Judgments - Cockburn v. Chief Adjudication Officer and Another and Secretary of State for Social Services v. Fairey  continued

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In respect of the period in which a person is under the age of 16 the provisions of subsection (1) other than subparagraph 1(a)(ii) are deemed not to be satisfied unless the person has requirements substantially in excess of the normal requirements of persons of his age. A comparable provision was to be found in relation to the Act of 1975 in Regulations 6(2)(c) and (d) of the Social Security Attendance Allowance (2) Regulations 1975. This requirement did, but does no longer, apply to Miss Fairey.

     Section 73 of the Act of 1992 deals with the mobility component and provides inter alia that the mobility component of a disability living allowance shall be payable during the period when a person is suffering from physical disablement such that he is either unable to walk or virtually unable to do so or he is both blind and deaf. This section is not an issue in the present case but the mobility component is clearly a part of the scheme. It is right to notice also in passing that by section 70, Invalid Care Allowance, a person is entitled to an invalid care allowance for any day in which he is engaged in caring for a severely disabled person on certain conditions. Allowances may thus be paid in respect of a severely disabled person in addition to the one which is in issue in the present cases.

     For the present cases the relevant question is whether the claimant is so severely disabled physically that she requires from another person "frequent attention throughout the day in connection with [her] bodily functions."

II. Previous Decisions

 "Bodily Functions"

     "Bodily functions" are not defined. If this legislation were being construed for the first time it could be argued forcefully that the kind of case contemplated by Parliament as meriting an allowance related only to care of an intimate physical nature--help in the taking in of food and liquid and the excretion of waste. I do not, however, consider that it would be right to adopt such a limited interpretation today even if it was ever possible. As early as 1981 the Court of Appeal in Regina v. National Insurance Commissioner, Ex parte Secretary of State for Social Services [1981] 1 W.L.R. 1017 took a broader view of the meaning of the word. Mrs Packer, a lady of eighty-three, claimed an attendance allowance under the Act of 1975 in respect of the cooking of her meals which she could not do herself. The Commissioner thought that eating was a bodily function and that cooking was so closely connected with it that it constituted "attention" in connection with a bodily function. The judge thought cooking was itself a bodily function. Though disagreeing with both in the result the Court of Appeal took a broader view of the meaning of bodily functions than those of merely eating and excreting. Lord Denning M.R. said, at p. 1022B-C:

     "'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products--and the like - all of which an ordinary person--who is not suffering from any disability--does for himself."

I would not myself regard all of these as separate bodily functions. Thus walking, sitting, getting in and out of bed, dressing and undressing are not, in my view, functions in themselves. They are actions done by organs of the body, the limbs, fulfilling their function of movement. This does not, however, affect the result that a narrow meaning of the words is not to be taken.

     Dunn L.J. also avoided a narrow interpretation, at p. 1023E-F: "To my mind the word 'functions' in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions."

     In In re Woodling [1984] 1 W.L.R. 348 your Lordships' House agreed that cooking did not fall within the section, but Lord Bridge said at p. 352G: "The phrase 'bodily functions' is a restricted and precise one, narrower than, for example, 'bodily needs.'"

     The approach of the Court of Appeal has, however, been followed by Commissioners since that time and again in Mallinson v. Secretary of State for Social Security [1994] 1 W.L.R. 630D Lord Woolf and Lord Browne-Wilkinson clearly accepted that seeing was a bodily function. In my view so did Lord Templeman. Although he apparently preferred to treat walking as the bodily function in connection with which Mr Mallinson needed help and guidance, he also allowed the appeal for the reasons given by Lord Woolf. These included treating seeing as a bodily function. The majority of the House in Mallinson thus accepted that seeing is a bodily function.

     I am confirmed in the view that a restricted interpretation is not to be taken by the fact that when Parliament enacted the Act of 1992 it added in section 72(1)(a)(ii), as an alternative ground of entitlement to the disability living allowance, the case of a person so severely disabled that he cannot prepare a cooked meal for himself if he has the ingredients. It did not, however, make any change to the language relevant to the present case and in particular to limit the meaning of "bodily functions" as could have been done if it was considered that the interpretation given by the Court of Appeal was too wide.

 "Attention in Connection With"

     But accepting that seeing is a bodily function is only the beginning of the problem. In Packer Lord Denning thought that it was the words "in connection with" which gave rise to the difficulty. In his view some kinds of attention are closely connected with 'his bodily functions:' other kinds are too remote. On this basis he held that ordinary domestic duties, such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as 'attention . . . in connection with [the] bodily functions' of a disabled person. But duties that are out of the ordinary, doing for the disabled person what a normal person would do for himself, such as cutting up food, lifting the cup to the mouth, helping to dress and undress, or at the toilet, all do qualify as 'attention . . . in connection with [the] bodily functions' of the disabled person. p. 1022C-G.

