DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CSDLA 0899 2001

Oral Hearing

1.	My decision is that the decision of the appeal tribunal given at Glasgow on 6 March 2001 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.  

2.	This case came before me for an oral hearing on 4 April 2002.  It had been requested by the claimant and the request had been granted by the Legal Officer to the Commissioner.  The claimant was represented by Mr Orr, a Welfare Rights Officer with the City of Glasgow Council.  The Secretary of State was represented by Mr Brodie, Advocate, and instructed by Miss Cairns of the Office of the Solicitor to the Advocate General.  

3.	The claimant appealed to the Commissioner against the decision of the tribunal which found that the claimant was not entitled to an award of either the care or mobility components of disability living allowance from 5 May 2000.  It was accepted by both parties to the appeal that the tribunal erred in law in relation to its failure to deal adequately, if at all, with the claimant’s assertion that attention requirements in respect of others bringing themselves to his attention in order to communicate with himself and social interaction, particularly relating to sporting activities.  I am prepared to accept that there was such an error by the tribunal, which is understandable due to the number of issues involved in the appeal, but it is an error nevertheless.  

4.	The principal issue in the course of the hearing related to the issue as to whether the evidence noted in the record of proceedings at page 114, namely:-

“He has to have his attention attracted by bringing themselves to his attention.”,

amounts to attention in connection with the bodily function of hearing in the sense that phrase is used in s.72(1)(a)(i) and (b)(i) of the Social Security Contributions and Benefits Act 1992.  This also involved the question as to whether the “extra effort” on the part of the person seeking to attract the claimant’s attention could be described as attention.

5.	There have been a number of authorities in relation to this issue which the parties cited to me.  In the record of proceedings it is noted that CDLA/3433/99 was cited to the tribunal.  In that decision Commissioner Levenson made certain specific propositions.  One of these propositions was:-

“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.”

The basis upon which he reached that conclusion is not set out, as all he did was refer to a number of authorities and say:-

“From the above discussion I derive the following proposition of law in connection with the application of section 72(1)(a)(i) and section 72(1)(b)(i).”,

though it has to be said in paragraph 25 he does say:-

“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 [sic] so even if initiating a communication or conducting a two-way conversation cannot itself constitute attention.”

6.	The tribunal was also directed to CSDLA/864/99.  In that decision in paragraph 6 Commissioner Walker QC said:-

“It is only that which is required because of the deafness that can count.  Thus, if because of noise or distance involved in the work place somebody has to go to the claimant and tap her on the shoulder that would not count but if somebody who otherwise might have been able to attract her attention by voice has to go and tap her on the shoulder then that may count.”

It is also clear that in that case, though not specifically in relation to the attracting of attention, the Commissioner said:-

“In this case there is clearly some communication with the claimant by substitution of pencil and notepad.  The extent to which that may be required as a substitute for hearing may count as relevant attention.  It is simply an extra effort to get the message across and so to any extent that such ‘extra’ – time or effort – is involved may count.  Of course, they may be no real ‘extra’.”

Thus, the concept of “extra effort”, constituting attention, on the part of the person who wishes to communicate with a deaf person is introduced.  

7.	Mr Orr referred me to CDLA/1534/00 in which Commissioner Fellner said:-

“27.	As a result of this decision, claimants and their representatives have sought to emphasise the extra effort involved in initiating communication, such as tapping a deaf person on the shoulder, flashing a light, stamping on the floor so as to produce vibration, or throwing a paper ball.

28.	There have been several Commissioners’ decisions dealing with the point.  I have read CDLA/15884/96, CDLA/16211/96, CDLA/16240/96, CDLA/16668/96, CDLA/17202/96 and CDLA/3433/99.  All were ‘facts and reasons’ cases, and therefore specific to their own circumstances.  I must, however, dissent to some extent from the conclusion in paragraph 34 of CDLA/3433/99 that ‘unusual’ efforts to attract the attention of a deaf person simply means steps that would not be required to attract the attention of a hearing person in the same environment.  I agree that any comparison must be made in the same environment, but I am not satisfied that any extra effort must axiomatically give rise to a relevant attention need.  I do not consider that what was said by either Glidewell LJ or Swinton Thomas LJ requires this conclusion as a matter of law.  Both were at pains to stress that these were matters of fact.

