The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Tribunal Case No :
"1. The claimant was registered blind. She had minimal vision and could not identify colour and unlikely to notice misplaced objects. Her husband was partially sighted.
2. She needed help dressing to identify clothes for herself and her children. She needed help to get the children ready for school and to the appropriate transport for their school/nursery.
4. The claimant needed some help with bathing, washing and dressing both herself and her children".
The reasons given by the tribunal so far as they are material to this appeal are as follows:-
"The tribunal considered that the claimant was a good straightforward witness and her evidence was believed. Her husband was partially sighted and it was reasonable that someone help the claimant with the dressing and organising for school of her young child which was seen by the tribunal as a bodily function. That coupled with the claimant's other attention needs amounted to frequent attention throughout the day".
"The tribunal erred in law in deciding that bathing and dressing her children is attention in connection with the claimant's bodily functions".
In a written submission recorded at pages 140 and 141 the adjudication officer supplemented these grounds of appeal by written argument. At the hearing before me Mr Neilson indicated that he was resiling from paragraph 6 of that submission which was related to finding in fact 3. The claimant has indicated that she resists the appeal. As presented before me the critical issue in the case was whether needing help to get her children ready for school and to the appropriate transport to their schools and help with bathing, washing, identifying clothes for and dressing her children amounted to attention in connection with her bodily functions as that phrase is used in section 72 of the Social Security Contributions and Benefits Act 1992. However before I proceed to deal with that issue I should perhaps indicate that in any event I am satisfied the tribunal decision errs in law by reason of a failure on the tribunal's part to provide an adequate factual foundation for their decision. The findings in respect of attention and the frequency with which they are required are sparse. In addition the tribunal have not indicated why it was they fixed the period of the award set out in their decision.
"Finally in Fairey, or rather Cockburn, which was the twin case, deafness was the disability. The passages before rehearsed were endorsed and applied. At page 815 of the report it was indicated that attention could be counted if it were required to give entitlement to as normal a life as possible. Lord Hope of Craighead, in an important passage, as it seems to me, at pages 822 to 823, analysed the preceding citations of opinion concluding with a reference to what was said by Mr Commissioner Monroe quoted with approval by Lord Bridge in Woodling, and having dealt with the particular physical problems of arthritis and urination in that case went on to say, about the distinction between the relevant and the irrelevant, or the remote and the close activities which can be counted for the purposes of assessing attention for the statutory purpose, this:-
"All the other help which she receives within the limited range of activities which a fit person normally performs for himself and which she cannot perform for herself, or can only perform with difficulty, due to arthritis, is relevant to her claim. But the help which she received with her extra laundry is help in connection with a task, such as cooking, shopping or keeping the house clean, which the fit person need not and frequently does not perform for himself. It is the kind of task which, when several people are living together in the same family can be done by one person for the rest of the household, the other members of which need not be present while it is being done although it is done for their benefit. It is too remote from the bodily functions which each fit member of the household normally performs for himself. In Mrs Cockburn's case there is normally no-one else in the house where she lives, and the volume of laundry is much greater than it would otherwise be due to her incontinence. But I do not see these features of her case, although distressing, as altering the fundamental problem which affects this part of her claim, which is that the help which she receives is not designed to assist her in the performance of her bodily functions".
Later in the same paragraph in dealing with that passage of Lord Hope's speech he said:-
"As I understand it Lord Hope was postulating an objective test based upon how households normally operate. It is not a subjective test. Here the claimant had to be present, no doubt, because there was nobody else in her household and she was dependent upon a home help. That was all part of the subjective situation".
"The majority of the tribunal decided that there was no more fundamental a social activity than that of a mother bringing up young children. It was essential to her well being that she did, as far as possible, as much as any other mother would do for a young family. Playing with the children, supervising their behaviour, washing and dressing them, taking them out to play, reading their school work and generally performing all the functions which a sighted mother would perform herself were all activities which required a third party's assistance, either to carry them out in safety or at all. Mrs Heywood needed help, not for someone to do these things for her, but with the function of seeing to do these things herself; she needed someone to act as her eyes".
It is apparent from paragraph 4 that the Commissioner was aware of the decisions in Mallinson, Fairey and Cockburn. He went on to say in paragraphs 5 and 6:-
"5. The tribunal stressed, rightly in my view, that the attention required in connection with the children's activities was required in connection with the claimant's "bodily function" of seeing. So, to say, as the adjudication officer does, that the attention in question related to the "bodily functions" of the children and not of the claimant seems to me to miss the point. Furthermore, to say that because the "attention" or some of it could not enable the claimant, as a non-seeing person, to do the things a sighted person could do, misses the essential point of Mallinson which, as I understand it, decided exactly to the contrary of the adjudication officer's submission.
6. 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 and so required frequently throughout the day. I am satisfied that the tribunal dealt with these points thoroughly and in accordance with the principles established by the cases to which I have referred. I see no error of law on their part and accordingly dismiss this appeal".
The submission in that case was accepted by Mr Neilson to run contrary to the argument he was submitting.
"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, as Lord Bridge himself said, 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 referred to in findings 2 and 4. 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 upon how the work is organised.
D. J. May QC
4 February 1998