CDLA 11099/95

The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
COMMISSIONER J MESHER
Tribunal:
Tribunal Case No:
[ORAL HEARING] 
  
1. The claimant's appeal fails. The decision of the Birkenhead social security appeal tribunal dated 18 April 1995 is not erroneous in point of law and therefore stands. 

2. The issue before me is the proper interpretation of regulation 8 of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations), as in force on 14 September 1994, the date of the claim in this case: 
"(1) Subject to regulation 10, it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient-- 
(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or 
(b) in a hospital or other similar institution maintained or administered by the Defence Council. 
(2) For the purposes of paragraph (1)(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under section 65 of the NHS Act of 1977 or section 58 of, or paragraph 14 of Schedule 7A to, the NHS Act of 1978, or paragraph 14 of Schedule 2 to the NHS Act of 1990." 
Regulation 10 provides some exceptions to the operation of regulation 8, none of which apply in the present case. 

Background 

3. The background is shown by the appeal tribunal's findings of fact (from now on I shall refer to the claimant, as the appeal tribunal did, as Thomas): 
"Thomas [K] was born on 12.2.93 with congenital central hypoventilation syndrome (Ondine's Disease). He stops breathing when he sleeps. He also has Coeliac Disease for which food (liquidised and taking a long time to eat) has to be gluten-free. He sleeps in a negative pressure tank and it takes some 15 to 20 minutes to place him in and to take him out of the tank. Has to be watched constantly to check that he is not experiencing difficulty in breathing. He and the machine always have to be watched. He has been in hospital all his life. At Arrowe Park Hospital which is administered by a National Health Service Trust. He is an in-patient there receiving a mixture of treatment (eg nebulisers) and supervision. This is provided free of charge. Thomas has entitlement to the higher rate of the care component from 14.9.94 to 11.2.98. He first started to come home for a short period (initially four or five hours per day twice a week) in April 1994. Now (September 1994) built up to between five and ten hours a day. Ambulance booked for 9 am on Monday, Wednesday and Fridays. Thomas back in hospital by car approximately 7.30 pm. At weekends one full day (ten hours) and half day (five hours). 40/45 hours per week at home. In ventilator from 1 - 3 pm at home. In hospital every night." 
Later on, in its reasons for decision the appeal tribunal noted that, as part of the process of enabling Thomas to be at home permanently, by the date of the hearing he was spending 11 hours a day at home. Apparently that was every day of the week. 

4. On that basis the adjudication officer on 24 October 1994 decided that the care component of disability living allowance (DLA) was not payable for Thomas because he was receiving free in-patient treatment in hospital. On second-tier review the decision was confirmed, the adjudication officer saying that as Thomas was in hospital every night he was regarded in the same way as if he was in hospital full-time. An appeal was made. In the letter of appeal Mr McGuigan of Wirral Welfare Benefits Advice Unit referred to Commissioner's decision R(S) 4/84 in support of Thomas's case. The adjudication officer, in the written submission to the appeal tribunal, referred to Commissioner's decision CIS/192/1991. Those decisions were also relied on by the representatives at the hearing before the appeal tribunal. 

The appeal tribunal's decision 

5. By a majority decision, the appeal tribunal disallowed Thomas's appeal. 

6. Having identified the form of regulation 8 of the DLA Regulations in force at the relevant time, the majority of the appeal tribunal continued: 
"However both versions whilst similar to regulation 2(2) of the Hospital In-Patient Regulations 1975, have full-out words [this is a reference to regulation 8(2)] that are arguably more restrictive than such words as used in regulation 2(2) in that the word `only' appears instead of `unless' and it is phrased in a more restrictive way. The conflict between decisions of the Commissioners on regulation 2(2) - with and without the full-out words - is discussed on pages 485/486 of Bonner [1994 edition]. Most of our attention has been directed at those decisions. We note that R(S) 4/84 - though reported - turned on the original wording of the 1975 Regulations and pre-dated the use of the full-out words. Of the subsequent decisions we prefer the reasoning contained in Commissioner Heggs' starred decision (CIS/192/1991) to CS 249/1989. We do not think an in-patient like Thomas who is being maintained free of charge whilst undergoing medical or other treatment as an in-patient in a National Health Service Trust hospital ceased to be such by reason of spending some hours of the day at home. That kind of distinction could have been made in the Regulations but has not been made. We have adopted the wording of paragraph 16 of CIS/192/1991. Expenditure has been incurred by Thomas' mother during the day but we think that immaterial in line with the accepted argument at paragraph 17. We think that CIS/371/1990 and CS/94/1992 support our view albeit that they are based on the similar Hospital In-Patient Regulations. Absence from hospital for some 40/45 hours in a week of 168 hours did not prevent regulation 8(1) from applying." 
The minority member of the appeal tribunal dissented on the basis that Thomas was not a continuous in-patient and that the costs of caring for him were mainly incurred during the day-time and were borne by his family. 

