R(A)1/03

 
Mrs. L.T. Parker						           	        CSA/721/00
18.5.01

Care component – frequent attention in connection with bodily functions – assistance required with communication

The claimant, who was deaf and dumb from birth, applied for an award of attendance allowance. The principal issue was whether the use of an interpreter comprehending and responding to written documents counted as attention for the purposes of entitlement to attendance allowance. The tribunal held that, while the full-time availability of an interpreter might enhance the claimant’s lifestyle, the facilities provided by a local centre for sensory impaired people were adequate for his needs. Any additional assistance could not be regarded as amounting to frequent requirements. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

1.	in section 64(2)(a) of the Social Security Contributions and Benefits Act 1992, effect must be given to the words “in connection with” a bodily function. In both Secretary of State for Social Security v. Fairey (R(A) 2/98) and Cockburn v. Chief Adjudication Officer, it was recognised by the House of Lords that the requirement that attention be “in connection with” a bodily function is satisfied if it is a close and intimate act that either must be carried out in the claimant’s presence or is so very closely associated with such an act as to be, in effect, part and parcel of the required close and personal service (para. 24);	
	
2.	it was necessary to determine what assistance was reasonably required with the bodily function of hearing. Evaluating what is reasonably required was a matter of fact and degree (para. 40). Commissioners’ decisions CSDLA/832/97, CSDLA/840/97 and CSDLA/867/97 were disapproved in so far as they sought to restrict the interpretation of section 64(2)(a) to attention with bodily functions which is immediately and directly linked to a mental or physical disability (paras. 27-30). Commissioners’ decisions CDLA/3433/99 and CDLA/1534/00 cited with approval (para.34);	

3.	the requirement for “frequent attention” depended upon the pattern and frequency of the claimant’s need for attention across the whole span of the day and not on the total duration of that attention. CDLA/12150/96 cited with approval (para. 36).	

The Commissioner remitted the case to a differently constituted tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the Glasgow disability appeal tribunal (the tribunal) held on 22 April 1999 is erroneous in point of law. Accordingly, I set it aside and remit the case for rehearing by a differently constituted tribunal in accordance with directions given below. 

The issues

2.	The appeal concerns a claim for attendance allowance (AA) by a claimant who has been deaf and dumb from birth. Adjudication on the claim therefore raises, yet again, what help with communication problems satisfies entitlement to AA via the route of ‘attention’. It has not been suggested that the claimant has sufficient ‘supervision’ requirements.

3.	The main question arising is whether the use of an interpreter to assist the claimant with comprehending and responding to written documents counts as attention. There are also subsidiary issues on whether any extra effort entailed in initiating or carrying out communication with a deaf person can be aggregated in the necessary attention and the meaning of “frequent attention throughout the day” when contrasted with that required for “a significant portion of the day” (satisfaction of the former being essential for entitlement to AA).

Background

4.	The claimant’s date of birth is 24 April 1932. His first claim to AA, made 10 June 1998, is the one in issue in the appeal. On the claim form, the claimant said that his writing was not easy to understand and his reading is limited (see document 24). In endorsement of his claim form, the general practitioner (GP) said that the claimant is “deaf and dumb – communicates with sign language and writing only” (see document 34).

5.	It is not disputed that the claimant lives close to the Centre for Sensory Impaired People (the centre), open every week day during the day, where he receives assistance from British Sign Language (BSL) interpreters. It is not clear how much help, on average, and with what pattern, he uses the services of the interpreters provided. It is also not clear how much of this interpreting service relates to assistance with understanding and making written communications and what role the interpreter plays in oral communications. Is the help limited to two-way conversation with the claimant or does the interpreter, either inside or outside the centre, use BSL to help him communicate with third parties? 

6.	The claimant is being represented throughout his appeal by a member of the Welfare Rights Service (the representative). The argument put on his behalf in his appeal to the tribunal was that he was profoundly deaf without speech and needed someone to assist him to communicate throughout the day and evening. The tribunal held that he was not entitled to an award of AA. Its full statement of facts and reasons included the following:

	“While full-time availability of an interpreter might enhance his life style to some extent, the facilities he already enjoys are reasonably adequate to his needs. The additional instances where he might benefit from an interpreter, unforeseen emergencies at week-ends, going to the cinema or a different pub, all of which were canvassed on his behalf, do not amount to most of the time and cannot be considered as frequent requirements.”