29.	In my view, it is possible in many cases to treat the need to attract attention, including the instances mentioned in paragraph 27 above, as de minimis.  They occur, but they involve negligible extra work or extra time away form the would-be communicator’s ordinary duties, to quote Swinton Thomas LJ’s test.  I stress that fact-finders must properly investigate allegations of such needs, and not write them all off as de minimis.  But something more than reaching out to tap a shoulder, stamping, switching a light momentarily off and on or throwing a paper ball (or some rather more reliable missile) would be required to constitute any significant amount of attention.  Where (as in the present case) husband and wife are both deaf and with little speech, such expedients are in any event going to be a matter of course.  It should also be remembered that even hearing people may not hear a call from another room if the TV is on or music playing or water running, and that people wanting to attract the attention (other than momentary) of someone who is eg working or engaged in DIY or preparing a meal will usually go to where that person is rather than expect the person to come to them.”

8.	I was also directed to what was said by both Lord Justice Glidewell and Lord Justice Swinton Thomas in Secretary of State for Social Security v. Fairey (Also known as Halliday).  The decision of the Court of Appeal in this case went to the House of Lords but the point which is relevant in this case was not an issue in the House of Lords and was dealt with on an obiter basis by the Court of Appeal.  What Lord Justice Glidewell said was:-

“It is therefore strictly unnecessary for me to consider the argument advanced in the Respondent’s cross-notice.  This either challenges or seeks clarification of a single sentence in paragraph 10 of the Commissioner’s decision, namely:

‘But where the person with whom the claimant is in communication is reasonably skilled in the use of sign language, I would not think it right to conclude that any extra effort involved in that method of communication would necessarily go towards satisfying the attendance condition.’

It is accepted by Mr Drabble, for Rebecca Fairey, that fluent communication between her and (for example) her mother by sign language and/or lip reading is not ‘attention’ for the purposes of the section.  He submits, however, that some of the actions associated with such communication – physical contact to attract Rebecca’s attention, deliberately articulating lip movements – can properly be held to be attention.

I agree with the Commissioner on this issue.  It may be that, in a particular case, the effort required of another person to initiate two-way conversation with a deaf person could constitute ‘attention’ within section 72(1).  Whether it did so or not, however, would be a question of fact.  In this paragraph of his decision, the Commissioner has not ruled out the possibility of such a finding of fact. 

It follows that I can find no error of law in the Commissioner’s conclusion on this issue.”

Lord Justice Swinton Thomas also dealt with the matter.  What he said was:-

“Mr Drabble contends that the Commissioner was wrong when he stated in the passage which I have quoted from paragraph 10 of his decision:

‘Where the person to whom the claimant is in communication is reasonably skilled in the use of language I would not think it right to conclude that any extra effort involved in that method of communication would necessarily go towards satisfying the attention condition.’

Mr Drabble submits that to an extent that statement contradicts the passage in paragraph 6 to which I have already referred.  That may be correct.  This Court must not lay down the minutiae of what can and cannot be included in the aggregate which goes together to make up the attention which is reasonably required.  That is matter for the Adjudication Officer.  For example, in my judgment, clearly a two-way conversation between members of the family and or others and the applicant, either in language which the applicant can lip-read or by sign language, could not form a part of the composite package.  However, as Mr Drabble submits in paragraph 4 of his skeleton argument in support of his Respondents Notice, if the person giving the attention to the deaf person has to do extra work, or take extra time, away from the attendant’s ordinary duties to help the disabled person that may be capable of being included in the attention which is being provided.  The question is very much one of fact and degree to be resolved at the initial hearing.”

