[2006] UKSSCSC CDLA_1466_2005 (19 June 2006)
CDLA/1466/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  This appeal is brought with the leave of a commissioner from a decision of the Wolverhampton Appeal Tribunal given on 15 October 2004.  For the reasons given below, the appeal is dismissed.  

2.	  The decision under appeal before the tribunal was the decision of a decision maker dated 27 September 2002, which had been reconsidered but not revised on 19 December 2002. The tribunal confirmed the claimant’s award of the lower rate mobility component and the lowest rate of the care component of disability living allowance.  There was no suggestion that the claimant was entitled to any higher rate of the mobility component.  The appeal turned on the claim that she was entitled to the middle rate of the care component.  A previous tribunal had dismissed the claimant’s appeal, but that decision was set aside by Mr. Commissioner Bano on the grounds that the tribunal had made inadequate findings of fact.  Mr. Commissioner Bano stated as follows (CDLA/1578/2004):

“4. …. Although ‘communicating’, as such, is an activity rather than a bodily function, assistance given to a person to overcome difficulty in communicating resulting from mental impairment may properly be regarded as attention in connection with a bodily function.  The claimant stated in the claim form that she needed assistance in communicating with others due to a learning disability, and the need for such assistance was specifically mentioned as one of the grounds of the appeal.  However, it does not appear to have been specifically dealt with by the tribunal, and I therefore consider that their decision was erroneous in point of law.
………
6.  In relation to assistance required to communicate, the new tribunal will need to consider whether any assistance which the claimant reasonably requires in order to communicate is attention which is required in connection with a bodily function.  The tribunal will be entitled to find that such attention is required in connection with a bodily function if the claimant’s ability to communicate is impaired by some identifiable mental or physical disablement, since in that case the relevant bodily function in connection with which the attention is required will be the function which is impaired by the disablement.  However, since ‘communicating’ is not by itself a bodily function, help in communicating can only be counted as attention for the purposes of disability living allowance if it is possible to identify some bodily function in connection with which help in communication is needed.”

3.	  The claimant has learning difficulties as well as problems with her mobility, as a result of which she sometimes falls and needs help with bathing.  The problems before the tribunal were as to the nature of the claimant’s learning difficulties, and their effect on her care needs.  It was accepted that the learning difficulties were such that the claimant could not prepare a cooked main meal for herself if she had the ingredients and that she needed guidance or supervision on unfamiliar routes.

4.	  An outreach support worker described the consequences of her learning disability (file, p.18).  She stated that it led to the claimant needing regular support with shopping, assistance with medical appointments, writing shopping lists, reading letters, forms, catalogue items, etc.  She also needed support with money management and help with payment of bills.  The claimant herself stated at pp.35-37 that she needed assistance to communicate with others due to her learning disability, and that she needed assistance with money management, with reading and understanding letters, with choosing clothes and filling in forms, and in ensuring that bills were paid.

5.	  By letter dated 20 November 2002 (p.46), a welfare rights officer confirmed that the claimant had these needs as well as supervision requirements as a result of her propensity to fall.  In seeking a domiciliary hearing for the first tribunal appeal, letters were also written describing the claimant’s agoraphobia following a road traffic accident in late 2002, and a fall in her kitchen in December 2002.  The claimant was also said to be suffering from panic attacks.  These developments were after the date of the decision under appeal, and the agoraphobia and panic attacks could not, therefore, be taken into account by the tribunal on this appeal.

6.	  A care plan for the claimant is in evidence at pp.64-67 of the file.  She took four different kinds of medication, in each case of one tablet taken once a day, which she took herself.  Despite medical advice, her diet was unhealthy.  She was aware of general health and safety rules around the home.  She had help with her bills and mail.  She received home help twice weekly for support with household duties, and received assistance with bathing twice each week.  She had a pet dog which she cared for herself.  After October 2003, her agoraphobia had improved and she enjoyed going out shopping most days and would often push her trolley to buy “extra bits”.  She also got on well with her neighbours and her step-mother, generally had a reasonable social life, and took her dog for walks.  I infer that, as there is no suggestion that her learning difficulties had improved, these observations applied equally in September 2002, before the accident which had made her agoraphobic.

