DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s File No.: CSDLA 655 2002

1.	My decision is that the decision of the tribunal given at Hamilton on 24 May 2002 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 appeal came before me for an oral hearing on 16 April 2003.  The claimant was represented by Miss Stirton of South Lanarkshire Council.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Miss Anderson Solicitor, of the Office of the Solicitor to the Advocate General.  In the course of the hearing I adjourned it to enable Mr Bartos to obtain further instruction.  The hearing resumed on 28 April 2003.

3.	The claimant has appealed against the decision of the tribunal which is set out at page 62 and is to the effect that the claimant is not entitled to an award of the mobility or care component of disability living allowance from and including 13 October 2001.  Mr Bartos supported the claimant’s appeal.  He did so on two grounds.  I accept that there is merit in the appeal and that Mr Bartos’ support is well founded.  In these circumstances the decision of the tribunal is found by me to be erroneous in law and is set aside.

4.	The claimant in this case was born on 14 August 2001.  The tribunal in their findings found that she was born with no right eye and with a severely impaired left eye.  They also found that there had been surgery on her left eye and it was accepted that she would never have any vision.  There was also a finding that she had difficulty with her bowel but no finding was made in relation to whether there was any disability in that regard.

5.	In supporting the first ground of appeal it was Mr Bartos’ submission that the tribunal had applied the statute wrongly.  They said in their reasons:-

	“It was clear to the tribunal and fairly accepted by [the claimant’s appointee] that the starting point for any child of [N…..’s] age was one of constant attention and supervision.  Standing that starting point, being the yardstick of an average child of three months of age, the substantial excess could not be said to have been satisfied in this case.”

Put colloquially, the effect of Mr Bartos’ submission was that the tribunal had “put the cart before the horse”.  This is because Mr Bartos submitted that the tribunal had not, having identified the disability, made findings in relation to attention or supervision reasonably required by the claimant by virtue of her disability in accordance with section 72(1) of the Social Security Contributions and Benefits Act 1992 before applying the comparator set out in section 72(6)(b)(i).  It was accepted that (ii) would have no application in the circumstances of this case.  I am persuaded by that submission.

6.	The second ground of which Mr Bartos supported the appeal was the absence of adequate reasoning to deal with the evidence of Lorna Hall, a visual impairment support teacher set out at pages 60-61.  I am persuaded by that submission.

7.	The claimant’s third ground of appeal was in the following terms.

	“Regarding the decision presented to the tribunal CDLA/13284/96 the only observation the tribunal made was that it ‘related to a child of 2½  years’,  This is insufficient comment.  In this case the Commissioner endorses the principle that ‘playing’ is a bodily function for the purpose of the relevant legislation.  The fact that the tribunal have failed to point this out in their statement errs.  To simply dismiss the principle on the grounds that the case referred to a 2½ year old child errs in law.”

I accept that the reasoning of the tribunal in relation to dealing with that case is somewhat inadequate.  However I am satisfied after argument from both parties that Mr Commissioner Sanders was in error of law when he identified play as a bodily function.

8.	Miss Stirton relied on what was said by Mr Commissioner Sanders in CDLA/1324/96 before me.  She directed me to what he said in paragraph 4 of his decision.  In that paragraph he said:-

	“As to that, Lord Slynn in the Fairey case (page 9 of the transcript) said – 

		“I would not myself regard all of these as separate bodily functions.  Thus walking, sitting, getting in and out of bed, dressing and undressing are not, in my view, functions in themselves.  They are actions done by organs of the body, the limbs, fulfilling their function of movement.  This does not, however, affect the result that a narrow meaning of these words is not to be taken.”

	It seems to me that playing is a bodily function in the same sense as walking, sitting, dressing etc.  It is an action or series of actions carried out by the organs which are involved in the playing activity.  It is not to be rejected as a bodily function merely because the word “playing” involves a multiplicity of actions which are themselves bodily functions; it is a convenient shorthand.”

She relied particularly on the last sentence of the passage in Fairey from the Speech of Lord Slynn and the last sentence of the Commissioner’s own observations.

9.	Mr Bartos for the Secretary of State submitted that play is not a bodily function.  He indicated that the Secretary of State relied upon what I said in paragraphs 18-22 of CSDLA/867/97.  I print what I said in paragraphs 18-22 of that case as an appendix to this decision.  It is also recorded at pages 119 and 120 of the bundle.