Statutory provisions

7.	Entitlement to day attention needs in the present case (it was not argued that there were night needs) depends principally on the provisions of section 64(2)(a) of the Social Security Contributions and Benefits Act. This provides for entitlement to lower rate AA for any period throughout which a claimant:

	“(2) … is so severely disabled physically or mentally that, by day, he requires from another person either –
(a)	frequent attention throughout the day in connection with his bodily functions, or 
(b)	… ”

Oral Hearing

8.	The case came before me at an oral hearing on 3 May 2001. The claimant was represented by Mr. Orr, a Welfare Rights Officer of the Glasgow City Council. The Secretary of State was represented by Ms. McLaughlin, Advocate, instructed by Miss Richie of the Office of the Solicitor to the Advocate General. I am grateful to both for their helpful submissions. 

Concession

9.	The parties were unanimous in accepting that the tribunal erred by taking the claimant as already having available the services of an interpreter at the centre from Monday to Friday and limiting its evaluation to what additional interpreting facilities might reasonably be required. I agree with this concession. The starting point must be consideration of the claimant on his own and then making findings about the totality of attention reasonably required throughout the day in connection with his bodily functions. Help he actually receives is evidentially relevant to answering that question but is not determinative. The same applies to the assistance he would like to receive. The critical test is an objective one of reasonable requirements having regard to all the circumstances.

10.	The tribunal erred in law in making the help received from the centre a baseline and only taking account of any additional needs. For this reason, the appeal is remitted for rehearing and it becomes necessary for me to decide the issues set out above before I can give appropriate directions for the new tribunal on rehearing the appeal. 

The arguments

For the claimant

11.	Mr. Orr relied on CDLA/3433/1999, in which Mr. Commissioner Levenson (at para. 34, last bullet point) said that, for the purposes of a BSL interpreter’s services, “there is no significant difference between the interpretation of the written word and the interpretation of speech”. Similarly, in CDLA/1534/2000, Ms. Commissioner Fellner assumed, without further discussion, that “help in dealing with official letters (both understanding them and formulating replies)” (see para. 21), summarising newspapers and magazines (see para. 39) and “reading books with the help of a support worker” (see para. 48) could potentially be relevant interpreting facilities for the purposes of attention.

12.	In the above cases, both Commissioners considered that extra effort reasonably required to attract the attention of the deaf person in order to communicate with him or her could constitute attention. However, Ms. Commissioner Fellner did not consider that any extra effort was sufficient but only where such effort involved more than negligible extra work or extra time away from the would-be communicator’s ordinary duties (see paras. 24 to 29 of CDLA/1534/2000). In contrast, Commissioner Levenson considered that any “unusual” efforts to attract the attention of a deaf person (which he defined as steps that would not be required to attract the attention of a hearing person in the same environment, see sixth bullet point of para. 34, CDLA/3433/1999) suffice.

13.	Ms. Commissioner Fellner appears to extend her approach to extra effort involved in carrying out communication with a deaf person, whether “in signing, or speaking more loudly, or in articulating to facilitate lip reading” (see para. 30 of CDLA/1534/2000). Such effort does not automatically qualify and can only do so if involving significant extra effort or time, for example, reading and writing complex information.

14.	At paragraph 34 of CDLA/3433/1999, Mr. Commissioner Levenson took a slightly different approach but one that reaches a similar practical result. “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” and further that “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.”

15.	Finally, Mr. Orr relied on CDLA/12150/1996 for the proposition that attention, reasonably required briefly but frequently throughout the day, can qualify for lower rate AA. This is so, even though the total duration of such attention would not have justified an award of the lowest rate of the care component of disability living allowance (DLA) because not such as to amount to attention for a significant portion of the day.

For the Secretary of State

16.	On behalf of the Secretary of State, Ms. McLaughlin urged me to concentrate on the statutory provisions. She cited two Commissioners’ cases which she considered did this more faithfully than those to which Mr. Orr had referred. 

17.	In CSDLA/867/1997 and CSDLA/840/1997 (Starred Decision 3/99), it was submitted on behalf of the claimant that the impaired bodily function of hearing in the prelingually deaf claimant was what gave rise to the lack of the acquisition of literacy on the part of the claimant. However, Mr. Commissioner May QC, while he accepted the link, held (see para. 30) that “it does not follow that assistance with the interpretation of the written word amounts to attention in connection with the bodily function of hearing”. It was his view that “the interpretation by the claimant of what is on the written page is related to the cognitive function being (sic) able to interpret writing rather than the bodily function of hearing”. He concluded that the statutory conditions for the care component of disability living allowance included only bodily functions and not cognitive functions.

