during the relevant period.

The application relied, among other matters, on alleged allergic reactions and asthma symptoms, including events occurring after the claim and the First-tier Tribunal’s decision. It also challenged findings about school support, medication, food preparation and the extent of care compared with that required by other children of SRU’s age.

The Upper Tribunal considered whether those grounds disclosed an arguable error of law. It also made published observations about the First-tier Tribunal’s handling of an in-time request for a statement of reasons.

1. Permission to appeal was refused. None of the grounds disclosed an arguable error of law. The First-tier Tribunal had not found that SRU had never been accidentally exposed to allergens. Events in 2018 and 2019 did not demonstrate needs in the qualifying period, and the alleged incident in May 2024 occurred after the claim, decision and tribunal determination. It did not assist the forward-looking assessment at the decision date.

2. The First-tier Tribunal was entitled to prefer the school evidence to the appointee’s account. That evidence did not show frequent attention, attention for a significant portion of the day, or continual supervision substantially beyond that required by other 12-year-olds. It was also entitled to find that carrying medication, providing a care plan, or a host administering medication during an episode did not itself amount to continual supervision.

3. On the evidence, the First-tier Tribunal could find that the level of assistance with medication, food preparation, medical appointments and supervision was not substantially in excess of the assistance ordinarily required by a child of SRU’s age. It gave adequate reasons for finding that SRU’s needs had reduced as she became older and more capable.

4. The expression “for any period throughout which” in section 72(1) called for a broad and ordinary-language judgment, consistently with R(A) 2/74. It did not mean every day, and could in some circumstances cover less than a majority of days. Nevertheless, the First-tier Tribunal could rationally find that even 41 school absences over the year did not meet the statutory requirement.

5. Observations. Although not affecting the refusal of permission, the Upper Tribunal considered the First-tier Tribunal’s directions concerning the request for reasons concerning. An in-time request which had not been withdrawn remained pending. Under rule 34(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the tribunal had to provide reasons, subject to rule 14(2). It was misconceived to require the appointee to confirm the request again, or to threaten strike-out for failing to do so. The observations were published because similar directions might dissuade other claimants from exercising that entitlement.

• Upper Tribunal (Administrative Appeals Chamber): permission to appeal from the First-tier Tribunal was refused: [2024] UKUT 223 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): following a hearing on 12 March 2024, it dismissed SRU’s appeal and confirmed the Secretary of State’s decision that SRU did not meet the conditions for disability living allowance.