UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CSA_389_1997 (24 November 1997)


 


CSA/389/97


The Office of Social Security and Child Support Commissioners

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM THE DISABILITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

ORAL HEARING

Appellant:
Respondent:
Adjudication Officer:
Tribunal:
Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the disability appeal tribunal given at Glasgow on 29 August 1996 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a re-hearing.

2. This case came before me at an oral hearing on 5 November 1997. The claimant was represented by Mr Orr of the City of Glasgow Council. The adjudication officer was represented by Mr Neilson of the Office to the Solicitor of the Secretary of State for Scotland.

3. The claimant was born on 21 September 1926. She made a claim for attendance allowance on 10 July 1995. An adverse decision was made in respect of that claim on 29 September 1995. Thereafter another adjudication officer reviewed that decision but decided that he could not revise it so as to award benefit.

4. The claimant appealed to a disability appeal tribunal. Her appeal was heard on 29 August 1996. The tribunal decided that the claimant was not entitled to attendance allowance. The findings of fact made by the tribunal are as follows:-

"1. The claimant needed help bathing and dressing.

2. She at times felt indoors and out panicky and anxious which if bad, effectively prevented her functioning normally.

3. When panicky or anxious she waited a while and then phoned someone, usually her son.

4. Speaking to other people eased her anxiety."

The reasons given by the tribunal for their decision were as follows:-

"The tribunal felt that social contact with another person to relieve anxiety and enable the claimant to go on recreationally and while indoors participate in ordinary every day activities was help reasonably required with a bodily function built [sic] in this case did not consider that the attention when linked with the other needs identified at 2.1 above did not amount to frequent attention throughout the day. The tribunal accepted the claimant's evidence that she (from prior knowledge) would be able to identify if she were taking unwell and then summon help by phone and did not require supervision in case she took a further heart attack."

5. The claimant appealed to the Commissioner on the grounds that the tribunal erred in law by failing to make adequate findings and give adequate reasons for their decision. The grounds of appeal are set out at page 65 of the bundle. An adjudication officer in a submission to the Commissioner supported the claimant's appeal. At the oral hearing before me Mr Neilson also accepted that the tribunal erred in law by reason of a failure to set out adequate facts and reasons. I am satisfied as will become apparent in the course of this decision that this is the case. Accordingly I set the decision aside.

6. When I perused the papers at an earlier stage however I noted paragraph 4 of the adjudication officer's submission to the Commissioner. In that submission she said:-

"The tribunal state in their reasons for decision that 'social contact with another person to relieve anxiety and enable the claimant to go on recreationally and while indoors participate in ordinary every day activities was help reasonably required with a bodily function built in this case did not consider that the attention when linked with the other needs identified at 2.1 above did not amount to frequent attention throughout the day'. (T59). I submit that the tribunal have made on findings of fact in respect of the nature, duration and frequency of the social/recreational needs they accept and have thereby erred in law."

7. In respect of that submission I directed an oral hearing. I also sought further written submissions from the parties.

8. Accordingly the principal issue before me in this appeal is the question as to whether the tribunal erred in law in holding that "social contact with another person to relieve anxiety and enable the claimant to go on recreationally and while indoors participate in ordinary everyday activities was help reasonably required with a bodily function...".

9. The findings in fact in support of that conclusion by the tribunal were findings 2, 3 and 4. I was told by Mr Orr that he represented the claimant before the tribunal and that their conclusion was in response to a submission made by him. That submission was not noted by the chairman in the chairman's note of evidence. What was noted in the chairman's note of evidence was:-

"The claimant had taken a heart attack around 1995 and again after her heart surgery. She felt tired since the surgery. She now felt a little bit better. She went out to the park but could not walk too far. Sometimes she walked very slowly. She could dress herself but needed some help with lower clothing. She took dizzy turns. She felt she had lost her confidence. She could go to the toilet and attend to herself. She had a home help 3 days a week who did the heavy work. She felt she would need to have someone with her if she went out into an unfamiliar place. When she felt anxious or panicky she waited for a while and then phoned her son if she felt panicky. The claimant had blacked out once but regularly felt dizzy."

