R(DLA) 2/02

Mr. H. Levenson	CDLA/3433/1999
15.11.00
Attention in connection with bodily functions - profoundly deaf claimant -whether action to attract claimant’s attention is attention in connection with hearing 
The claimant was profoundly and prelingually deaf. Her claim for disability living allowance made on 30 June 1998, she being then aged 17, was refused by the adjudication officer. The tribunal allowed her appeal to the extent only of holding that she satisfied the conditions for an award of the lower rate of the mobility component. She appealed on the ground that the tribunal had made insufficient findings of fact. Both in the tribunal proceedings and in her appeal to the Commissioner she pointed out that she needed to be tapped on the shoulder or waved at to get her attention. The Secretary of State’s representative supported the appeal on the ground that the tribunal had made inadequate findings on the help that the claimant needed to participate in social activities. However, he argued that attracting a person’s attention would only rarely amount to attention in connection with a bodily function and that this would apply only if the claimant were so handicapped that significant and unusual efforts were needed to attract her attention in order to communicate with her.
Held, allowing the appeal, that:
1.	attention in connection with bodily functions includes unusual efforts reasonably required to attract the claimant’s attention in order to communicate with her, being steps not required to attract the attention of a person in the same environment who is not deaf;
2.	the tribunal failed to make findings on this issue and thereby erred in law.
[Note: The Commissioner discusses relevant case law, and in paragraph 34 lists propositions of law in connection with the application of sections 72(1)(a)(i) and 72(1)(b)(i).]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision
1. 	This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(b) of the Social Security Act 1998 I set aside the decision made by the Barrow disability appeal tribunal on 23 February 1999. I refer the case to a completely differently constituted tribunal for a fresh hearing and decision. I had indicted that I had it in mind to substitute my own decision. However, it now seems to me that the nature and extent of the evidence is such that it is more appropriate for the matter to be decided by a tribunal with its particular mixture of skills and experience.
2. 	The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. One effect of my decision is to set aside the award of lower rate mobility component made by the tribunal. The new tribunal will have to consider entitlement to both components of disability living allowance.
3. 	I held an oral hearing of this appeal on 8 June 2000. The claimant attended together with her mother and a British Sign Language (BSL) interpreter. She was represented by Mr. Toll, a specialist officer from the National Association of Citizens Advice Bureaux. The Secretary of State (who has taken over the conduct of this matter from the adjudication officer) was represented by Ms. Powick from the office of the Solicitor to the Department of Social Security. I am grateful to them all for their attendance and assistance. At the end of the hearing it was explained to me that because of regional variations in BSL there had been some difficulty in communication between the claimant and the interpreter. I gave the claimant 21 days to make any additional written submissions, and the Secretary of State 21 days to make any comments in reply. Final submissions were received on 8 August and on 31 August I gave written notice that I required further time before I could issue a decision. 
Background
4. 	The claimant was born on 30 September 1981. She is profoundly (and prelingually) deaf with bilateral sensori-neural hearing loss and associated cognitive delays. She communicates through the use of British Sign Language (BSL). She wears two hearing aids and can lip read a little but it is not clear how much these methods of communication contribute to her overall ability to communicate. She has a minicom to help her use the telephone, and flashing lights to indicate when someone is ringing the doorbell. She cannot hear shouts, running water, alarm clocks or fire alarms. She attended mainstream infants school until the age of nine and then a school for the deaf until July 1998. She learned signing (i.e. BSL) at the age of eleven. From September 1998 she attended a college for the deaf, which she subsequently left. Despite her intelligence, she says that she has a limited understanding of the written word. In unfamiliar situations or when with strangers she tends to become distressed, anxious and withdrawn.
Procedural history
5. 	On 30 June 1998 the claimant made a claim for disability living allowance. On 3 July 1998 the claim was refused by the adjudication officer. On 30 October 1998 that refusal was confirmed by a different adjudication officer. On 24 November 1998 the claimant appealed to the disability appeal tribunal against the decision of the adjudication officer. A written submission to the tribunal was prepared on her behalf and is reproduced on pages 63 and 64 of the bundle of papers. Amongst other matters it referred to the Commissioner’s decisions in CSA/83/1990 and CSA/113/1991 and pointed out that the claimant “requires someone to attract her attention during the day, this may be by tapping her on the shoulder, waving at her or flashing a light”. 
