UK Social Security and Child Support Commissioners' Decisions

R(A) 2/98

(Secretary of State for Social Security v. Fairey (aka Halliday)

(Cockburn v. Chief Adjudication Officer and Anor.)


Mr. M. Heald QC CA/124/1993

18.8.94 (Cockburn)

Mr. R. A. Sanders CA/780/1991

14.10.94 (Fairey)

HL (Lord Goff of Chieveley, Lord Mustill,

Lord Slynn of Hadley, Lord Hope of Craighead,

and Lord Clyde)

21.5.97

Attendance allowance - need for extra domestic laundry as a result of disability - whether amounted to attention in connection with bodily functions

Care component - profoundly deaf claimant - whether assistance or attention to enable claimant to live a normal life was reasonably required

Mrs. Cockburn was awarded attendance allowance at the lower rate by a disability appeal tribunal on the basis that her attendance needs for dressing and undressing and getting into and out of bed, when added to laundry generated by her disability, amounted to frequent attention throughout the day. The adjudication officer appealed to the Commissioner. The Commissioner allowed the appeal and the claimant appealed to the Court of Appeal, which dismissed the appeal. The claimant appealed to the House of Lords.

Miss Fairey, aged 20 at the date of the decision of the Commissioner, was profoundly deaf. It had earlier been conceded that she had satisfied the day attention condition for an award of attendance allowance until 16 August 1990 when she turned 16 and the Commissioner had given an interim decision to that effect. The resumed hearing concerned entitlement from when the claimant turned 16 and had been postponed at the request of the Secretary of State pending the outcome in the House of Lords of Mallinson v. Secretary of State for Social Security [1994] WLR 630 [R(A) 3/94]. At the resumed hearing it was not in issue that the attention required because of a claimant's hearing loss was or might be attention in connection with the bodily function of hearing or communication.

Held, by the Commissioner, allowing the appeal, that:

it was right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity.

The Secretary of State appealed to the Court of Appeal, which (by a majority) upheld the decision of the Commissioner. The Secretary of State appealed to the House of Lords.

Held, by the House of Lords, dismissing both appeals (in the case of Mrs. Cockburn, by a majority, Lord Slynn of Hadley dissenting), that:

in the case of Miss Fairey, per Lord Slynn of Hadley, (i) the operation of the senses is a bodily function; (ii) the provision of an "interpreter" to use sign language is capable of providing "attention"; and (iii) there is no requirement that the "attention" must be essential or necessary for life or that attention must not be taken into account if it is merely desirable, and that the test is whether the attention is reasonably required to enable the disabled person as far as reasonably possible to live a normal life;

in the case of Mrs. Cockburn, per Lord Hope of Craighead, adopting the formulation of Mr. Commissioner Monroe in CA/60/1974 approved of by Lord Bridge in In re Woodling [1984] WLR 348 [also reported as appendix 2 to R(A) 2/80], at 352H-353B that the statutory criteria "are directed primarily to those functions which the fit man normally performs for himself", the help received by the appellant 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. R(A) 1/91 by implication disapproved of.

DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CA/780/1991

1. At the resumed hearing of this appeal the claimant, now 20 years old, was represented by Ms. J. Jones of the National Deaf Children's Society. The Secretary of State was represented by Mr. J. R. McManus of Counsel. Ms. Jones had not known that Counsel would appear against her and was concerned lest she and her client should be at a disadvantage. In the event she elected to proceed and very ably put her client's case.
2. It was conceded on behalf of the Secretary of State at the last hearing that the Attendance Allowance Board through its delegated medical practitioner had, on review, erred in law by not having considered the amount of attention required by this profoundly deaf claimant in order to achieve a sufficient level of communication. It was also then accepted that the case was indistinguishable from CSA/113/1991 in which the Commissioner had decided that a congenitally deaf boy satisfied the day attention condition, at least until he turned 16, because of the attention required for the purpose of communication. It followed that this claimant had satisfied the day attention condition for an award of attendance allowance (or, as it is now known, the care component of disability living allowance) from at least six months before the date of her last claim until 16 August 1990, when she was 16, and I gave an interim decision to that effect. The resumed hearing concerned entitlement after that date. The resumption had been postponed at the request of the Secretary of State pending the outcome in the House of Lords of Mallinson v. Secretary of State for Social Security (judgment 21 April 1994) [reported as R(A) 3/94] and then for written submissions as to the effect of that case on this. What emerges is that it is not in issue 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; there is nothing in Mallinson inconsistent with CSA/113/1991 or my interim decision in this case.
3. Attendance allowance as such has been abolished except for those over 65. For those under 65 attendance allowance has been replaced by the so-called care component of disability living allowance: see section 72(1) of the Social Security Contributions and Benefits Act 1992 which provides that:

"(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-

(a) he is so severely disabled physically or mentally that-

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b) he is so severely disabled physically or mentally that by day, he requires from another person-

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night-

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be aware for a prolonged period or at frequent intervals for the purpose of watching over him."

There are three different rates of payment depending on which of those conditions is satisfied. The first issue in this case is whether the claimant satisfies the condition imposed by section 72(1)(b)(i). That condition is identified to the day attention condition in the old attendance allowance. If the claimant does not satisfy that condition then it is no doubt open to consideration whether she might be entitled to the lowest rate of the care component by virtue of satisfying section 72(1)(a).

4. As I have said, it is not in question that hearing or communication is a bodily function. What is for determination in this case is whether the claimant, since she turned 16, requires frequent attention throughout the day in connection with those bodily functions. "Requires" in section 72(1)(b)(i) means reasonably requires, see Regina v. Social Security Commissioner, ex parte Connolly [1986] 1 WLR 421 and R(A) 3/86.
5. The claimant's principal means of communication is by sign language; she has, I understand, a certain limited ability to vocalise her language and to lip read. Ms. Jones made the point, which did not appear to be challenged, that because of her profound deafness, the claimant's ability to use language was relatively poor so that she would have that disadvantage whatever means of communication was employed and also in respect of reading and writing. Though I do not doubt the point in general terms, I am not sure that there is any actual evidence for it in this case in relation to this claimant.
6. The claimant's family are apparently proficient in sign language and I gather that, when the claimant is with them, signing is the usual method of communication. In CA/249/1992 the Deputy Commissioner, dealing with the case of a profoundly deaf twelve year old, said:

"9. I also reject the further contention raised in the reply that the DMP must, in effect, have been in error of law if he did not accept that C's need for help in lip-reading amounted by itself to a need for attention satisfying the statutory conditions. There can I think be no doubt that a need for help from a third person to act as interpreter for a person with difficulties hearing or speaking can count as "attention" is connection with those functions. I think there is considerable doubt whether the other party to a two-way conversation can be described as giving such attention simply by having to speak loudly or more clearly, use sign language or listen more attentively for the reply. But however that may be it cannot be correct as a matter of law that a person with hearing difficulties that make communication slow or difficult must automatically satisfy the statutory condition for day attention just because a normal person likes and expects to communicate with other human beings on frequent occasions throughout the day. In each case, in my view, there is a judgment of fact and degree to be made."

I entirely agree with that statement. It may follow that when the claimant is with someone she can communicate by sign language, for example when she is with her family, she is not receiving attention which would be taken into account for the purpose of satisfying section 72(b)(i). It is I think different or may be different in the case of a child when the evidence is that a child requires attention in order to develop or learn a means of communication.

7. There are situations when no doubt the claimant must have an interpreter. She cannot of course depend on her family always being available or on the chance presence of some other person who can use sign language. So, for example, when she attended a course to become, as she did, a qualified nursery nurse, she had an interpreter. And one can speculate as to other circumstances where an interpreter would be required. That might well be the case if she had to spend time in hospital, or at the dentist's or doctor's or for some other reason she had to go to or be in unfamiliar surroundings or with quite unfamiliar people. She works as a teacher in school, assisting as I understand it, with the education of a deaf child or children. There is no interpreter but I was told that some of her colleagues had made the effort to learn some elementary sign language.
8. Dr. Brendan Monteiro, a consultant psychiatrist, says in a recent report on the claimant that:

"... Rebecca has a limited ability to communicate using the written word or speech and therefore is dependent on others in communicating with hearing people. In this context, the word independence is important. This word needs to be viewed in the context as meaning the ability to communicate independently. Rebecca cannot communicate independently with hearing people. Natural gesture and body language which hearing people may recognise, cannot be considered expressive language. Most hearing people do not use sign language, and their use of gesture and body language can only allow for the most rudimentary and basic communication. Furthermore, the frustration that is part of any such communication process, diminishes the natural ability of people to communicate with each other.

A statement has been made that the amount of attention Rebecca requires from hearing people will decrease after the age of 16. In my opinion, the amount of attention Rebecca requires will actually increase as she becomes older. She will be placed in a position of responsibility, have greater expectations of her role in society and a greater need for attention in respect of functional communication. There will be increased demands made of her and she will not be allowed to function in the child mode, but will be expected to function in the adult mode. Her occupation will make greater demands of her, and the older she becomes as she takes on the responsibilities of adulthood, including possibly parenthood, she will be exposed to much more spoken language than she has been previously i.e. in the home or the school. It is also important to recognise that if Rebecca has not internalised English language, it will be very difficult for her to lip-read or communicate using a written word (refer to my earlier para. on this matter).

Finally, it is important to note that communication is not perceived as a luxury, but as a basic human function. It is not only a necessity, it is the basis of human existence. Without communication it is impossible for human beings to be able to relate to each other, learn, develop social and individual skills, and it is my opinion that cognitive development can be restricted without communication. Rebecca views herself as being disabled because she has difficulties in communication with hearing people. This may be different from the perceptions of other deaf people who do not view themselves as being disabled, but see themselves as being part of a cultural and linguistic minority. What is important is Rebecca has communication needs that cannot easily be met without the use of interpreters. She is thus dependent on others to communicate effectively with people in the hearing world. These needs will increase as time goes on. Her perception of herself and her disabilities are crucial to this claim, as she is disadvantaged through no fault of her own."

