UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2001] UKSSCSC CDLA_1534_2000 (23 February 2001)
URL: http://www.bailii.org/uk/cases/UKSSCSC/2001/CDLA_1534_2000.html
Cite as: [2001] UKSSCSC CDLA_1534_2000

[New search] [Printable RTF version] [Help]

[2001] UKSSCSC CDLA_1534_2000 (23 February 2001)

R(DLA) 3/02

Miss. C. Fellner CDLA/1534/2000

23.2.01

Attention in connection with bodily functions - profoundly deaf claimant - guidance for fact finders

The claimant was profoundly deaf with little speech. His first language was British Sign Language and his lip reading was not good. He sought the middle rate care component on attention grounds, stating that he required assistance when attending workplace and other meetings, with correspondence and with a variety of social and other activities. The second tribunal (the decision of the first tribunal having been set aside by a Commissioner) awarded the lowest rate care component and the claimant appealed. The Commissioner considered the relevant statutory provisions and authorities, in particular the decision in Secretary of State for Social Security v. Fairey [R(A) 2/98], in which the House of Lords held (inter alia) that the provision of a signing interpreter is capable of constituting "attention" and the test to be applied by fact finders is whether the attention was reasonably required to enable the disabled person as far as possible to live a normal life.

Held, allowing the appeal, that:

very many of the instances where deaf claimants reasonably require help (such as visits to doctors, parent/teacher evenings and interest group meetings) do not occur often enough in a single day to count as "frequent" attention throughout that day, or even to occupy a significant portion of that day, although decision makers are entitled to aggregate (in effect, average) them to conclude that a requirement for attention for a significant portion of most days is shown;

the correct approach to fact finding is, first, to ascertain whether communication in the claimant's current daily life would be made significantly more efficient or effective by the use of an interpreter, having regard to the practicability and desirability of having one in attendance;

fact finders should then apply the same considerations to what the claimant might like to do if help was available, but additionally having regard to the feasability of fitting such activities in with other commitments;

while in many cases the extra effort involved in initiating communication will be de minimis, fact finders must properly investigate allegations of such needs;

extra effort in signing, speaking more loudly, articulating to facilitate lip-reading, or writing/reading notes does not automatically count as relevant attention but must be assessed in the context in which it occurs;

questions of actual requirements and frequency are questions of fact.

The Commissioner set aside the tribunal's decision, found facts, and awarded the lowest rate care component.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

With the consent of both parties, this application for leave to appeal is treated as the appeal. I grant leave to appeal, and the appeal succeeds. The decision of the disability appeal tribunal on 8 October 1999 was erroneous in point of law, for the reasons given below, and I set it aside. However, I consider it expedient under s. 4(8)(a)(ii) of the Social Security Act 1998 to make such fresh or further findings of fact as will enable me to make my own decision. This is that the appellant is entitled to the care component of disability living allowance (DLA) at the lowest rate from 20 March 1997, because he requires attention in connection with his bodily functions for a significant portion of the day. This is an open-ended award. He is not entitled to either rate of the mobility component: there has never been any evidence that he could qualify for the higher rate, and at the oral hearing his representative expressly disclaimed seeking the lower rate, which seemed wise in the light of CDLA/714/1998 [R(DLA) 4/01] and related appeals. No argument was addressed to me on the highest rate care component, and I explain later in this decision why it would not have been applicable. It was also made clear that it was attention, not supervision, needs that motivated the claim to the middle rate.

I directed an oral hearing as I wanted to explore with the appellant the nature and extent of his attention needs and wishes; I found it most helpful to talk to him and obtain his responses through the two excellent signing interpreters, Ms. Tina Little and Mr. Van Holton, who attended the hearing. I appreciated the appellant's patience in answering my questions, and join with him in expressing thanks to the interpreters. He was represented by Mr. Victor Riddings of Stockport Welfare Rights, to whom I am grateful for his sensible and moderate submissions and his ready answers to my questions. The Secretary of State was not represented at the hearing, through the kind of mistake anyone could make: Miss. Haywood, who is based in Leeds, had the hearing entered in her diary as not taking place until 2pm. She gave her consent over the telephone to the application being treated as the appeal, said she had nothing much to add to the Secretary of State's existing submission, and did not object (as the rest of those present did not) to the hearing going ahead without her, given the time it would take her to get to Manchester; and she faxed and wrote me a most courteous letter on the same day apologising for her absence.

