UKSSCSC CDLA_16240_1996 (22 October 1998)
Mrs. R. F. M. Heggs CDLA/16240/1996
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  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.
- 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
"[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."
" … 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).
"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.
" … 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 … "
Date: 22 October 1998 (signed) Mrs. R F M Heggs