Those passages are in part directed to the point, made at least at one time on behalf of the Secretary of State, that as she gets older the claimant's communication needs would become fewer. There is also raised the question, by Dr. Monteiro's reference to social skills, whether it could be said and to what extent the claimant reasonably requires assistance or attention to enable her to live a normal social life. Ms. Jones pointed out that because of her communication problems the claimant was in effect compelled to spend most of what I might call her social time with other deaf people. Other normal social activities such as going to the cinema or the theatre, travelling, visiting museums etc. were in effect closed to profoundly deaf people. Mr. McManus submitted in effect that while that may very well be true such "quality of life" pursuits could not be regarded as essential and it could not be said that attention in respect of them was reasonably required.

9. In R(A) 3/89 the Commissioner said (paras. 13 to 14), in relation to the supervision rather than the attention condition, that:

"However, a Commissioner went on in paragraph 7 to state:

'7. There could undoubtedly be an element of difficulty about the DMP's approach in relation to a disabled person, who, without, in any way behaving unreasonably, naturally sought to lead as normal and independent a life as possible ... Although this possibility is raised by the claimant's contentions and the observations of the Secretary of State's representative in reply it is not one which upon the particular evidence before him he was obliged to deal with.'

That case clearly turned upon the evidence; but the Commissioner made it clear that the position might have been different where a disabled claimant sought to lead as normal and independent a life as possible. In CA/145/1986 the Commissioner said in paragraph 5:

'Further in the absence of any mental impairment the DMP was satisfied the claimant should be aware of the limitations imposed on her by her disablement, having the ability to adjust her lifestyle to minimise the risk of falling or bumping into objects when mobile and wisely refrain from attempting those domestic duties which might be thought to involve an element of danger ... In my judgment the DMP has not suggested that the claimant should change her lifestyle dramatically to avoid the risk of a fall or other potentially hazardous situation.'

Those cases merely emphasise that, in the final analysis, each case must depend on its particular facts. I have, since the oral hearing, had my attention drawn to the recent decision in CSA/4/1987 where the Commissioner said at paragraph 2:

'... If she [the claimant] is at risk of falling and indeed there is evidence that she has fallen it is simply not enough to say, as the DMP does, that she should take precautions and undertake only those activities which are within the limits imposed by her disability. Is he suggesting that when she has fallen she has been in engaged in activities she should not sensibly have undertaken? Is she not to move from her chair without assistance? Is she expected to remain chair bound until assistance is available? If whenever she moves from her chair she needs supervision why does that not satisfy the condition?'

I respectfully adopt and apply those observations."

And Ms. Jones drew attention to the decision of the Northern Ireland Commissioner, case reference 2/84(AA), in which the Commissioner said:

"I consider that an applicant [for attendance allowance] is entitled to lead as normal a life as possible consistent with his or her disability and that it is not legitimate to expect such a person to restrict his or her normal activities so as to lessen the need for attention."

10. As it seems to me, this claimant, now 20 years old, has coped exceptionally well with her considerable disability. She has attained a professional qualification and is able to undertake employment in her chosen profession. There are circumstances when she undoubtedly needs special assistance or attention to overcome her communication problems. But where the person with whom the claimant is in communication is reasonably skilled in the use of sign language I would not think it right to conclude that any extra effort involved in that method of communication would necessarily go towards satisfying the attention condition. With regard to social activities, I think Mr. McManus was wrong to rule them out altogether. It cannot of course be denied that deafness is a considerable disability and probably no amount of assistance or attention will put a profoundly deaf person in the same position as one with good hearing. Even if, say, an interpreter were always to accompany the claimant, which I would hardly imagine would be desirable, she would not be free of disability. I take the view following, as it seems to me, the approach in the last few cases to which I have referred that it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity; it may be of course that various social activities that are open to hearing people would not become more accessible to a deaf person whatever additional assistance or attention was given.
11. The DMP's decision on review which is the subject of this appeal was set aside by my interim decision. I had hoped to be able to give a final decision in this case, subject of course to appeal. But I have come to the conclusion that I do not really have sufficient evidence of the attention reasonably required by this claimant in respect of the kinds of matters to which I have referred as opposed to generalities about the needs of deaf people. What is reasonably required is a question of fact. That is very much the province of the adjudicating authorities below and, in accordance with regulation 23(2)(b) of the Social Security (Introduction or Disability Living Allowance) Regulations 1991, I refer the case to an adjudication officer for what is called second tier adjudication. The adjudication officer must determine the amount of attention reasonably required by the claimant throughout the day and its frequency and in doing so should have regard to the matters mentioned above. It may be useful if the adjudication officer were to be provided with a day to day account of the claimant's various activities directed at showing what attention the claimant is said to require, and its frequency taking account of course of the fact that the adjudication officer has to determine entitlement in this case from when the claimant turned 16. And it will presumably be necessary, if the claimant fails on the main issue, for the adjudication officer to consider whether she might be entitled to the lowest rate of the care component. If there is to be an award for a period since the claimant turned 16, as to which I express no view, the period of such award will have to be determined. This is the sort of case which, as it seems to me, needs to be looked at from time to time as the claimant attains greater maturity and takes on, if she does, further responsibilities. So any award should, I would think, be for a limited period.

Date: 14 October 1994 (signed) Mr. R. A. Sanders

Commissioner

The Secretary of State appealed to the Court of Appeal who dismissed the appeal by a majority. The Secretary of State appealed to the House of Lords. The House of Lords' decision follows after the Commissioner's decision in CA/124/1993.


 


DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CA/124/1993

12. My decision is that this appeal must be allowed. The case is remitted for reconsideration by a differently constituted disability appeal tribunal, in accordance with the terms of this decision set out below.
13. The claimant was born on 14 December 1925, and is accordingly now 68 years old. She applied for attendance allowance on 13 July 1992 and this was not allowed. She applied for a review of that decision, and the initial decision was upheld. She appealed to the Nottingham disability appeal tribunal, which, on 16 April 1993, allowed her appeal, and awarded her attendance allowance at the lower rate. The actual decision awarded the allowance at the "daily" rate, and clearly this should have been a reference to the "day time" rate, otherwise known as the lower rate of attendance. The qualification for the award was that her attendance needs for dressing and undressing and getting out of bed, when added to laundry generated by her incontinence, meant that she required frequent attention throughout the day in connection with her bodily functions from another person, which is one of the conditions for attendance allowance set out in section 64(2) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act"). Medical evidence before the appeal tribunal showed that the claimant was incontinent of urine only, although there is no express finding of fact to that effect.
14. The adjudication officer now appeals with the leave of the chairman of the tribunal. I held an oral hearing of the appeal at which the adjudication officer was represented by Mr. P. Stinchcombe of Counsel, and the claimant was represented by Miss J. French, Welfare Rights officer. Two written submissions had been made on behalf of the adjudication officer, and one on behalf of the claimant. The second submission on behalf of the adjudication officer was consequent upon the receipt of the judgement of the House of Lords dated 21 April 1994 in the case of Mallinson v. Secretary of State for Social Security [reported as R(A) 3/94].
15. At the oral hearing, the arguments were directed to the question whether the generation of additional laundry, above the normal, arising from the incontinence of the claimant amounted to something which required frequent attention throughout the day in connection with her bodily functions. Mallinson's case in fact referred to a claimant who was blind. The arguments in the House of Lords judgments related in large part to the proper meaning of that phrase in section 64(2)(a) of the 1992 Act. The majority judgement delivered by Lord Woolf is accordingly highly relevant in, and, it is submitted on behalf of the adjudication officer, decisive of the present appeal. Miss French does not seek to argue that the reasoning in Mallinson's case is not applicable, but seeks to establish that that argument sustains the case put forward on behalf of the claimant.
16. Mr. Stinchcombe submitted at the hearing that there were three parts of the statutory requirement which were important in the present case:

(1) "frequent" attention;

(2) "in connection with"; and

(3) "attention",

referred to the printed judgment of the House of Lords at pages 7, 8, and the first full paragraph on page 9. He said that there was no issue between the parties that the claimant was not very severely disabled physically or that, by day, she required the necessary attention from another. He then referred to the issues referred to in Mallinson's decision, namely R v. The National Insurance Commissioner, Ex Parte Secretary of State for Social Services (Packer's case) [1981] 1 WLR 1017, and referred to the following two statements from the judgment of Lord Denning in Packer's case:

"'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or 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. 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 ...

... ordinary domestic duties such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling a hot water bottle, do not, qualify as 'attention ... in connection with the bodily functions of the disabled person'. But that duties that are out of the ordinary, 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 or at the toilet, all do qualify as 'attention in connection with bodily functions of the disabled person'."

He then relied upon the passage from the judgment of Dunn LJ, set out at page 8 of the Mallinson judgment reads:

"To my mind the word 'function' 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. The word 'attention' itself indicates something more than personal service, something involving care consideration and vigilance for the person being attended. The very words suggests a service of a close and intimate nature. And the phrase, attention ... in connection with ... bodily functions 'involves some service involving personal contact carried out in the presence of the disabled person'."

A reference was then made to the case of Moran v. Secretary of State for Social Services, reported as an appendix to decision R(A) 1/88. These cases were expressly approved in the majority judgment of the Mallinson case, and the majority decision in that latter case was in accordance with the principles set out in the quotations above. It was accordingly submitted on behalf of the adjudication officer that the laundry of extra clothes and linen arising out of the claimant's condition was not attention within the descriptions and definitions which had been laid down by the Court of Appeal, and approved by the House of Lords.