6. 	The tribunal considered the matter on 23 February 1999 and allowed the appeal to a limited extent. It awarded lower rate of mobility component from 30 June 1998 (the date of claim) to 29 June 2002 but refused to make an award of care component. The award of lower rate mobility component has not been challenged. Mr. Toll accepted (rightly) that the claimant is not entitled to higher rate mobility component and that there are no needs at night which might give rise to entitlement to highest rate care component. Accordingly I confine my comments to questions relating to lower and middle rates of care component on the basis of needs during the day.
7. 	On 12 April 1999 the claimant applied for leave to appeal to the social security Commissioner against the decision of the tribunal. On 7 May 1999 the chairman of the tribunal refused leave but the claimant now appeals by leave of Mr. Commissioner Sanders granted on 6 August 1999. The adjudication officer then concerned with this matter supported the appeal and suggested that the matter be sent to another tribunal without reasons being given so that there could be a fresh hearing and decision. On 8 February 2000 Mr. Commissioner Powell directed further submissions. On 7 March 2000 I directed an oral hearing. 
Statutory provisions
8. 	Entitlement to care component in the present case depends principally on the provisions of section 72(1)(a) and (b) of the Social Security Contributions and Benefits Act 1992. These provide for entitlement to the care component for any period throughout which a claimant:
“(a)	…    is so severely disabled physically or mentally that- 
(i)	[she] requires in connection with [her] bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or
(ii)	[she] cannot prepare a cooked main meal for [herself] if she has the ingredients; or
(b)	[she] is so severely disabled that physically or mentally that by day [she] requires from another person-
(i)	frequent attention throughout the day in connection with [her] bodily functions; or
(ii)	continual supervision throughout the day in order to avoid substantial danger to [herself] or others …  ”
Subject to the satisfaction of certain other conditions, a person who comes within section 72(1)(a) but not within 72(1)(b) is entitled to the lowest rate care component. A person who comes within section 72(1)(b) is entitled to middle rate care component. 
Tribunal proceedings
9. 	The claimant told the tribunal that she liked reading various teenage magazines and sometimes read newspapers, that she had read books while at college and had been able to use an English dictionary and that she liked stories and poetry. She said that she had given up the college course because it was in a different town and she was nervous of going out alone and unhappy at being away from home, although she was going to start another course later in the year. She could write a message to ask for directions (although not in every situation) and could use a bus and write down her destination. She could understand letters from deaf friends. She had a hearing boyfriend and was teaching him to sign. She listened to music, feeling the vibrations, and had favourite tracks. She told the tribunal that she could peel potatoes and cook a meal. It seems that the tribunal accepted all of this evidence.
10. 	The tribunal stated that it had considered all of the available evidence carefully. It indicated (correctly) that in the case of people with hearing problems, levels of need vary from individual to individual. It stated that:
“ [The claimant’s] evidence indicated a good level of competence in communication in English. She could lip-read to some degree, and had a greater level of eye contact than is often the case with people who need to use an interpreter …   there are, of course, occasions when there might be additional attention needs because of her lack of hearing - when there are formal documents, for example, or for social occasions which she reasonably wishes to attend, as well as the doctors or hospital appointments, the bank, the solicitor and the like. More remote are occasions of leaving the toast on, and even more so, needing warning of a fire - although these are possible. But [the claimant] reads and writes English competently, can lip-read and has good communication skills and our view is that the number of occasions when she needs help with communication would not amount to a significant portion of each day …  ”
Proceedings before the Commissioner
11. 	The claimant’s initial grounds in the application for leave to appeal were that the tribunal had failed to make sufficient findings of fact on the key questions at issue, that she could only understand letters written in basic English, that her mother helps her with communication and that she needs to be tapped on the shoulder or waved at to get her attention. Reference was made to CSA/113/1991 and CSA/83/1990. 
12. 	The response to Mr. Powell’s direction made on behalf of the Secretary of State supported the appeal on the grounds that the tribunal had made inadequate findings as to the help that would be needed in order for the claimant to participate in social activities. However, he argued that attracting a person’s attention would only rarely amount to attention in connection with a bodily function. This would apply “Only if a claimant is so handicapped that significant and unusual efforts are needed to attract her attention in order to communicate with her ... ”. He referred to CA/249/1992 and CDLA/240/1994 (pages 85-6 of the bundle of papers, at paragraph 4.3).
