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[1998] UKSSCSC CDLA_16240_1996 (22 October 1998)

R(DLA) 1/02

Mrs. R. F. M. Heggs CDLA/16240/1996

22.10.98

Attention in connection with bodily functions - profoundly deaf claimant -whether attention to be given in the claimant's presence

The claimant was born profoundly deaf and unable to speak. He appealed against the disallowance of his claim for disability living allowance made on 2 August 1995. The tribunal allowed his appeal to the extent of finding that, when all his needs for assistance in communicating were aggregated, he satisfied the conditions of entitlement to the middle rate of the care component. The adjudication officer appealed on the ground that the tribunal had made inadequate findings of fact as to the occasions during the day when the claimant required the assistance of a third person with hearing and communication and as to whether such attention was reasonably required.

Held, dismissing the appeal, that:

if the attention in connection with the bodily function of hearing and communicating was provided for the claimant, it would be likely to lack the personal contact/proximity element referred to by Lord Clyde in Cockburn v. Chief Adjudication Officer and Another [1997] 1 WLR 799 (HL) [R(A) 2/98] but if it is rendered in the claimant's presence and in such a way as to assist him to carry out the activity himself, it could count as attention (para. 14);

the tribunal had made adequate findings of fact to support their conclusion.

[Notes

the Social Security (Attendance Allowance) Regulations 1991 (SI 1991 No. 2740) (as amended) and the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991 No. 2890) (as amended) were further amended with effect from 25 September 2000 by the Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) (No. 2) Regulations 2000 (SI 2000 No. 2313) so as provide that a person will be taken to satisfy the condition of attention for entitlement to attendance allowance or disability living allowance (care component) only where such attention is required to be given in his presence.

the Commissioner held an oral hearing of the appeal at which the claimant's representative explained how a deaf person's ability to communicate by lip-reading would be limited by his knowledge of spoken English (para. 11).]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the disability appeal tribunal (DAT) given on 16 May 1996 is not erroneous in point of law. As a result this appeal fails.

This is an appeal by the adjudication officer against the decision of the DAT of 16 May 1996, leave having been granted by the DAT chairman. I held an oral hearing of the appeal. The claimant attended and was represented by Mrs. J. Jones, the Care Manager of the Sensory Disabilities Team of Rotherham Social Services Department. Mr. R. Beeson acted as interpreter. The adjudication officer was represented by Mr. J. Heath from the Solicitor's Office of the Department of Social Security. I am grateful to Mrs. Jones and Mr. Heath for their detailed and helpful submissions.

The claimant was born profoundly deaf and is unable to speak. On 2 August 1995 he claimed disability living allowance. The claim was rejected. The claimant applied for a review. There was a review. The decision was not revised. The claimant appealed to the DAT.

The claimant and his interpreter attended the hearing of the appeal before the DAT on 16 May 1996. He was represented by Mrs. Jones, who limited the issue to the claimant's entitlement to the care component of disability living allowance. In the event the DAT decided that although the claimant was not entitled to the mobility component he was entitled to the middle rate of the care component from 2 August 1995 for life. The findings of fact read:

"[The claimant] was born on 22.11.68 and claimed disability living allowance on 02.08.95.

He is congenitally deaf but apart from having some allergies has no other physical difficulty. He is fully mentally competent. Although he can lip-read when someone is facing him and speaking very slowly and clearly he has difficulties in understanding someone speaking in normal speech. He wears a hearing aid but the only noises which he can hear are indistinct and he cannot hear a spoken voice.

He lives at home with his wife who is also deaf. He uses sign language with his wife and his main language is in fact British Sign Language. [BSL].

He is a trainee deaf instructor at a school which includes both hearing and deaf children.

He travels to work in Leeds from his home in Barnsley by train or by car.

He has a small daughter aged 16 months who is a hearing child. When he takes her to nursery school he has difficulty in conversing with the school teachers and needs assistance with this. His mother-in-law is not proficient in sign language but assists with communication of various documents etc. [The claimant] has difficulty in reading communications and his mother-in-law assists with this. When he goes out with his wife to the pub it is difficult to understand what is being said in a group as conversation must take place face to face.

Similarly with shopping for clothes it is necessary for time to be taken to make the shop assistant understand the need for specific requests.

At his place of work he needs to follow the teacher in the class very carefully by being face to face and lip-reading. This is often not possible and he has to ask for things to be repeated so that he can relay them to the children."

The reasons for decision read so far as relevant:

" … no night needs are disclosed.

We accept the submission of Mrs. Jones that the bodily function which is in contention in this case is that of hearing …

We have taken careful account of the decision of the Court of Appeal in the case of Secretary of State for Social Security v. Fairey which was handed down on 15.06.95.