Dunn L.J. added, at p. 1023F:

     "The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention . . . in connection with . . . bodily functions' involves some service involving personal contact carried out in the presence of the disabled person."

He approved the words of Mr Commissioner Monroe in Decision C.A./60/74, at p. 1025FC:

     "I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself."

Dunn L.J. on this basis ruled out cooking and housework.

In In re Woodling [1984] 1 W.L.R. 348 Lord Bridge said that if the statutory provision was to be broken down:

     "The phrase 'attention . . . in connection with bodily functions', which must, I think, be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention."

He added, however, that:

     "The language of the section should, I think, be considered as a whole, and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word or phrase separately."

As to the general policy behind the allowance:

     "It is clear that the policy underlying section 35 of the Act stops short of providing an attendance allowance for all who are incapable of looking after themselves without some outside help even if that help is frequently required. Very large areas of domestic work in respect of which the disabled are necessarily dependant on others are deliberately excluded . . .

     Again, it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution." (p.352D-E)

     In Mallinson the attendance allowance was claimed for a blind man in respect of assistance with getting in and out of the bath and with cutting up food and with guidance when walking in unfamiliar surroundings. The case proceeded as far as your Lordships' House on the basis that the relevant bodily function was walking, but as I have already indicated, in my opinion the majority accepted that the relevant bodily function was, or was also, seeing. A major issue in that case, which does not arise in the present case, was whether what was required in regard to walking was "attention" within what is now section 72(1)(b)(i) of the Act of 1992 or "supervision" within the meaning of (ii). Lord Woolf approved the distinction drawn by Nicholls L.J. in Moran v. Secretary of State for Social Services (unreported 13th March 1987) that "attention" denotes a concept of some personal service of an active nature whereas "supervision" denotes a more passive concept, the person watching and being able to intervene only if necessary. He accepted that guiding was an active rôle involving personal qualities necessary to constitute "attention" and said, at p. 640B:

     "The only attention which can be given to a person 'in connection with' a slight handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight."

     Lord Woolf considered that it did not cease to be attention in connection with a bodily function if the disability prevented totally the exercise of that function and added:

     "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."

The fact that with experience a person learned to cope with his disability so that less attention was required did not change the nature of the disability or the attention. It might affect the question whether the attention was needed frequently during the day. Lord Templeman and Lord Browne-Wilkinson agreed with his reasoning.

     Lord Lloyd of Berwick, dissenting, with whom Lord Mustill agreed, considered that walking was the relevant bodily function and that what was required in that case was supervision and not attention; that since Mr Mallinson could move about in familiar surroundings he was limited to claiming in respect of walking about in unfamiliar surroundings. That Lord Lloyd of Berwick found too vague and imprecise to count as a separate bodily function. He rejected the argument that seeing was a bodily function which a person "performed."

     It is, however, the majority view as to the meaning of "attention in connection with" which must be accepted. That the attention required must be "reasonably" required was stated in Regina v. Secretary of State for Social Services, Ex parte Connolly [1986] 1 W.L.R. 421 and has not since been questioned.

III. The present appeals

 Miss Fairey's Case

     Miss Rebecca Fairey, who was born on the 16th August 1974, claimed an attendance allowance on the 4th November 1988. She was then subject to the special provisions made under the Act of 1975 relating to children under sixteen years of age. The examining doctor on the 12th January 1989 found that she was "born deaf, she communicates mainly by signing and also can lip read but not very well, and speaks a little." She "may be in trouble if she gets lost and couldn't communicate to find her way. She is difficult to understand and doesn't lip read very well." She could not hear a fire burning or hear traffic in the street. Physically and mentally she had no other disabilities than those arising from her deafness. Her mother wrote that she had to go out with her daughter as people do not understand what she is saying and she has to interpret for her.

     On the 20th January 1989 the doctor rejected her claim and on the 3rd October 1989 the Delegated Medical Practitioner on review refused to revise the earlier decision. He said: "I find from the medical report completed on the 12th January 1989 that Rebecca, who has been deaf since birth, can manage all the bodily functions listed without someone's help." On the 31st May 1991 Miss Fairey applied for leave to appeal to a Social Security Commissioner on the ground that communication is a bodily function and that she needed attention in communicating with others which took a vast amount of time. Having initially contended before the Commissioner that there was no error of law in the decision of the 3rd October the Secretary of State for Social Security, in the light of later decisions by the Commissioners very fairly submitted that the "Delegated Medical Practitioner has erred by considering only the degree of communication that can be achieved and by failing to address the question of the amount of attention required in order to achieve it" and that even if the Delegated Medical Practitioner came to the same result the matter ought to be looked at again. The Commissioner ordered an oral hearing and on the 8th October 1993 he gave an interim decision that Miss Fairey was entitled to an attendance allowance for a period culminating on her sixteenth birthday, 16th August 1990. He adjourned the rest of the hearing and it is with this that the subsequent appeal was concerned.

