CDLA 8167/95

The Office of Social Security and Child Support Commissioners 
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
COMMISSIONER P L HOWELL
Tribunal:
Tribunal Case No:
[ORAL HEARING]
  
1. The decision of the disability appeal tribunal given on 3 July 1995 was in my judgment erroneous in point of law and I set it aside. I remit the case to a fresh tribunal for redetermination under s. 23(7)(b) Social Security Administration Act 1992.

2. This is an adjudication officer's appeal against the tribunal's decision on 3 July 1995 awarding the care component of disability living allowance at the middle rate for life, retrospectively to 16 April 1992. The claimant has been blind all her life and is now aged 32. She has a five-day a week job as a telephonist; she and her partner (who himself is only partially sighted) have a small daughter now aged two, and their household is plainly the most admirable success story in not letting sight disabilities get in the way of a full and valuable family and working life. 

3. I held an oral hearing of the appeal. The claimant appeared and her partner acted as her representative. Jeremy Heath, a solicitor to the Department of Social Security, appeared for the adjudication officer. I should like to record my thanks to all three for their helpful and objective observations about the disability living allowance requirements for blind people: not least to the claimant herself for telling me among other things about self-threading needles, an invaluable sounding invention for blind and sighted people alike.

4. The claimant was awarded the care component at the lowest rate and mobility component at the lower rate from the start of disability living allowance on 6 April 1992, in each case for life. Those entitlements continue and are in no way disputed. They are based on acceptance by the adjudicating authorities that her blindness is a severe physical disablement by virtue of which she reasonably requires attention from another person in connection with one or more of her bodily functions for a significant portion of the day, and also guidance or supervision when out walking in unfamiliar places: ss. 72(1)(a)(i), 73(1)(d) Social Security Contributions and Benefits Act 1992. 

5. A review of her care component award was carried out in 1994 on the claimant's application, under s. 30(2)(d) Social Security Administration Act 1992. That permits earlier awards which would otherwise have remained final under s. 60 to be reviewed for "error of law". It was accepted, in my view rightly, that the occasion for such a review had arisen as the test applied in 1992 had been too narrow in view of the House of Lords decision given on 21 April 1994 in Mallinson v Secretary of State [1994] 1 WLR 630. 

6. In support of her application on 16 June 1994 (page T42) the claimant submitted a table (prepared I think with the aid of one of the excellent blind welfare organisations active in this area) giving details of the everyday situations in which she said she needed "attention". These included such things as helping her check that food in the kitchen was fit to eat, and that her own appearance was presentable; guidance using public transport and on social occasions; and help needed in various ways to make up for her lack of sight when shopping, dealing with correspondence and bills, general household activities, gardening and so forth. The adjudication officer declined to increase the rate of the award because he was not satisfied the requirement for frequent attention in s.72(1)(b)(i) was made out. On appeal to the tribunal the claimant relied on a further written submission saying that the application for review had identified at least 17 occasions through the day when attention was needed, and giving further examples such as helping her clear up after her guide dog since he is directly connected with helping her overcome her lack of sight. 

7. The tribunal accepted the claimant's submissions and awarded her the middle rate care component for life, backdating this for almost as long as disability living allowance had been in existence, to 16 April 1992. The record of their proceedings on 3 July 1995 (pages T70-T71) is not very long and I will quote it in full:
"1. Chairman's notes of evidence: The Presenting Officer relied on the written submission. [The claimant's representative] handed in to tribunal a written submission of the claimant. She said that the only element of the appeal was the one relating to a higher rate of care component. The claimant had a guide dog and needed assistance to clean the dog run. Needed to have help in brushing dog hairs off her clothing. Claimant said that she had no night needs.
2. Findings of the tribunal on questions of fact material to decision: The claimant is blind. Needs assistance in selecting clothes, to read mail and write. Cannot shop on her own. Need help in cleaning dog run and ensuring clothing was appropriate.
3. Full text of unanimous decision on the Appeal: The claimant is entitled to the care component at the middle rate from 16 04 92 for life.
4. Reasons for decision: The claimant is blind. She needs assistance to select clothing, to read mail and to respond to mail. Needs assistance to check food, to go shopping ie select food items, to ensure that clothing appropriate and to look after dog run. (House of Lords ruling of 21 04 94 considered and applied). The Tribunal accepted in the main the written submission handed in by the claimant's representative. It seemed to the Tribunal to fairly and properly reflect the law as applicable to blind persons."

