[2024] UKUT 223 (AAC)

Ground (2) is that frequent attention throughout the day in connection with bodily functions is satisfied because: (i) Even with the most recent incident, which took place at school on 16 May 2024, SRU came into contact with contaminated food (and the school nurse gave anti-histamines). (ii) When having a food allergy or asthma attack, SRU sometimes requires carrying or support to move from one room to another. (iii) Most recently, we have also been staying awake at night as a result of asthma attacks that SRU gets between three to six nights a week from the hours of 12-5 am for about 30 minutes to an hour as a result of choking and wheeziness due to severe asthma attacks at night. This has been increased and ongoing since 2023 after the DWP discontinued SRU’s DLA.

Ground (2) discloses no arguable error of law, for the following reasons.

Even with the most recent incident, which took place at school on 16 May 2024 when she came into contact with contaminated food (and school nurse gave anti-histamines)

The alleged recent incident of 16 May 2024 does not show frequent attention throughout the day at school, even if the incident could be taken into account, which it cannot (see analysis of Ground (1) above).

When having a food allergy or asthma attack, SRU sometimes requires carrying or support to move from one room to another

The evidence from the person at the school, Mr F, to whom the appointee had directed the DWP did not disclose allergy or asthma attacks requiring any carrying or support to move from one room to another. Indeed, Mr F mentioned no difficulties walking in school. It was open to the First-tier Tribunal in view of that, and of the other evidence before it, including the number of asthma attacks requiring hospital admission, to conclude that SRU did not need frequent attention throughout the day in the form of carrying or support (and that she is not virtually unable to walk either).

Most recently, we have also been staying awake at night as a result of asthma attacks that SRU gets between three to six nights a week from the hours of 12-5 AM for about 30 minutes to an hour as a result of choking and wheeziness due to severe asthma attacks at night. This has been increased and ongoing since 2023 after the DWP discontinued SRU’s DLA.

The appointee does not appear to have told the First-tier Tribunal this. In any event, it is not apparent whether it would have been evidence that would have shed light on the forward look that was required to be made by the DWP decision maker when making the decision.

Generally as to Ground (2)

Generally as to Ground (2), the evidence from Mr F of the school, as summarised by the First-tier Tribunal at paragraph 43, painted a picture of the attention that the school gave that was much different from the picture painted by the appointee. It was open to the First-tier Tribunal to prefer what Mr F had said to what the appointee said, about what happened at school. And it was open to the First -tier Tribunal to find that what Mr F had said did not show attention for a significant portion of the day at school or frequent attention at school (or continual supervision at school substantially beyond that needed by the other 12-year-olds).

As to attention at home on days off due to asthma or allergies, the counting exercise at paragraph 44(e) was open to the First-tier Tribunal on the evidence before it. The First-tier Tribunal did not give a final number of days’ absence that were potentially due to the asthma and allergies, which it ideally should have done. But even if only the six days were deducted for the America holiday, and if the remaining 41 days’ absence were all attributed to asthma and allergies (which the First-tier Tribunal did not find), that was less than two days per school week. While SRU would indeed have needed attention at home on those days off, it was open to the tribunal to find that that number of days did not suffice to satisfy the test in section 72(1) that the need be “for any period throughout which”. That phrase has been construed to mean not every day. Plus it can in some cases not even be limited to the majority of the days of a week (R(A) 2/74). But in R(A) 2/74, the commissioner said—

“I think that the delegate should take a broad view of the matter, asking himself some such question as whether in the whole circumstances the words of the statute do or do not as a matter of the ordinary usage of the English language cover or apply to the facts. These are matters for the good sense and judgment of the delegate”.

It was open to the First-tier Tribunal in view of that not to find satisfied the “period throughout which” test in section 72(1).