17. Miss French, on behalf of the claimant, submitted that the question to be decided in the present appeal was whether the laundry of soiled clothes and linen was a "normal" household job. She submitted that it was not, but only necessary because incontinence was one of the main disabilities of the claimant. She relied upon the difference made in the second of the quotations from Lord Denning cited above between "ordinary domestic duties" and "duties that are out of the ordinary". She submitted that laundry of soiled sheets and clothing was sufficiently "intimate" to come within the test referred to by Dunn LJ in Packer's case; further, there is sufficient personal contact" in relation to laundry to come within the definition approved by the Court of Appeal. She further relied upon a Commissioner's decision, R(A) 1/91, where the issue was whether extra laundry required in relation to a boy with a skin complaint amounted to "attention" for the purpose of attendance allowance. In reply, it was submitted that the Commissioner's case was wrongly decided and was not in accordance with the principles accepted in Packer's case. It was submitted that it was wrong to say the test is to enquire whether laundry was an ordinary domestic chore in the circumstances of the present case; that the washing of laundry does not amount to attention in connection with a bodily function.
18. I accept the submissions put forward on behalf of the adjudication officer, and accordingly reject those put on the basis that the extra laundry in the present case did amount to "attention" within the statutory definition. In particular the case for the claimant depends in large part upon the idea that tests accepted by the Court of Appeal in Packer involves comparing "ordinary" with "out of the ordinary". The passage as cited above show that what in fact was being compared by the Court of Appeal was, on the one hand, necessary chores which are normally done by a particular member of the family and without personal or intimate connection with the claimant, and, on the other hand, those that were out of the ordinary because, although normally done by one person for his own benefit, had, by reason of the disability, to be done by some other person, and that that was the extra-ordinary element in the situation. Clearly, it cannot be said that doing laundry, of whatever volume, must be intimate, or personal, or needs to be done in the presence of the disabled person. Argument to the same effect was in fact put forward in Packer's case, by Counsel appointed by the court, and expressly rejected in both the judgments of Dunn LJ and O'Connor LJ. The arguments are set out in their judgments in the report referred to above.
19. Accordingly, this appeal must be allowed. The case is remitted for reconsideration to a differently constituted disability appeal tribunal, who will consider all matters afresh. In particular the tribunals will not be limited by the features considered by the first appeal tribunal, but may, if the parties put forward arguments to that effect, consider such further possible areas of attention such as the services of another person, probably the daughter of the claimant, to assist in removing and handling the soiled clothes or other personal attention. In accordance with Mallinson's case, any matter which is probably within the definition of "in connection with bodily functions" can be considered by the fresh tribunal.

Date: 18 August 1994 (signed) Mr. M. Heald QC

Commissioner

The claimant appealed to the Court of Appeal, who dismissed the appeal. The claimant appealed to the House of Lords. The House of Lords' decision follows.


 


DECISION OF THE HOUSE OF LORDS

Mr. M. Beloff QC (instructed by the Office of the Solicitor, Department of Social Security) appeared on behalf of the Secretary of State, Applicant in the case of Fairey and Respondent in the case of Cockburn, and the Chief Adjudication Officer, Co-Respondent in the case of Cockburn.

Mr. R. Drabble QC and Mr. D. Wolfe (instructed by Solicitor, Child Poverty Action Group) appeared on behalf of the Applicant, Cockburn and the Respondent, Fairey (aka Halliday).

LORD GOFF OF CHIEVELEY

My Lords,

For the reasons given by my noble and learned friend Lord Slynn of Hadley, I would (while sharing the reservations expressed by my noble and learned friend, Lord Mustill) dismiss the appeal in the case of Miss Fairey. Furthermore I have, like my noble and learned friends Lord Mustill, Lord Hope of Craighead and Lord Clyde, come to the conclusion that the appeal of Mrs. Cockburn must also be dismissed.

Lord Mustill founds himself directly on the words of the relevant subsection of the statute (section 64(2)(a) of the Social Security Contributions and Benefits Act 1992) which speaks of the disabled person requiring from another person "frequent attention throughout the day in connection with his bodily functions." The relevant service rendered to Mrs. Cockburn by her daughter was dealing with the laundry, generated by her mother's incontinence, after she had taken the laundry away from her mother's flat. Lord Mustill has concluded, and in this I respectfully agree with him, that a service of this kind cannot constitute such "attention" because, having regard to the section and the purpose which it is intended to fulfil, the activities must be performed while in attendance on the applicant, i.e. in the applicant's presence. This is consistent with the reasoning of Peter Gibson LJ in the Court of Appeal, and also with the requirement of a degree of physical intimacy, derived from the judgment of Dunn LJ in Packer's case [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80], which has often been stated to be implicit in the subsection, and which has been stressed by my noble and learned friend, Lord Clyde, Obviously, the requirement of presence has not to be applied too strictly, because attention of this kind may inevitably involve brief absences from the dependent person; but it marks a characteristic of the attention which is required, and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention.

But, though performance of the relevant activity away from the applicant excludes it from the ambit of the section, the mere fact that it is performed in the applicant's presence is not of itself a qualification. Only if the attention is "frequent attention throughout the day in connection with [the applicant's] bodily functions" does it qualify. It is for this reason that, as I understand it, my noble and learned friend Lord Hope of Craighead has addressed the question of the kind of activity which falls within the statute. He has referred to a passage from a decision of Mr. Commissioner Monroe quoted with approval by Lord Bridge of Harwich in In re Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80], 352-3, and has concluded that the service in question must be directed primarily to those bodily functions of the dependent person "which the fit person normally performs for himself."

I myself read these words "for himself" in this passage as meaning "without assistance from another person." Take the case of a lady who, because of her arthritis, is unable to get to the lavatory by herself. As a result, she may need help to get to the lavatory, or alternatively, if she has an accident because she cannot get to the lavatory in time, she may need help in cleaning up afterwards. I would regard these as cases in which, by reason of her disability i.e. arthritis, she needs attention in connection with her bodily function of urinating, this being a bodily function which a fit person (one who does not suffer from arthritis) can perform without assistance. But, once again, this criterion does not provide the full answer, because it does not explain why helping a lady go to the lavatory is within the section, but cooking a meal for her, or dusting her room, is not, even though ladies living alone, who do not suffer from arthritis, habitually do these things for themselves, and the cooking or dusting may be done in their presence. The answer in the first case, cooking a meal, seems to be that this is not sufficiently personal to constitute attention in connection with the bodily function of eating, and in the second case, dusting her room, that it is not in connection with a bodily function at all.

It follows that, in the case of Mrs. Cockburn, the question has to be asked whether the service in question is sufficiently personal to constitute part of "frequent attention throughout the day in connection with [Mrs. Cockburn's] bodily functions," on the basis that her disability is arthritis, and her relevant bodily function is urination. In my opinion, in the case of an unfortunate woman who because of her arthritis cannot cope with her incontinence, the services of changing her clothes or her bedlinen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to fall within the section. But taking her laundry away to be washed transcends personal attention of that kind; and it follows that, as I have said, Mrs. Cockburn's appeal must be dismissed.


LORD MUSTILL

My Lords,

I begin with the case of Miss Fairey (or Halliday, as she prefers to be called) the respondent in the first appeal. That a profoundly deaf person bears a heavy physical, intellectual and emotional burden nobody could doubt, and if this burden could be lightened by the services of an interpreter I believe that all would be glad. But the question before the House is whether the respondent is entitled to be reimbursed for the cost of such provision out of public funds through the medium of a non-contributory benefit under Part III of the Social Security Contributions and Benefits Act 1992. The aspect of the services concerned in the present appeal is the enablement of the respondent to be involved in a "reasonable level of social activity." My Lords, I must confess that without the guidance of previous decisions in this House and elsewhere it would never have crossed my mind that helping the respondent to enjoy going to the cinema or to a party (two examples given in argument) could involve the interpreter in furnishing "attention ... in connection with [the respondent's] bodily functions." The expression would have conveyed to my mind activities of an altogether more intimate and corporeal kind.

It is, however, quite clear on the authorities that such a reaction would be mistaken. Building on the law as it stands I must follow the careful analysis of my noble and learned friend Lord Slynn of Hadley to the conclusion that the services performed by the interpreter fall within section 64(2)(a) of the Act of 1992.

I turn to the appeal of the applicant Mrs. Cockburn. The facts are important, and not as clear as could be wished. So far as I can make them out they are as follows. The applicant lived in a flat alone. She suffered from arthritis and intermittent dizziness which made it hard for her to get about. More to the present point she seems to have been a victim of urinary incontinence in a major degree. Apart from episodes during the day she wet the bed on average twice each night. Naturally, the bedclothes and night-wear needed to be removed, washed and replaced. It seems that for a time the applicant's daughter visited each day to help, but other family commitments eventually made this impossible. During the period in question the daughter could visit only once a week, on Saturdays. It seems that on the remaining days nothing was done, for in a letter supporting the claim her daughter wrote "My mother is stuck with dirty and smelly bedclothes and her own clothes for almost a week." During her Saturday visits the daughter gave the applicant a good wash and took her laundry away. Whether the daughter herself stripped and remade the bed we do not know. Nor is there any information whether the daughter laundered the clothes herself, or gave them a preliminary rinse before leaving them at a launderette to be put through by an employee.

The sole question to be decided is whether the daughter's dealings with the laundry after she left the flat can be added to such relevant services as were performed for the applicant by other people when deciding whether the applicant required from another person "frequent attention throughout the day in connection with [her] bodily functions."