8. Against that decision the adjudication officer appeals with the leave of the tribunal chairman, on the two grounds set out in the notice of appeal on page 74: that the tribunal had erred in law in deciding that assistance with domestic tasks was attention in connection with a bodily function, and in failing to give effect to s. 69 Social Security Administration Act 1992. The grounds of the appeal have been developed and amplified in later written submissions and by Mr Heath in his oral argument before me, but its kernel is really in those two basic points.

9. The matter first came before me at an oral hearing on 24 January 1996 when I decided after hearing argument that it had to be deferred, until more authoritative guidance had been given in the two appeals then pending before the House of Lords which became Bate v CAO [1996] 1 WLR 814 and Cockburn and Fairey [1997] 1 WLR 799. On the resumed hearing before me, the second ground of appeal about the backdating of the tribunal's award was rightly agreed to be correct in the light of Bate v CAO. As the reason for review of the claimant's award was an error of law disclosed by Mallinson, it has to follow that no increase of benefit awarded as a result of such a review could have any retrospective effect before the date of Mallinson itself, on 21 April 1994. As the House of Lords held in Bate, s. 69 Social Security Administration Act 1992 prevents such a review interfering with the principle of res judicata and the conclusiveness of the earlier lower rate award under s. 60 to any greater extent. For that reason if no other, the decision of the tribunal purporting to increase the benefit back to 1992 has to be set aside.

10. The real issue was whether the tribunal's approach to the evidence about this blind claimant's needs for "attention" was right in the light of Mallinson, Cockburn and Fairey. The argument centred on whether it was right for them to have taken into account the help she needs in the course of carrying out or taking part in the various everyday activities identified in her written statements. To counter the adjudication officer's objection to activities that involved the performance of "household" tasks she helpfully produced a supplemental list at page 85 aimed at showing that even if those were left out, her needs in connection with her own appearance and individual activities satisfied the requirements as to frequent attention. Guidance on to the bus or train to go to work, help cutting up food on her plate, and help to check that clothing and makeup were acceptable, were given as examples of attention that had nothing to do with domestic chores. 

11. On behalf of the adjudication officer Mr Heath maintained the earlier challenge to the inclusion of any help connected with domestic chores, on the ground that this was covered by earlier authority holding such assistance to be outside that reasonably required in connection with a person's own bodily functions. More fundamentally he relied on the requirement affirmed in all three of the recent House of Lords cases Mallinson, Cockburn andFairey, that assistance can only qualify as "attention" for this purpose if as well as being reasonably required it is of a close personal or intimate nature, even if not necessarily restricted to actual physical contact: see per Lord Woolf in Mallinson [1994] 1 WLR 637B. Mr Heath submitted that the importance of this point had been recognised and emphasised by the House of Lords so that while the established conditions for the benefit had been liberalised in some respects, they had not been relaxed altogether.

12. Two points that are not in issue can be cleared out of the way at once. First, it is not open to any doubt that seeing is one of the relevant bodily functions for disability living allowance. It was one of those expressly listed in Lord Denning's classic judgment in Packer's Case [1981] 1 WLR 1017, 1022C and as far as I know neither the Commissioners nor the higher courts have ever held otherwise. Thus for example if a person with a sight disability required personal attention in the form of help with putting in eye drops or contact lenses that has always been the kind of intimate attention accepted and brought into account, as attention in connection with the bodily function of seeing. 