7.	  The issue of the impact of the claimant’s intellectual impairment and ability to communicate on her care needs, other than by virtue of the cooking test, does not appear to have been argued before the first tribunal and was only raised by Mr. Commissioner Bano when giving leave to appeal against the first tribunal’s decision (p.83).  Written submissions on the claimant’s behalf at pp.69-70 refer to the claimant’s learning disability as moderate, and in relation to care asks only that the tribunal consider the middle rate as the claimant needed constant supervision due to her propensity to fall.  Even the grounds of appeal on that occasion did not raise any issue as to the claimant’s intellectual impairment (pp.78-79).

8.	  Before the new tribunal, additional written evidence was put forward from a community nurse on an adult learning disability team (pp.184-186).  Her report was prepared in consultation with a consultant clinical psychologist.  She described the claimant as a 58 year old woman who has a moderate learning disability.  She lived alone in a council tenancy, and received support from both health and social services to enable her to live independently.  The letter continues:

“[The claimant] has good expressive communication skills.  However, her general level of understanding and awareness is impaired due to her learning disability.  [The claimant] is able to correctly state how she should manage a situation, but doesn’t clearly consider the implications of her actions, which are at times inappropriate.”

9.	After dealing with the claimant’s physical health and her anxiety and panic attacks, the letter continued:

“[The claimant] requires support, encouragement and supervision to carry out domestic activities.  She has a paid carer to help with household chores, and for assistance to take a bath twice a week.  [The claimant] requires full continuous support from outreach staff for money management, budgeting, shopping, and dealing with correspondence.  In particular [the claimant] needs help with domestic bills as she does not fully understand the implications of not making payments.  In the past outreach workers have had to respond to reminders and court summons.

…. [The claimant] requires support and encouragement to prepare healthy meal options which are crucial in managing her health complaints.  [The claimant] requires her medication to be dispensed in a dosset box.  [The claimant’s] general safety and wellbeing are at risk due to her learning disability… She has to be persistently reminded to lock windows and doors.  She routinely opens doors to strangers… She has been reported to have left food cooking in the oven, while she has been out of the house and more recently due to dispensing error by a Pharmacist, [the claimant] started to take medication she was no longer prescribed as she did not realise this was a mistake.  … 

Outside the Home … she grabs onto people, cars, and objects such as refuse bins and fencing, for security…  [Her] circumstances have deteriorated over the past 4-5 years… She is now relying on support from several professionals within the learning disability service eg. Outreach workers, Nurses, Psychologists, Occupational Therapists and Falls Prevention and Safety Officers.”

10.	After hearing oral evidence from the claimant and from the community nurse and a key worker, the tribunal dismissed the appeal.  In the statement of reasons, it is stated in relation to the claimant’s learning difficulties and other alleged care needs:

“When dealing with a condition labelled “learning difficulties” it is necessary to be very careful to separate bodily functions from cognitive functions, which do not fall within the scope of the DLA criteria.  It is clear from the evidence received that the claimant has no problem with communication per se (not in itself a bodily function anyway), and that the alleged help in this regard is not necessary.  The problem outlined by her carers, namely a general inability to totally understand the full meaning or consequences of what is said to her, or what she herself is saying and doing, fall in our view within the scope of cognitive functions, and this aspect of appellant’s problems do not [sic]assist her in this appeal.  Turning to her other difficulties, there is clearly a shortage of qualifying bodily function care needs.  She has assistance with bathing twice a week, and we do not accept that in the absence of any physical problem making it desirable, daily bathing is reasonably required… It is by no means the norm.  The rare incidence of falls is not enough, particularly in the absence of any indication that they are due to a physical or mental disablement, to assist with a need for supervision by day or night for the avoidance of danger.”