18.	Ms. McLaughlin also referred me to CSDLA/832/1999, a decision of Mr. Commissioner Walker QC. Like Mr. Commissioner May QC, Mr. Commissioner Walker QC considered that ‘communication’ is composed of two different bodily functions, those of hearing and speaking. He stressed that only bodily functions requiring attention through any mental or physical disability count for the purposes of the statutory provisions. If, therefore, in the case of a claimant who has pre-lingual deafness as a result of which he or she is unable to speak, rather than due to any malfunction of the lungs or vocal cords, then (see paragraph 11):

	“… the pre-lingual disability in speaking is not because of a physical or mental disability but because of a consequential lack of learning. If that is all then speaking and reading will not count for the reasons set out in paragraph 30 of CSDLA/867/1997”.

My conclusion and reasons

Consideration of the case law

19.	I agree with Ms. McLaughlin that one must focus on the statutory provisions. Moreover, the plethora of decisions (often, at worst, conflicting or, at best, inconsistent) with respect to deaf persons is such that the legislative criteria remain the only sure touchstone. However, the words have to be applied.

20.	The seminal appeal in the case of a deaf person is the decision of the House of Lords in Secretary of State for Social Security v. Fairey (also known as Halliday), R(A) 2/98 (Fairey). The House of Lords unanimously held that the operation of the senses is a bodily function, the provision of an interpreter to use sign language is capable of providing attention and the test is whether the attention is reasonably required to enable the disabled person as far as reasonably possible to live a normal life.

21.	At the same time as it decided Fairey, the House of Lords also decided the case of Cockburn v. Chief Adjudication Officer (Cockburn). In that case, by a majority, the House of Lords held that taking away and washing the dirty linen caused by the claimant’s urinary incontinence did not constitute the necessary attention in connection with her bodily functions.

22.	In both cases, it was recognised that the crucial issue was whether the assistance given was “in connection with” bodily functions. The acceptance of a bodily function is only the beginning of the problem. Separating the related help which counts from the help which does not is what gives rise to the difficulty.  Some kinds of attention are closely connected with bodily functions and other kinds are too remote. The dilemma, as always, is where and how to draw the line. 

23.	All agreed that in order to count as attention, any service provided must be of a close and intimate nature. Usually this will involve personal contact carried out in the presence of the disabled person. However, in the case of a deaf person, it was accepted that this includes communication between that person and an interpreter. It can also (in the view of a majority in Cockburn on this point) include the changing of soiled bed linen which might be achieved without physical contact between the claimant and the person providing the service.  According to Lord Goff of Chieveley and Lord Mustill, even immediately rinsing out the soiled clothing so removed, where the claimant is too disabled to do this herself, can qualify as the relevant attention. Lord Slynn of Hadley, dissenting, would have gone even further.

24.	It is clear from the overall tenor of the majority of the speeches in Cockburn and Fairey that the requirement that attention be “in connection with” a bodily function is satisfied if it is a close and intimate act that either must be carried out in the claimant’s presence or is so very closely associated with such an act as to be, in effect, part and parcel of the required close and personal service necessarily carried out in the claimant’s presence. 

Interpretation of the written word

25.	In Fairey, the issue before the House of Lords was whether the Commissioner had erred in law in holding that the appellant had a reasonable requirement for an interpreter to carry out a reasonable level of social activity. There was no overt reference to the use of an interpreter with written as distinct from oral communications. However, no distinction was drawn between her need for an interpreter to translate into BSL what a third party is trying to say to her and the translation from BSL to the third party of what the claimant communicates by sign language because the claimant is not able to speak. 

26.	As Lord Slynn of Hadley put it (see page 58):

“There is no issue in Miss Fairey’s case as to whether or not she is severely disabled by her deafness. She plainly is; she is not able to hear and that reduces or impedes her ability to speak. … 
… In the present case the bodily function is hearing, the disability is the inability to hear. I consider ... there is linked to that a further bodily function, that of speech; the disability is the inability or the severely restricted ability to speak resulting from the deafness.”

27.	With great respect to the two learned Commissioners in Starred Decision 3/99 and CSDLA/832/1999, they interpret the statutory provisions as if the words “in connection with” were omitted. In such a case, it may be undeniable that the causal link between the physical or mental disablement and the attention with bodily functions must be immediate and direct. But the whole thrust of the case law, and in particular the cases discussed in Cockburn and Fairey, is that the words “in connection with” mean that some resultant kinds of attention qualify although they do not pass such a strict test and others are too remote.