10.	Miss Stirton’s response was that play was just a description of the use of a number of organs and could be regarded as a term to describe the use of organs.  She quoted from the speech of Mallison v the Secretary of State for Social Security [1994] 2ER 295 from the speech of Lord Woolf where he said:-

	“I note that section 35 refers to bodily functions, in the plural, and I recognise that the same result can be achieved by treating the assistance with walking required due to blindness as being in connection with both the bodily function of seeing and that of walking.  This is a possible approach.  But take the cutting of Mr. Mallinson’s food or the assistance with bathing which, correctly, in accordance with earlier decisions, are treated as attention.  There is nothing wrong with Mr Mallinson’s hands.  They function satisfactorily and still perform many functions without assistance he still cannot use them for these functions because they require sight.  In time he may well be able to do so but for the time being he needs help.  Therefore where, as is the case with blindness and other disabilities, such as deafness or paralysis, the function which is primarily impaired as a result of the disability can be readily identified.  I suggest that it is preferable to focus on that function.  So here, the assistance with cutting of food, with bathing and guiding would all be attention, which should be aggregated as being required in connection with Mr Mallinson’s totally impaired sight.  This is a more straightforward approach than seeking to link the attention with those different functions which he could perform perfectly but for his loss of sight.”

Although that passage appeared to run contrary to the submission she was making to me and involved a much more direct approach, she insisted that it was not inconsistent with the submission she was advancing.  I consider that it is.  Lord Woolf in his speech makes it clear that the proper approach is concentrated on the impaired function which is sight or seeing.  I also consider that the reference by Mr Commissioner Sanders to ‘convenient shorthand’ is also misconceived upon the basis that Lord Slynn had in his speech quoted with approval what was said by Lord Justice Dunn in respect of what constituted bodily functions which are related specifically to the normal actions of any organ or set of organs in the body.  Thus in this case seeing more accurately describes what the function is rather than an activity such as play which is not specifically a function but which involves the use of bodily functions in order to engage in it.

11.	Accordingly, the first direction that I make to the freshly constituted tribunal is that play is not a bodily function.  The Secretary of State conceded that bathing the claimant’s eye is such attention and in the light of that concession I direct the fresh tribunal accordingly.  During the course of the appeal I was referred to the evidence of Lorna Hall, the visual impairment support teacher.  It should be understood that it is evidence and there may be other evidence before the fresh tribunal in the case which either confirms or contradicts it.  There were however a number of matters in respect of advice given to the claimant’s parents in relation to what they should do in the raising of the disabled child.  In the letter it is said:-

“…. This advice includes:

•	not allowing her to lie unattended in her cot while wakened, but carry her around to introduce her to the world by tactile means
•	constantly stimulating her by varying the toys she is given (Liz has a large selection now, of appropriate toys for a visually impaired child, which she chooses with great care)
•	educating other members of the family in the appropriate ways of handling to ensure that [N] did not become “tactile defensive.

At present, [N] is not yet able to sit up unsupported, a skill that a sighted child will develop at 6-8 months.  To help her with this, Mum has to sit with her between her legs, gradually reducing the amount of support, introducing and changing toys that will entice her to reach forward instead of back.  This will have to be done several times a day.  The alternative is for [N] to lie on her back.  This at an age when a sighted child may be left in a pram to play with the toys around and to see the family as they move around.”

The Secretary of State in his submission considered that constantly stimulating the child by varying the toys she is given would constitute attention but otherwise the issues raised did not so constitute attention.  However, later in his submission, Mr Bartos conceded that carrying the claimant around to introduce her to the world by tactile means and what was required to enable the claimant to sit up unsupported were matters which would be open to the new tribunal to take a decision as to whether these were properly attention in connection with the claimant’s bodily function of seeing.  Miss Stirton submitted that all the matters raised constituted attention.