13. Nor for many years past has it been open to doubt that "requires" for this purpose means "reasonably requires", so that a disabled person is not to be restricted to help with the bare minimum of activities needed to sustain life, or to "all work and no play". As Lord Slynn who gave the leading judgment in Fairey observed at [1997] 1 WLR 809H, this was stated in Ex parte Connolly [1986] 1 WLR 421 and has not since been questioned. (I think in fact that statement by the Court of Appeal did no more than reflect caselaw already well established by the Commissioners, as appears from the decision of Mr Commissioner Edwards-Jones QC cited with approval by Slade LJ at [1986] 1 WLR 423-424.) In Fairey itself, the House of Lords confirmed the application of this well settled principle to the case of a severely disabled deaf girl who without personal help would have been isolated from one of the most basic of human functions, communication with other human beings. Mr Commissioner Sanders had held and the House of Lords confirmed that it was right to take into account such attention for a reasonable amount of social interaction, on more occasions than just those necessary to maintain life itself.

14. Where the House of Lords in Mallinson did break new ground was in holding that "attention in connection with his bodily functions" extended not just to the giving of practical help to a disabled person in the performance of those functions he still does possess (as in Mr Commissioner Monroe's formulation in CA 60/74, cited and approved in Packer [1981] 1 WLR 621E and often since) but also to help "with" a function that for him is actually non-existent: such help being given by providing a substituted or compensating way of dealing with the difficulties caused by its absence, and extending in the case of a blind person to giving guidance by steering him in unfamiliar surroundings. Thus Lord Woolf includes, as attention in connection with the absent function of seeing, acts by another person which he described as "acting as Mr Mallinson's eyes, doing for Mr Mallinson what he could not do for himself, which was to see where he was going": [1994] 1 WLR at 635B; affd. Fairey, per Lord Slynn [1997] 1 WLR 813E.

15. As recognised in Fairey in which this was considered and affirmed, the kinds of help that may be given in this way are potentially very much wider and more difficult to define, especially where the disability is the loss of a perceptive or cognitive function, than the kind of help identifiable as given in connection with a more basic reduced or impaired function such as ingestion of food, excretion or locomotion. Lord Slynn identifies two main conditions for determining the proper scope of the benefit: the attention concerned must be reasonably required, and the activities for which it is required must be activities which are part of normal life: [1997] 1 WLR 814H-815D. How much attention is reasonably required, and how frequently it is required, are questions of fact for the adjudication officer (ibid.), and thus for the tribunal on appeal, to determine.9. Those propositions are of course beyond dispute.

16. It is also beyond dispute that uniformity of treatment in this area is important and the tests are to be applied in a straightforward manner so as not to give rise to any justifiable sense of grievance between claimants: Packer [1981] 1 WLR 1022F per Lord Denning; Mallinson [1994] 1 WLR 642B per Lord Woolf. With two such broad value-laden concepts as "reasonable" and "normal" to apply at once this is of course easier to say than carry into effect: cf. the different results reached by tribunals in cases CDLA 11652/95 and CSDLA 281/96 without either being held to have erred in law. 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 by Mr Heath on behalf of the adjudication officer, of being a service involving close personal contact or intimacy. The House of Lords has not said, and cannot have meant, that all the help a blind person reasonably needs in the course of trying to lead as "normal" a life as possible counts as attention and therefore towards getting the benefit. Were that the case all blind people would qualify for the middle rate care component at least. In a more generous system that might be desirable but under the law as it is the help that can count as "attention" is, for blind people as for all the disabled, far more restricted.

17. The earlier authorities that lay down this principle are too well known to need setting out again here: the most important statements of it are to be found in Packer, per Dunn LJ, [1981] 1 WLR 1023F; Woodling v Secretary of State, per Lord Bridge, [1984] 1 WLR 348, 352G; and Mallinson, per Lord Woolf, [1994] 1 WLR 635D, 637B-D. It is reiterated by Lord Slynn in Cockburn and Fairey at [1997] 1 WLR 808A-809H, though he disagreed on its application so that for the most authoritative and up to date guidance it is necessary to look outside his judgment, to those of the other four Lords who formed a united majority on this point. I do not think it can be better stated than in the following succinct passage by Lord Clyde at [1997] 1 WLR 824C-E:
" I would stress that the attention which is desiderated in connection with the bodily function must be some close and intimate service to the person of the claimant. The service is narrower than that of assistance. Assistance would cover activities done for the person. Attention implies services done to the person."
Such services have almost by definition to be carried out (with minimal exceptions) in the presence of the disabled person, but that this alone is not enough is made clear by Lord Goff at p.802B: "the mere fact that it is performed in the applicant's presence is not of itself a qualification." Personal closeness and intimacy are essential too.

