CDLA/314/97

The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Tribunal :
Tribunal Case No :

1. My decision is that the decision of the disability appeal tribunal given at Glasgow on 18 July 1996 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a re-hearing.

2. This case came before me for an oral hearing on 27 January 1998. The adjudication officer, whose appeal this is, was represented by Mr Neilson of the Office of the Solicitor to the Secretary of State for Scotland. Mr Kelly, a welfare rights officer of the Social Work Department of the East Dunbartonshire Council, appeared on behalf of the claimant.

3. The claimant was awarded the lower rate of the mobility component and the lowest rate of the care component of disability living allowance from 6 April 1992 for life. She appealed to the disability appeal tribunal against the decision of an adjudication officer intimated to the claimant on 8 February 1995 which reviewed the decision of an adjudication officer dated 14 December 1995 but decided not to revise it so as to change the award of benefit.

4. The claimant’s appeal was heard on 18 July 1996. The claimant’s appeal was successful. The tribunal held that the claimant was entitled to the care component at the middle rate from 4 August 1994 to 3 August 1999.

5. The critical findings in fact insofar as they bear on this appeal are:-
"1. The claimant was registered blind. She had minimal vision and could not identify colour and unlikely to notice misplaced objects. Her husband was partially sighted.
2. She needed help dressing to identify clothes for herself and her children. She needed help to get the children ready for school and to the appropriate transport for their school/nursery.
4. The claimant needed some help with bathing, washing and dressing both herself and her children".
The reasons given by the tribunal so far as they are material to this appeal are as follows:-
"The tribunal considered that the claimant was a good straightforward witness and her evidence was believed. Her husband was partially sighted and it was reasonable that someone help the claimant with the dressing and organising for school of her young child which was seen by the tribunal as a bodily function. That coupled with the claimant’s other attention needs amounted to frequent attention throughout the day".

6. The adjudication officer has appealed against this decision and the grounds of appeal are in the following terms:-
"The tribunal erred in law in deciding that bathing and dressing her children is attention in connection with the claimant’s bodily functions".
In a written submission recorded at pages 140 and 141 the adjudication officer supplemented these grounds of appeal by written argument. At the hearing before me Mr Neilson indicated that he was resiling from paragraph 6 of that submission which was related to finding in fact 3. The claimant has indicated that she resists the appeal. As presented before me the critical issue in the case was whether needing help to get her children ready for school and to the appropriate transport to their schools and help with bathing, washing, identifying clothes for and dressing her children amounted to attention in connection with her bodily functions as that phrase is used in section 72 of the Social Security Contributions and Benefits Act 1992. However before I proceed to deal with that issue I should perhaps indicate that in any event I am satisfied the tribunal decision errs in law by reason of a failure on the tribunal’s part to provide an adequate factual foundation for their decision. The findings in respect of attention and the frequency with which they are required are sparse. In addition the tribunal have not indicated why it was they fixed the period of the award set out in their decision.

7. On the critical issue also I am satisfied that the tribunal erred in law and their decision must be set aside.

8. It was Mr Neilson’s submission that insofar as findings 2 and 4 related to the needs of the claimant’s children they should not be taken into account when assessing the attention required in respect of the claimant’s bodily functions. It was Mr Neilson’s submission that within the statutory framework it was too remote to say that a disabled person can require attention in respect of her bodily functions to deal with the needs of other persons who are disabled either by physical or mental disability or age. It was his position that if the assistance was given to assist the bodily functions of a third party that would be too remote.

9. In support of his proposition he cited to me CSDLA/281/96 starred decision 82/97. In that case in paragraph 12 the authorities leading to Mallinson v Secretary of State for Social Security [1994] 2 All ER 295 and the Secretary of State for Social Security v Fairey [1997] 1 WLR 806 were reviewed by Mr Commissioner Walker QC. These cases are Regina v National Insurance Commission (AC) [1981] WLR 1017 (Packer’s Case) and Woodling v Secretary of State for Social Services [1984] 1 WLR (Woodling’s Case) and CA/60/74.

10. He then went on to say in paragraph 14:-
"Finally in Fairey, or rather Cockburn, which was the twin case, deafness was the disability. The passages before rehearsed were endorsed and applied. At page 815 of the report it was indicated that attention could be counted if it were required to give entitlement to as normal a life as possible. Lord Hope of Craighead, in an important passage, as it seems to me, at pages 822 to 823, analysed the preceding citations of opinion concluding with a reference to what was said by Mr Commissioner Monroe quoted with approval by Lord Bridge in Woodling, and having dealt with the particular physical problems of arthritis and urination in that case went on to say, about the distinction between the relevant and the irrelevant, or the remote and the close activities which can be counted for the purposes of assessing attention for the statutory purpose, this:-
"All the other help which she receives within the limited range of activities which a fit person normally performs for himself and which she cannot perform for herself, or can only perform with difficulty, due to arthritis, is relevant to her claim. But the help which she received with her extra laundry is help in connection with a task, such as cooking, shopping or keeping the house clean, which the fit person need not and frequently does not perform for himself. It is the kind of task which, when several people are living together in the same family can be done by one person for the rest of the household, the other members of which need not be present while it is being done although it is done for their benefit. It is too remote from the bodily functions which each fit member of the household normally performs for himself. In Mrs Cockburn’s case there is normally no-one else in the house where she lives, and the volume of laundry is much greater than it would otherwise be due to her incontinence. But I do not see these features of her case, although distressing, as altering the fundamental problem which affects this part of her claim, which is that the help which she receives is not designed to assist her in the performance of her bodily functions".
Later in the same paragraph in dealing with that passage of Lord Hope’s speech he said:-
"As I understand it Lord Hope was postulating an objective test based upon how households normally operate. It is not a subjective test. Here the claimant had to be present, no doubt, because there was nobody else in her household and she was dependent upon a home help. That was all part of the subjective situation".