7. The appeal against that decision comes before me with the leave of a full-time chairman of appeal tribunals. There was an oral hearing of the appeal, at which Thomas was represented by Mr McGuigan and the adjudication officer was represented by Mr Heath of the Office of the Solicitor to the Department of Social Security. I am grateful to both representatives for their very full discussion of the issues. I shall not set out their submissions, but instead refer to them as necessary in explaining my decision. 

8. The appeal tribunal started its reasons by saying that all the sympathy in the case was roused on the side of Thomas and his mother. No-one could disagree with that, least of all any parent who has ever had a child ill in hospital even for a short time. But the appeal tribunal had to take a dispassionate view of the meaning of regulation 8 of the DLA Regulations, as do I. I have concluded that the majority of the appeal tribunal applied essentially the correct meaning of regulation 8. Although I think that it may have gone wrong if it considered only the situation as it was at the date of claim, rather than as it was throughout the period from the date of claim down to the date of its decision, the change of circumstances could have made no difference to its decision. The appeal tribunal came to the only legally possible conclusion on the circumstances as they existed throughout that period. It did not err in law. 

9. As noted above, the issue before me, and the appeal tribunal, is the proper interpretation of regulation 8 of the DLA Regulations. But a lot of argument has been directed to past decisions about the meaning of a similar, but by no means identical, provision in the Social Security (Hospital In-Patients) Regulations 1975 (the Hospital In-Patient Regulations). It will help to explain my decision, and possibly in other cases, for me to state what in my view those decisions do and do not stand for. 

The Hospital In-Patients Regulations 

10. The present form of regulation 2(2) of the Hospital In-Patients Regulations is as follows: 
"(2) For the purposes of these Regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient-- 
(a) in a hospital or similar institution, under the National Health Service Act 1977, the National Health Service (Scotland) Act 1978 or the National Health Service and Community Care Act 1990; or 
(b) in a hospital or similar institution maintained or administered by the Defence Council; and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are provided under section 65 of the National Health Service Act 1977, section 58 of, or paragraph 14 of Schedule 7A to, the National Health Service (Scotland) Act 1978 or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990."
The rest of the Regulations provide for the adjustment of a number of benefits (not including DLA) when people have been receiving free in-patient treatment for various periods, and the regulation 2(2) test is adopted for some other benefits (notably income support). The form of regulation 2(2) set out above has been in force since 16 November 1992, when there was a change to take account of the 1990 Act. The previous form had been in force since 2 November 1987, when there had been a significant change in the so-called "full-out" words. The "full-out" words are the words which follow the end of sub-paragraph (b) of regulation 2(2). They are given that label because they return to the full width of the text, rather than the indentation of sub-paragraphs (a) and (b), indicating that they apply for the purposes of regulation 2(2) as a whole. Before 2 November 1987 the "full-out" words provided that a person was not to be regarded as being maintained free of charge in a hospital or similar institution for any period "if he is paying, or has paid, in respect of his maintenance, charges which are designed to cover the whole cost of his accommodation or services (other than services by way of treatment) provided for him". 

