CSDLA/281/96

The Office of Social Security and Child Support Commissioners
DECISION OF SOCIAL SECURITY COMMISSIONER
 
DEPUTY COMMISSIONER: W M WALKER QC 
Tribunal:
Tribunal Case No:
 
1. This claimant’s appeal fails. I find no error of law in the Edinburgh disability appeal tribunal decision dated 18 March 1996 such as to require my interference. The appeal is, accordingly, dismissed.
2. In 1992 the claimant was awarded the lowest rate care component and the lower rate mobility component of disability living allowance, in each instance for life. In August 1994, following and in light of the House of Lords’ decision in Mallinson (cited below) the claimant sought a review of the care component. The essential issue was the extent of attention required by the claimant in connection with her bodily functions consequent upon her blindness. The adjudication officer, in response both to that request and upon a further review, adhered to the original decision. The claimant appealed to the tribunal who upheld the adjudication officer. The claimant again appealed, with leave of a Commissioner, and thus the matter came before me.
3. In their decision the tribunal distinguished between some matters of attention which were consequent upon the claimant’s blindness and accepted them as counting towards possible qualification for the middle rate of the care component. Equally they rejected other matters, both in principle, and in any event because they would not have amounted to the frequent attention throughout the day required by section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992. The adjudication officer in a submission to the Commissioner resisted the appeal contending that the tribunal had reached a correct decision despite the widening of what could constitute "attention in connection with a bodily function" in respect of blindness as indicated in Mallinson v Secretary of State for Social Security [1994] 2 All ER 295 and the decision of the House in Secretary of State for Social Security v Fairey [1997] 1 WLR 806 whereby attention reasonably required in connection with enabling a claimant to carry out some social activity was declared acceptable. In order to explore the effect of these decisions in a case such as the present I directed an oral hearing in regard to her contention as set out in paragraph 6 of document 89 of the bundle.
4. At the hearing the claimant was represented by Miss Sue Willens, a welfare rights officer with the Edinburgh Advice Shop. The adjudication officer was represented by Mr Eric Brown, Advocate, instructed by the Solicitor in Scotland to the Department of Social Security. I am grateful to both for their helpful submissions.
5. To set the scene, I must turn first to the law as contained in said section 72. The lowest rate of the care component, in terms of sub-section (4), is appropriate where sub-section (1)(a) is satisfied. That means that a person must be so severely disabled physically or mentally either that he requires in connection with his bodily functions attention from another person for a significant portion of the day or that he cannot prepare a cooked main meal for himself if he has the ingredients. It is clear from the tribunal’s findings of fact that they confirmed the lowest rate upon the basis of the cooked main meal test - 72(1)(a)(ii).
6. The claimant’s case was that she satisfied the qualifications for the middle rate and in particular by satisfaction of sub-sub-section (b)(i) - that is the day attention test. I should note that neither the mobility component nor either of the night qualifications for the care component were or are in issue. The evidence before the tribunal was substantial in volume upon the amount of attention required by the claimant. It was all contended to be in connection with her bodily function of seeing. Thus there was evidence about her ability to cope with getting up, preparing breakfast, dressing, feeding and exercising her dog, dealing with mail, shopping, checking household requirements, cleaning and occasional social meetings. In particular help was said to be required in choosing clothing and making sure that it was clean, in regard to cooking and in dealing with correspondence and household bills. She needed assistance in regard to braille and in particular in having braille labels which she prepared attached to the correct tins. The evidence elaborated all this in some detail and the time involved in most of them was explored. The Mallinson and Fairey cases were discussed before the tribunal, although at that stage Fairey had not reached the House. The extent to which the claimant required help out of doors, as by identifying the correct bus and other matters, was also explored.
7. Arising out of all the evidence the tribunal, apart from findings about the history of the claim and the claimant’s condition of blindness - and a matter of an anxiety state which is not now relevant, found thus:-
"3. The appellant is unable to make a main meal and therefore requires assistance in this connection. She also is accustomed to having help from her home help in connection with shopping, ironing, sorting out laundry, storing food.
4. The appellant has panic attacks which occur entirely out of doors. She is apprehensive over cooking eg if she has 2 pans on a conventional cooker.
5. Any assistance the appellant gets from her home help regarding storing food with regard to braille labels and sorting clothing prior to laundry, these items of help will not take more than 2 hours in aggregate in a 7 day period".