I pause to express a difficulty with the question thus posed. Either the visits on Saturdays were the only activities which could in law be capable of falling within section 64(2)(a), or there were others about which we know nothing. If the former then even if the applicant is right on the present appeal I found it hard to see how one visit a week could be "frequent attendance throughout the day." Whereas if the applicant had help falling within the section with sufficient regularity to be within striking distance of "frequent ... throughout the day" I find it equally hard to envisage how one visit a week could turn the scale. I am, therefore, troubled by the thought that the present issue, important as it may be to future claimants and to those who administer and rule upon claims for these benefits, may have had no practical effect on the position of Mrs. Cockburn. It is now more than four years since her claim was first made and rejected. We are told that before her appeal reached your Lordships' House the entitlement of the applicant was recognised on other grounds. I am glad to hear this, and can only hope that the grant of benefit has not been postponed whilst five sets of decision-makers have pondered a question which, so far as she was concerned, may have made no difference at all.

The question is, however, before the House and must be addressed. All turns on the expressions "attention," "in connection with" and "bodily functions." I will approach the problem by stages:

Is the voluntary emptying of the bladder a bodily function? Plainly it is. Next, is the involuntary emptying of the bladder a bodily function? I would give the same answer, for if the section does not cover the malfunctioning of the body it loses much of its purpose. I do not accept the submission for the respondents that the assistance must be in connection with a "normal bodily function."

If another person accompanies the claimant into the lavatory to help with the business of urination, is this providing "attention" to the applicant, and is it "in connection with" the bodily function? Surely it is. I would say the same if the other person helps a lame or infirm claimant to get to the lavatory for the purpose of the voluntary emptying of the bladder. What if the other person having helped the claimant to get to the lavatory in time afterwards helps him or her back to the living room? I would give the same answer with equal confidence.

Assume now that the applicant does not manage to get to the lavatory in time and needs help to change his or her clothes and put things straight. I think it quite a small step to say that here the help is given in connection with a bodily malfunction which, as I have said, I would equate with a bodily function. And if this is right the same must be the case with the changing of bedclothes and nightwear and other tasks.

I would go one step further still. If the other person, having come in to strip the bed etc., had stayed to rinse the linen and hang it up to dry I believe that this too would have fallen within the section. Relying on earlier authority the Secretary of State describes laundry as a "household chore", and so it usually is. But I believe that this is too mechanical an application of the refined and substantial jurisprudence which has built up around the few words of section 64(2)(a). There are cases where it is better to concentrate on the words themselves, in the context of the actual dispute. In my opinion this is one. I see here a sufficient continuity between the applicant's incontinence and the presence of the other person to deal with the consequences on the spot to satisfy the section. If the other person had been asked why she spent an hour or so in the flat she would say that she had gone to help out with the applicant's bladder problem.

The present appeal is more difficult, but I would still prefer to approach it in the same non-technical fashion. The case for the applicant concentrates on the work of laundering, not on the visit itself, and postulates that this is as much a part of the continuous operation of dealing with the applicant's bodily malfunction as would have been the doing of the work in the flat: and hence it is done "in connection with" that malfunction. Thus far I would perhaps have been willing to go. But the work must also be "attention," and it is attention which the claimant "requires." Whether in some senses of the word it may be possible to furnish attention to someone without being physically proximate I think it unnecessary to decide. But looking at section 64 as a whole, and at the purpose which I believe it is intended to fulfil, I cannot escape the conclusion that all the activities comprising the "day attendance condition" must be performed whilst the other person is in attendance on the applicant i.e. in his or her presence. I feel obliged to hold that any other conclusion would shift into this tightly constrained non-contributory benefit elements of need which perhaps ought to be catered for in a properly ordered society but which do not properly belong to this particular form of social support. The courts must I believe bear in mind that the entire shape of the social services legislation represents a strategy about the deployment of limited funds, and that to overstrain one element of the legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme. The applicant suffers from a distressing and demoralising scourge of advancing years which all would like to be systematically relieved. But it must be done within the true intent of the legislation, and I feel unable to reflect this by holding that attendance can exist when those concerned are not in the same place. I would therefore, with some regret, dismiss the appeal.


LORD SLYNN OF HADLEY

My Lords,

These two appeals, which were heard consecutively, concern claims for statutory allowances by severely disabled persons. One lady is completely deaf; the other is incontinent and unable fully to look after herself because of severe arthritis which restricts the movements of her limbs. Although the claims are made under different statutory provisions the language, so far as now relevant, is the same. Accordingly it seems convenient to consider the statutory provisions and the authorities dealing with them together before considering the facts of the two cases and my conclusions on them separately.

I. The statutory provisions

Section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 re-enacted section 35 of the Social Security Act 1975 which has been considered in some of the earlier decisions to which I shall refer. Section 64, which applies to Mrs. Cockburn, provides:

"(1) A person shall be entitled to an attendance allowance if he is aged 65 or over, he is not entitled to the care component of a disability living allowance and he satisfies either-

(a) the condition specified in subsection (2) below ("the day attendance condition"), or

(b) the condition specified in subsection (3) below ("the night attendance condition"),

and prescribed conditions as to residence and presence in Great Britain.

(2) A person satisfies the day attendance condition if he is so severely disabled physically or mentally that, by day, he requires from another person either-

(a) frequent attention throughout the day in connection with his bodily functions, or

(b) continual supervision throughout the day in order to avoid substantial danger to himself or others.

(3) A person satisfies the night attendance condition if he is so severely disabled physically or mentally that, at night,-

(a) he requires from another person prolonged or repeated attention in connection with his bodily functions, or

(b) ..."

By section 71, disability living allowance, which applies to Miss Fairey, it is provided that:

"(1) Disability living allowance shall consist of a care component and a mobility component.

(2) A person's entitlement to a disability living allowance may be an entitlement to either component or to both of them."

By section 72, the care component:

"(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-

(a) he is so severely disabled physically or mentally that-

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day, he requires from another person-

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night-

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) ..."

...

(3) Three weekly rates of the care component shall be prescribed."

In respect of the period in which a person is under the age of 16 the provisions of subsection (1) other than sub-paragraph 1(a)(ii) are deemed not to be satisfied unless the person has requirements substantially in excess of the normal requirements of persons of his age. A comparable provision was to be found in relation to the Act of 1975 in regulations 6(2)(c) and (d) of the Social Security Attendance Allowance (2) Regulations 1975. This requirement did, but does no longer, apply to Miss Fairey.

Section 73 of the Act of 1992 deals with the mobility component and provides inter alia that the mobility component of a disability living allowance shall be payable during the period when a person is suffering from physical disablement such that he is either unable to walk or virtually unable to do so or he is both blind and deaf. This section is not an issue in the present case but the mobility component is clearly a part of the scheme. It is right to notice also in passing that by section 70, invalid care allowance, a person is entitled to an invalid care allowance for any day in which he is engaged in caring for a severely disabled person on certain conditions. Allowances may thus be paid in respect of a severely disabled person in addition to the one which is in issue in the present cases.

For the present cases the relevant question is whether the claimant is so severely disabled physically that she requires from another person "frequent attention throughout the day in connection with [her] bodily functions."

II. Previous decisions

"Bodily functions"

"Bodily functions" are not defined. If this legislation were being construed for the first time it could be argued forcefully that the kind of case contemplated by Parliament as meriting an allowance related only to care of an intimate physical nature, help in the taking in of food and liquid and the excretion of waste. I do not, however, consider that it would be right to adopt such a limited interpretation today even if it was ever possible. As early as 1981 the Court of Appeal in Regina v. National Insurance Commissioner, Ex parte Secretary of State for Social Services [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80] took a broader view of the meaning of the word. Mrs. Packer, a lady of 83, claimed an attendance allowance under the Act of 1975 in respect of the cooking of her meals which she could not do herself. The Commissioner thought that eating was a bodily function and that cooking was so closely connected with it that it constituted "attention" in connection with a bodily function. The judge thought cooking was itself a bodily function. Though disagreeing with both in the result the Court of Appeal took a broader view of the meaning of bodily functions than those of merely eating and excreting. Lord Denning MR said, at p. 1022B-C:

"'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or 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."

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 the words is not to be taken.

Dunn LJ also avoided a narrow interpretation, at p. 1023E-F "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."

In In re Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80] your Lordships' House agreed that cooking did not fall within the section, but Lord Bridge said at p. 352G "The phrase 'bodily functions' is a restricted and precise one, narrower than, for example, 'bodily needs.'"

The approach of the Court of Appeal has, however, been followed by Commissioners since that time and again in Mallinson v. Secretary of State for Social Security [1994] 1 WLR 630D [also reported as R(A) 3/94] Lord Woolf and Lord Browne-Wilkinson clearly accepted that seeing was a bodily function. In my view so did Lord Templeman. Although he apparently preferred to treat walking as the bodily function in connection with which Mr. Mallinson needed help and guidance, he also allowed the appeal for the reasons given by Lord Woolf. These included treating seeing as a bodily function. The majority of the House in Mallinson thus accepted that seeing is a bodily function.

I am confirmed in the view that a restricted interpretation is not to be taken by the fact that when Parliament enacted the Act of 1992 it added in section 72(1)(a)(ii), as an alternative ground of entitlement to the disability living allowance, the case of a person so severely disabled that he cannot prepare a cooked meal for himself if he has the ingredients. It did not, however, make any change to the language relevant to the present case and in particular to limit the meaning of "bodily functions" as could have been done if it was considered that the interpretation given by the Court of Appeal was too wide.

"Attention in connection with"

But accepting that seeing is a bodily function is only the beginning of the problem. In Packer Lord Denning thought that it was the words "in connection with" which gave rise to the difficulty. In his view some kinds of attention are closely connected with "his bodily functions;" other kinds are too remote. On this basis he held that ordinary domestic duties, such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as "attention ... in connection with [the] bodily functions" of a disabled person. But duties that are out of the ordinary, 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, or at the toilet, all do qualify as 'attention ... in connection with [the] bodily functions' of the disabled person. p. 1022C-G.