11.	The findings are attacked on this appeal as being in error of law on four grounds.  First it is said that the tribunal failed to identify the impaired ‘bodily function’ and the attention that was required in consequence.  The answer to that appears to me to be that the tribunal concluded that there was no impaired bodily function.  For the reasons given below, I consider that the tribunal was correct in this conclusion, and that it is not correct to categorise the operation of the claimant’s brain as a bodily function for this purpose.

12.	Secondly, it is said that the tribunal was wrong that the claimant’s problems with understanding fell within the scope of ‘cognitive functions’.  Again, for the reasons given below, I consider that the tribunal was right in this respect.  It also appears to me that most of the attention which the claimant received is not of the close personal kind which could count as being in connection with bodily functions.

13.	Third, it is said that the tribunal erred in considering the required supervision outdoors purely in relation to the mobility component, and that it should have made findings as to the claimant’s general need for supervision which took this supervision into account, with detailed findings as to its extent and duration daily.  As to this, I accept that supervision out of doors might count towards care needs.  However, supervision or guidance is different from attention in connection with bodily functions, and in any event, the evidence was that the claimant could walk out of doors on familiar routes without supervision.  There is no evidence of any significant need for attention in connection with bodily functions when walking out of doors except in relation to any propensity to fall, which the tribunal dealt with.

14.	Finally it is said that the tribunal failed to deal with and explain contradictions in evidence between the claimant and her carers who gave evidence that the claimant would say that she coped because she was worried that if she was open about her difficulties, she may be forced to leave her house and live in a residential setting.  No specific contradictions are identified, and the tribunal appears to me to have accepted the evidence of the claimant’s carers as to her attention needs.

15.	The first issue for the tribunal, under section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992, was whether the claimant was so severely disabled physically or mentally that, by day, she required from another person frequent attention in connection with her bodily functions.  Contrary to the way in which the claimant’s representative puts his contentions, there is no requirement for a bodily function to be impaired for attention to be required in respect of it.  The problem which gives rise to the need for attention can be a mental disability or some other physical problem.  In the present case, there is no doubt that the claimant has a mental disability.  The questions to be asked are as to the nature of the attention she needs as a result.
 
16.	In the present case, the attention needs of the claimant that have been identified by her carers relate for the most part to such matters as dealing with household bills, money management, budgeting, correspondence, household chores, preparation of meals and shopping.  None of these items, if totally dealt with by another person, could amount to attention in connection with bodily functions because they lack the requirement of close physical intimacy and of doing something that a person would normally do him or herself rather than something that any member of a larger household might do.

17.	It is unclear from the evidence how far these activities are carried out for the claimant, and how far time is spent getting her to deal with them herself.  It is only to the extent that the carers were spending their time helping the claimant to do these things herself that any question could arise of the sort raised by the claimant’s representative.  If I had concluded that anything more than a minimal amount of the time so spent could be attention in connection with her bodily functions, I would have set aside the decision of the tribunal and been obliged to remit the case to yet another tribunal for this to be investigated.

18.	Despite the direction of Commissioner Bano that it was necessary to identify a bodily function in connection with which help in communication was required, no bodily function has been identified except brain function or cognitive powers.  Three of the cases cited by the claimant’s representative hold that help in connection with cognitive powers is not help in connection with bodily functions.  