Procedural history

This was a second time round appeal. The appellant was initially refused benefit altogether. A tribunal decision on 30 April 1998 awarding lower rate mobility and lowest rate care components was overturned because the Commissioner found both awards to be insufficiently explained. The second tribunal on 8 October 1999 refused any rate of the mobility component (adequately explaining why), and again awarded the lowest rate care component only. It noted that the appellant had adjusted well to his disability, by learning to communicate partly by lipreading and partly by reading and writing messages. It accepted everything said in the claim pack about which needs the appellant had not been able to overcome, but found that most of the needs occurred infrequently and, even allowing for all of them, did not amount to attention frequently throughout the day. This immediately left the way open for complaints that it had not said which needs had been overcome. Its findings that communication with people who did not enunciate clearly so as to be lipreadable would be difficult, and that written communication would have to be in simple sentences both ways, led to a complaint that it had given inadequate weight to its own findings in denying that communication needs occurred frequently throughout the day. There is little substance in the first ground: the tribunal's findings show that it considered the difficulties of communicating at work to have been overcome. But the tribunal did not deal with the submission made to it about the need for physical action to initiate communication, and for that reason I set it aside.

The claimed needs

The appellant, born on 11 March 1961, is quite profoundly deaf, and has little speech. He did not attempt to speak at all during the oral hearing. His hearing aids do no more than alert him, in a quiet environment, to the fact that someone is speaking, and provide a reassuring background noise without which he would feel confused and dizzy. He was the only non-hearing person in his family. He attended a special school where British Sign Language (BSL) was not taught (he did not learn it until after he left school) but he was encouraged to lipread. He says that his lipreading is not very good, and I note that the tribunal experimented with this and found that the appellant could understand short and simple questions put by the chairman, but could not lipread the carer member at all. I can understand this, having tried the same thing myself and been told that I was almost impossible to lipread.

The appellant says he did not acquire much literacy either. Mr. Holton the interpreter, from whom I was willing to receive evidence about why this should be, since it was difficult for the appellant to explain, said that teaching is done by showing children pictures with the names of the objects depicted beneath them, but they might as well be in Sanskrit. I took him to mean that each word would have to be separately learned and remembered, without fitting into any linguistic or grammatical context. I am willing to accept that the appellant's literacy is not very good, though he clearly has some ability, as he was able to obtain City and Guilds qualifications without having an amanuensis in the written exams, even though he had help from a support worker beforehand. He also manages to carry out his work as a foreman joiner, including allocating jobs to the workmen under his supervision by showing them plans and indicating what is written on them; and he is able to attend the weekly meeting, convey in writing what points he wants discussed, and receive replies in writing. Part of his argument, however, was that this is a slow and unsatisfactory method of communication, some people have less patience with him than others, and it takes him a while to understand what they are trying to convey to him. There are a lot of delays. He is able himself to work from plans, though these convey a good deal of information in graphic form, supplemented by writing the likely content of which has no doubt become familiar to him through use.

The claim pack, completed by a welfare rights worker through the intermediacy of a signing interpreter, stated that BSL was the appellant's first language, in the sense of being the language in which he felt most comfortable. The claim pack stated problems with using public transport and asking for directions in unfamiliar places. He had a vibrating cooking timer, but would have to stand and wait for water to come to the boil or for oil to heat as he would not be able to hear bubbling or sizzling. As to this, it is customary for hearing people to wait for water to come to the boil, if only to start timing how long things need to cook, rather than hoping to hear bubbling begin from another room; and anyone, hearing or not, who leaves a pan of heating oil or fat unattended is irresponsible. Supervision needs were then mentioned, in terms of smoke alarms, noises in the street which might suggest something was happening, and someone to warn him if his daughter fell or the washing machine overflowed. However, Mr. Riddings made it clear that middle rate care was sought on attention, not supervision, grounds. It is also worth noting that the appellant's employers apparently consider that he can work on building sites without risking a breach of health and safety regulations, or their insurance cover.

It is true that in the event of an intruder at night, or a fire where the noise might alert a hearing person to its existence before the smell of smoke did, or an emergency requiring the calling of a doctor, a deaf person with little intelligible speech is at a distinct disadvantage. But these contingencies are relatively remote, and would in any case require no more than the presence of a hearing person asleep on the premises who could be alerted, and in turn alert a claimant, to what was happening, or who could be woken to call a doctor. There would therefore be no need for supervision (someone being awake to watch over a claimant) in terms of s. 72(1)(c)(ii)) of the Social Security Contributions and Benefits Act 1992, and since such emergencies are not common, any attention needs generated, however repeated or prolonged on a particular occasion, would not be needed with the regularity (roughly speaking, more nights than not) required by s. 72(1)(c)(i). Apart from pointing out the difficulties, the present appellant makes no claim to night-time needs for supervision, nor for attention.