In that case Miss Fairey was a profoundly deaf girl and it was decided basically that there should be included in the aggregate of attention reasonably required such attention as might enable her to carry out a reasonable level of social activity. In that case Miss Fairey lived with her mother who was very proficient in sign language and they were able to communicate effectively between them. It was held that the communication at this level did not amount to attention in connection with bodily functions.

In the case of the appellant here we accept that all assistance which he requires with his hearing when not communicating either with a proficient signer or his wife is assistance in connection with bodily functions. We accept what Mrs. Jones says i.e. that communication is important and is a two way matter i.e. one can take into account not only the efforts required from a deaf person but also the efforts which are required from the other person attempting to communicate. This will include such matters as drawing the attention of the deaf person, to the person speaking making sure that they are in the correct position to be heard and ensuring that their words are clear and slow enough to be understood. All these things need to be done on a regular basis for [the claimant] although he can lip-read he needs to be in a position that the person is right in front of him and he can read clearly. Otherwise he has the difficulties which he has outlined today and which we fully appreciate. As well as occurring in the work place these difficulties occur when e.g. he goes to the nursery school with his daughter and needed to try to communicate with the teacher about the progress his daughter is making etc. In addition his mother-in-law who assists with the reading of correspondence and bills etc. is not a proficient signer and it takes her longer and it is more difficult for her to communicate. All this extra time spent in communication must be aggregated to arrive at the amount of attention which is reasonably required in the appellant's case.

We accept that when [the claimant] is communicating with his wife there is no assistance required in connection with bodily functions. However, we are satisfied that there is a requirement from other persons for a sufficient period to constitute frequent attention for the purposes of the regulations.

We have also taken account of the decision of the House of Lords in Mallinson v. Secretary of State for Social Security.

With regard to the mobility component we do not think that the evidence supports the view that the claimant requires guidance and supervision when out-of-doors on unfamiliar routes from another person …

… we accept that the conditions were satisfied for 3 months at least prior to the date of claim and as [the claimant's] condition is likely to remain largely the same as it is now we make the award for life."

Mr. Heath submitted that with regard to the care component of disability living allowance the issue for determination by the DAT was whether the claimant's day time attention needs in connection with his bodily functions satisfied the conditions of either section 72(1)(a)(i) or (b)(i) of the Social Security Contributions and Benefits Act 1992 ("the Act"). It was not in dispute that the claimant was severely physically disabled and that his bodily function of hearing was impaired. The crucial question was what constituted "attention" and whether the DAT had made adequate findings of fact on how frequent such attention was required throughout the day in support of their conclusion that the claimant satisfied the conditions of section 72(1)(b)(i). Mr. Heath argued that the DAT's decision was inadequate and failed to comply with the requirements of regulation 29(6A) of the Social Security (Adjudication) Regulations 1995 as amended by SI 1996 No. 2450 and was erroneous in law in consequence.

It is well established that "requires" for the purpose of section 72(1) of the Act means "reasonably requires" and not "medically requires". The word "frequent" connotes "several times - not once or twice" (per Lord Denning MR in Packer's case (see appendix to R(A) 2/80). In the House of Lords judgment in Mallinson given on 21 April 1994 [R(A) 3/94] Lord Woolf considered section 35(1)(a)(i) of the Social Security Act 1975 [now section 72(1)(b)(i) of the Act] and held that:

" … this … involves doing no more than looking … at the claimant's account of what he can and cannot do together with the relevant medical report and asking four simple questions: (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 those functions? (4) Is that attention frequent?"

Lord Woolf made it clear that different incidents of attention could then be aggregated when considering if the attention was frequent within the meaning of section 35(1)(a)(i).

Mr. Heath addressed me at some length on which "attention needs" fell to be included in the assessment for the purposes of section 72(1)(b)(i) of the Act. I see no merit in my repeating the submission in full because the House of Lords judgments in Mallinson and Fairey given on 21 May 1997 [R(A) 2/98] gave guidance on the interpretation of the relevant terms. Suffice it to say that in the Fairey case the Court of Appeal did, I believe, establish a principle that "if a person giving the attention to a deaf person has to do extra work or take extra time, away from the attendant's ordinary duties to help the disabled person", that may, as a question of fact, be capable of constituting qualifying attention. So for example the efforts required of another to initiate two way communication could count. So too could an extra effort required of another person, not proficient in sign language, to comprehend and answer the claimant's communications. In the judgment of Swinton Thomas LJ at page 40 of the transcript (who agreed with Glidewell LJ at page 20) he held:

"In my judgment, clearly a two way conversation between members of the family and/or others and the appellant, either in language which the appellant can lip-read or by sign language, could not form part of the composite package [of attention]. However, as Mr. Drabble submits … if the person giving the attention to the deaf person has to do extra work, or take extra time, away from the attendant's ordinary duties to help the disabled person that may be capable of being included in the attention which has been provided. The question is very much one of fact and degree to be resolved at the initial hearing."