11. Mr McGuigan naturally relied on the suggestion by Mr Commissioner Rice in decision CS/249/1989 that the reported decision R(S) 4/84 decided that anything less than 24 hours per day of actual presence in hospital took a person outside the scope of regulation 2(2). It is therefore necessary to look very carefully at R(S) 4/84. It was a case where the claimant, who suffered from spina bifida, spent every night from 10 pm until 8 am the next morning in hospital as an in-patient, going out to attend a college during the day. Her benefit would be reduced after receiving free in-patient treatment for more than eight weeks. Mr Commissioner Hallett was concerned with regulation 2(2) in the form prior to the amendment of the "full-out" words in 1987. It is necessary to set out most of paragraphs 7 and 8 of his decision: 
"7. ... There is no doubt that during the 10 hours from between 10 pm and 8 am during each day in issue except when away at weekends, the claimant was undergoing medical treatment and was being maintained free of charge. She had her kidneys washed out and was treated for bed sores and her bed and breakfast were provided free of charge. If these 10-hour periods are linked together in the way specified in regulation 17(4) after 8 (the number of weeks specified in regulation 4) x 7 (the number of days in a week) x 24 (the number of hours in a day) hours = 1344 hours [ie] 135 periods at the hospital, the claimant would eventually (not necessarily for the period in issue) fall within regulation 4(a) as having received continuous free in-patient treatment for 8 weeks. [The insurance officer's representative] has convinced me, however, that there can be no question of linking together periods of less than one day. Non-contributory invalidity benefit (and the other benefits contemplated by the regulations) whether paid at a weekly rate (as is the case with non-contributory invalidity benefit) or at a daily rate is never paid for less than a day: cf Commissioner's decision R(S) 1/66. In my judgment, the linking provisions of regulation 17(4) must be construed as referring to linking between periods of one day or more. The whole scheme of the social security legislation is based on payment of benefit by the day or multiples (ie a week) of a day. The references to `any period' in regulation 4(a) must have the same meaning as they bear in regulation 17(4) ie they must refer to periods of a day or more than a day. 
8. In order to be regarded as receiving or having received free in-patient treatment for the shortest period contemplated by regulation 2(2) (ie one day of 24 hours) that day must, as regards the claimant, be one `for which [she] is or has been maintained free of charge while undergoing medical or other treatment as an in-patient'. Two conditions require to be satisfied to fill this prescription (1) for that day the claimant must have been maintained free of charge by the hospital and (2) she must have been undergoing medical or other treatment as an in-patient during that day. The claimant clearly satisfies the second condition. But, in my judgment, she does not satisfy the first. During the hours 10 pm to 8 am the claimant was maintained by the hospital free of charge. But during the day (of 24 hours) she was not. For from 8 am to 10 pm the claimant had to maintain herself elsewhere. The hospital made her no charge. But they did not maintain her at all for the major part of the day. The claimant in fact during the daytime part of the 24-hour day had to meet the expenses of meals (provided by the college), taxis etc while attending college. She was in a quite different position from the ordinary in-patient in a hospital, who has no expenses to meet and is maintained free of charge in the hospital. Such an in-patient has virtually no expenses, everything being found for her and it is in respect of that type of patient that the regulations provide for a reduction in the amount of various personal benefits which would otherwise be payable." 

12. The essence of paragraph 7 of R(S) 4/84 is that entitlement to or payability of benefit must be determined in blocks no shorter than 24-hour days and so must a person's status as a hospital in-patient. For benefit purposes, a person is to be treated either as an in-patient for the whole of each day or as not an in-patient for the whole of the day. The reason for the claimant's success in R(S) 4/84 appears in paragraph 8. It is not simply that she was not actually in the hospital for the whole 24 hours of each day. The Commissioner absolutely explicitly says that the condition of undergoing medical treatment during days on which the claimant slept overnight at the hospital was satisfied. That is the Commissioner's second condition. The reason why the claimant was not caught by the in-patient rule was that the second condition was not satisfied, because for the major part of the day she had to maintain herself. That conclusion could follow while regulation 2(2) was in its pre-November 1987 form. As Mr Commissioner Rice pointed out in CS/249/1989, the effect of the amendment to the "full-out" words in November 1987 was that, from then onwards, if the second condition is satisfied, the first condition is also deemed to be satisfied except in the case of a private patient in a NHS hospital. However, I cannot agree with him that the second condition is satisfied only if the claimant is actually present in the hospital for all 24 hours of a day. Not only do I agree with Mrs Commissioner Heggs in decision CIS/192/1991 (followed in decision CS/94/1992) that R(S) 4/84 is not authority for such a proposition, but I consider that R(S) 4/84 is positive authority to the contrary. Mr Commissioner Hallett could only have held that the second condition was satisfied in that case on the basis that the undergoing of treatment overnight as an in-patient in the hospital (for less than 24 hours in each midnight-to-midnight day) was enough for that purpose. 

13. Thus, the analysis of the Commissioners' decision by the majority of the appeal tribunal was, in my view, correct. It follows that there is nothing in the principles involved in regulation 2(2) of the Hospital In-Patients Regulations which can be used by analogy to assist Thomas in the present case. I must go on to consider regulation 8 of the DLA Regulations directly. 