In the additional section of the claim pack, a number of needs or wishes for a number of hours a day were asserted, including that the appellant would like to attend evening classes to learn a foreign language and would need a note-taker for this purpose. Naturally I wondered, as no doubt the earlier tribunals had, how his literacy in English could be as bad as he claimed if he could contemplate learning another language. But he told me that this item in the claim pack was a misrepresentation of what he had said. He had said he would like to attend evening classes to do business studies, and would need a support worker to help him understand what was said. This is a different matter, and I must urge on those who complete claim packs on behalf of other people the necessity of thinking about what they are writing down, how it fits in with the rest of the case they are trying to make, and the impression that what they say will give. There is no point talking about learning a foreign language if the case is going to be that a claimant can only with difficulty get on in English.

The items in the additional section relating to the needs of the appellant's present lifestyle were help with attending meetings, with correspondence, with reading newspapers and magazines and with watching non-subtitled TV or videos.

As is encouraged by the questions in the additional section, the appellant had also set out what he would like to do, or at least to try, if he had the help he needed. In his "wish-list" he said he would like to go to the theatre/cinema, to the pub where it is dark and lipreading is not easy, to a social club, to church, to travel without risking missing announcements about train delays or bomb scares, to read books, to attend a business studies course, to get to know his neighbours, and to be able to go out in the garden without missing someone at the door such as the milkman with the bill. He also mentioned answering telephone calls from hearing people. I include this in the wish-list because as both the appellant and his wife are deaf, it seems improbable that hearing people would telephone them, except in emergencies. He has a minicom with which he can manage telephone calls with other deaf people, but told the earlier tribunal that if hearing people try to use this, they go too quickly for him to understand. I should have thought this could be cured by asking anyone who might have cause to ring him to go slowly and keep checking that he has understood.

The interpretation of the legislation in decided cases

DLA claims by people who are profoundly and prelingually deaf are among the most difficult to adjudicate. Parliament has not chosen to provide in the Contributions and Benefits Act that they should receive any particular level of benefit, as it has in relation to the mobility component for those who are both blind and deaf (s. 73(2)) and those who are severely mentally impaired (s. 73(3)), or in relation to the care component for those who are terminally ill (s. 72((5)). No doubt many claimants, representatives and adjudicating authorities wish it had. But as things stand, it is necessary for these claimants to convince adjudicating authorities that their need for attention in connection with their bodily functions is such as to entitle them to the care component either at the lowest rate, on the ground that they require attention for a significant portion of the day (whether during a single period or a number of periods) under s. 72(1)(a)(i), or at the middle rate on the ground that they require frequent attention throughout the day under s. 72(1)(b)(i).

But against this background of no specific provision, the superior courts have made a series of necessarily (this being a point of law jurisdiction) vague pronouncements which encourage claimants and their representatives to argue, in effect, that all profoundly and prelingually deaf claimants must be entitled to the middle rate of the care component. The leading case is Fairey/Halliday, CA/780/1991, before Mr. Commissioner Sanders, 15 June 1995 before the Court of Appeal and [1997] 1 WLR 799 before the House of Lords [R(A) 2/98]. Miss. Fairey, like the appellant in the present case, was not happy with confining her social life only to the company of other deaf people, and wanted to improve her interaction with her colleagues at work and to widen her social horizons. Mr. Commissioner Sanders held that it was right to include in the aggregate of attention that was reasonably required for a profoundly and prelingually deaf claimant such attention as might enable her to carry out a reasonable level of social activity. He warned, however, that various social activities that would be open to hearing people would not become more accessible to a deaf person whatever additional attention was given, and that probably no amount of attention would put a profoundly deaf person in the same position as one with good hearing, even if an interpreter were always to accompany the claimant "which I would hardly imagine would be desirable". He stressed that it was for the fact-finding adjudicating authorities to determine both what amount of attention was reasonably required and whether it fulfilled the condition of "frequency".

The majority in the Court of Appeal agreed with Mr. Commissioner Sanders. Glidewell LJ held that attention in connection with hearing to enable a claimant to "live, as nearly as possible, a normal social life" was "reasonably required". As to frequency, this was a matter for the fact-finding authorities. Swinton Thomas LJ agreed, and added:

"This Court must not lay down the minutiae of what can and cannot be included in the aggregate which goes together to make up the attention which is reasonably required. That is matter for the adjudication officer."

Hobhouse LJ, the dissenting member of the Court of Appeal, deplored the absence of detailed findings of fact, forcing the court to consider "unspecific hypotheses". He pointed out the difficulties for fact-finders in deciding which of the activities a deaf person might wish to pursue was "reasonable" and which was not; in his view none of the activities Miss. Fairey said she wished to pursue, and for which she might need help "in connection with" her lack of hearing and speech, could be characterised as "unreasonable" for her to aspire to, so the suggestion that the criterion of "reasonableness" would take care of everything was simply unworkable.