13. 	Because I had indicated the possibility of substituting my own decision, should the appeal be successful, a considerable amount of further evidence was submitted in advance of and at the hearing and subsequent to the hearing. However, in the event it is not necessary for me to consider this evidence, although it must be placed before the new tribunal. 
14. 	At the hearing before me Mr. Toll argued that the tribunal’s reasoning was inadequate in relation to social activities and that account had not been taken of the extra effort needed to communicate with the claimant. The tribunal had not thought about what the claimant does or considered how she could be enabled to live a normal life of an 18 year old. This would incorporate social pressure to go out, meet people and develop as a mature adult.
15. 	Ms. Powick submitted that the tribunal had begun to consider social activities and although it might well have been in error of law in failing to go into adequate detail, it still reached the correct decision and the one that it would in any event have reached. Although the tribunal had failed to address the “extra effort” argument, the earlier submission on behalf of the Secretary of State was correct on this point. 
The case law
16. 	The starting point for a discussion on the way in which section 72(1) is to be applied in the case of a deaf person must be the decision of the House of Lords in Secretary of State for Social Security v. Fairey (also known as Halliday) [1997] 3 All ER 844 [R(A) 2/98]. That case concerned a young woman who had been severely deaf since birth, was unable to read and needed the help of an interpreter using sign language to communicate with other people. The House of Lords was considering the similarly worded legislation that was in force before the passage of the 1992 Act but there can be no doubt that what was said about those provisions applies equally to the provisions that I have to consider. The House of Lords held that the operation of the senses was a bodily function and a defect in the senses led to the disability in connection with which attention was required.  (I am not concerned in the present decision with arguments about the application of the Fairey decision to those who are not deaf.) All four other Law Lords explicitly agreed with Lord Slynn, whose speech must therefore be taken to express the decision in the case. 
17. 	Lord Slynn said (at page 860):
“On the question of principle I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test, in my view, is whether the attention is reasonably 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  …
Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life. It is not in any way unreasonable that the severely disabled person should wish to be involved in them despite his disability. What is reasonable will depend on the age, sex, interests of the applicant and other circumstances. To take part in such activities sight and hearing are normally necessary and if they are impaired attention is required in connection with the bodily functions of seeing hearing to enable the person to overcome his disability  …
How much attention is reasonably required and how frequently it is required are questions of fact  ... 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”.
18. 	Lords Goff and Mustill expressed their surprise at finding themselves agreeing with these remarks, but did not dissent or enter any reservation. Lord Hope made no specific comment. Lord Clyde said (at page 869):
“ ... in my view the connection which is envisaged by the phrase in connection with  which links the attention with the bodily functions should be direct and immediate. The service of an interpreter seems to me to be closely linked with the severe impairment in 	Miss Fairey’s function of hearing and satisfies that part of the statutory provision. I am not prepared to hold that the services of an interpreter to enable her to extend her social life beyond the limits of the circle of those with whom she can communicate without an intermediary could never be reasonably required”.
19. 	Four cases cited to me were decided prior to the House of Lords decision in Fairey. CSA/83/1990 and CA/113/1991 were heard together by Mr. Commissioner Walker and cover essentially the same ground as each other. CSA/83/1990 concerned a child who was deaf. In paragraph 8 of his decision the Commissioner wrote:
“ …   the evidence  …   clearly indicated that attention was required on virtually every occasion when communication was to be had with the child. That is because, on account of her deafness, it was necessary to make some form of physical contact with her in order to commence communication at all. Thus, as her mother recorded in one of her letters, she could not even call the child for meals; she had to go and make physical contact in order to gain the child’s attention - and that even if they were in the same room  …   In so far as [attention required to improve educational attainment] was related to the initiation or the conduct of communication it was, in my judgment, still attention in connection with a bodily function however much it may also have been in connection with an intellectual function as well. To that extent I have included attention in the sense in which I have been using it …  as being required because of the child’s physical disability as counting towards the total attendance required from another person.”
20. 	In CA/249/1992 Mr. Commissioner Howell said (para. 9):
“There can I think be no doubt that a need for help from a third person to act as interpreter for a person with difficulties hearing or speaking can count as “attention” in connection with those functions. I think there is considerable doubt whether the other party to a two-way conversation can be described as giving such attention simply by having to speak loudly or more clearly, use sign language or listen more attentively for the reply”.
