UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CSA_993_2002 (21 July 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

Case Reference: CSA 993 2002

1. The decision of the Glasgow appeal tribunal (the tribunal) held on 2 October 2002 is not in error of law. The decision therefore stands.

The main issue

2. This is whether the tribunal erred in including in its statement of reasons this sentence:-

"She described other help required, such as locking doors, carrying food from room to room and carrying shopping, none of which the Tribunal found to be in respect of bodily functions."

Background

3. The appeal concerns a new claim for attendance allowance (AA) made on 29 November 2001. The claim form describes, and the tribunal accepts, that the appellant suffers from arthritis in her arms, shoulders and neck and has a tremor in both hands so that, through a combination of pain, stiffness and tremor, the appellant reasonably requires attention with dressing and undressing, in bathing and hair-washing. However, the tribunal did not accept the stated frequency of assistance said to be needed in these respects.
4. The appellant further indicated in her claim that she had to have someone pour water from the kettle, carry a plate of biscuits from the kitchen to the living room, get the key out of the lock in the front door for her and open and close the window in the kitchen as she was unable to stretch. She drinks through a straw.
5. On 19 December 2001 the adverse decision by a decision maker (DM) was notified to the appellant that she was not entitled to AA from and including 29 November 2001. This was the decision under appeal to the tribunal.
6. The appellant has been represented throughout the proceedings by Mr Orr, a Welfare Rights Officer of the Glasgow City Council. He was with her at the oral hearing of her appeal by the tribunal. It was repeated on her behalf that a neighbour had to close her door, helped her dress and bathe and assisted in the kitchen. A friend assisted her to undress and washed her hair. Mr Orr had no questions at the close and submitted that the oral evidence about her needs was similar to that in the claim pack. The tribunal held that she was not entitled to an award of AA.
7. The ground of appeal to the Commissioner is that the tribunal, by its sentence set out at paragraph 2 above, misapplies the law in relation to what counts as a bodily function:-

"In this case the tribunal accept that help with bathing is something the claimant needs help with but of course bathing is not a bodily function. The help is given with movement of the limbs etc they are the bodily functions.

What the tribunal should have done is make findings as to whether or not carrying food in the house was sufficiently personal to qualify rather than saying that carrying was not a bodily function. If it is reasonable for the claimant to carry food then the bodily actions that make up carrying are bodily functions just as much as those which would enable a claimant to get in and out of the bath.

Having wrongly excluded a number of activities on this basis the tribunal cannot have come to a correct conclusion in respect of frequency etc."

Statutory provisions

8. Entitlement to day attention needs in the present case (it was not argued that there were supervision needs or night needs) depends principally on the provisions of section 64(2)(a) of the Social Security Contributions and Benefits Act (the Act). This provides for entitlement to lower rate AA for any period throughout which a claimant:-

"(2) … is so severely disabled physically or mentally that, by day, he requires from another person either –

(a) frequent attention throughout the day in connection with his bodily functions,

or

(b) … "

9. Had the appellant been younger, s.72(1)(a)(ii) of the Act might have applied, to give an even lower rate of entitlement (of disability living allowance) where a claimant:-

" … cannot prepare a cooked main meal for himself if he has the ingredients."

Oral hearing

10. The case came before me for an oral hearing on 17 July 2003. As noted, the appellant was represented by Mr Orr. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General. They both assisted me by their submissions. Mr Brodie did not support the appeal, and I accept that lack of support was correct although not his entire submission.

My conclusion and reasons

11. I consider at the outset two subsidiary points made for the first time by Mr Orr at the oral hearing before me.

Credibility

12. Mr Orr objected to the following conclusion in the tribunal's statement of reasons:-

"She described in oral evidence receiving repeated assistance with regard to dressing, undressing and bathing, describing being helped to dress in the morning, undressed and helped to bathe and dress again at lunchtime, and her hair being washed separately. This appeared to the Tribunal inherently improbable as these activities might be reasonably combined."

13. Mr Orr submitted that the tribunal had wrongly conflated two separate points. Whether or not it was reasonable to aggregate activities was a matter to be judged objectively but had no relevance to what actually happens in the claimant's case. I reject this criticism. Matters of credibility are for a tribunal, unless their approach is irrational. The nature of asserted conduct is a relevant factor in determining what the true situation is likely to be.