I am satisfied that the tribunal were well entitled to make these findings based upon the evidence before them. Indeed that was hardly challenged before me. Miss Willens did submit that there were matters raised in the evidence which were doubtfully, at best, reflected within these findings. But, for the reasons which follow, they would not have influenced the result. I see no point in setting the tribunal decision aside for a re-hearing into matters which, as I am about to hold, do not fall within the ambit of the statute.
8. The tribunal’s reasoning on the issues now in question included this:-
"The tribunal carefully considered the submission and the evidence given by the appellant herself. They accept that the appellant was accustomed to having assistance in the manner described from a home help coming twice per week and the tribunal noted the comments made in the submission and the appellant’s own evidence regarding her needs. The tribunal did not accept the arguments regarding laundry and bodily functions and therefore do not come [sic] within the scope of an award of DLA.
Notwithstanding that view even if the time required for input in connection with storing food, checking sell by dates, applying braille labels, sorting clothes prior to laundering, they aggregated the total time may come to perhaps 2 hours in a 7 day period. On this footing the tribunal cannot accept that any point made regarding frequent attention during the day in connection with bodily function [sic]".
9. The grounds of appeal, at documents 68 and 69, open with a contention about the day supervision provision which, to be satisfied, requires proof of a need from another person of:-
".... continual supervision throughout the day in order to avoid substantial danger to himself or others ...."
In that regard it is contended that supervision is required throughout the day so that the claimant can avoid obstacles. Apart from that bland statement there does not appear to me to be in the file anything even beginning to make out a case of a requirement for supervision which was either continual or throughout the day. There does not seem, so far as I can find, to be any evidence of any incidents or near misses involving danger, far less substantial danger to the claimant. Given that he seems to be relatively little out of the house, that may not be entirely surprising. (I discount any risk that might have been thought to arise from a blind person trying to operate a stove because of course that risk has already been negatived by the ground of the award o the lowest rate care component). The next ground of appeal is that the attention needs were not fully taken into account. I have already adverted to that in part. But it is asserted that the claimant needs help with cleaning up after her guide dog and other spillage and in reading correspondence and dealing with household accounts. She needs, it is said, help with sorting clothes prior to laundering and with cutting and slicing food, checking preparation details on pre-cooked meals, checking sell by dates and storing and labelling food. Some of that was dealt with by the tribunal and assessed as not more than 2 hours in aggregate in a 7 day period. That was a matter for them based upon the evidence before them and nothing now said adds materially to that. I note, in this regard, what was submitted by Miss Willens to the effect that the home help could not read braille and nor could the claimant identify the foods to which the labels were to be attached. Nor could the claimant respond to warnings or other information written on the containers’ labels.
10. The next written ground of appeal is that there is only a home help for two days a week does not signify that the attention and supervision needs relate only to that period. There is an assertion about supervision being required throughout the day 7 days a week because of blindness. But more than that is required to qualify - namely that there must be some assessable danger, determined to be substantial, which can only be avoided by continual supervision throughout the day. No effort was made to flesh out that case and I cannot therefore sustain that ground of appeal.
11. I therefore come, now, to Miss Willens’ main contention, and the central point in the appeal before me. Leaving aside the tribunal’s assessment of the time involved, she contended that their rejection of consideration of the laundry and labelling operations as not within the scope of the statutory provisions was wrong. There were other items that should have been included - thus, correspondence and dealing with accounts.
12. Mr Brown first dealt with the written grounds of appeal and in particular the suggestion at document 76 that the claimant required supervision to avoid obstacles. Quite apart from what has been said above, I accept his submission that there does not appear to be any evidence before the tribunal about that and anything offered now comes too late. He then turned to consider what can properly be counted in law as amounting to attention in connection with the bodily function of seeing. He went first to the case of Garry a decision on file CDLA/11652/95 by Mr Commissioner Howell. That, said Mr Brown, was the high watermark of authority in favour of this claimant. That case concerned an adjudication officer’s appeal against a tribunal decision on the middle rate for daytime attention needs and the Commissioner dismissed the appeal. The adjudication officer had had two grounds of appeal, one upon the amount of attention in connection with seeing required for social and leisure activities, which case was withdrawn before the Commissioner. In the present appeal it was, equally properly, conceded that such matters could be counted although the evidence indicated that there was very little social or leisure activity involved and so the tribunal’s assessment could hardly by its addition have been got up to "frequent attention throughout the day". But upon the question of laundry, labelling and the like the Commissioner felt that the tribunal had been entitled to reach the decision which they did. He said, at paragraph 10:-
"The needs for attention which this claimant identified and the tribunal by and large accepted were not for someone else to take his laundry away, perform domestic chores or go out to the shops instead of him. His whole case was based on his need as a blind person to have the minimum assistance necessary from someone at his side to supplement his missing sight while he himself was struggling to do these tasks, and so lead as normal a life as possible".