     In a report of the 6th January 1994, part of the evidence on the appeal, Dr Brendan Monteiro, a consultant psychiatrist, said:

     "In order to properly discharge her duties and have a reasonable quality of life, Rebecca is dependent on her mother and others to enable her to communicate. Rebecca claims that she thinks she is placed at a disadvantage and is unable to live a good quality life as a result of her inability to communicate effectively with hearing people. She lacks confidence and narrated incidents to me where she felt inadequate and was seriously disadvantaged."

     "Rebecca cannot communicate independently with hearing people . . . without communication, it is impossible for human beings to be able to relate to each other, learn, develop social and individual skills and it is my opinion that cognitive development can be restricted without communication."

He appears to have accepted Miss Fairey's evidence that she did not experience problems with communication at work though "she describes a feeling of isolation as she cannot communicate freely with her colleagues."

     It has to be said that despite her handicap she has achievements to her credit. She attended deaf schools including a boarding school. She trained and qualified as a nursery nurse and has been working as a teaching assistant in a school assisting with the education of a deaf child.

     Before Mr Commissioner Sanders it was not in issue, in the light of the decision of your Lordship's House in Mallinson, that the attention required because of a claimant's hearing loss is or may be attention in connection with the bodily function of hearing or communication. The question was taken to be whether she reasonably required frequent attention throughout the day in connection with such bodily functions.

     The Commissioner found that when she was with her family the usual method of communication was by sign language. He thought that the need for help from a third person to act as interpreter for someone with difficulties of hearing or speech can count as attention in connection with those functions but that to communicate with her family who were proficient in sign language did not mean that she was receiving attention for the purpose of section 72(1)(b)(i) of the Act of 1992. There were other situations when an interpreter would be required.

     On behalf of the Secretary of State it was submitted that the social activities, such as going to the cinema or theatre, travelling, visiting museums, were not "essential" and that it could not be said that attention in respect of them was reasonably required. The Commissioner, following earlier decisions of other Commissioners, rejected the suggestion that a deaf person must limit her activities to those which she could undertake without assistance. He said:

     "I take the view following, as it seems to me, the approach in the last few cases to which I have referred that it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity; it may be of course that various social activities that are open to hearing people would not become more accessible to a deaf person whatever additional assistance or attention was given."
    He thought that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72.

     He referred to the adjudication officer the question of fact as to what attention was reasonably required by the claimant throughout the day. Subject to that, and to his opinion that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72, he allowed the appeal.

     The Secretary of State appealed to the Court of Appeal on the ground that the Commissioner had erred in law in holding that Miss Fairey had a reasonable requirement for an interpreter to carry out a reasonable level of social activity. Social activities it was said are merely desirable and not reasonably required and the Commissioner's decision was inconsistent with, or not supported by, previous Commissioners' decisions which had been relied on by Mr Commissioner Sanders.

     The respondents served a counter notice contending that the latter's decision was wrong insofar as it failed to include a direction that the extra effort incurred by a hearing person to enable a profoundly deaf person to communicate was capable of constituting attention within the meaning of section 72(1)(b)(i) of the Act of 1992. The point, which was argued in the Court of Appeal, was rejected by all members of the Court of Appeal and was expressly abandoned in your Lordships' House.

     For the majority in the Court of Appeal the sole issue was whether the attention required in order to be reasonably required had to be necessary in order to maintain life itself. Glidewell L.J. found nothing in the statutory provisions which justified such a "stark proposition". If that was abandoned it was in his view "difficult to draw a sensible line between what is and what is not reasonably required short of the test adopted by Mr Commissioner Sanders, namely "it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity." Glidewell L.J. accepted that that was correct in law. Swinton Thomas L.J. agreed. He said, on the basis of the decision in Mallinson: "in my view Mr Drabble is right in submitting that attention given to a profoundly deaf person to enable that person to carry on, so far as possible in the circumstances, an ordinary life is capable of being attention that is reasonably required." He too accepted the Commissioner's test. On that basis the majority dismissed the appeal.

     Hobhouse L.J. disagreed. Dealing first with the language of the section he stressed the need to distinguish a "physical disability" (here the "inability to hear" with which is associated "what may be called an inability to speak") and mere lack of a particular skill such as the ability to speak or understand a particular language. "It is not clear on the present evidence to what extent her inability to speak in a manner which others can understand is to be attributed relatively to her physical disability and to the lack of a skill."

     Secondly he emphasised that the disability had to be in connection with the claimant's bodily functions; the words were not "in connection with her disability." In a case like the present "The disability of a blind person is his inability to see; the relevant bodily functions include seeing." He considered that the speech of Lord Woolf in Mallinson ignored or elided the distinction between bodily functions and disability and was contrary to the decisions of the Court of Appeal in Packer and in this House in Woodling. In any event, he held that there was not a majority in the House for the view expressed by Lord Woolf that the bodily function in question was seeing rather than walking, Lord Templeman having considered that the relevant bodily function was walking.