19.	In addition, in R(DLA) 3/03, Mr. Commissioner Howell considered the situation of a person with Asperger’s Syndrome as regards communication problems.  He stated:
“13.  … While not disputing that communication may better be described as an activity rather than a bodily function so far as it is necessary to draw a semantic line between the two, I think it preferable to construe the phrase “attention in connection with bodily functions” as a whole and by reference to its practical application, as it seems to me Lord Denning did in the judgment in R v .National Insurance Commissioner ex p Secretary of State [1981] 1 WLR 1017, 1022 (the Packer case), which is normally taken as the starting point for an analysis of the decisions in this area.
14. As the tribunal correctly recorded, the reason why a deaf or blind person may be able to have the help he needs in communicating with other people taken into account as qualifying him for this benefit is that he needs that help because of some bodily function that is not working properly or is absent. The tribunal found that not to be the case with this claimant, and that finding appears to me incontrovertible: it was not in fact challenged at all by Mr Powell. If a person is in fact able to communicate with other people for themselves without assistance, it is in my judgment too far removed from the bodily functions involved in communicating to say that they satisfy the statutory conditions because they are or may be different from other people in the messages or ideas they do or do not wish to communicate, or the uses to which they do or do not put their ability to communicate in terms of establishing relationships, empathy or modulation of behaviour and interaction with other people. Still less does it seem to me arguable that a need for help with what are referred to as “communication skills” in the employment sphere, namely an ability to marshal and deploy relevant ideas and persuade others to one’s point of view (which was one of the aspects put forward here) can be matters taken into account as “attention in connection with bodily functions” for the very limited purposes of these disability benefit criteria.”
20.	There is nothing in the evidence which suggests that the claimant needed or received attention in connection with any bodily function by reason of the help she was receiving dealing with her household chores or other daily activities.  The only matter referred to by Mr. Commissioner Bano in giving leave to appeal on this occasion is that it was arguable that the tribunal erred in law in holding that assistance required by the claimant to understand what was being said to her was not attention required in connection with her bodily functions.

21.	As to this, I am unable to understand what distinction there can be, with regard to difficulties of comprehension, between the position of this claimant and somebody with Asperger’s Syndrome.  Both are limited by reason of their mental disability in their capacity to understand and communicate.  Both may need help in this respect 

22.	If the claimant were right in her submissions, then any mental disability could be regarded as attributable to the bodily function of the brain and any attention reasonably required as a result, provided it was of a sufficiently close and personal kind, would qualify as attention under section 27.  I do not consider that “bodily function” can be so widely interpreted.   While it is clear that any mental disability can be said to have as its cause the fact that the brain is not functioning properly, section 72 draws a clear distinction between mental and physical disabilities.  Attention in relation to the brain by, for example ensuring that a schizophrenic claimant took appropriate medication, would be in connection with bodily functions.  But I agree with Mr. Commissioner Howell QC that attention given in respect of cognitive deficiencies, which the claimant’s problems clearly appear to be, cannot be described as attention in connection with any bodily function unless there is something else, which is a bodily function, in respect of which the attention is given.  For example, if a person does not understand the importance of eating or hygiene, or is too depressed to eat or wash, then encouragement to do so is attention in connection with those functions.

23.	The claimant’s representative has referred me to three decisions in which reading has been held to be a bodily function.  In one case the problem arose because of pre-lingual deafness, and in the other because of dyslexia.   

24.	In CDLA/5399/1998, I found that help with reading was help in connection with a bodily function which was impaired because of deafness.  In that case I stated:

“28.  In my view, there is another approach, which I prefer.  In Fairey, Lord Slynn, with whom the other members of the House of Lords agreed, stated at [1997] 3 All ER 858f

“Although movement of the limbs (including their use for walking and running) is a bodily function, so also in my view is the operation of the senses.  The reception of sound, its communication to the brain and the brain’s instruction to the limbs or other parts of the body to act or refrain from acting are all as much bodily functions as the movement of the limbs and the actions of the digestive or excretory organs.”

29.  Lord Slynn went on to quote with approval the words of Dunn LJ in Packer’s case [1981] 2 All ER 738, at 742 that “the word “functions” in its physiological or bodily sense connotes the normal action of any organ or set of organs of the body, and so the attention must be in connection with such normal actions.”  

30.  Many functions involve both cognition and other factors.  It is possible for the eye to see, but for the brain not to be able to identify properly what is seen, leading for example to a person not being able to tell the difference between one face and another.  That would not in my view lead to the conclusion that the claimant’s problem is to be categorised as cognitive, and therefore not in relation to a bodily function.  Even the act of cutting up food involves a degree of cognition.  So too, reading involves both physical and cognitive aspects.  The pre-lingually deaf have problems reading, not because of any damage to their cognitive faculties, but because their normal cognitive faculties cannot respond to stimuli they do not receive because of their deafness.  In my judgment reading is a bodily function in that it is an activity, like walking, carried out by a combination of brain and body.”