21. 	In CDLA/240/1994 Mr. Commissioner Rowland pointed out that this statement had been approved by Mr. Commissioner Sanders in CA/780/1991 [R(A) 2/98] (which was in fact the decision under appeal in the Fairey case). He added (in paragraph 6):
“ I do not say that taking part in a two-way conversation with a disabled claimant can never be attention. It is conceivable that communication is so slow and difficult that there will be an element of service in it. I also accept   …   that a person may give attention when helping a child (or an adult) to develop or learn a means of communication. However, as a general rule I do not consider that a person is providing attention when communicating with a deaf claimant by means of reasonably fluent signing”.
22. 	In CA/780/1991 the Commissioner was also of the opinion that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention. According to Lord Slynn in Fairey (see below) these points were not in issue before the Court of Appeal (and therefore not really before the House of Lords) but the clear tenor of his speech is one of approval.
23. 	However, there is a difference between the other party to a two-way conversation communicating with a deaf person once her attention has been attracted and the activities involved in attracting her attention. The Secretary of State’s submission on this point is along the right lines. I would say that attention in connection with bodily functions includes unusual efforts reasonably required to attract the attention of the deaf person in order to communicate with her. By unusual I mean steps that are not or would not be required in respect of attracting the attention of a person in the same environment who is not deaf. The word “significant” used in the Secretary of State’s submission does not add anything. Whether and to what extent such efforts are reasonably required are questions of fact.
24. 	The point explicitly at issue in Fairey related to using the services of an interpreter. In CSDLA/43/1997 (starred 63/98) Mr. Commissioner May decided that when the claimant communicates by use of the written word, then writing, either by the claimant to the person with whom the claimant is communicating or by that person to the claimant, does not amount to attention in connection with the claimant’s bodily functions. This is because “attention ... has been judicially accepted to connote the element of service of a close and intimate nature”. He drew support from the decision of the House of Lords in the Cockburn case  (decided at the same time as, and having the same citation as, the Fairey case [R(A) 2/98] ). In accordance with the earlier decisions in CA/249/1992 and CDLA 240/1994, he also held that any extra effort incurred by another person in their own communication with a deaf person (such as having to speak more loudly or more clearly, use sign language or listen more attentively) does not amount to attention because it does not involve the provision of a service.
25. 	However, it seems to me that these comments obscure the question of whether, given that they are capable of amounting to attention, the services of an interpreter are reasonably required (whether or not they are actually used). If communicating through an interpreter is significantly more efficient or effective than communicating through writing, or trying to converse with a person who has to shout loudly, then it might well be that the services of an interpreter are reasonably required. This is so even if initiating a communication or conducting a two-way conversation cannot itself constitute attention.
26. 	The status of the decision in CSDLA/43/1997 is now unclear. On 23 April 1999 the Court of Session allowed the claimant’s appeal and remitted the case to a differently constituted disability appeal tribunal. This was done by agreement between the parties and, although detailed grounds of appeal had been lodged, the Court gave no reasons for its decision.
27. 	The facts in CDLA/8167/1995 (starred 94/97) involved a blind woman, and I am not sure that I agree with all of the examples given by the Commissioner in relation to blind people.  However, I do accept (again, on the authority of the House of Lords in Cockburn) Mr. Commissioner Howell’s statement that:
“The key must be to keep firmly in mind that by no means all types of help or assistance count as ‘attention’, and that before help can be counted for this purpose it must satisfy the further requirement relied on ... on behalf of the adjudication officer, of being a service involving close personal contact or intimacy.”
28. 	In CSDLA/309/1998 (starred 2/99, decided on 19 November 1998) Mr. Commissioner May said in paragraph 29:
“ The thrust of the authorities is that unless service provided is of a close and intimate nature involving personal contact carried out in the presence of a disabled person it is not attention …   ”
29. 	The difficulty often comes in applying these concepts to particular examples. Mr. Commissioner Howell states that “the help involves what would ordinarily be an intrusion into the personal space and privacy of the individual”. However, it is difficult to characterise interpreting as involving this and it is possible that “intrusion”, as the word is normally used, conveys too narrow an understanding of the kind of intimacy which needs to be involved. Similarly, to be consistent with the decision in Fairey, the idea of “personal contact”, at least in the case of a deaf person, must include communication between that person and an interpreter. (Mr. Commissioner May seems to accept this in paragraph 30 of his decision).
