Commissioner's File: CSDLA 309/98
Mr Commissioner May QC
19 November 1998
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Disability Living Allowance
Appeal Tribunal: Glasgow DAT
"The appellant is 13 years of age. He was the victim of child abuse over a number of years and now suffers from post traumatic stress disorder and separation anxiety. He is particularly attached to his father. He becomes very anxious about leaving home without his parents and has suffered panic attacks on occasions. He has only had 2 months schooling in the last 2½ years. He was receiving therapy by the Child Psychiatric Department but this attendance was irregular and treatment was suspended after his last visit in June 1996. He is not on any medication. He is not receiving treatment from any Doctor, psychiatrist or psychologist. He attends the Anvil Group with his parents once a week for family therapy and has done so for 6 months. He does not sleep well. Some of his abusers are still at liberty in the same locality."
The tribunal then went onto say:-
"With regard to the Care Component the argument was that [the claimant] requires continual supervision to avoid the risk of self-harm. We did not accept this argument. In coming to this view we had regard to the report of the Consultant Psychiatrist at page 58 question 5 which stated that he had been prone to self-harm in January 96 and that he had made comments when distressed; and to the opinion of the GP at page 66. We also noted that treatment had been discontinued, that there was no current medical involvement and that the appellant is not on any medication. Taking all these together we were not satisfied on a balance of probabilities that there is a reasonable requirement for continual supervision (in excess of normal requirements) in order to avoid the risk of substantial danger to himself. (Section 72 Social Security (Contributions and Benefits) Act 1992)."
"5. I submit however that the tribunal's decision is erroneous in respect of the care component. The tribunal have dealt with the evidence regarding supervision and their decision is consistent with the evidence and I see no error in law in the decision regarding supervision. However there was some evidence of a possible need for attention. During the day the claim pack indicates that the claimant may require prompting to attend to certain bodily functions these being bathing, dressing, undressing and getting into bed. In Commissioner's decision CDLA/895/94 it was held that prompting can amount to attention-
"In my view, bearing in mind what Lord Woolf decided in Mallinson's case, and two of their Lordships also agreed with him, a wife daily urging and cajoling, asking or telling her husband to go to the toilet, shave or wash himself and indeed to dress himself, and such other matters, ie capable in law of constituting attention in connection with bodily functions."
I submit therefore it was incumbent on the tribunal to determine whether the need to be prompted arose from some disability, whether without that prompting the claimant would attend to his bodily function and if not which bodily functions he would not attend to and the frequency of any requirement for attention."
"he was the victim of child abuse over a number of years....."
"Some of his abusers are still at liberty and living in the same locality."
The evidential basis for these findings is not apparent from reading the papers in this case.
"73. - (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the age of 5 and throughout which -
(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."
"'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."
It is matters such as bathing, dressing, undressing and getting to bed that the adjudication officer in his written submission in support of the claimant's appeal identifies as relevant bodily functions in this case. That approach follows from what was said by Lord Denning. It was also consistent with a similar approach that the Deputy Commissioner based his decision in CDLA/895/94.
"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 L.J. also avoided a narrow interpretation, [in  2 All ER 738 at 742] 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."
Lord Slynn went on to say:-
"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."
It should also be noted that the passage from the judgment of Dunn L.J. quoted above was approved by Lord Woolf in his speech in Mallinson at page 302.
"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."
The thrust of the authorities is that unless service provided is of a close and intimate nature involving personal contact carried out in the presence of a disabled person it is not attention in the sense of the statutory condition. Thus in the case of Cockburn, which involved a claimant who had two disabilities, namely incontinence and arthritis, washing bed clothes soiled by the incontinence which the claimant could not by nature of her impaired functions of movement caused by arthritis do for herself did not constitute attention where assistance with dressing required did. There is thus a line drawn.
"I need supervised and assisted all night as I cannot sleep normally and require attendance/reassurance."
The evidence from his mother noted in the Chairman's note of evidence is:
"Son doesn't sleep v. well at all."
D J May
19 November 1998