28.	Most prelingually deaf people have problems with their speech. This is not because of any disablement affecting their physical capacity to speak but because of the cognitive learning difficulties associated with the fact that BSL is normally their first language and they have no internalised English language.  But it appears wholly artificial to allow as qualifying attention the assistance given by a BSL interpreter in passing on to the deaf claimant what a third party wishes to state to the claimant but not including as such qualifying attention the interpreting services used to communicate back what the claimant is unable to say. This is not simply the lack of acquisition of a skill comparable to my failure, for example, to learn and speak Japanese. The claimant’s hearing difficulties arise from disablement and are, in turn, the cause of difficulties with speech. Interpreting services both with respect to what the claimant cannot hear and cannot speak have to be carried out in his presence. This is sufficient to distinguish the case from linked help which is too remote, such as the domestic chores referred to in Cockburn, which can be performed outwith the presence of the claimant.

29.	I take the same view with respect to interpretation of the written word, if caused by the claimant’s difficulties with literacy due to prelingual deafness. It is true that the claimant has no problem with the bodily function of seeing. But the inability to comprehend the text and to formulate in writing text with meaning is directly linked to the hearing problems which arise from disablement and is not, as compared with my own inability to read and write Japanese, simply because the claimant has never mastered the skill. Moreover, interpretation to the claimant of what is in a document and assistance given to help him write, are services which must be carried out in the presence of the claimant and therefore carry the necessary personal intimacy to be “in connection with” the bodily function of hearing.

Fact finding

30.	Some deaf claimants do manage to learn lip reading or to speak or to read and write. According to the GP and the claim form, this claimant has some ability in reading and writing. Evidence was given on the claimant’s behalf at the hearing that he gets the daily paper for the TV. The new tribunal will require to make findings about the extent of the claimant’s genuine need for help from a BSL interpreter or a support worker with interpretation of the written word. 

31.	There also has to be considered what is reasonably required. Help with official correspondence, which is most likely to be necessary, will not happen every day. One also has to consider what is practicable. In CDLA/1534/2000, the deaf claimant wanted someone to summarise the news in papers and magazines for him. The Commissioner (see para. 39) held it would not be feasible for more than a very short summary to be given as there would not be enough time in the day for more to be fitted in.  Similarly, the Commissioner in the circumstances of that case, could not accept that reading books with the help of a support worker was a realistic aspiration as it would take far too long in relation to his other commitments (see para. 48).

32.	All must depend upon the facts as found by the new tribunal. What is the actual help which this particular claimant wants on the basis of his own hearing, speaking, reading and writing abilities and his proposed daily life and what are reasonable requirements in that context?

33.	It is submitted by the representative that the claimant has a mental disablement consisting of a learning disability.  If this is the cognitive difficulty associated with prelingual deafness, then in my view the point is already covered by its direct causal link with impaired hearing. If there is some separate disablement, then insofar as it affects a bodily function it is, of course, relevant. It is not entirely clear to me what bodily function any such separate learning disability is argued to affect, such that the claimant needs attention in connection with the said bodily function. Moreover, there is no mention by the GP of any learning disability. I leave these as matters to be explored by the new tribunal.

Extra effort in initiating or carrying out two-way communication with the claimant

34.	There is now a considerable body of Commissioner support, in addition to Ms. Commissioner Fellner and Mr. Commissioner Levenson in the cases already cited, that extra effort involved in the conducting of a two-way conversation, as well as for its initiation, is capable of qualifying as attention. The mere fact that the use of sign language or lip reading is inevitably a more laborious method of communication than ordinary speech does not mean that, on that account alone, relevant attention is given. But if communication by means of signing or lip reading is particularly slow and difficult, perhaps because of a learning disability either due to or separate from the deafness, this could be sufficient.  I agree with Ms. Commissioner Fellner that the extra effort involved in initiating or carrying out communication must be more than de minimis. It is a matter of fact and degree and something more than reaching out to tap a shoulder is likely to be required if it is to count towards attention. However, I also share Mr. Commissioner Levenson’s view (para. 34 of CDLA/3433/1999) that a three-way conversation through an interpreter may be a reasonable requirement if significantly more efficient and effective than attempting a two-way one.

Frequent attention throughout the day

35.	Unlike disability living allowance, no rate of AA is available for a claimant who requires attention in connection with bodily functions from another person “for a significant portion of the day (whether during a single period or a number of periods)”.

36.	I agree with CDLA/12150/1996, a decision of the then Deputy Commissioner, Mr. Edward Jacobs. Whether a claimant satisfies the higher rate awarded for “frequent attention throughout the day” depends upon the pattern and frequency of the claimant’s need for attention, not on the total duration of that attention (see para. 11 of CDLA/12150/1996). The length of time for which attention is required may be central to “a significant portion of the day” (although CSDLA/29/1994 [Starred Decision 14/95] emphasises rather the fraction or percentage of the day) and, provided there is the necessary amount of attention, lowest rate care component of disability living allowance is satisfied irrespective of when that need for attention arises. But the middle rate of the care component and the lower rate of the AA depend upon two different constituents. The attention must be reasonably required both frequently and also throughout the day.

