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Neutral Citation Number:
Reported Number:	R(A)1/04
File Number:	CSA 322 2003
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	09/02/2004
Date Added:	25/02/2004
Main Category:	DLA, AA: personal care
Main Subcategory:	attention: night
Secondary Category:
Secondary Subcategory:
Notes:	Attendance allowance - meaning of "night" - objective approach by reference to hypothetical household The claimant, who lived alone, applied for an award of attendance allowance at the higher rate on the basis that he required supervision during the night as well as throughout the day in terms of section 63(3)(b) of the Social Security Contributions and Benefits Act 1992. The tribunal, following R v. National Insurance Officer ex parte Secretary of State for Social Services [1974] 1 WLR 1092, held that the word "night" in section 63(3)(b) should be defined by reference to the habits of the particular household and not by reference to the period when the claimant was actually asleep. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. the word "night" in section 64(3)(b) must have an objective content and not be restricted purely by the claimant's own sleep pattern (paragraph 8); 2. by providing for separate periods of day and night supervision, the legislation must have envisaged that the 24 hour day would be divided into two reasonable parts on an objective basis having regard not only to the habits of the claimant but also to the expectations of those who were providing the care. Furthermore, section 64 refers to "the day attendance condition" and "the night attendance condition". The night attendance condition refers to "another person to be awake ... for the purpose of watching over him". It does not provide for watching over the claimant while he is asleep so the night condition would apply irrespective of whether the claimant is asleep or awake (paragraphs 9 to 11); 3. in R v. National Insurance Officer ex parte Secretary of State for Social Services, "night" was held to be that period of inactivity through which each household goes in the dark hours, to be measured from the time at which the household "closed down for the night". In deciding what was day and what was night in a household, the Commissioner considered that regard must be had not only to what the claimant or household might do, but also to what a carer might be doing. Even if the claimant rose at 4.30am, it was likely that a carer, who required to get up from sleep, would consider that he or she was providing night care (paragraphs 12 and 14); 4. although, in the instant case, the claimant lived alone and had abnormal sleeping habits, "night" required to be assessed objectively by reference to the hypothetical household, as if he had others living with him (paragraph 15).
Decision(s) to Download:	R(A) 1_04 bv.doc