30. 	Mr. Commissioner Howell does make the useful point that Lord Slynn referred to “living a normal life” and that:
“Special help required ... to go mountaineering, windsurfing or parachute jumping must be left out of the reckoning ... While it is not unreasonable in the general sense to want to try such experiences, this enquiry is concerned with the relatively mundane everyday activities of functioning as a human being in ordinary life.”
31. 	I have also pointed out that help with social activity is not in itself help in connection with bodily functions. The issue is the attention reasonably required in connection with the operation of the senses in order to undertake a reasonable level of social activity (CDLA/4430/1997, para. 9).
32. 	In CDLA/840/1997 and CDLA/867/1997 (starred 3/99) Mr. Commissioner May analysed the decision in Fairey and pointed out (para. 22) that communication is achieved by the use of bodily functions. It is not a bodily function itself. In cases involving deaf people it is the impairment of the bodily function of hearing (and possibly speech) that makes it necessary to provide attention. He did not comment on a suggestion that attention included requiring the services of another to initiate conversation because of the extra attention involved. He accepted (as do I) that there is no doubt that services in connection with the following can constitute attention in connection with bodily functions of hearing and speech (paras. 25 and 26):
•	the reception and translation into BSL of what a hearing person who does not understand BSL has said to the claimant;
•	the translation by the interpreter of what the claimant has said to the person with whom she is conversing;
•	the translation of film and television speech.
33. 	The Commissioner identified a problem with how to treat a claimant's difficulty with literacy which arises from prelingual deafness. He concluded that (para. 30):
“I am persuaded that whilst the ability to acquire literacy skills may be severely impaired by prelingual deafness it does not follow that assistance with the interpretation of the written word amounts to attention in connection with the bodily function of hearing …  the interpretation by the claimant of what is on the written page is related to the cognitive function of being able to interpret writing rather than the bodily function of hearing  ...  ”
Unfortunately, I have to disagree with this. The interpretation of the written word is, in my view related to both and there is no significant difference between this and what happens with interpreting speech. The degree of such attention reasonably required in any particular case is a question of fact.
Summary of relevant law
34. 	From the above discussion I derive the following propositions of law in connection with the application of section 72(1)(a)(i) and section 72(1)(b)(i):	
•	the operation of the senses is a bodily function and a defect in the senses leads to disability in connection with which attention might be required;
•	the test is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life;
•	the aggregate of attention that is reasonably required includes such attention as may enable the claimant to carry out a reasonable level of social activity;
•	what is reasonable will depend on the age, sex, interests of the applicant and other circumstances;
•	how much attention is reasonably required and how frequently it is required are questions of fact;
•	attention in connection with bodily functions includes unusual efforts reasonably required to attract the attention of the deaf person in order to communicate with her. Unusual in this context means steps that are not or would not be required in respect of attracting the attention of a person in the same environment who is not deaf;
•	a person is not providing attention when communicating with a deaf claimant by means of reasonably fluent signing unless communication is particularly slow and difficult;
•	if communicating through an interpreter is significantly more efficient or effective than communicating through writing, or trying to converse with a person who has to shout loudly, then it might well be that the services of an interpreter are reasonably required even if initiating the communication or conducting a two-way conversation does not itself constitute attention;
•	help required to undertake activities other than those “concerned with the relatively mundane everyday activities of functioning as a human being in ordinary life” does not count as attention for these purposes;
•	although, in order to count as attention, any service provided must be of a close and intimate nature involving personal contact carried out in the presence of a disabled person, in the case of a deaf person this includes communication between that person and an interpreter;
•	for these purposes there is no significant difference between the interpretation of the written word and the interpretation of speech. 
Was the tribunal decision erroneous in law?
35. 	In most respects the tribunal applied the legal principles to which I have referred. The parties differ on whether the tribunal made adequately detailed findings of fact but it is not necessary for me to go into this in any great depth. However, although the issue of the need to attract the claimant’s attention for relevant purposes was referred to both in the written submission and the oral evidence to the tribunal, it seems to have ignored this issue in its findings. This is a significant matter and for this reason I set aside the decision of the tribunal as having been made in error of law. 

Date: 15 November 2000	(signed) Mr. H. Levenson
	Commissioner