25.	Another approach, by Mrs. Commissioner Parker in CSA/721/00, was to hold that the attention needed to explain to a deaf claimant what was in a document and to help him formulate a reply was in connection with the bodily function of hearing.  

26.	In CDLA/101/1997, Mr. Commissioner Sanders considered that reading was “the end product of the bodily function of brain activity or cognition just as dressing might be said to be the end product of brain activity and movement of limbs”.

27.	 If and insofar as Mr. Commissioner Sanders considered that brain activity alone was a bodily function so that attention in relation to any mental disability was attention in relation to bodily functions, then in my view that decision is incompatible with R(DLA) 7/03 and I am not prepared to follow it.  It is unnecessary for the purposes of this appeal to embark on any further question as to the extent that attention given to a deaf person counts as attention in connection with bodily functions and the reasons for it, since it is clear that the claimant in this case has no identifiable bodily function in relation to which she requires attention.

28.	In any case, even if there were a relevant bodily function in relation to which all or some of the alleged attention was provided, it is necessary to identify attention which is sufficiently close and personal to be capable of being in connection with a bodily function.  The attention identified in this case could only count if it was help reasonably required by the claimant to enable her to do the things to which it was addressed.  Doing domestic cleaning for the claimant, or doing her shopping, or writing out shopping lists for her, for example, would not count.

29.	There is nothing in the evidence before me to suggest that the matters referred to by the claimant’s care workers involved help to the claimant to get her to do domestic chores, or sort out her own finances or do anything else for herself.  It is possible that there may have been a few areas where help might have been given in this way, and I would have been prepared to remit the case to a new tribunal had I thought that there was any prospect of establishing both that there were sufficient areas of attention that were sufficiently close to be able to count as in connection with a bodily function and that there was a relevant bodily function in connection with which the attention was reasonably provided.

30.	There is also nothing in the evidence before me to suggest that there would be any prospect of showing that attention of the kind described, even taken with the other limited help which the claimant needed, could amount to attention frequently throughout the day.  Thus there is no suggestion that the claimant was frequently visited throughout the day or that she reasonably required frequent checking throughout the day.

31.	The further point raised by Commissioner Bano in giving leave is whether the tribunal adequately reconciled the evidence of the community nurse, the key worker and the claimant.  There was evidence in general terms from the community nurse in particular that the claimant would not admit to her problems because she was afraid that she might have to move into a residential home.  However, I can find no conflict between anything said to the tribunal by the claimant and anything said by the community nurse or the key worker.  So far as the taking of medication is concerned, the key worker believed that at the relevant time the claimant could have coped with her medication unaided, and even at the time of the hearing the claimant could self-medicate provided the tablets were placed in a dispenser for her.  There is no suggestion that the claimant did not look after her dog properly except for hearsay evidence of one occasion when the claimant forgot that she was cooking chicken in the oven for her dog until the chicken was ruined.  There was evidence from the community nurse that the claimant went out on familiar routes alone and did her own shopping.

32.	By contrast, the evidence of help being given to the claimant was help twice a week with household chores, help as to bathing twice a week, and help with such matters as paying bills, and understanding letters, which as far as I can tell from the evidence would have essentially meant bills and other communications relating to household expenditure and money management.  She might also need help if visited by a workman, for example to know what to pay him, and when.  She would need help in unfamiliar surroundings, but no suggestion that this was a common occurrence.  There is nothing in all this to suggest that help  was needed daily, let alone frequently throughout the day, and for the most part the help needed could not qualify as attention in connection with the claimant’s bodily functions.

33.	In my judgment the tribunal came to the only possible conclusion that it could have come to on the evidence before it, and I dismiss the appeal.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		19 June 2006