Those propositions were not, I think, criticised in the House of Lords. Accordingly the DAT did not err in applying the law as stated in the Court of Appeal judgment.

Mr. Heath referred me to the judgment of Lord Clyde at page 824 of the transcript of the House of Lords judgment in Cockburn given on 21 May 1997 [R(A) 2/98] in which he stressed that the attention which was desiderated in connection with the bodily function must be some close and intimate service to the person of the claimant. Mr. Heath argued that the DAT had erred in law because they had failed to record findings of fact as to the occasions during the day when the claimant required the assistance of a third person with hearing and communciation. Further there was nothing to indicate that the DAT had considered whether such attention was reasonably required in concluding that the claimant satisfied the conditions of section 72(1)(b)(i) of the Act.

In the light of the House of Lords judgment in Fairey Mr. Heath readily conceded that the DAT had rightly included in the aggregate of the claimant's attention needs "such attention as may enable the claimant to carry out a reasonable level of social activity". He referred me to the judgment of Lord Slynn of Hadley on pages 18 and 19 of the transcript in which he held:

" … 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 … In my opinion the yardstick of a 'normal life' is important: … 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 would 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 …

How much attention is reasonably required and how frequent it is required are questions of fact … "

The DAT had before them a very full written submission by Mrs. Jones outlining the claimant's daily activities and attention needs. She explained that the claimant "works in one of the main stream schools which has a unit for deaf children. He is employed as a linguistic and cultural role model for deaf children there so that they can learn BSL fluently from a native user of BSL. He also has to support the deaf children (aged 4-7 years) whilst they are in the mainstream classroom alongside hearing children, enabling them to understand the national curriculum, either through BSL or English. The mainstream teachers do not use BSL … All instructions are given to [the claimant] by the teachers … " In addition the claimant taught BSL to parents of deaf children and hearing staff members twice weekly and twice weekly he taught BSL to hearing students. Mrs. Jones stressed that because of the nature of the claimant's work he had attention needs to enable him to communicate. Initially he had worked as an electrical engineer but had become ill due to depression caused by being unable to communicate and understand instructions about the tasks he was expected to do.

Mrs. Jones explained that spoken English (the inner language) and BSL were two completely different means of communication. Inner language development was much delayed with deaf people and most deaf people never acquired fluency in spoken language. As a result it was impossible to lip-read a word or phrase that was not already known to the lip-reader. The claimant's comprehension of English was delayed and would remain so throughout his life. Consequently his communication skills in lip-reading were limited by the level of his inner language.

The DAT rightly accepted "that all assistance which he requires with his hearing when not communicating either with a proficient signer or his wife is assistance in connection with bodily functions". They found as fact that the claimant had difficulty in reading communications and concluded "his mother-in-law who assists with reading of correspendence and bills etc. is not a proficient signer and it takes her longer and it is more difficult for her to communicate. All this extra time spent in communication must be aggregated to arrive at the amount of attention which is reasonably required in the appellant's case". The DAT included in the aggregation of the claimant's needs the assistance the claimant required to communicate with the teachers at his daughter's nursery school and when shopping for specific items of clothing. In the light of the Mallinson judgment they concluded that when all the claimant's needs were aggregated he satisfied the conditions of section 72(1)(b)(i) of the Act and was entitled to the middle rate of the care component.

In her submission to the DAT Mrs. Jones stated that the claimant confined his social activities to those with other deaf people because he was unable to have a BSL interpreter for anywhere other than at work. If it were otherwise, he could extend his social activities to visiting theme parks and going on holidays. Although the DAT referred to the Court of Appeal judgment in Fairey the decision is silent on the claimant's social needs. However, I consider the omission venial because in the event it had little bearing on the outcome of the appeal.

The issue before the DAT was whether the attention in question was reasonably required by the claimant in connection with the bodily function of hearing and communicating. If the assistance was provided for the claimant, it seems to me to be likely to lack the personal contact/proximity element referred to by Lord Clyde in the Cockburn case in the House of Lords. But if it is rendered in the claimant's presence and in such a way as to assist him to carry out the activity himself it could count. I have considered all the evidence with care and I am satisfied that the DAT on the basis of their findings of fact rightly concluded that the claimant reasonably required from another person frequent attention throughout the day in connection with his bodily function of hearing and communicating. The record of the proceedings shows that the DAT took considerable care with this case and I reject Mr. Heath's submission that the decision was inadequate because there were insufficient findings of fact to support the conclusion. In my view the decision fully complied with the statutory requirements.

I should add for completeness that Mrs. Jones did not identify any night time needs. In addition she did not contend that the claimant was entitled to the mobility component.

For the reasons stated above the DAT's decision was not erroneous in law. The adjudication officer's appeal is dismissed.

Date: 22 October 1998 (signed) Mrs. R F M Heggs

Commissioner