[2023] UKUT 176 (AAC)

The FtT dismissed the Appellant’s appeal against the Secretary of State’s decision that the overnight care condition was not satisfied.

The FtT’s findings of fact were, in summary: P had a complex congenital heart condition, Tetralogy of Fallot. She had had several operations in the past, the most recent being a replacement pulmonary valve in 2017. She was prescribed medication and had an annual hospital review. She had variable and fluctuating symptoms including arrhythmia, shortness of breath, dizziness and tiredness but had had no recent hospital admissions and her parents had not called an ambulance for 6 or 7 years. P would have an overnight episode of arrhythmia once or twice a month, but it could be as often as 10 times a month. The episodes were unpredictable. The Appellant’s wife would reassure P in the night if she woke up and experienced arrhythmia. She would calm P by rubbing her chest or legs. The Appellant considered that it would have been unreasonable for him to have rubbed his daughter’s chest. No medical professional had recommended specialist massage or watching P overnight or any other treatment during night-time hours. The Appellant’s wife would sometimes ask her sister to stay when there were more frequent episodes and she felt she needed a break, but there was no set arrangement for another person to provide care. During the day P was able to sit and calm herself down when her mother was not with her but this could cause her anxiety.

The FtT concluded as follows:

“37.

I accept that Mrs [M] does reassure her daughter and may rub her chest and legs to calm her daughter. It is clear that [P] has been particularly unwell as a child and has a condition which could be unpredictable with serious implications if not reviewed and managed correctly. It is understandable that the family do not want their daughter to be overly anxious.

38.

Having said this, parties agreed that the chest rubbing is not a specialist massage or treatment. It has not been recommended by a medical professional and Mrs [M] confirmed that her daughter does not require watching over. It is also true that when her mother is not available, [P] is able to sit and calm herself down until her symptoms pass. Equally, I was told that there is nothing anyone can do and the family has not called an ambulance for 6-7 years. [P] continues to take medication and is reviewed yearly by consultants but her condition has been stable, and medication has remained unchanged. The award of PIP confirms that [P] was awarded points for aids. She was therefore deemed able to manage her daily living activities independently using aids and did not require supervision or assistance from another person. For these reasons, I concluded that [P] does not require overnight care.

39.

If I am wrong about this, [P] would still not satisfy the conditions because, taking into account Mr [M]’s evidence, a friend or relative might stay ‘occasionally’ or ‘sometimes’. They were not staying overnight in the accommodation on a regular basis. There was no pattern of care and it was infrequent. This does not amount to regular.”