9.	Mr Orr, in the course of his submission, referred me also to CDLA/16240/96, which is recorded at pages 194-200.  In that case, at paragraph 7 of her decision, Commissioner Heggs said:-

“Mr Heath addressed me at some length on which ‘attention needs’ fell to be included in the assessment for the purposes of section 72(1)(b)(i) of the Act.  I see no merit in my repeating the submission in full because the House of Lords judgments in Mallinson and Fairey given on 21 May 1997 gave guidance on the interpretation of the relevant terms.  Suffice it to say that in the Fairey case the Court of Appeal did, I believe, establish a principle that ‘if a person giving the attention to a deaf person has to do extra work or take extra time, away from the attendant’s ordinary duties to help the disabled person’, that may, as a question of fact, be capable of constituting qualifying attention.  For example the efforts required of another to initiate two way communication could count.  So too could an extra effort required of another person, not proficient in sign language, to comprehend and answer the claimant’s communications.  In the judgement of Swinton Thomas LJ at page 40 of the transcript (who agreed with Glidewell LJ at page 20) he held:

‘In my judgment, clearly a two way conversation between members of the family and/or others and the appellant, either in language which the appellant can lip-read or by sign language, could not form part of the composite package [of attention].  However, as Mr Drabble submits … if the person giving attention to the deaf person has to do extra work, or take extra time, away from the attendant’s ordinary duties to help the disabled person that may be capable of being included in the attention which has been provided.  The question is very much one of fact and degree to be resolved at the initial hearing.’

Those propositions were not, I think, criticised in the House of Lords.  Accordingly the DAT did not err in applying the law as stated in the court of Appeal judgment.”

I note that the Commissioner does not say that the House of Lords, who finally determined the appeal in that case, expressly approved the proposition, and I was not directed by parties to any of the speeches of the members of the House where it was expressly approved or material to the determination of the appeal

10.	Mr Orr also referred me to CSDLA/832/99 paragraph 13 where he said:-

“What will then be in issue is that which has to be provided over and above what would have been normal – in the case of hearing and in the absence of equally direct communication such as by fluent signing – namely the extra time and effort taken through such things as slowness, 
repetition or writing.”

He also referred me to CSA/721/00 in which Commissioner Parker said:-

“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, qualifies is capable of qualifying as attention.  However, 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.  But 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 agree share [sic] with Mr Commissioner Levenson’s view 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’. (para. 34 of CDLA/3433/1999) that a three-way conversation through an interpreter may be a reasonable requirement if significantly more efficient than attempting a two-way one.”

11.	Mr Brodie in his submission also helpfully sought to remind me exactly what constitutes attention in connection with bodily function.  He referred me to the speech of Lord Woolf in Mallinson v Secretary of State for Social Security 1994 1WLR at page 639 where His Lordship said:-

“The problem that Mr Mallinson has is that because he cannot see he does not know, in unfamiliar surroundings, where to walk or, for example, when crossing the road, when to walk.  His ability itself is unimpaired and if he can overcome his inability to see his mobility is also unimpaired.  He overcomes the lack of the bodily function of seeing which restricts his mobility in his home by memorising his surroundings and in surroundings with which he is unfamiliar by having the attention of a guide who can see the surroundings for him.  Mr Ouseley submitted, as Ralph Gibson L.J. concluded, that the attention cannot be in connection with the bodily function of seeing because Mr Mallinson cannot see.  I confess that initially I was attracted by this approach but on further consideration I am satisfied it is mistaken.  The only attention which can be given to a person ‘in connection with’ a s[l]ight [sic] handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight.  If, for example, a person with a sight handicap receives correspondence, someone has to read its contents to him if he cannot read it for himself.  That I would regard as being the active personal assistance which constitutes the attention which a normal person does not require which the subsection demands.  It would be inconceivable that Parliament intended that in those circumstances a partially sighted person should qualify for an allowance but in the same circumstances a totally blind person should not qualify.  Consistently with his submission, Mr Ouseley argued that, while a one-legged man who was supported when walking or standing if he received assistance from someone else would be receiving attention, the person who had lost the use of both his legs and was therefore pushed in a wheelchair rather than supported would not be receiving attention in respect of his bodily function of walking because he was incapable of performing the function of walking.  Such a result is obvious nonsense and does not cease to be nonsense because there is a different allowance which can be payable for lack of mobility.  The fact that your disability is so severe that you are incapable of exercising a bodily function does not mean that the attention you receive is not in connection with that bodily function.  The attention is in connection with the bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired.”