Allowing challenge

14. Mr Orr submitted that the tribunal erred by not putting to the appellant and her representative the following inference for comment before making it:-

"She had stated as a supplementary point that the number of times the help was needed varied depending on whether she needed to change to go out, but the Tribunal found the Appellant might reasonably anticipate outings and arrange to be helped to dress appropriately and found this attention to be required twice a day only."

15. I reject also this criticism. The tribunal is not required to put, for earlier comment, every inference it later draws. Such a process would stultify the tribunal system. What is required is that there is no breach of natural justice.
16. It is only where it is a new point, and where its adverse implications for her case might well not immediately strike either her or her representative, that it would be contrary to the rules of natural justice to decide the case without the party being given the opportunity of rebuttal. This might arise, for example, where the inference is taken on account of special knowledge or expertise on the tribunal's part or it is not a point which is patent as a matter of common sense. But this inference is an obvious possibility and does not therefore require being drawn specifically to the attention of the parties.

Adequacy of facts and reasons.

17. Mr Brodie submitted that the sentence criticised did not fail the test for sufficiency of reasoning laid down for statutory tribunals by the Lord President of the Court of Session in Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345 at p.348:-

" …all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

18. Mr Brodie argues that what the tribunal was, in effect, saying was that the help described did not amount to "attention … in connection with [her] bodily functions" for the purposes of the conditions of statutory entitlement under s.64(2)(a) of the Act.
19. I agree. The Lord President was concerned with a planning enquiry but the same straightforward test is applied in social security adjudication. The tribunal's statement, read as a whole, was a carefully reasoned and explicit decision which left the informed reader in no doubt as to the view it took of the evidence and how it exercised its judgement, having regard to the statutory criteria.
20. The tribunal had earlier used the term "attention", a technical concept, when referring to assistance with bathing and dressing and regarded such "attention" as being potentially relevant to qualification. Against that background, it is apparent that the tribunal's finding was that the "other help required, which was locking doors, carrying food from room to room and carrying shopping" was not, in its view, "[attention] in respect of bodily functions". As there was no assistance capable of constituting the necessary "attention", identification of the bodily function was otiose.
21. All the evidence with respect to the "other help required", whether in the claim pack or at the oral hearing, concerned someone carrying out the stated activities, all essentially domestic chores rather than personal tasks such as the accepted bathing, for her. This is what the tribunal statement addressed and found not to qualify. The decision was not directed to any argument or evidence, because it was never put, that the claimant reasonably required herself to be able to unlock the door, carry food from room to room or carry shopping and that she could do so if she had assistance with turning her hand or gripping or lifting or with any other bodily function.
22. Ought the tribunal to have explored this latter suggestion with the claimant? I do not consider that it should. The appellant had the benefit of an extremely experienced and competent representative and the tribunal was entitled to conclude that all relevant evidence and argument had been adduced. Even were the claimant not so fortunate, no such obligation arises in the particular circumstances. I agree with Mr Brodie that, where a claimant, through disability, is unable to carry out his or her own domestic chores, it would be usual for the chore to be carried out for them and exceptional that assistance is either provided or reasonably required to enable the claimant personally to carry out the chore. Therefore, the claimant, on whom lies the onus of proof, would be required to demonstrate that, in the individual circumstances of her case, such a type of help was reasonably required.

Attention … in connection with [her] bodily functions

23. I received detailed analysis in the oral argument on the following cases: R. v. National Insurance Commissioner, ex p. Secretary of State for Social Services, [1981] 1 W.L.R. 1017 (colloquially known as "Packer"), a decision of the Court of Appeal; and four decisions of the House of Lords. These are respectively: Woodling v. Secretary of State for Social Services [1984] 1 W.L.R. 348 (Woodling), Mallinson v. Secretary of State for Social Security (Mallinson) reported as an Appendix to R(A)3/94, and the two cases decided together of Cockburn v. Chief Adjudication Officer (Cockburn) and Secretary of State for Social Security v. Fairey (Fairey), both cases reported at R(A)2/98.
24. Having heard the arguments, I deduce the following propositions from the above:

(a) The claimant must be so severely disabled physically or mentally that the appropriate attention needs arise.

