ANNEX C
LEGAL CHALLENGES TO DLA
1. Legal challenges soon followed the introduction of the
new scheme in 1992 and although these were largely in relation
to the old AA scheme the outcomes had implications for existing
provision through AA and DLA. There have been three major cases:
Mallinson, Halliday, and Cockburn.
SHORT SUMMARY
OF THE
ABOVE JUDGMENTS
2. The House of Lords' judgments in the three cases centred
around the conditions of entitlement to DLA(care) and AA and the
meaning of the phrase "attention in connection with the bodily
functions".
3. The case of Mallinson involved a blind man who
was disallowed benefit because his aggregated care needs were
insufficient to satisfy the attention test. He appealed the decision
all the way to the House of Lords. Their Lordships in allowing
the appeal, overturned lower court judgments and widened the scope
of "attention in connection with bodily functions" to
include the spoken word, as for example, the act of guiding a
person without the need for personal physical contact. This tended
to blur earlier interpretations which clearly regarded guiding
as a supervisory function rather than one requiring close, personal
and intimate attention.
4. The judgment went further: Lord Woolf said "The fact
that your disability is so severe that you are incapable of exercising
a bodily function does not mean that the attention you receive
is not in connection with that bodily function. The attention
is in connection with the bodily function if it provides a substitute
method of providing what the bodily function would provide if
it were not totally or partially impaired". This particular
aspect of the judgment shifted the emphasis of the policy from
being one which focused primarily on the effects of disability
to one which had to have prime regard for the disability, especially
sensory impairments.
5. Prior to this judgment, Mr Mallinson's blindness would
have been regarded as his disability and the attention he required
would have been in connection with bodily functions such as eating,
bathing and dressing (thus emphasising the effects of his disability).
As a result of the judgement, he was able to aggregate both indoor
and outdoor care needs, especially those requiring prompting,
and provided that the need for help was reasonable, he could aim
to establish entitlement to a higher rate of benefit. More generally,
however, the judgment has made it possible for disabled people
to aggregate a greater variety of care needs and, more significantly,
mobility needs to satisfy the care attention test.
6. The case of Halliday involved a young woman who
is profoundly deaf. She was disallowed benefit because the help
she required with communication needs, when aggregated with other
care needs, was insufficient to satisfy the attention test. The
Commissioner allowed an appeal and this decision was appealed
via the Court of Appeal to the House of Lords. Their Lordships
dismissed the appeal and, using the principles established in
Mallinson, confirmed that the help provided to enable a
disabled person to carry out a reasonable level of social activity
could count as "attention in connection with the bodily functions".
7. The judgment also provided guidance on what comprised
a reasonable requirement for attention. In Lord Slynn's view,
the test "is whether the attention is reasonable required
to enable the severely disabled person as far as reasonably possible
to live a normal life. He is not to be confined to doing only
the things which totally deaf (or blind) people can do and provided
with only such attention as keeps him alive in such a community".
This judgment increased the ease and scope of satisfying the attention
test.
8. The case of Cockburn concerned a bedridden pensioner
who suffers with arthritis and is incontinent. She appealed a
decision by the adjudication officer (AO) to exclude the help
she received with domestic duties from the aggregate of care needs.
The appeal was subsequently listed for hearing with Halliday in
the House of Lords following a hearing in the Court of Appeal.
Their Lordships confirmed earlier caselaw and the judgments reached
in the lower courts that help with domestic duties should continue
to be excluded from the scope of the attention test. However,
they ruled that such help could be aggregated with other care
needs where it formed an integral and continuous part of attention
provided in connection with the bodily functions. This judgment
has now made it possible for claimants to enter into fine points
of debate over the inclusion of help with domestic duties. For
example, a blind man who wishes to cook for himself can now argue
that the help he requires to do so counts as attention in connection
with the bodily function of seeing.
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