The Commissioner went on to say that on the authority of the House of Lords’ decisions in Mallinson, and Fairey:-
".... such assistance to a blind person is now eligible to be taken into account, not in connection with the functions of eating, keeping clean etc, that were in point in the other line of authority, but in connection with his non-existent function of seeing. The weight to be attached to it in deciding what was reasonable and what should be accounted a "normal" life for this claimant to try and lead was a mater for the tribunal to assess, but it is not wrong in law to include such domestic "assistance to see". In the expanded universe for such claimant’s following the House of Lords decisions, I am unable to identify an error of principle in the decision of the tribunal".
Mr Brown then indicated that he would be inviting me to hold that the Commissioner’s decision in that case, wherein he had not had the benefit of verbal submissions, was not sound. He went through in some detail the well known series of cases which led up to Mallinson and Fairey - thus Regina v National Insurance Commissioner (AC) [1981]WLR 1017 (Packer’s Case): and Woodling v Secretary of State for Social Services [1984] 1 WLR 349 (Woodling’s Case). He drew my attention to the rehearsal of previous decisions on the same phraseology in the former attendance allowance legislation set out in Packer’s case at page 1029 of the report. He referred to Mr Commissioner Monroe’s decision CA/60/74 which confined the attention to be considered to that connected with the performance such of bodily functions as those:- 
".... which the fit man normally performs for himself".
Lord Denning MR at page 1022 in a familiar passage listed the essential bodily functions such as breathing, hearing and seeing and said that they were all functions which one normally would do for ones self:-
".... but they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties: or generally which one of the household normally does for the rest of the family".
In another familiar passage he pointed out that the issue was to be settled by the closeness or remoteness of the attention connected with the bodily function illustrating, at 1022G, the:-
".... doing for the disabled person what a normal person would do for himself - such as cutting up food, lifting the cup to the mouth, helping to dress and undress him at the toilet ...."
All of these attentions would qualify. But that would not include, he went on to opine, "buying food and cooking". Dunn LJ at 1025 endorsed the words of Mr Commissioner Monroe quoted above and went on to say that:-
"The line must be drawn somewhere. I think it should be drawn to exclude cooking which is essentially a domestic duty. Domestic duties such as cooking, housework and the like do not constitute attention within [the relevant] section". (1025/CD)
In Woodling the views of Dunn LJ and Mr Commissioner Monroe were again endorsed. Lord Bridge, at page 352, said:-
"First, it is clear that the policy underlying [the relevant] section .... stopped short of providing an attendance allowance for all who are incapable of looking after themselves without some outside help even if that help is frequently required. Very large areas of domestic work in respect of which the disabled are necessary dependent on others are deliberately excluded. If cooking is the one domestic chore which qualifies, it is, in a sense, the odd man out. [I interpolate that cooking was a central issue in that case].
Again, it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution".
He went on at the foot of the page to lay down the well known requirement that to qualify the attention in connection with the bodily function must connote:-
".... a high degree of physical intimacy between the person giving and the person receiving the attention".
13. Mr Brown pointed out that this line had been endorsed by Lord Woolf in Mallinson and that Dunn LJ’s approach was commended by him, at page 637:-
".... subject to one minor caveat and that is that "contact" need not be physical contact: it can be the contact established by the spoken word in the type of situations to which I will refer later".
Otherwise he went on again to endorse Mr Commissioner Monroe’s test. Mallinson, too, concerned a blind man and at page 641 Lord Woolf opined that guiding a person who was blind could be an attention in connection with bodily functions.