10. Apart from the evidence contained in the chairman's note of evidence such evidence as there was in support of the tribunal's conclusion was sketchy.

11. In respect of her illness or disability her position in the claim form was that she suffered from angina, hypertension, heart condition, hiatus hernia, heavy nose bleeds and panic attacks. The claimant's general practitioner indicated in a report at page 36 that the claimant's main disabling condition was "coronary artery disease" and noted in respect of other disabling conditions "recent CABG". The only other medical evidence in respect of her condition was set out by a consultant in a report at pages 46 and 47 which simply referred to the coronary artery bypass grafting and noted that the claimant suffered from anaemia and developing hypothyroidism. In respect of panic and anxiety the evidence is again sketchy. Apart from what is noted in the chairman's note of evidence the evidence is very limited. The claimant noted in the claim pack that she became confused with all her medicine and that she sometimes felt a bit dizzy and required someone to be with her to give her confidence. She indicated that she never went out on her own. In answer to a question about the people and places she visited regularly she said:-

"I very rarely go out - if I did go anywhere I would require the same assistance as I do at home - if I have to go anywhere I require to go by taxi or private care."

12. The statutory conditions for the satisfaction of the daytime attention condition of the attendance allowance are that a claimant is so severely disabled physically or mentally that by day he requires from another person frequent attention throughout the day in connection with his bodily functions. I refer to section 64(2) of the Social Security Contributions and Benefits Act 1992. The night-time condition is rather stricter and that is that the claimant requires from another person prolonged or repeated attention in connection with his bodily functions. I refer to section 64(3) of the same Act.

13. In approaching cases such as the present Lord Woolf in his speech in Mallinson v Secretary of State for Social Services [1994] 2 A11 ER 295 at 307 set out four simple questions that require to be addressed. They are:-

1. Has the claimant a serious disability?

2. If so, what bodily functions does it impair?

3. Does he reasonably require attention in connection with his functions?

4. Is that attention frequent?

14. In this case while the tribunal has concluded that social contact with another person to relieve anxiety and to enable the claimant to go on recreationally while indoors to participate in ordinary everyday activities was help reasonably required with a bodily function, they did not make findings as to the nature of the claimant's disability, whether it was physical or mental and they did not identify the bodily function which they considered was impaired by it. Without adequate answers and findings in respect of the first two questions they cannot properly answer the third and fourth questions. Thus a proper factual foundation for the tribunal's conclusion is missing.

15. I did not understand that to be disputed. The argument in the case centred round the issue as to whether if proper findings had been made the conclusion reached by the tribunal could properly have been supported in law.

16. Mr Orr's submission was that it could and that the tribunal did not err in law in that respect. He submitted that activities of the brain which are not normal or require someone to intervene could qualify as bodily functions whether the effects are physical or not. He referred me to the speech of Lord Slynn of Hadley in the cases of Cockburn v The Chief Adjudication Officer and The Secretary of State for Social Security v Fairey 1997 [1WLR 799 at 813] where he said:-

"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 L.J in Packer [1981] 1 W.L.R. 1017, 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.""

17. He also properly referred me to CA/022/93 which did not support is argument where the Commissioner said:-

"(ii) "bodily functions" in section 35(1)(a) Social Security Act 1975 (as in force and applicable at the time of this claim) refers primarily to physical functions, although the need for attention with them may of course arise out of a mental rather than a physical disability. The expression in this context is in my view concerned with more than mere hygiene, but does not include attention given in connection with the cognitive and other functions of the brain unrelated to physical functions, even though the brain is of course an organ and is part of the body. I would therefore hold that there is a distinction between "bodily needs" and emotional and psychological needs for the purposes of section 35."

However he has submitted that I could decide this case in a different way.

18. It was his position that if someone's condition through anxiety was such that they could not think straight, could not make a sensible decision and required intervention by someone else so that they could come out of their anxious state in order to carry on then such a condition was caused by an activity of the brain. It was therefore a bodily function and having regard to what was said by Lord Slynn of Hadley, in the decision which is referred to above, it was his submission that the claimant had a mental disablement which manifested itself in panic and anxiety. It was his position that the bodily function impaired by this disability was thinking or as he put if "other operation of the brain". He then went on to submit that attention might reasonably be required to cure the defect.