Dunn LJ added, at p. 1023F:

"The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention ... in connection with ... bodily functions' involves some service involving personal contact carried out in the presence of the disabled person."

He approved the words of Mr. Commissioner Monroe in decision CA/60/1974, at p. 1025FC:

"I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself."

Dunn LJ on this basis ruled out cooking and housework.

In In re Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80] Lord Bridge said that if the statutory provision was to be broken down:

"The phrase 'attention ... in connection with bodily functions', which must, I think, be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention."

He added, however, that:

"The language of the section should, I think, be considered as a whole, and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word or phrase separately."

As to the general policy behind the allowance:

"It is clear that the policy underlying section 35 of the Act stops 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 necessarily dependant on others are deliberately excluded ...

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." (p.352D-E)

In Mallinson the attendance allowance was claimed for a blind man in respect of assistance with getting in and out of the bath and with cutting up food and with guidance when walking in unfamiliar surroundings. The case proceeded as far as your Lordships' House on the basis that the relevant bodily function was walking, but as I have already indicated, in my opinion the majority accepted that the relevant bodily function was, or was also, seeing. A major issue in that case, which does not arise in the present case, was whether what was required in regard to walking was "attention" within what is now section 72(1)(b)(i) of the Act of 1992 or "supervision" within the meaning of (ii). Lord Woolf approved the distinction drawn by Nicholls LJ in Moran v. Secretary of State for Social Services (unreported 13 March 1987) that "attention" denotes a concept of some personal service of an active nature whereas "supervision" denotes a more passive concept, the person watching and being able to intervene only if necessary. He accepted that guiding was an active role involving personal qualities necessary to constitute "attention" and said, at p. 640B:

"The only attention which can be given to a person 'in connection with' a slight handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight."

Lord Woolf considered that it did not cease to be attention in connection with a bodily function if the disability prevented totally the exercise of that function and added:

"The attention is in connection with the bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired."

The fact that with experience a person learned to cope with his disability so that less attention was required did not change the nature of the disability or the attention. It might affect the question whether the attention was needed frequently during the day. Lord Templeman and Lord Browne-Wilkinson agreed with his reasoning.

Lord Lloyd of Berwick, dissenting, with whom Lord Mustill agreed, considered that walking was the relevant bodily function and that what was required in that case was supervision and not attention; that since Mr. Mallinson could move about in familiar surroundings he was limited to claiming in respect of walking about in unfamiliar surroundings. That Lord Lloyd of Berwick found too vague and imprecise to count as a separate bodily function. He rejected the argument that seeing was a bodily function which a person "performed."

It is, however, the majority view as to the meaning of "attention in connection with" which must be accepted. That the attention required must be "reasonably" required was stated in Regina v. Secretary of State for Social Services, Ex parte Connolly [1986] 1 WLR 421 and has not since been questioned.

III. The present appeals

Miss Fairey's case

Miss Rebecca Fairey, who was born on the 16 August 1974, claimed an attendance allowance on 4 November 1988. She was then subject to the special provisions made under the Act of 1975 relating to children under sixteen years of age. The examining doctor on 12 January 1989 found that she was "born deaf, she communicates mainly by signing and also can lip read but not very well, and speaks a little." She "may be in trouble if she gets lost and couldn't communicate to find her way. She is difficult to understand and doesn't lip read very well." She could not hear a fire burning or hear traffic in the street. Physically and mentally she had no other disabilities than those arising from her deafness. Her mother wrote that she had to go out with her daughter as people do not understand what she is saying and she has to interpret for her.

On 20 January 1989 the doctor rejected her claim and on 3 October 1989 the Delegated Medical Practitioner on review refused to revise the earlier decision. He said: "I find from the medical report completed on the 12 January 1989 that Rebecca, who has been deaf since birth, can manage all the bodily functions listed without someone's help." On 31 May 1991 Miss Fairey applied for leave to appeal to a social security Commissioner on the ground that communication is a bodily function and that she needed attention in communicating with others which took a vast amount of time. Having initially contended before the Commissioner that there was no error of law in the decision of 3 October the Secretary of State for Social Security, in the light of later decisions by the Commissioners very fairly submitted that the "Delegated Medical Practitioner has erred by considering only the degree of communication that can be achieved and by failing to address the question of the amount of attention required in order to achieve it" and that even if the Delegated Medical Practitioner came to the same result the matter ought to be looked at again. The Commissioner ordered an oral hearing and on 8 October 1993 he gave an interim decision that Miss Fairey was entitled to an attendance allowance for a period culminating on her sixteenth birthday, 16 August 1990. He adjourned the rest of the hearing and it is with this that the subsequent appeal was concerned.

In a report of 6 January 1994, part of the evidence on the appeal, Dr. Brendan Monteiro, a consultant psychiatrist, said:

"In order to properly discharge her duties and have a reasonable quality of life, Rebecca is dependent on her mother and others to enable her to communicate. Rebecca claims that she thinks she is placed at a disadvantage and is unable to live a good quality life as a result of her inability to communicate effectively with hearing people. She lacks confidence and narrated incidents to me where she felt inadequate and was seriously disadvantaged.

Rebecca cannot communicate independently with hearing people ... without communication, it is impossible for human beings to be able to relate to each other, learn, develop social and individual skills and it is my opinion that cognitive development can be restricted without communication."

He appears to have accepted Miss Fairey's evidence that she did not experience problems with communication at work though "she describes a feeling of isolation as she cannot communicate freely with her colleagues."

It has to be said that despite her handicap she has achievements to her credit. She attended deaf schools including a boarding school. She trained and qualified as a nursery nurse and has been working as a teaching assistant in a school assisting with the education of a deaf child.

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 required frequent attention throughout the day in connection with such bodily functions.

The Commissioner found that when she was with her family the usual method of communication was by sign language. He thought that the need for help from a third person to act as interpreter for someone with difficulties of hearing or speech can count as attention in connection with those functions but that to communicate with her family who were proficient in sign language did not mean that she was receiving attention for the purpose of section 72(1)(b)(i) of the Act of 1992. There were other situations when an interpreter would be required.

On behalf of the Secretary of State it was submitted that the social activities, such as going to the cinema or theatre, travelling, visiting museums, were not "essential" and that it could not be said that attention in respect of them was reasonably required. The Commissioner, following earlier decisions of other Commissioners, rejected the suggestion that a deaf person must limit her activities to those which she could undertake without assistance. He said:

"I take the view following, as it seems to me, the approach in the last few cases to which I have referred that it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity; it may be of course that various social activities that are open to hearing people would not become more accessible to a deaf person whatever additional assistance or attention was given."

He thought that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72.

He referred to the adjudication officer the question of fact as to what attention was reasonably required by the claimant throughout the day. Subject to that, and to his opinion that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72, he allowed the appeal.

The Secretary of State appealed to the Court of Appeal on the ground that the Commissioner had erred in law in holding that Miss Fairey had a reasonable requirement for an interpreter to carry out a reasonable level of social activity. Social activities it was said are merely desirable and not reasonably required and the Commissioner's decision was inconsistent with, or not supported by, previous Commissioners' decisions which had been relied on by Mr. Commissioner Sanders.

The respondents served a counter notice contending that the latter's decision was wrong insofar as it failed to include a direction that the extra effort incurred by a hearing person to enable a profoundly deaf person to communicate was capable of constituting attention within the meaning of section 72(1)(b)(i) of the Act of 1992. The point, which was argued in the Court of Appeal, was rejected by all members of the Court of Appeal and was expressly abandoned in your Lordships' House.

For the majority in the Court of Appeal the sole issue was whether the attention required in order to be reasonably required had to be necessary in order to maintain life itself. Glidewell LJ found nothing in the statutory provisions which justified such a "stark proposition". If that was abandoned it was in his view "difficult to draw a sensible line between what is and what is not reasonably required short of the test adopted by Mr. Commissioner Sanders, namely "it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity." Glidewell LJ accepted that that was correct in law. Swinton Thomas LJ agreed. He said, on the basis of the decision in Mallinson "in my view Mr. Drabble is right in submitting that attention given to a profoundly deaf person to enable that person to carry on, so far as possible in the circumstances, an ordinary life is capable of being attention that is reasonably required." He too accepted the Commissioner's test. On that basis the majority dismissed the appeal.

Hobhouse LJ disagreed. Dealing first with the language of the section he stressed the need to distinguish a "physical disability" (here the "inability to hear" with which is associated "what may be called an inability to speak") and mere lack of a particular skill such as the ability to speak or understand a particular language. "It is not clear on the present evidence to what extent her inability to speak in a manner which others can understand is to be attributed relatively to her physical disability and to the lack of a skill."

Secondly he emphasised that the disability had to be in connection with the claimant's bodily functions; the words were not "in connection with her disability." In a case like the present "The disability of a blind person is his inability to see; the relevant bodily functions include seeing." He considered that the speech of Lord Woolf in Mallinson ignored or elided the distinction between bodily functions and disability and was contrary to the decisions of the Court of Appeal in Packer and in this House in Woodling. In any event, he held that there was not a majority in the House for the view expressed by Lord Woolf that the bodily function in question was seeing rather than walking, Lord Templeman having considered that the relevant bodily function was walking.

In his view "social activity" was more than "the normal actions of any organs or set of organs of the body" as referred to by Dunn LJ. To include any physical activity as a bodily function led to the position that requirements in connection with bodily functions became equated with cultural needs. Though accepting that a deaf person's desire for communication and entertainment and that the attention he or she requires "in connection with those activities" was reasonable, he concluded that the words of the statute were not satisfied when a claim is made for an interpreter for the kind of activities in question due to a person's complete deafness. He would therefore have dismissed the appeal.

