DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
- 1. The decision of the King's Lynn appeal tribunal under reference U/42/141/2003/00007, held on 9 May 2003, is erroneous in point of law.
- 2. I set it aside and remit the case to a differently constituted appeal tribunal.
- 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. In particular:
The appeal tribunal must determine the claimant's entitlement to a disability living allowance on his application for a supersession that was made on 25 January 2002 in accordance with my analysis of the law in this decision.
The tribunal must follow the analysis of the supersession procedure laid down by the Court of Appeal in Wood v Secretary of State for Work and Pensions. The effective date of the decision given on the supersession must be fixed in accordance with section 10(5) of the Social Security Act 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 5 June 2002: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01. I notice that the claimant's routine has now changed: see page 132. That change will be outside the period of the tribunal's jurisdiction.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State does not support the appeal.
The issue
- According to Genesis, chapter 1, verses 4 and 5:
'4. … God divided the light from the darkness.
'5. And God called the light Day, and the darkness he called Night ….'
- The issue in this case is whether claimants may, by so arranging their sleeping and waking, make their night light and the dark their day.
- This issue arises on the facts of this case, because the evidence was that the claimant and his wife stayed awake until 5 a.m. and then slept until 11 a.m. or noon. Did the presence of the claimant's wife until 5 a.m. count as supervision of the claimant by day or watching over him at night for the purposes of entitlement to the care component of disability living allowance under section 72(1)(b) and (c) of the Social Security Contributions and Benefits Act 1992? The tribunal treated 'day' for the claimant's household as lasting until 5 a.m.. The Secretary of State argues that the tribunal directly itself correctly on the meaning of 'day'.
The authorities
- In R v National Insurance Commissioner, ex parte Secretary of State for Social Services [1974] 1 W.L.R. 1290, the issue was whether, for the purposes of an attendance allowance, the act of getting into and out of bed occurred during the day or the night. The Divisional Court of the Queen's Bench accepted the argument that night for the purpose of the attendance allowance legislation was
'that period of inactivity, or that principal period of inactivity through which each household goes in the dark hours, and to measure the beginning of the night from the time at which the household, as it were, closed down for the night.'
See the judgment of Lord Widgery CJ at page 1296.
- In R(A) 1/78, the issue was whether the period of the night was different for different members of a household. Chief Commissioner Temple decided that night was defined by reference to the routine of the household as a whole, and not individually for different members such as children. See paragraph 16 of his decision.
Conclusion
- The key authority is the decision of the Divisional Court. R(A) 1/78 merely interpreted it in order to prevent anomalous. See paragraph 17 of the decision. The Divisional Court, did not as I read it, decide that the meaning of 'day' and 'night' was entirely left to be determined by reference to the routine of the parties. What it decided was that the precise start and end of day and night was not defined by the rising and setting of the sun or by a particular hour of the clock. That is how the issue arose: did night start before or after the claimant had got into bed and did it end before or after he got out of bed?
- In other words, the Court was concerned with the margins of day and night. I do not read its decision as an authority, for example, that a claimant who worked on night shifts and slept during the day would have day and night reversed for the purposes of an allowance. To put it another way, there comes a point at which night begins and ends, whatever routine the household may chose to adopt for whatever reason.
- Day and night are not technical words. They are words that are in everyday use, but they have a number of different meanings. The issue for me is: what meaning do they bear in section 72, taking account of their syntax, context and background? See Lord Hoffmann in paragraph 24 of the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions.
- Concentrating solely on the purpose of the legislation, it could be argued that the arrangement of the claimant's household should be definitive for this purpose. The legislation distinguishes between day and night. No doubt, it does so on the basis that the disruption involved in watching over at night than in supervising by day. See Lord Widgery's comments on the comparative burden of providing attention by day and at night at page 1296. if the claimant sleeps by day and is awake at night, surely this should be taken into account for the purposes of disability living allowance.
- However, I have to take account not just of the purpose of the legislation, but of the language used in the context of that purpose. That language sets limits to what is permissible. Given the context and purpose of the legislation, it would be a permissible use of language to take into account when the household shut down for the night in deciding precisely when night began and ended. But it would be a misuse of language, even in this context, to say that 3 a.m. was daytime. I am sure that the claimant and his wife would say that they stayed awake 'for most of the night', although I accept that that would be in the course of ordinary conversation and not in the statutory context.
- My understanding of the law is this.
• Day and night are words that have a significance in indicating a division of a period of 24 hours.
• Day and night are determined for the household as whole, not individually for each member.
• In determining the precise point when night begins and ends, the routine of the household will be relevant for marginal purposes.
• But unusual or extreme household arrangements cannot override the core element contained in the words 'day' and 'night'.
Summary
- The tribunal misdirected itself in law on the meaning of 'day' and 'night'. I set aside its decision and direct a rehearing at which the tribunal will investigate the case afresh and determine it according to my analysis of the meaning of those words.
| Signed on original |
Edward Jacobs
Commissioner
2 December 2003 |