14. Before doing so I add an aside about my own decision CIS/571/1994, which was the subject of some discussion at the oral hearing. There I held, following a number of reported Commissioners' decisions, that on days of admission or return to hospital and on days of discharge or leaving hospital the rule under regulation 2(2) of the Hospital In-Patients Regulations is that the state of affairs existing at the start of each midnight-to-midnight day is assumed to continue throughout the day. Thus a day of admission or return is not a day of in-patient treatment, but a day of discharge or leaving is. I did not have to decide there whether that rule applies only to days at either end of a period of in-patient treatment or applies to all days in which in-patient treatment is in issue. R(S) 4/84 and CIS/192/1991 do not throw any light on that question, because in both cases the result would have been the same whether the CIS/571/1994 rule or a rule that treatment as an in-patient for some part of each day satisfies Mr Commissioner Hallett's second condition had been applied. The claimants in both cases (as in the present case) were clearly in-patients at the beginning of each day. Mr Commissioner Hallett in R(S) 4/84 did not say which rule he was applying. It remains undecided which rule is to be applied under the Hospital In-Patients Regulations during the course of a period of potential in-patient treatment in the rare case in which it will make a difference. 

The DLA Regulations 

15. Regulation 8 is set out in paragraph 2 above. It will be seen that the technique adopted there is different from the technique of the Hospital In-Patients Regulations. It is to make it a condition for the receipt of the care component of DLA for a period that during that period the claimant is not maintained free of charge while undergoing treatment as an in-patient. Mr Heath very carefully took me to the statutory powers under which the DLA Regulations were made. I am satisfied that no problem arises. The Regulations include section 85(1) of the Social Security Act 1975 among the provisions giving power for the Regulations to be made. Although section 85 is headed "Overlapping benefits", the scope of subsection (1) is wider. It allows regulations to provide for adjusting the conditions for the receipt of benefit where a person is, or is treated under the regulations as, undergoing medical or other treatment as an in-patient in a hospital or similar institution. I am satisfied that that gives the power for regulations to make it a condition for the receipt of benefit that a person is not undergoing treatment etc. Thus regulation 8 is validly made. 

16. For the condition to be satisfied for a period, so that the care component of DLA can be paid, it must be shown that during that period the claimant is not maintained free of charge while undergoing treatment as an in-patient. As was said in paragraph 11 of Commissioner's decision R(S) 1/66 (which is quoted in CIS/571/1994), "if one is describing a thing which occupies the whole of a period such as presence in a given place, `during' is an admirable word for it." For that reason the Commissioner there held that a provision disqualifying a person for receiving any benefit for any period during which that person is absent from Great Britain caught claimants only for complete calendar days throughout (ie during) which they were absent from Great Britain. Thus the claimant was not disqualified on days of leaving or returning to Great Britain. I consider that similar reasoning has to apply to regulation 8. That means that the condition for the receipt of the care component of DLA, because it is put in a negative form, is satisfied only for a period made up of complete calendar (ie midnight-to-midnight) days throughout which the claimant is not undergoing medical or other treatment as an in-patient. Therefore, the rule which effectively has to be applied in the present case is that Thomas cannot receive the care component of DLA for any day on which for some part of it (beyond a merely trivial length of time) he receives medical or other treatment as an in-patient in hospital. 

17. That is the rule which the majority of the appeal tribunal of 18 April 1995 applied. The rule stems from an analysis of regulation 8 of the DLA Regulations itself, rather than the analysis of the Commissioners' decisions mentioned by the appeal tribunal. But the majority of the appeal tribunal did not err in law, because it applied the right legal principle. It should have looked at the circumstances down to the date of its decision, by when Thomas was spending 11 hours at home on full days at home. But that change of circumstances could not have led to a different result, because Thomas was still receiving medical treatment as an in-patient for some of each day. The omission does not amount to an error of law which requires the decision to be set aside. 

Conclusion

18. My conclusion, as set out in paragraph 1 above, is that the decision of the majority of the appeal tribunal is not erroneous in point of law. 

Postscript

19. In paragraph 8 of R(S) 4/84 the Commissioner noted that an ordinary in-patient in hospital for the whole of a day would have virtually no expenses. He was able, as regulation 2(2) of the Hospital In-Patients Regulations then stood, to limit the reduction of personal benefits to that situation. Presumably the rationale of the rule in the case of the care component of DLA is that an in-patient in hospital will be receiving free whatever supervision and attention in connection with bodily functions is required. Thus payment of DLA for that purpose is not necessary. But that rationale only holds good if the hospital treatment provides all, or at least substantially all, the supervision and attention which is required. That is not the test imposed by regulation 8 of the DLA Regulations, which prevents the receipt of the entire daily amount of the care component of DLA for any day on which a claimant receives some in-patient treatment in hospital. The result is particularly harsh considering that entitlement to the middle rate of the care component can rest on satisfying the conditions of entitlement for either the day or the night (leaving aside the less stringent conditions for the lower rate). I hope that the form of regulation 8 of the DLA Regulations will be reconsidered in the light of this decision. 

(Signed)

J Mesher
Commissioner 
16 September 1996