THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CDLA/16129/1996
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM DECISION OF A DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER GOODMAN
"The tribunal have every sympathy with the difficulties faced by [the claimant] and her partner in rearing their child and they understand the argument put forward by [the claimant's] representative [a welfare rights officer] as to the psychological effect on her of perhaps not being fully able to do for her child what normally-sighted parents can do for their children. The criteria in the legislation however refer to the bodily functions of the claimant and in the view of the tribunal bodily functions does [sic] not encompass psychological effects. The tribunal accept [the claimant] cannot do for her child all the things she would wish to but hold that none of these activities in fact falls within the legislation which refers to assistance with the claimant's own bodily functions and not the bodily functions of a third person."
"I submit that the DAT correctly excluded from the claimant's attention needs the activities connected with the care of her child. Attention in the context of [section 72(1) to the Social Security Contributions and Benefits Act 1992] is attention in connection with the claimant's own bodily functions, and not those of her child."
The adjudication officer cites in support a decision of Mr Commissioner May, on file CSDLA/314/97 (see paragraphs 13-15 below) where the learned Commissioner held that the assistance given to a blind mother in getting her children ready for school and in bathing, washing and dressing her children did not constitute "attention.. in connection with [her] bodily functions".
"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." (My underlining).
"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 disabilities. 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 a person to overcome his disabilities."
"In my view, attention in connection with the bodily function of seeing to enable a sight impaired person to deal with (to use a neutral expression) her very young children is properly capable of counting as qualifying attention. It has of course to be reasonably required..."
"I am of the view that the whole thread of the authorities which are referred to above [i.e. the Mallinson, Cockburn and Fairey cases; R v. National Insurance Commissioner  W.L.R. 1017 (Packer's case) and Woodling v. Secretary of State for Social Services ] relate to attention in the statutory context being confined to the performance of such bodily functions as those which a fit man normally performs for himself. They all appear to relate to attention which provides a substitute for what the fit man does for himself. This case raises the proposition that it can also encompass what the fit man can do not only for and by himself but also in respect of the care of others who are disabled by reason of age [i.e. a baby] from carrying out the tasks referred to... I do not consider that the provisions of section 72 [of the Social Security Contributions and Benefits Act 1992] can be stretched that far. Such assistance is too remote."
"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.. a high degree of physical intimacy is required."
"That is of course what would be missing from any assistance that the claimant received from another to enable her to carry out the necessary tasks of caring for her children.. the intimacy has to exist between the claimant and the person giving the attention. In the situation posed in this case such intimacy, as there was, particularly in respect of bathing, washing and dressing, would be between the claimant and her children or the carer and the claimant's children depending on how the work is organised. ..such assistance as is asserted the claimant requires in respect of her children does not amount to the claimant's social functioning as envisaged in Fairey. I am satisfied that the activities referred to [in the findings of fact - i.e. getting the children ready for school and help with bathing, washing and dressing the children] are properly to be regarded as domestic duties.. they are related to essential aspects of daily living which a child cannot be left to do or is not wholly capable of doing for himself. I am satisfied that such tasks are of the same order as cooking, shopping and keeping the house clean. When looked upon in that way it is clear that the activities are too remote from the bodily function of the claimant's sight. That conclusion is inescapable having regard to the quotation from the speech of Lord Hope.. it follows that I disagree with the conclusion reached by Mr Commissioner Sanders. His analysis does not coincide with mine."
"The sorts of areas that [the claimant] needs assistance with.. (involving physical, hands-on help) include.. -
1. Measuring feeds - [the claimant] has bottle fed [her daughter] from day one...
2. Dressing - important to ensure clothes secured, and cleanly. [The claimant] cannot see when clothes are dirty.
3. Changing nappies...
5. Supervision - as [the daughter] learns to crawl, and eventually walk, she will need someone to observe her at all times, when out of her pram, chair, play-pen. ..."
I leave to the new tribunal to decide as a question of fact for which of those activities the claimant receives assistance to enable her personally to look after her baby. The new tribunal will also need to decide for how long the claimant can reasonably be said to have a need for that attention and for how long, therefore, the period of any award should be. Mr Cox submitted to me at the hearing that any award of a care component should be for a number of years. That may possibly be so, but the needs of the child or the mother to look after the child will vary in quantity and quantum over the years and again these are matters to be left to the new tribunal. Mr Commissioner Sanders, in his above cited decision, referred only to "very young children."
"..the new [disability appeal tribunal] be directed to:
(a) establish the extent of the assistance with seeing which the claimant requires with all aspects of her life, including caring for her daughter and performing domestic duties;
(b) include that assistance which is of a close, personal nature, recalling that assistance does not require touching (Mallinson per Lord Slynn..) or even constant presence (Cockburn Lords Goff and Clyde);
(c) include assistance which is reasonably required to enable the claimant to live a normal life, having regard to (amongst other things) the type of activities which the claimant wishes to perform herself and the extent to which sighted people would perform those activities themselves;
(d) assess whether the assistance which meets those conditions is required frequently throughout the day and/or is prolonged or repeated at night."
(Signed) M J Goodman
(Date) 13 October 1998