12.	It was submitted by Mr Brodie that, in the light of that authority and the other authorities referred to, attracting the attention of someone who is deaf can constitute attention.  He submitted that something such as a tap on the shoulder can be a service of the type envisaged if it overcomes the disability of being unable to hear, as it would enable the person who was deaf to have the realisation that someone was trying to attract their attention.  It was apparently accepted by Mr Brodie that, on the basis of the authorities, the additional effort of doing so was material in determining, depending upon the degree of onerousity on the person seeking to attract the attention of the deaf person.  It was his submission that the test of extra effort was the basis for that.  However, Mr Brodie in his submission accepted that he could think of no other area in the application of the statutory provisions relating to disability that extra effort on the part of the person who was providing the service was a material issue.

13.	Mr Orr relied upon the authorities which he cited for me, both in relation to the proposition that attracting attention of a deaf person to communicate with them amounted to attention in connection with the bodily function of hearing and in relation to what was said in respect of the extra effort required by the person seeking to attract the attention of the deaf person.  I put to him that it seemed that, certainly in respect of the concept of extra effort, the test was being looked at from the point of view of the person who is being asserted to provide the service, rather than the statutory condition which is related to the requirements of the disabled person.  Mr Orr accepted that point but said that it may well be that hearing by its very nature required this approach in respect that there was the need for the deaf person to be communicated with.  

14.	Having heard submissions and considered the authorities, I am not satisfied, on a proper analysis, that attracting the attention of a person who is deaf by means such as tapping is the kind of active personal assistance which the legislation envisages.  It does not seem to me obviously to be a service.  It is, in my view, simply a different method of attracting the attention of a deaf person to that which would normally, but not exclusively, be used unless the environment involved was exceptionally noisy, in relation to a hearing person.  It is not, in my view, personal assistance to the deaf person.  It is the prelude to a conversation, by whatever means it is conducted, between two people.  Even if I were wrong in respect of that, I have grave doubts about the concept that something which is “extra effort”, if such it be, constitutes attention, when otherwise it presumably would not be .  I doubt if that has any place in the operation of the statutory provision.  Attention is either provided or it is not.  If it is provided, it falls into the balance which requires to be weighed in respect of whether the quantity of attention reaches any of the required conditions for qualification of the care component.  If it is not attention, then it is not.  The comments of the Court of Appeal on this particular issue were obiter in relation to the attracting of attention of a deaf person.  In general terms, the case of Fairey was determined by the House of Lords and I was not drawn to anything in the speeches of their Lordships which dealt with this issue.  I am thus not persuaded that what was said by the Court of Appeal is binding, as the case was not finally determined by them.  The concept of extra effort otherwise appears to have been introduced by a number of Commissioners without reasoning the basis for it.  I consider that the logic is that the first step is to determine whether what is being done is a service or assistance of the type which the legislation envisages.  And it is upon an affirmative answer in respect of that, that the statutory provision falls to be applied from the point of view of what is reasonably required by the claimant, and not what requires to be provided by the person providing the service.  What is provided may go towards quantity, but it does not determine whether, in the first place, attention is or is not reasonably required.  Thus it may well be that, if a service or assistance is provided, the quantity may be minimal, and thus be disregarded in the quantification of attention reasonably required.  But it is wrong, in my view, to approach the issue from the point of view of the person who is rendering the service or assistance as opposed to those who receive the service or assistance.  

15.	The case goes before a freshly constituted tribunal.  That tribunal should follow what I have said on the issue of the attraction of attention by someone to initiate a communication with the claimant.  They will note the failing of the previous tribunal to deal adequately with social interaction, particularly in relation to the claimant’s sporting activities.  Mr Orr conceded that I should make a direction that the only issue in the case is the care component. 

16.	The appeal succeeds.

					(signed)						D J MAY QC
					Commissioner
					Date:  18 April 2002