37.	In CSDLA/282/1996, it was held (see para. 11) that:

“Therefore it is only if the attention, viewed across the whole span of the day, falls to be regarded as ‘frequent’ that the middle rate comes into play. Thus, if the ‘frequency’ is judged to run across only the morning, or only the morning and the evening, then the other requirement for the middle rate is not satisfied: it is not then ‘throughout the day’.”

38.	In CA/080/1986, the Commissioner at paragraph 5 expressed a similar view:

“There is no definition of ‘throughout’ in the Act but the Oxford Dictionary gives its meaning as ‘right through, in every part in all aspects’. It will of course not be necessary and there is no such suggestion for a claimant to require attention every minute of the day in order to satisfy the statutory condition. However ‘throughout’ in the context of the ... Act denotes attention which is given very often during the period accepted as the day.”

39.	The tribunal applied the wrong legal test, rejecting the claimant’s case because his needs:

“do not amount to most of the time and cannot be considered as frequent”.

The attention required does not have to be for “most of the time”. Nor even, in terms of duration, for a sufficiently long time in total to amount to “a significant portion of the day”. Individual episodes may only be brief but it is the frequency and pattern of the attention which is important. Only if the claimant reasonably requires attention with his bodily functions very often across the whole span of the day albeit each episode is short, will he qualify.

Directions

40.	My directions to the new tribunal, which will be entirely freshly constituted are as follows:

(a)	The tribunal must make findings on the claimant’s physical and mental disabilities and on what assistance is required by the claimant in connection with his bodily function of hearing.  If, as a result of his hearing impairment, the claimant’s speech or comprehension and formulation of the written word is affected, then assistance to overcome that, necessarily given in his presence by an interpreter, can constitute attention in connection with his bodily function of hearing. It is not too remote.

(b)	How much attention is reasonably required and how frequently are questions of fact. The starting point is the claimant without help. That he already receives attention does not preclude it from being taken into account, although neither is such attention determinative of the issue. The yardstick is always what attention is reasonably required in order to enable the deaf person to carry on, so far as possible in the circumstances, an ordinary life. The attention he actually receives or what he would like to receive are both evidentially relevant to what is reasonably required.

(c)	Evaluating what is reasonably required is a matter of fact and degree.  A signing interpreter may reasonably be required for three-way communications or to translate written words.  It will be relevant to consider the complexity and importance of the written information, and the claimant’s own skills in reading and writing. As far as oral conversations are concerned, practicability must play a part. It was argued on his behalf that he would benefit from an interpreter in order to go swimming, to visit the cinema, to patronise a different pub or for unforeseen emergencies at weekends. The last enumerated is likely to arise infrequently. Unfortunately, the claimant can never be put in the position of a hearing person and if he is able to manage at his local pub, it is open for argument whether visiting more than one pub is reasonably required in order to enable the claimant to carry out a reasonable level of social activity. The new tribunal will investigate the kind of interpreting help that could assist at a club for the deaf and what help would make a difference in the cinema. Unless the claimant is able to read signing on his face or hand, darkness must be an impediment to the usual BSL signing. What sort of assistance is suggested with swimming? Can he manage alone in a supermarket and is this sufficient to satisfy his shopping needs in usual circumstances, using the touchstone of ‘reasonableness’?

(d)	In a two-way conversation, whether with a hearing person or a signer, extra effort to begin or carry on the dialogue, perhaps because the other party to the conversation has to write where he would normally speak and the claimant’s literacy levels are low, or the claimant’s sign language skills are poor, can count as attention provided more than de minimis. It may be a reasonable requirement in the first case to turn it into a three-way communication by providing an interpreter.

(e)	Acts of attention reasonably required in connection with his bodily functions, including the effect of any mental disability on those bodily functions, count even if brief, provided not so brief as to be insignificant and therefore de minimis. To qualify however, such episodes will be reasonably required very often across the whole span of the day. The new tribunal must therefore make findings on the frequency and pattern of the need for attention. Inevitably, there will be variation from day to day. The claimant does not require to visit the doctor every day but, for example, difficulties with food instructions or with medication may arise more often. The new tribunal will have to reach a judgement, after balancing all the possibilities, on his overall needs for attention.

Summary

41.	It is emphasised there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal. My jurisdiction is limited to issues of law so my decision is no indication of the likely outcome of the rehearing.

Date:	18 May 2001	                                 (signed) L. T. Parker
Commissioner