12.	I consider that carrying the child around to introduce her to the world by tactile means and what was involved to enable the claimant to sit up unsupported could properly be regarded as attention in connection with the bodily function of sight, if that evidence is accepted by the fresh tribunal.  Both these matters seem to me to be consistent with the approach taken by the Court in Cockburn and Mallinson, although the tribunal will have to make clear findings as to what is actually done.  It is not clear to me how constantly stimulating the claimant by varying the toys she is given could constitute attention for it is not clear to me what substitution is being provided in connection with the bodily function of sight.  I accept Mr Bartos’ submission that educating other members of the family cannot be regarded as attention in connection with the claimant’s bodily functions for that is too remote from the claimant herself.  It is possible that other factors could be raised in the course of the hearing but insofar as the case as it stands at the present is concerned the tribunal should follow the directions set out above.  There was mention of the claimant having a bowel problem though it is not clear to what extent there is a disabling bodily function and what attention in connection with such bodily function that is required.  The tribunal will have regard to any evidence that is led in respect of that matters.  In relation to the comparator referred to in section 72(6)(b)(i) the tribunal should have regard to and follow what I have said in paragraph 5.  They must also have regard to the qualifying period and whether any limit on the award should be made which might arise for example if they accepted that attention was required in relation to the claimant sitting up unsupported.  Clearly if that was regarded as attention it is not something that would subsist in the long term.

13.	The appeal succeeds.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  29 April 2003

APPENDIX TO CSDLA/655/02

From Commissioner’s Cases CSDLA/867/97 and CSDLA/840/97 decision given by Mr DJ May QC on 15 December 1998

“18.	What has caused considerable difficult in applying these statutory provisions to cases such as the present has been the question as to what “bodily functions” are.  Perusal of the authorities demonstrates that there have been 2 distinct strands of opinion.  These strands have frequently overlapped in the judicial application of the statutory provision s and the situation has accordingly become blurred.

19.	The 2 strands I think were best summarised in the same case:

“In Regina v National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 2 All ER Lording Denning MR said at page 741:-

	“ ‘Bodily functions’ include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in our out of bed, dressing, undressing, eliminating waste products – and the like – all of which an ordinary person – who is not suffering from any disability – does for himself.”

On the other hand at 742 Dunn L.J. said:

	“To my mind the word ‘functions’ in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions”.

20.	It is clear when considering Lord Denning’s list of what bodily functions include he has not only included what are properly function in their physiological or bodily sense denoting the normal actions of any organ or set of organs of a body which was Dunn L. J. a definition but also activities which are performed by virtue of the proper operation of bodily functions but which in themselves were not bodily functions.

21.	This was recognised by Lord Slynn of Handley in his speech in Cockburn  v the child Adjudication Officer and another and the Secretary of State for Social Security v Fairey (also known as Halliday) 1997 3 All 844 at 852 where he said in respect of the list set out by Lord Denning MR:

	“I would not myself regard all of these as separate bodily functions.  Thus walking,  sitting, getting in and out of bed, dressing and undressing are not, in my view, functions in themselves.  They are actions done by organs of the body, the limbs, fulfilling their function of movement”. 

The passage I have quoted from Dunn L.J. above was thereafter quoted with approval.  The analysis made by Lord Slynn of Hadley which I have quoted above appears, upon perusal of the other speeches in the case to have had approval of the other members of the House who sat on the appeal.

22.	I thus reach the conclusion that communication is an activity along the lines of walking, sitting, getting in and out of bed, dressing and undressing.  It is something which is achieved by bodily functions such as hearing, seeing, speaking and movement.  It was pointed out to me by Miss Willens that communication had been accepted as a bodily function judicially in cases which she cited to me.  Indeed in his speech in Fairey Lord Slynn had said:

	“Before Mr Commissioner Sanders it was not in issue, in the light of the decision of your Lordship’s House in Mallinson, that the attention required because of a claimant’s hearing loss is or may be attention in connection with the bodily function of hearing or communication.  The question was taken to be whether she reasonably require frequent attention throughout the day in connection with such bodily functions.”

Miss Willens pointed out that in the Court of Appeal in the case of Fairey, communication appears to have been accepted as a bodily function by virtue of the acceptance of what was said by Commissioner Sanders.  However it is to be noted that Mr Commissioner Sanders did say that it was not in question that “hearing or communication” is a bodily function.  Indeed that was the phrase which was repeated by Lord Slynn in his speech.  However the decision in the case of Fairey proceeded upon the basis that the bodily function impaired was hearing and the suggestion that communication is a bodily function does not fit with the definition of bodily functions which was given in Fairey.  Indeed Lord Slynn said at page 859:

“If the bodily function is not working properly that produces the disability which makes it necessary to provide attention.  The attention is provided by removing or reducing the disability to enable the bodily function to operate or in some cases to provide a substitute for it.  In the present case the bodily function is hearing, the disability is the inability to hear.”

Thus by virtue of the conclusion which I have reached the tribunal’s decision errs in law on these grounds also.”