Lord Slynn gave the lead speech in the House of Lords. He considered the authorities. He cited, but did not comment on, the observation of Lord Bridge of Harwich (with whose speech the rest of their lordships agreed) in Woodling [1984] 1 WLR 348 that:

" ... it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution."

Happily neither Miss Fairey, nor the present appellant, nor a very large number of the blind or deaf claimants who appear before tribunals runs any risk of being institutionalised if not awarded middle rate DLA.

Lord Slynn then considered Mallinson [1994] 1 WLR 630 [R(A) 3/94] in which, by accepting seeing as the bodily function impaired, the majority opened up the field of possible forms of attention. Lord Woolf foresaw no problem of the test being applied too broadly: the need for attention had to be frequent throughout the day, and it had to be in connection with bodily functions. He excluded "extreme situations" where the attention would not result from the severity of the disability or would not be reasonably required, but did not offer any concrete examples for the guidance of fact-finders. Lord Slynn concluded that the provision of a signing interpreter was capable of constituting "attention", and the test was whether this attention was reasonably required to enable the severely disabled person as far as reasonably possible to "live a normal life". She was not to be confined to doing only those things which totally deaf people could do and provided with only such attention as was necessary to keep her alive in that community. It was not in any way unreasonable for Miss. Fairey to wish to be involved in mixing and taking part in activities with others and undertaking recreation and cultural activities:

"What is reasonable will depend on the age, sex, interests of the appellant and other circumstances."

Attention given to a profoundly deaf person to enable that person, so far as possible in the circumstances, to carry on "an ordinary life" was properly to be included in the aggregate of attention required. How much attention is reasonably required and how frequently it is required were questions of fact for the adjudication officer.

Lord Hope simply agreed with Lord Slynn. Lord Mustill said it would not have crossed his mind that helping Miss. Fairey with social activities could be relevant attention, but found himself constrained by the authorities. Lord Goff shared these reservations. Lord Clyde said he was not prepared to hold that the services of an interpreter to enable the claimant to extend her social life beyond the limits of those with whom she could communicate without an intermediary could never be reasonably required, but pointed out that whether these were required and to what extent were matters yet to be explored.

Guidance for fact-finders?

The imprecision of the tests to be applied leaves fact-finders floundering, as prophesied by Lord Hobhouse in the Court of Appeal. I take it that a "normal" or "ordinary" life is to be considered by reference to what hearing people can do without assistance. What their lordships had in mind by a "reasonable level of social activity" they have not disclosed. For fact-finders to have to decide what they think is reasonable for a particular claimant to want to do having regard to his or her interests, let alone by reference to age, sex or other circumstances seems both invidious and presumptuous. However, I propose in this decision to try and give some guidance on how fact-finders should go about their task and what criteria they might apply in reaching their conclusions.

Mr. Commissioner Levenson in paragraph 34 of CDLA/3433/1999 [R(DLA) 2/02] has conveniently listed the relevant legal considerations, but of necessity his formulations are little clearer than those of the higher courts. Mrs. Commissioner Heggs in CDLA/16668/1996 very properly warns that it may not be enough (as the earlier tribunals in this appeal did) to say that a person has adapted well to his disability, if this is only because other people have to make a lot of extra effort to help him do so. Mr. Commissioner Howell in CDLA/8167/1995 gave some shape to the questions by suggesting that blind people, however understandable it may be for them to wish to try mountaineering, windsurfing or parachute jumping, would thereby be placing themselves in the "extreme situations" postulated by Lord Woolf and could not expect to have attention in connection with these situations taken into account. The Commissioner considered that the inquiry on which fact-finders embark should be concerned with the "relatively mundane everyday aspects of functioning as a human being in ordinary life", by reference to Mr. Mallinson's needs for help by guidance when walking in unfamiliar places and with reading, at least until he learned to read Braille.

I take it (but perhaps I am wrong) that it is still necessary to have regard to Parliament's omission to legislate specifically for deaf claimants. As Mr. Commissioner Howell also observed in CDLA/8167/1995 in relation to blind claimants:

"The House of Lords has not said, and cannot have meant, that all the help a blind person reasonably needs in the course of trying to lead as "normal" a life as possible counts as attention and therefore towards getting the benefit. Were that the case all blind people would qualify for the middle rate care component at least. In a more generous system that might be desirable but under the law as it is the help that can count as "attention" is, for blind people as for all the disabled, far more restricted."

He discounted some help (choosing matching clothes, telling blind people that the housework had not been done properly or that they had gravy on their chins) as not reasonably required because it was too remote: it lacked the requisite degree of contact and intimacy. The problem with deaf claimants, however, is that it is well-settled that the services of a signing interpreter are not too remote in this sense.