14. Finally in Fairey, or rather Cockburn, which was the twin case, deafness was the disability. The passages before rehearsed were endorsed and applied. At page 815 of the report it was indicated that attention could be counted if it were required to give entitlement to as normal a life as possible. Lord Hope of Craighead, in an important passage, as it seems to me, at pages 822 to 823, analysed the proceeding citations of opinion concluding with a reference to what was said by Mr Commissioner Monroe quoted with approval by Lord Bridge in Woodling, and having dealt with the particular physical problems of arthritis and urination in that case went on to say, about the distinction between the relevant and the irrelevant, or the remote and the close activities which can be counted for the purposes of assessing attention for the statutory purposes, this:-
"All the other help which she receives within the limited range of activities which a fit person normally performs for himself and which she cannot perform for herself, or can only perform with difficulty, due to arthritis, is relevant to her claim. But the help which she received with her extra laundry is help in connection with a task, such as cooking, shopping or keeping the house clean, which the fit person need not and frequently does not perform for himself. It is the kind of task which, when several people are living together in the same family can be done by one person for the rest of the household, the other members of which need not be present while it is being done although it is done for their benefit. It is too remote from the bodily functions which each fit member of the household normally performs for himself. In Mrs Cockburn’s case there is normally no-one else in the house where she lives, and the volume of laundry is much greater than it would otherwise be due to her incontinence. But I do not see these features of her case, although distressing, as altering the fundamental problem which affects this part of her claim, which is that the help which she receives is not designed to assist her in the performance of her bodily functions".
Mr Brown submitted that that really showed the divide between what was close and what was too remote. The test concerned what a fit person would normally do for himself as against that which in a normal household could be done by any member. It mattered not in Mrs Cockburn’s case that her household totalled one: the test was objective. In answer to a question he indicated that help for a blind person with personal correspondence could count but help with household accounts probably would not. Accordingly, he submitted this tribunal had come to the correct conclusion.
15. In response Miss Willens sought to persuade me that the activities in question, in particular the choosing, selecting or labelling of food and dealing with laundry and the like were just the sort of things that a fit person would normally do for themselves and would not be done within the household and that the claimant otherwise satisfied the close connection required. She founded upon the fact that Mr Commission Howell’s decision had not been appealed although the time for making one had almost expired. [I have to interpolate that Mr Brown informed me that the question of appeal was under active consideration]. Miss Willens referred to the four question postulated in Mallinson at page 642 by Lord Woolf as providing the test for satisfaction of the statutory conditions. I have to observe, however, that those four questions do not refer to the closeness/remoteness test founded on by Mr Brown and explained by Lord Hope. She also founded on a passage of Lord Slynn of Hadley’s speech in Fairey where, at pages 814 to 815, he rejected a contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is only merely desirable. He went on to formulate a test as to whether:-
".... the attention was reasonably required to enable the severely disabled person so far as reasonably possible to live a normal life. He is not to be confined to doing only the things which totally deaf (or blind) people can do and provided with only such attention as keeps him alive in such a community".
He then indicated that he meant that social, recreational and cultural activities fell to be included. He did not deal with the central point about what was too remote. It was not in dispute in this case that if the claimant had had a particular cultural activity then attention required to enable her to take part therein, could have counted. Miss Willens emphasised also the sorting of the laundry point. She submitted that the claimant required attention to allow her to do it and that the sorting had to be done in her presence and so it was something difference from what Lord Hope was considering. I regret that I do not think that to be correct. As I understand it Lord Hope was postulating an objective test based upon how households normally operate. It is not a subjective test. Here the claimant had to be present, no doubt, because there was nobody else in her household and she was dependent upon a home help. That was all part of the subjective situation. As I read the tribunal decision they were saying that sorting out clothes for laundry is normally done by one member for the whole household rather than by each individual. In my opinion they were entitled to come to that view on the proper objective approach. I accept that the determination of what was to be worn on any particular day would, on the contrary, introduce the necessary subjective element and so attention in that regard could have qualified. It is possible to make similar minor criticisms about dealing with food. Storing food, checking sell by dates and the like would normally not be done by individuals. On the other hand I would have thought that, because it involved the claimant herself so closely, the applying of braille labels to containers might have counted. But then there is the next question, namely whether, even if all these things had counted, they amounted to continual attention throughout the day. The tribunal assessed that they did not do so. That also was a matter for them. Their assessment cannot be said to be perverse. It is therefore not open to challenge in law. For all these reasons I find myself unable to interfere.
16. The appeal is disallowed.
Signed
W. M. Walker QC
Commissioner 
17 October 1997