(b) The claimant's physical or mental disablement must impair the exercise of a bodily function. "… [T]he word 'functions' … connotes the normal actions of any organs or set of organs of the body … ." (see Dunn L. J. in Packer). Thus it is now recognised that activities such as dressing and undressing, bathing, getting in and out of bed are not in themselves bodily functions but the result of the use of such. The bodily function impaired is to be identified (Mallinson).

(c) "Attention in connection with" is a narrower concept than "assistance with respect to". What is required relating to a bodily function must be service of a close and intimate nature. The result of Packer and Woodling is that domestic chores, such as cooking, preparing food, which are carried out by a helper for the claimant, do not constitute attention in connection with bodily functions because the essential physical intimacy is lacking. Although physical contact is not required (Fairey), the claimant must be present while the help is being given if he or she is to obtain benefit from it or there is an immediate link with the claimant's necessary presence (Cockburn).

(d) The service of close personal contact or intimacy must be reasonably required (Mallinson).

(e) The activity for which such assistance is required must be part of normal life (Fairey).

If any of the above is not demonstrated, it will be unnecessary to consider the remaining criteria.

25. In Packer, Woodling and Cockburn, the assistance founded upon was that of carrying out a domestic chore on behalf of the claimant. Those cases clearly establish that such a scenario does not satisfy statutory entitlement because it is not connected with the presence of the disabled person and therefore lacks the essential intimate service required to constitute attention. Another way of putting it is that such services are too remote from any bodily function of the claimant's.
26. However, the above cases do not address the distinct issue of help provided to enable a claimant to do his or her own chores. Some such assistance, for example either guiding the claimant's hand or arm in preparing or cooking food or to carry shopping or to turn a key in a lock, has to take place in the claimant's presence and would seem to be a service of the necessary intimacy. I agree with Mr Brodie that there are conflicting dicta in the cases referred to above. But I find nothing in them which, having regard to their facts, compels the sweeping conclusion that the characterisation of activities as "housework" inevitably precludes entitlement. CDLA/267/94, CDLA/3711/95, CDLA/12381/96 and CSA/303/03 are decisions to the contrary.
27. Nor do I accept Mr Brodie's premise that the introduction of s.72(1)(a)(ii) of the Act supports such a conclusion. All that does is ensure a level of entitlement in one specific domestic category where a claimant, through disability, "cannot prepare a cooked main meal for himself if he has the ingredients", a matter to be determined without reference to any attention reasonably required with bodily functions. The introduction of the subparagraph is neutral on the general issue of whether assistance with domestic chores is ever capable of constituting "attention".
28. The crucial point, as noted by the Commissioner in CDLA/267/94, is that the claimant must reasonably require the intimate personal service. Therefore, the issue will be, as for example in this case, does a claimant reasonably require attention in connection with her bodily function of movement so that she can herself cook or carry or turn the key in the lock, or can that requirement reasonably be obviated by having her neighbour or friend do it for her?
29. In most cases, the answer will be that there is no reasonable requirement for the former type of aid. Unless a claimant requires help with only a few vital aspects of an activity, it will be much easier for both the disabled person and their assistant if the helper simply undertakes the chore him or herself. Moreover:-

"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." (Lord Hope of Craighead in Cockburn/Fairey).

30. Where a task is not an inherently personal one (contrast washing the claimant's face or assisting at the lavatory with doing the laundry or dusting), and it is quicker for the helper to carry out the activity without involving the claimant, then it must be only in very exceptional circumstances that a claimant is nevertheless able to show that she reasonably requires assistance to do it herself. An example might be where a claimant is in the rehabilitation stage after a stroke. The usual evidential presumption is that, to the contrary, what is reasonable is that someone else performs the task for her.

Summary

31. For the above reasons, my decision is as set out at paragraph 1 above. I confirm that the tribunal's decision is not erroneous in law. The decision on the merits was, accordingly, for the tribunal.

(signed)

L T PARKER

Commissioner

Date: 21 July 2003