UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CSA_694_2007

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[2008] UKSSCSC CSA_694_2007 (24 January 2008)

DECISION OF SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the tribunal given at Dundee on 9 October 2007 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted appeal tribunal for a rehearing.

The claimant has appealed to the Commissioner against the decision of the tribunal that she is not entitled to attendance allowance at either rate with effect from 28 February 2007. In giving reasons as to why the claimant did not satisfy the daytime attention condition for the allowance, the tribunal said amongst other things:

"Requiring someone to drive her to places for social activities and assistance with writing correspondence does not come within the ambit of Attendance Allowance because neither have the degree of personal closeness required."

It is said in the grounds of appeal:

"Yet in the Mallinson judgement made by the House of Lords, sight is accepted as a bodily function, [the appellant] has a visual impairment and her husband provides her with the substitute function which her eyes would provide for her, did she not suffer from double vision.

Moreover in the Fairey/Halliday judgement made by the House of Lords, it states that,

… "whether the attention is reasonably required to enable the severely disabled person to far as reasonably possible to live a normal life."

[and]

"… such attention as may enable the claimant to carry out a reasonable level of social activity."".

The Secretary of State supports the appeal. In his submission, he says:

"3. Firstly, it should be noted that in R(A) 2/98 the Commissioner responsible for allowing the original appeal held that it was right to include, in the aggregate of attention that is reasonably required, such attention as may enable the claimant to carry out a reasonable level of social activity. What should be considered reasonable would be for the tribunal to decide.

4. The case having reached the House of Lords, their lordships broadly reached the same conclusion:

"On the question of principle I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. 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."

5. Thus, where assistance to pursue social activities is claimed, it is incumbent upon a tribunal to investigate how reasonable such help may be. By discounting such activities as not within the remit of the legislation, the tribunal dealt with here has, in my opinion, erred in law.

6. In the House of Lords decision "Mallinson", R(A) 3/94, Lord Woolf found:

"…[T]he only attention which can be given to a person "in connection with" a sight handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight. If, for example, a person with sight handicap receives correspondence, someone has to read their contents to him if he cannot read them for himself. That I would regard as being the active personal assistance which constitutes the attention which a normal person does not require which the subsection demands…."

7. By rejecting the evidence that the claimant, because of her poor eyesight, requires help with correspondence as not within the remit of the legislation, the tribunal has once again, I submit, erred in law."

I consider that the Secretary of State's concession is properly made in regard to assistance with correspondence. Such assistance, in the light of R(A) 3/94, is quite clearly encompassed within what is regarded as attention in the context of the legislation. However, it has been emphasised by the Commissioners and the Superior Courts that there does require to be a close connection between the act and the bodily function and, whilst this will not, in all cases, depend on physical contact, a high degree of physical intimacy is required. I refer, for example, to the speech of Lord Hope in R(A) 2/98 (Cockburn and Fairey). It seems to me that in these circumstances, the tribunal were right to conclude that, driving the claimant to places of social activities, did not fall within the ambit of attention. Whilst it is accepted that the import of R(A) 2/98, and other authorities is that attention is not restricted to the necessities of life and can encompass what enables a claimant to carry out a reasonable level of social activity, the essential prerequisite is that what is provided must be what can in law be properly regarded as attention. That is not the case here in relation to driving because transporting the claimant in a motor vehicle lacks the degree of physical intimacy required.

The Secretary of State requests that I remit the case to a new tribunal with appropriate directions for its determination. This I am prepared to do, having found that the tribunal erred in law in relation to correspondence. However, I do so with the specific direction that driving the claimant whether to social functions or otherwise does not constitute attention.

The appeal succeeds.

(Signed)

D J MAY QC

Commissioner

Date: 24 January 2008

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