Scottish Court of Session Decisions

[1] This is an appeal by Margaret Stewart, as appointee of her son Isaac, who was born on 26 July 1987. On 8 May 1996, she applied on his behalf for a Disability Living Allowance, the disability being described as "Chronic Asthmatic - Bed Wetter". The present appeal relates to refusal of the care component of the application so far as attention at night is concerned. In particular it concerns the appointee's actings in dealing with Isaac's bed wetting at night. The requirements for qualification for the component mentioned, so far as material to his application, are specified in section 72(1) of the Social Security and Contributions and Benefits Act 1992, which provides:

The present appeal is concerned, and solely concerned, with the meaning of "attention in connection with his bodily functions". In particular it is not concerned with what is required either by way of disablement or to qualify attention as prolonged and repeated in terms of the statutory provisions concerned. For present purposes we simply assume that these requirements were met. The phrase with which this appeal is concerned was first put in issue in the case by the Commissioner, who allowed the appeal made to him on other grounds but refused the application expressly because there was no "attention in connection with his bodily functions" on the Tribunal's findings in fact. The terms of the Tribunal's findings in fact were:-

[2] Isaac's mother takes 20 minutes to attend to him when he wets the bed".

The Commissioner's decision, so far as relating to the sole matter with which we are concerned, was in the following terms:-

[3] Mr Mitchell, for the appellant, submitted that the Commissioner had erred in law in his decision on the point now in issue. In particular, the Commissioner sought as the basis for his decision to found on a passage in the speech of Lord Hope of Craighead in the case of Cockburn v Chief Adjudication Officer and another [1997] 1 WLR 799 (H.L.)), overlooking the fact that the other four judges in the case adopted a different and wider approach than that of Lord Hope in the passage founded upon by the Commissioner. Furthermore, the Commissioner wrongly attributed as relating to the case of Cockburn a passage in Lord Slynn's speech which related to a deafness case which the House heard at the same time as the case of Cockburn. In the result, Mr Dewar, for the respondent, stated that he could not challenge what Mr Mitchell submitted about the Commissioner misdirecting himself in relation to the case of Cockburn and he conceded that the Commissioner had erred in law and that the appeal should be allowed and the case remitted to the Tribunal for a rehearing of the application. In this situation, our Opinion on the matter can be stated more shortly than would otherwise be appropriate.

[4] The facts in the case of Cockburn were clearly very different to those in the present case. The Cockburn case involved an applicant who lived on her own and whose daughter came in weekly to take away for laundering by her clothes and bed linen soiled as a result of the applicant's incontinence which accompanied her severe arthritis. The present case involves an asthmatic child, 8 years old at the time of the application, for whom his mother "takes 20 minutes to attend to him when he wets the bed" on average about once a night. The exact nature of what she does can only be guessed at having regard to the lack of specification in the findings in fact. While the two cases are very different on their facts, whatever precisely the appointee does, some of the observations made in the speeches in the Cockburn case are clearly supportive of the present appeal. Under reference to the observations of Dunn L.J. in R. v. National Insurance Commissioners, ex parte Secretary of State for Social Services [1981] W.L.R. 1017 at page 1023, all of their Lordships accepted that activities which constitute "attention" will involve a degree of intimacy and will often take place in the person's presence although that requirement need not be strictly applied. Thus, Lord Goff said (at page 802),

He distinguished the taking away of laundry to be washed as transcending personal attention of that kind. Lord Mustill (at page 804), after dealing with cases involving accompanying a claimant to the lavatory, said,

Lord Slynn, who dissented in the result of the Cockburn case, which involved refusal of the applicant's appeal, said (at page 818),

Lord Clyde (at page 823) said,

The passage in the speech of Lord Hope referred to in paragraph 17 of the Commissioner's decision thus stands alone in support of the Commissioner's decision so far as the speeches in the Cockburn case are concerned. In particular the speeches of the other judges provide no support for the contention that the fact that Mrs Cockburn's problem was that she could not cope with the consequences of her incontinence due to her arthritis was in itself fatal to her case. Nor do they support Lord Hope's view that the assistance requires to be "in the performance of" the function of urinating.

[5] In our opinion, therefore, the Commissioner was clearly wrong in excluding as irrelevant as a matter of law attention provided following upon completion of the bodily function of urinating simply because the attention did not assist in the actual bodily function of urinating. We agree with the observations of Lord Goff, Lord Mustill, Lord Slynn and Lord Clyde in their speeches in the Cockburn case in the passages which we have quoted. Whether attention provided following completion of the bodily function of urinating will qualify as relevant in any particular case is a matter for consideration of the circumstances of the case under reference to the statutory requirements as a whole. The Cockburn case illustrates this point. The requirement for considering the whole circumstances of the case under reference to the statutory requirements as a whole thus applies to the rehearing of this case by the Tribunal. Our decision is not dependent on the possible relevance of attention assisting in the bodily function of sleep, a suggestion introduced into this case by Mr Mitchell in the course of his submissions but it is, of course, open for any such possible specific additional consideration to be introduced at the rehearing. On the whole matter, we sustain the appeal and remit the case to the Tribunal for rehearing.