Conclusions

There is no issue in Miss Fairey's case as to whether or not she is severely disabled by her deafness. She plainly is; she is not able to hear and that reduces or impedes her ability to speak. Nor is it challenged that, as a result of her disability, some attention throughout the day may be required in connection with her bodily functions. The question is the particular one as to whether such attention given to her (consisting of the help given by an "interpreter" skilled in the use of sign language) as may enable the claimant to carry out a reasonable degree of social activity" falls within the scope of section of 72(1)(b)(i). Is that help capable of being attention in connection with her bodily functions?

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. This seems to me to follow from the words of Dunn LJ in Packer [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80], 1023 to which I have already referred and which, like Lord Bridge in Woodling, I find helpful viz "To my mind the word 'functions' in its physiological or bodily sense connotes the normal action of any organs or set of organs of the body, and so the attention must be in connection with such normal actions." It is also consistent with the opinion of Mr. Commissioner Monroe, approved in Woodling by Lord Bridge at p. 352/3, that the words of the section "are directed primarily to those functions which the fit man normally performs for himself."

Although I regard the decision in Mallinson as binding on your Lordships (which leads inevitably to the conclusion that hearing like seeing is a bodily function) if Mallinson were not binding I would come to the same conclusion in the present case. I do not consider that such a result blurs the distinction between "bodily functions" and "disability" in a way which Hobhouse LJ found unacceptable. The two are in any event linked and it is not possible to treat them as wholly separate. 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. I consider like Hobhouse LJ that there is linked to that a further bodily function, that of speech; the disability is the inability or the severely restricted ability to speak resulting from the deafness.

It may also be said here that two bodily functions are involved in the sense that the inability to hear, like the inability to see, may restrict the area in which, or the ways in which, a person has the ability to walk. It seems to me, however, that the relevant bodily function in this case is hearing rather than walking and that the primary disability is the inability to hear. Restricted movement is consequential on that in that there is no independent disability relating to movement of the limbs and, though this does not affect the principle, it is likely to be less than in the case of an inability to see.

Insofar as the guidance of another person's arm is reasonably required to enable a deaf person to move about such guidance is just as much capable of being "attention in connection with bodily functions" as it was in respect of a blind person though the need is likely to be less and less frequent.

Providing someone who can explain or translate normal conversation, or radio or film speech, is different from providing physical guidance by an arm. It seems to me, however, that it is also capable of constituting "attention". It is the one, or the principal, way in which messages to the brain normally conveyed through hearing can be conveyed by alternate means. This obviously does not improve natural hearing. Nor does it produce a replacement method of hearing but it provides an alternative way of fulfilling the hearing function.

It may well be that, on a strict analysis and in logic, attention cannot be in connection with a bodily function which does not function and never has functioned since birth, but it seems to me impossible to attribute to Parliament the intention to exclude from the section attention given to a person whose bodily functions (sight or hearing) are wholly impaired and to limit it to someone whose bodily functions are partially impaired. If an over-fine analysis of each of the words in the section leads to such an absurd result it is necessary, as Lord Bridge stressed in Woodling "to look at the language of the section as a whole to find the intention."

In my view providing interpretation by sign language (which involves personal communication between two people even if the message is at the same time by the making of signs communicated to others) has sufficiently "the active and the close, caring, personal qualities referred to in the authorities" (Lord Woolf in Mallinson at p. 639C) as to constitute attention for the purposes of the Act. The provision of an "interpreter" to use sign language is therefore capable of providing "attention" within the meaning of the section. It must still be reasonably required both in its purpose and in its frequency. Can it reasonably be required if it is to enable the claimant to carry out a reasonable level of social activity as the Commissioner held, though accepting that some such activities may never be available to deaf people, or is it, as the Secretary of State submits, excluded because "there is no reasonable requirement for a deaf person to have an interpreter to carry out social activities?" The Secretary of State contends that not only must attention be reasonably required but it "attaches only to activities which are essential in daily life and attention cannot be (reasonably) 'required' within the meaning of the section for activities which are not essential." (para. 4(1)(b) of the case).

The Secretary of State further submits that "it is a well established principle of social security law that the courts do not lightly interfere with long standing decisions of Commissioners." It is obviously sensible that the rulings of the Commissioners and the practice of administering the scheme which they have laid down and which have been followed over many years should not lightly be interfered with. But if the Court of Appeal, and even more so if your Lordships' House, is satisfied that wrong distinctions have been drawn as a matter of principle which ought not to be followed they are entitled to say so. It is true that the distinction has been drawn in the Commissioners' decisions between what is desirable and what is necessary or essential and that in one case (CA/42/1985 para. 6) it was held that it was not justified to include the use of an interpreter for communication "by way of casual and commonplace conversation undertaken for social reasons." As to this submission I consider that the question here is one on which your Lordships should rule and that there is no long standing line of Commissioners' decisions which should deter the House from doing so.

On the question of principle I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test, in my view, is whether the attention is reasonably required to enable the severely disabled person as 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.

In his decision the Commissioner referred to the decision of the Northern Ireland Commissioner in case 2/84(AA) in which the latter referred to the applicant's entitlement to lead as normal a life as possible. In my opinion the yardstick of a "normal life" is important; it is a better approach than adopting the test as to whether something is "essential" or "desirable". Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life. It is not in any way unreasonable that the severely disabled person should wish to be involved in them despite his disability. What is reasonable will depend on the age, sex, interests of the applicant and other circumstances. To take part in such activities sight and hearing are normally necessary and if they are impaired attention is required in connection with the bodily functions of seeing and hearing to enable the person to overcome his disability. As Swinton Thomas LJ in the Court of Appeal said "Attention given to a profoundly deaf person to enable that person to carry on, so far as possibly in the circumstances, an ordinary life is capable of being attention that is reasonably required" (p. 39 of transcript).

How much attention is reasonably required and how frequently it is required are questions of fact for the adjudicating officer. The Commissioner, however, did not err in law, and the majority in the Court of Appeal were correct in law to uphold his decision that it was right to include in the aggregate of attention that is reasonably required "such attention as may enable the claimant to carry out a reasonable level of social activity."

I would accordingly dismiss the Secretary of State's appeal.

Mrs. Cockburn's case

Mrs. Cockburn was born on the 14 December 1925. On the 21 July 1992 she applied for an attendance allowance (as a person over sixty five) under section 64(2)(a) of the Act of 1992. Her application was refused by an adjudicating officer and his refusal was upheld by another adjudicating officer on the 7 January 1993. On the 16 April 1993 the Nottingham disability appeal tribunal allowed her appeal and awarded her attendance allowance at the "daytime" or lower rate. The tribunal found that she could not walk properly, due to arthritis of her knee and that she required assistance to walk, otherwise she had to stay at home. She could not get up without difficulty which took a long time and she could not dress herself properly without help. She was incontinent. That generated a lot of washing which she could not do herself. The evidence was that she wet her bed twice at night and during the day went to the toilet every half-hour. "Mrs. Cockburn stated that she can be sitting on the chair and thinks she needs to go to the toilet and she stands up and finds that she has wet herself." (appendix p. 2) The washing was done by her daughter once a week "there is a big bundle every week." The daughter wrote in support of her mother's appeal:

"My mother only gets her hair and body washed properly with my help as she cannot get into the bath.

She is also prone to have accidents in bed at night and has an awful amount of washing which I try to do every day. But ... it has become impossible for me to go to my mother's except on a Saturday. So my mother is stuck with dirty and smelly bedclothes and her own clothes for almost a week. You can imagine the smell.

She is not having a proper wash from one week to the next ..."

The tribunal in its reasons said:

"In accordance with Commissioner's decision R(A)2H, the tribunal is satisfied that frequent attention is required and the things that Mrs. Cockburn cannot do, fall into the definition of "bodily functions" in that decision. Incontinence is a bodily function and this incontinence generates extra washing Mrs. Cockburn cannot do the extra washing which is in connection with a bodily function. Consequently Mrs. Cockburn is entitled to attendance allowance."

The Commissioner in his decision on the appeal referred in particular to the distinction drawn in Packer between an "ordinary" and an "out of the ordinary" act done for the claimant, the latter being an act normally done by a person for his own benefit which could not be done by the particular claimant. He held that "clearly it cannot be said that doing laundry, of whatever volume, must be intimate, or personal, or needs to be done in the presence of the disabled person." Accordingly he allowed the appeal but remitted the case to another tribunal to consider all matters afresh. In particular the tribunal may:

"if the parties put forward arguments to that effect, consider such further possible areas of attention such as the services of another person, probably the daughter of the claimant, to assist in removing and handling the soiled clothes or other personal attention."

Following a request for a review dated 1 March 1996 Mrs. Cockburn was accorded an attendance allowance with effect from 11 March 1996 but that decision is not in issue before your Lordships. The Court of Appeal, however, dismissed an appeal against the Commissioner's decision on the earlier application.

Butler-Sloss LJ accepted that the Court of Appeal was bound to decide the question in the light of the previous decisions to which I have referred. But "adopting the same approach as Dunn LJ and looking at the words of the section without recourse to decided cases, I come, reluctantly, to the same conclusion on soiled laundry as he did in respect of cooking." The authorities confirmed that view and she included laundry as part of housework with dusting, sweeping and cleaning as activities falling outside the section whereas "close personal attention such as helping to get in and out of bed, eating, drinking, bathing, washing hair, going to the lavatory" constituted "attention" in connection with bodily functions. Reluctantly dismissing the appeal she expressed the hope that the "manifest needs of the appellant might be reconsidered as soon as possible."