18. With this in mind it becomes possible to see that many of the submissions on behalf of blind claimants in this and other cases, and the tribunal in the present case, have been addressing only part of the question. If you have to tell another person they have gravy on their chin this is not an act of close personal contact or intimacy, whether they are sighted and have forgotten to look in the mirror or are blind and unable to do so. The required closeness of contact or intimacy only comes if the degree and nature of the disability means that you also have to do something like guiding their arm or standing over them to help with the applying of a wet cloth to their face, without which they could not reasonably cope with such a personal thing for themselves. Steering a blind person across the road or on to a bus or helping them to read their own correspondence all count, as these actions have been accepted by the House of Lords to involve the required degree of contact or intimacy beyond what is ordinary between adult human beings apart from the disability. So has enabling a deaf person to conduct a conversation with someone else by taking part in it for them as an interpreter. Again the help involves what would ordinarily be an intrusion into the personal space and privacy of the individual. On the other hand merely telling a blind person about their appearance, helping them choose matching clothes to put on, helping them locate things they have put down somewhere, telling them whether the carpet is hoovered properly, a picture hung straight or the windows smeary, all things readily acceptable as reasonably required to help deal with their disability in the course of leading a normal life, are not things that appear to me self-evidently to have the special character of personal contact or intimacy which the House of Lords has expressly confirmed is essential for "attention".

19. For that reason I accept Mr Heath's broader submission that the tribunal in this case erred in law by not sufficiently addressing whether the items of help they took into account met the special test for "attention" as well as being reasonably required. I reject the narrower way the point was originally put in the notice of appeal, that it is automatically wrong to take account of personal attention when it happens to be rendered in the context of some domestic activity. On this point I prefer the approach in cases CDLA 267/94 para 5, CDLA 11652/95 para 10 and CDLA 15444/96 paras 4-5 to that in CSDLA 281/96 so far as they differ. As the Commissioner says in CDLA 15444/96, the point at issue is different from whether housework done for someone else is attention. Here what matters is attention to the blind person in connection with seeing, and even in a domestic context "... if it is rendered ... in such a way as to assist him to carry out the activity himself it could count" (para 5 ibid; my emphasis). That must be right: to hold following Fairey that the things a blind person can be assumed to be doing when requiring close personal attention should be restricted to all play and no housework would be absurd. Whether something has the character of "attention" must depend on the nature and quality of the service itself. When and how often it is reasonably required falls to be considered only when that question has been answered.

20. There are of course converse examples where close personal attention of the most immediate kind is undoubtedly needed by a blind person for an activity but still cannot be counted as it fails Lord Slynn's test of being required for the leading of a normal life. Special help required for a blind person to go mountaineering, windsurfing or parachute jumping must be left out of the reckoning for this reason. While it is not abnormal or unreasonable in the general sense for a blind person to want to try such experiences this inquiry is concerned with the relatively mundane everyday aspects of functioning as a human being in ordinary life: see the everyday activities referred to in the passages cited with approval by Lord Woolf in Mallinson at 636D, and 641G where he explicitly holds that "extreme situations" are not to be brought into the reckoning.

21. For those reasons, and because I do not consider that the present evidence has established the requirement of close personal contact or intimacy as regards more than a small number of the items of help put forward (so that if I gave the final decision myself it would have to confirm the original assessment as to a "significant portion of the day" only) I remit this case for rehearing before a fresh tribunal. I direct them to reconsider whether the requirement for "frequent attention" is met, applying the criteria laid down by the House of Lords as I have sought to illustrate them above, and the claimant will thus have the opportunity to amplify or re-focus her evidence to meet them so far as she can.

Signed
P L Howell
Commissioner 
27 November 1997