11. It was Mr Neilson’s submission that if assisting to get the children ready for school was given it was help to do a domestic task and because it is a domestic task it is excluded.

12. Mr Neilson did however point out to me an authority in a decision of Mr Commissioner Sanders in CDLA/16996/1996. In that case a tribunal found in favour of a blind claimant with small children in respect of attention which they consider was required within the statutory framework in respect of the claimant’s bodily function of seeing. The tribunal in that case held:-
"The majority of the tribunal decided that there was no more fundamental a social activity than that of a mother bringing up young children. It was essential to her well being that she did, as far as possible, as much as any other mother would do for a young family. Playing with the children, supervising their behaviour, washing and dressing them, taking them out to play, reading their school work and generally performing all the functions which a sighted mother would perform herself were all activities which required a third party’s assistance, either to carry them out in safety or at all. Mrs Heywood needed help, not for someone to do these things for her, but with the function of seeing to do these things herself; she needed someone to act as her eyes".
It is apparent from paragraph 4 that the Commissioner was aware of the decisions in Mallinson, Fairey and Cockburn. He went on to say in paragraphs 5 and 6:-
"5. The tribunal stressed, rightly in my view, that the attention required in connection with the children’s activities was required in connection with the claimant’s "bodily function" of seeing. So, to say, as the adjudication officer does, that the attention in question related to the "bodily functions" of the children and not of the claimant seems to me to miss the point. Furthermore, to say that because the "attention" or some of it could not enable the claimant, as a non-seeing person, to do the things a sighted person could do, misses the essential point of Mallinson which, as I understand it, decided exactly to the contrary of the adjudication officer’s submission.
6. In my view, attention in connection with the bodily function of seeing to enable a sight impaired person to deal with (to use a neutral expression) her very young children is properly capable of counting as qualifying attention. It has of course to be reasonably required and so required frequently throughout the day. I am satisfied that the tribunal dealt with these points thoroughly and in accordance with the principles established by the cases to which I have referred. I see no error of law on their part and accordingly dismiss this appeal".
The submission in that case was accepted by Mr Neilson to run contrary to the argument he was submitting.

13. Mr Kelly on behalf of the claimant said that it was indicated by Lord Denning in Packer’s case that domestic duties are not bodily functions. It was essential in this case to see whether the activities in issue in the case were domestic or arose under the requirement of attention of the bodily function of sight. If it was the latter then the question as to whether the activities were domestic duties was redundant. It was his submission that there was nothing in what was said by Lord Hope, which is quoted above, in the context of Cockburn was of any assistance in the present case. Cockburn was concerned with motor difficulties . In this case however and in Mallinson and Fairey what is and was at issue were the senses. In these circumstances there was no option but in this case to focus on the claimant’s lack of sight. He submitted that with physical motor difficulties remoteness could arise but that with hearing and in respect of sight the matter was different. It was his position that in light of the case of Fairey attention arose in respect of social functioning. It was his position that in a case where a mother is looking after children it was more than reasonable to say that this was in connection with social functioning. He said that if the matters referred to in the findings in fact did not include a reasonable level of social functioning then what could be.

14. I am of the view that the whole thread of authorities which are referred to above relate to attention in the statutory context being confined to the performance of such bodily functions as those which a fit man normally performs for himself. They all appear to relate to attention which provide a substitute for what the fit man does for himself. This case raises the proposition that it can also encompass what the fit man can do not only for and by himself but also in respect of the care of others who are disabled by reason of age from carrying out the tasks referred to in the critical findings in fact. I do not consider that the provisions of section 72 can be stretched that far. Such assistance is too remote.

15. Further as Lord Hope of Craigend put it in his speech in Cockburn at page 823:-
"The close connection which requires to be shown between the act and the bodily function will not in all cases depend on physical contact but, as Lord Bridge himself said, a high degree of physical intimacy is required".
That is of course what would be missing from any assistance that the claimant received from another to enable her to carry out the necessary tasks of caring for her children referred to in findings 2 and 4. The intimacy has to exist between the claimant and the person giving the attention. In the situation posed in this case such intimacy, as there was, particularly in respect of bathing, washing and dressing, would be between the claimant and her children or the carer and the claimant’s children depending upon how the work is organised.

16. I do not consider that Mr Kelly is correct in his submission. Such assistance as is asserted the claimant requires in respect of her children does not amount to the claimant’s social functioning as envisaged in Fairey. I am satisfied that the activities referred to in findings in fact 2 and 4 in respect of the claimant’s children are properly to be regarded as domestic duties. In that I accept Mr Neilson’s submission. They are related to essential aspects of daily living which a child cannot be left to do or is not wholly capable of doing for himself. I am satisfied that such tasks are of the same order as cooking, shopping and keeping the house clean. When looked upon in that way it is clear that the activities are too remote from the bodily function of the claimant’s sight. That conclusion is inescapable having regard to the quotation from the speech of Lord Hope of Craigend in the decision of Mr Commissioner Walker QC quoted above. It follows that I disagree with the conclusion reached by Mr Commissioner Sanders. His analysis does not coincide with mine.

17. The case goes before a freshly constituted tribunal. That tribunal should in considering the care component pose the questions put by Lord Woolf in a speech in Mallinson at page 307. They are directed to apply the content of this decision in relation to the critical issue in the case in relation to the claimant’s children.

18. The appeal succeeds.

(Signed)
D. J. May QC
Commissioner 
4 February 1998