Peter Gibson LJ regarded the case as relating to the extra washing not only of sheets but also the clothes caused to be soiled by her incontinence. Though plainly accepting that in the absence of authority it was well arguable that the extra laundry is a "direct consequence of her incontinence requiring frequent attention", he held that the court was bound by authority to hold that "the extra laundry, which need not be done in the presence of Mrs. Cockburn, does not qualify as attention in connection with bodily functions." Peter Gibson LJ added that it was important to bear in mind that the attention which she required may well differ from the attention which she was at that time receiving, limited as it was by her own indigence and family circumstances. I agree; it is difficult to imagine anyone contending that she was not in need of home help provided from local sources which it seems was not available.

Conclusions

The issues in Mrs. Cockburn's case are thus different.

In her case it seems to me that two bodily functions have to be considered. The first one is urination. Her disability is that she does not and cannot urinate in a controlled way. The second bodily function is the movement of the limbs, the legs but more particularly the hands and arms. Her disability in that respect is that she cannot use them for the purposes of adequately cleaning herself, changing and cleaning the clothes she wears and the sheets in which she sleeps. The acts claimed to constitute the attention which is required throughout the day in connection with her bodily functions are the cleaning of her body, the changing and cleaning of her clothes and sheets.

There is no question here as to whether these are essential or desirable. Her daughter's evidence accepted by the tribunal makes it plain that they are essential. They are in any event required as part of normal life.

It is not in my view arguable, and has not been argued, that cleaning the body of a person who is incontinent is not "attention in connection with bodily functions" even if the need for cleaning results from a disability. Apart from helping to put in place incontinence pads or clothing there is no attention more closely connected with this particular bodily function.

Is the necessary washing of soiled clothing and sheets due to the incontinence, which she herself cannot do because of her arthritis, in a different position?

It is suggested first that laundry is a household chore and that household chores do not constitute "attention" within the meaning of the section. There is some support for that view in the judgment of Lord Denning and Dunn LJ in Packer and of Butler-Sloss LJ in the present case.

I do not consider, however, that the right approach is to begin by asking whether a particular act is normally regarded as a household chore and, if it is, to exclude it from what may constitute "attention" for the purposes of the section. Thus to say that dealing with soiled clothes is "laundry" or "washing" does not conclude the matter. That is not the right question. It must specifically be asked whether the particular washing is required in connection with bodily functions.

This problem arose for Mr. Commissioner Reith in decision number R(A) 1/91. That was a case which involved a young boy who suffered from a scaling erythematous skin condition which required a great deal of care and attention from his mother. Such care required inter alia "a great deal of laundry because of his ointment and his profuse scaling". The Delegated Medical Practitioner decided that the washing of bedding and clothing was not attention in connection with bodily functions within the meaning of the Act of 1975 on the basis of the judgments in Packer. The Commissioner accepted that "the normal washing of clothes and bedclothes, and of course children's clothes need frequent washing, are doubtless not relevant to the attention condition". He rejected the view, however, that the washing of clothes and bedclothes could never be relevant when considering whether the attention condition is satisfied. He held:

"In my opinion the washing of clothes and bedclothes can in certain cases constitute attention in connection with bodily functions under said section 35, if, for instance, the abnormal amount of laundry changes are regarded as required as part of the overall treatment of the person's condition."

I agree with that opinion. The case was concerned with "treatment" but the Commissioner regarded that as but an instance of the situation where laundry might be capable of constituting "attention." In my view it may also be relevant where it is necessary to deal with the result of the malfunctioning of a bodily organ.

I do not for my part regard this result as necessarily inconsistent with the actual decision in Packer and in Woodling. There ordinary cooking was involved. Even if preparing normal meals is ruled out there could well have been, before the amendment of the statute to provide for the cooking of meals, a need for someone with severe malfunctioning of the digestive organs to have special cooking and that, it seems to me, is capable of amounting to "attention".

In considering these cases it is important to bear in mind that the "care component" of the attendance allowance is concerned with "care" and with "attention." The question in each case is whether the particular activity said to be "attention" is reasonably required by the individual because of the severe disability affecting the relevant bodily function and is reasonably required in connection with that function. This question must be considered as a whole and I do not think that it helps to adopt particular categories which cannot ever be capable of constituting "attention."

In answering that question, and accepting that what is done must have the active, close, caring personal qualities referred to by Lord Woolf in Mallinson (p. 639) must the attention in order to qualify involve physical contact? The attention will very often require physical contact with the person but, like Lord Woolf, I do not think that attention necessarily involves physical contact. In particular in a case like the present the attention may involve acts of physical contact and acts where there is no physical contact. Preparing a warm sponge and soap and rinsing the sponge afterwards is as much a part of attention as the physical contact involved in cleaning the body. So equally I do not think that removing soiled, and providing clean, clothes and bedclothes, though in both cases it may begin by physical contact with the person involved, ceased to be capable of attention because the cleaning of the clothes does not involve physical contact.

Does the act necessarily have to be carried out "in the presence of the disabled person" as Dunn LJ thought? Very often the act done, or part of it, will be done in the presence of the disabled person. I do not, however, regard this either as an absolute test, though I accept that the less that is done in the presence of the person may reduce the likelihood of it constituting the necessary attention. But it would be quite absurd to say that to prepare a sponge in a basin in the bedroom qualifies but that the same prepared in a bathroom on the same or on a different floor does not.

Thus as I see it, the attention here is not to be seen as the act of taking a bundle of clothes to the laundry or to the launderette or putting them in the washing machine or wash tub at home. The attention relied on is the act of making sure that the severely disabled person who cannot do these things for herself is kept clean and comfortable in decent conditions. If, as I consider, is plain, it is part of "attention" justifying the care component of an attendance allowance to wash and dry the person who has been incontinent, and to change soiled nightclothes or underclothes, it is no less care and attention to remove and change the sheets in which that person was lying and which, when she was in bed, were soiled on the same occasion as the clothes by the same excretion. To prepare and provide fresh clothes means that they have to be washed. The same is true of the sheets. It is I consider unrealistic to distinguish between soiled clothes and soiled bedclothes. It seems to me that the district nurse or healthcare worker who had to change and possibly wash, or at any rate hand to another person to wash, underclothing and sheets for an incontinent person would be astonished that lawyers should draw such distinctions on the language of the statute unless that language compelled them to do so. In my view the language does not so compel them.

Clearly some laundry and some domestic chores have no connection with the bodily functions or the situation caused by the disability relating to those functions. The ordinary washing of unsoiled clothes and of domestic items such as tablecloths and curtains would normally not fall for consideration but dealing with soiled clothes and sheets as described here is, in my view, capable of constituting attention within the meaning of the Act and is far from being remote.

It is to be noted in the present case that the sheets were apparently soiled at night but dealt with by day. No claim is made in respect of attention during the night but it seems that the nightclothes and sheets are changed during the day after the lady gets up and day clothes are attended to from time to time. Whether, coupled with other acts of attention, this constitutes "frequent attention throughout the day" is for the statutory authorities to decide.

It was said in argument that the financial consequences of accepting that the cleaning of clothes and bedclothes of incontinent people were capable of constituting "attention" would be grave. It must, however, be taken into account that many people who are incontinent are likely to be capable of changing clothes and for example using a washing machine and there may be cases of incontinence where the soiling of clothes can to some extent be avoided so that there is no need for frequent attention. Mrs. Cockburn's case as apparently accepted by the tribunal is different. Her severe arthritis prevents her from doing these things for herself and the problem occurs regularly.

Although the views I have expressed are different from some views expressed in earlier cases this particular problem has not been considered by your Lordships' House directly. The result in my view in no way amounts to treating the section as if it provided "open-ended assistance" to persons suffering from severe disability. I am satisfied that what is claimed as "attention" is within the ambit of the section. On this approach there may be some overlap between the care allowance and the mobility allowance and between them and the invalid care allowance payable to the carer, but if so this seems to me to follow from what I regard as the proper interpretation of the statutory language relating to the care allowance.

I consider therefore for the reasons I have given that the Nottingham disability appeal tribunal directed itself correctly in law and was entitled to reach the conclusion it did. In reversing that decision, albeit on the basis of what they regarded as earlier binding authorities, the Commissioner and the Court of Appeal erred in law. I would allow the appeal and rule that the cleaning of clothes and bedclothes soiled by an incontinent person who cannot clean them for herself is capable of constituting "attention" in connection with [her] "bodily functions" within the meaning of section 64(2)(a) of the Social Security Contributions and Benefits Act 1992.


LORD HOPE OF CRAIGHEAD

My Lords,

For the reasons given by my noble and learned friend, Lord Slynn of Hadley, whose speech I have had the advantage of reading in draft, I also would dismiss the appeal in Miss Fairey's case. I have come to the conclusion however that the appeal in Mrs. Cockburn's case should be dismissed also, for the following reasons.

Mrs. Cockburn, who was born on 14 December 1925, was already over the age of 65 when she applied on 13 July 1992 for a daytime attendance allowance under section 64 of the Social Security Contributions and Benefits Act 1992. She was not entitled to the care component of a disability living allowance under sections 72 and 75 of that Act because an award of that allowance had not been made to her before she attained that age. The award of an attendance allowance to her depended therefore on whether or not she was able to satisfy the day condition specified in subsection (2) of section 64, which is in these terms:

"(2) A person satisfies the day attendance condition if he is so severely disabled physically or mentally that, by day, he requires from another person either-

(a) frequent attention throughout the day in connection with his bodily functions, or

(b) continual supervision throughout the day in order to avoid substantial danger to himself or others."