19. In the context of the approach that the words of the section are direction primarily to those functions which the fit man normally performs for himself it was Mr Orr's submission that the attention reasonably required was to think for the claimant, to instruct her what to do and to make her calm. It would follow if that submission were accepted that the tribunal's conclusion could be supported.

20. It was submitted by Mr Neilson in response that the evidence in this case disclosed no mental disablement on the part of the claimant. It was his position that anxiety is a normal product of a normal brain. He said that it was a self-preserving mechanism and rather dramatically that those who do not have it die young. In this case he said that the claimant had a serious cardiovascular condition and accordingly had a sensible fear of another heart attack and concern about going out. It was his position that this was a natural reaction on her part. It was his position that it was not possible to demonstrate the impairment of any bodily function by virtue of her anxiety. It was further his position that if the claimant could be regarded as having a mental disablement, regard had to be had to what was said by Lord Woolf in his speech in Mallinson at page 306 where he said:-

"In the case of mental, as opposed to physical, disabilities the position would usually be different. If a mental disability is not serious it will be a case for supervision, which if it is to qualify must meet the requirements in the second limb of the sub-section. However, a severe case of mental disability may well require attention with a wide range of independent bodily functions as opposed to primarily one function."

21. It was accepted by Mr Neilson that thinking could be a bodily function but in this case no impairment of such a bodily function could be established because what the claimant had was a normal anxiety, she had lost her confidence and became panicked as a result of that. It was also his submission that social contact is not attention of the close and intimate personal type which is required to satisfy the statutory condition.

22. I have come to the conclusion that the tribunal erred in law when it held that social contact with another person to relieve anxiety and enable the claimant to go on recreationally while indoors to participate in ordinary everyday activities was help reasonably required with a bodily function. There are three reasons for this.

23. First I am inclined to the view that the Commissioner in CA/022/93 was correct when he considered that the statutory definition did not include attention given in connection with the cognitive and other functions of the brain unrelated to physical functions even although the brain is an organ and is part of the body. I propose to follow him for it seems to me that what is essentially a state of mind cannot fit comfortably into the statutory definition.

24. Secondly, the tribunal, as has already been indicated made no findings as to the specific mental disablement suffered by the claimant. Being panicky and anxious might possible be the effect of a mental disablement. Equally it could be a normal reaction, as Mr Neilson suggested, to the claimant's serious cardiac condition. In addition the tribunal themselves have not indicated what bodily function is impaired. They make reference to help required with a bodily function but do not specify what it is. Without findings on these two essential matters it is impossible to apply the statutory test.

25. Thirdly even if I was wrong to follow CA/022/93 and the tribunal had made the critical findings in relation to the identify of the disability and the bodily function impaired I consider that in any event social contact of the type referred to by the tribunal in their conclusions could not be attention in the context of the statutory test. Mr Commissioner Monroe's observations that the words of the section "are directed primarily to those functions which the fit man normally performs for himself" have been generally approved - see paragraph 15. I follow them also.

Thus even if it were accepted that thought is a bodily function (a proposition in respect of which I am not convinced) and the thought processes malfunctioning by virtue of the disability induced anxiety and panic, I cannot see that social contact to relieve or alleviate such anxiety and panic could be regarded as a substitute for the asserted bodily function of thinking. This is because social contact enables the claimant's own thought processes to correct themselves rather than have them replaced by someone else's. Thus it can be seen that I do not accept Mr Orr's submission.

26. Having held that the tribunal erred in law the case goes before a freshly constituted tribunal. I direct the tribunal that social contact cannot be attention in the context in which the tribunal's decision I have set aside held that it was. They should have regard to the authorities I have referred to above and the content of this decision in approaching the attention conditions. In respect of the supervision conditions they should have regard to what was said by the Commissioner in CDLA/899/94 and the authorities referred to therein.

27. The appeal succeeds.

(Signed)

D J MAY QC
Commissioner

24 November 1997