It is not suggested that Mrs. Cockburn requires constant supervision throughout the day in order to avoid substantial danger to herself or others, or that she suffers from any mental disability. The question which was before the adjudication officer in her case was whether she is so severely disabled physically that she requires from another person frequent attention throughout the day in connection with her bodily functions. Her application was refused by the adjudication officer on 8 September 1992 and again on 7 January 1993. On 16 April 1993 the disability appeal tribunal allowed her appeal and found her entitled to attendance allowance at the daily rate from the date of her claim. In their findings of fact the tribunal stated:

"1. Mrs. Cockburn was born on 14 December 1925 and claimed attendance allowance on 13 July 1992.

Mrs. Cockburn cannot walk properly due to arthritis of her knees and requires assistance to walk, otherwise she has to stay at home.

Mrs. Cockburn cannot get up without difficulty and she cannot dress herself properly without help.

Mrs. Cockburn is incontinent which gives rise to washing and the washing generated as a result of this incontinence can be considered to be "in connection with the bodily functions." Mrs. Cockburn cannot do the washing, her daughter has to do the washing for her.

Due to her severe physical disabilities Mrs. Cockburn requires frequent attention throughout the day in connection with her bodily functions and this is required every day."

The reasons for their decision were in these terms:

"Mrs. Cockburn cannot walk unaided and cannot get out of bed except with difficulty and she cannot dress herself properly without assistance. Mrs. Cockburn is incontinent and as a result of this, a lot of washing is generated which Mrs. Cockburn is unable to do herself and relies on her daughter. Taking all these together Mrs. Cockburn requires frequent attention throughout the day in connection with her bodily functions because she is so severely physically disabled.

In accordance with Commissioner's decision R(A) 2H, the tribunal is satisfied that frequent attention is required and the things that Mrs. Cockburn cannot do fall into the definition of 'bodily functions' in that decision. Incontinence is a bodily function and this incontinence generates extra washing. Mrs. Cockburn cannot do the extra washing which is in connection with a bodily function. Consequently, Mrs. Cockburn is entitled to attendance allowance."

The Commissioner, Mr. Commissioner Heald QC, allowed an appeal by the adjudication officer against the tribunal's decision on 18 August 1994. He noted that the qualification for the award which was found established by the tribunal was that Mrs. Cockburn's attendance needs for dressing and undressing and getting out of bed, when added to the laundry generated by her incontinence, meant that she required frequent attention throughout the day. The sole issue which he was asked to decide, in view of the tribunal's finding that her daughter had to do the washing for her, was whether the generation of the additional laundry arising from Mrs. Cockburn's incontinence amounted to something which required frequent attention from another person in connection with her bodily functions within the meaning of section 64(2)(a) of the Act of 1992. The test which he applied in reaching his decision that this question had to be answered in the negative was whether this was a necessary chore of the kind which is normally done without personal or intimate connection with the claimant, or was something which, although normally done by a person for his own benefit, had to be done by some other person by reason of the claimant's disability.

In the Court of Appeal Butler-Sloss LJ agreed with the Commissioner that the volume of laundry, although larger and more distasteful by reason of the incontinence, did not meet the requirements of the statute. She referred to O'Connor LJ's observation in Regina v. National Insurance Commissioners, Ex parte Secretary of State for Social Services ("Packer's case") [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80], 1027A that a line must be drawn somewhere as to what constitutes "attention in connection with bodily functions" for the purposes of section 64(2)(a). She distinguished housework such as dusting, cleaning, sweeping and laundry on the one hand from close personal attention such as helping to get in and out of bed, eating, drinking, bathing, washing hair and going to the lavatory on the other. The additional soiled laundry in the present case did not have the required degree of physical intimacy. Peter Gibson LJ said that the authorities established that the frequent attention must involve some service involving personal contact carried out in the presence of the disabled person and that, as that element was absent in the case of the additional laundry, it did not qualify as attention in connection with her bodily functions.

The issue in this case is a narrow one, and it requires a careful analysis of the facts. There is no difficulty in seeing that Mrs. Cockburn is so severely disabled physically that she requires attention in connection with her bodily functions. It is the frequency of that attention which is in issue, and on the facts which were found by the tribunal it was essential to a finding in Mrs. Cockburn's favour that the assistance which she receives from her daughter in dealing with the additional soiled laundry could be taken into account. And the question relates to the actual doing of the washing, not to the daughter's visits to the house to collect it and to return it afterwards. Happily Mrs. Cockburn has now been held to be entitled to an attendance allowance for other reasons with effect from 11 March 1996, but that is not the decision which is before us in this appeal. What we have to consider is whether the additional laundry which her daughter does for her constitutes attention in connection with her bodily functions within the meaning of section 64(2)(a).

There are two bodily functions involved in Mrs. Cockburn's case. The first is that of urinating. Her disability in regard to that function is her incontinence. But she does not require assistance in the performance of the function of urinating. Her problem is that she cannot cope with the consequences of her incontinence due to her arthritis. The assistance which she requires is in connection with the other bodily function, which is that of moving her limbs. Her disability in this regard is that she cannot walk properly, and she cannot dress herself without help. Her requirement for assistance to enable her to perform the bodily function of moving her limbs in order to dress and undress is not disputed. Nor is it disputed that she needs assistance with the extra laundry which results from her incontinence, because she cannot do this for herself due to her arthritis. Plainly the services which are performed by her daughter on her behalf are important to her well-being. But can it properly be said that they satisfy the statutory requirement for the daytime allowance?

In Packer's case [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80], 1023F-G Dunn LJ observed:

"The word "attention" itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase "attention ... in connection with ... bodily functions" involves some service involving personal contact carried out in the presence of the disabled person."

Lord Bridge of Harwich referred to these observations with approval in In re Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80], 352H as did Lord Woolf in Mallinson v. Secretary of State for Social Security [1994] 1 WLR 630 [also reported as R(A) 3/94], 637B, subject to only one caveat, namely that the contact to which Dunn LJ referred need not be physical contact but could be that established, for example, by the spoken word in the case of a blind person who needs guidance in the performance of his bodily functions of seeing or walking. In Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80], 352H-353B Lord Bridge went on to say:

"At the end of the day I doubt if the construction of the relevant words can be more accurately or more concisely expressed than in the passage from the decision of Mr. Commissioner Monroe in 1974, cited by Dunn LJ at p. 1025F:

'I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself.'

This criterion has the great merit of being clear and easily applied. I would find it very difficult to formulate any alternative criterion which would not give rise to difficulties in practice."

Earlier in his speech in Woodling at p. 352D Lord Bridge pointed out that the policy underlying section 35 of the Social Security Act 1975, of which section 64 of the Act of 1992 is a re-enactment, had 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. So large areas of domestic work in respect of which the disabled are necessarily dependent on others are deliberately excluded. I agree with that analysis, and I regard it as decisive of the issue which is before us in this case.

In my opinion it is not enough to ask whether the act in question is done with the aim of keeping the disabled person clean and comfortable and in decent conditions. No doubt an act of that kind is of help to the disabled person, especially if, as in this case, the disabled person cannot perform that act for herself. The care, consideration and vigilance which the act involves may indeed be of such a degree and involve such devotion to duty as to amount to attention, rather than mere assistance, within the meaning which Dunn LJ gave to that word. But it must also be "in connection with" the bodily functions of the person concerned. As Mr. Commissioner Monroe put it in the passage which was quoted with approval by Lord Bridge in Woodling [1984] 1 WLR 348 [also reported as an appendix to R(A) 2/80], 352H-353A, the words of the section are directed primarily to those functions which the fit person normally performs for himself. The close connection which requires to be shown between the act and the bodily function will not in all cases depend on physical contact but, as Lord Bridge himself said, a high degree of physical intimacy is required.

As I see it therefore the correct analysis in Mrs. Cockburn's case, in the light of the facts found by the tribunal, is as follows. She requires attention in connection with her bodily functions of walking and dressing and undressing herself. She does not require attention in connection with the performance of the bodily function of urinating, but the fact that she is incontinent of urine increases her need for attention in connection with the other bodily functions which I have described. 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 her arthritis is relevant to her claim. But the help which she receives 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. The washing is done, not in her presence, but elsewhere. The best that can be said is that the need for it is a consequence of her incontinence, but that is not enough to satisfy the terms of the statute in the light of the policy which Lord Bridge has described.

I would therefore, for these reasons, dismiss her appeal.

LORD CLYDE

My Lords,

I also agree that the appeal in the case of Miss Fairey should be dismissed for the reasons given by my noble and learned friend Lord Slynn of Hadley, whose speech I have had an opportunity of reading in draft. I would only add that in my view the connection which is envisaged by the phrase "in connection with," which links the attention with the bodily functions, should be direct and immediate. The service of an interpreter seems to me to be closely linked with the severe impairment in Miss Fairey's function of hearing and satisfies that part of the statutory provision. I am not prepared to hold that the services of an interpreter to enable her to extend her social life beyond the limits of the circle of those with whom she can communicate without an intermediary could never be reasonably required. Whether it is required and, if so, to what extent, are matters yet to be explored.

So far as the appeal in the case of Mrs. Cockburn is concerned I consider that it should be dismissed for the reasons given by my noble and learned friend Lord Hope of Craighead whose speech I have had an opportunity of reading in draft. Here again 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. The personal nature of what is comprised in attention prompts the observation made by Dunn LJ in the passage in his judgment in Packer [1981] 1 WLR 1017 [also reported as an appendix to R(A) 2/80], 1023F that the attention must be a service involving personal contact carried out in the presence of the disabled person. But that should not be understood as being so absolute a requirement as to exclude the changing of bed linen which might be achieved without physical contact between the claimant and the person providing the service. Nor should it be understood to exclude an incidental activity which might occur outwith the presence of the claimant during the course of what is otherwise an attention given to and in the presence of the claimant. But the laundry work in the present case seems to me to fall outwith a service which is directed at the person of the claimant. It involves attention to the linen rather than attention to the claimant.