Non Contributory Benefit in UK Law

Here again I would stress that the attention which is desiderated in connection with the bodily function must be some close and intimate service to the person of the claimant. The personal nature of what is comprised in attention prompts the observation made by Dunn L.J. in the passage in his judgment in Packer [1981] 1 W.L.R. 1017, 1023F that the attention must be a service involving personal contact carried out in the presence of the disabled person.

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. 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.

The section does not define entitlement by reference to the making of a claim or require a claim as a condition precedent to entitlement. The logic of entitlement and claim is clear: claim is based on the existence of entitlement. Accordingly, I read the subsection as having this effect: a claimant not only has to show the existence of an entitlement but has also to make a claim in the prescribed manner and within the prescribed time in order that he may be paid.

Secondly, the phrase "bodily functions" is a restricted and precise one, narrower than, for example, "bodily needs". Thirdly, the phrase "attention … in connection with bodily functions", which must, I think, be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention. I would add that I fully agree with the observations of Dunn L.J. in Packer's case at page 1023 in the paragraph between letters E and G.

In respect of this ground, Mr Westgate's submissions founder on the evidence. It is unfortunate that the terms of the 2012 proposals were not clearer. It is unfortunate that the 2013 Consultation did not take place prior to the adoption of the Moving around criteria in the 2013 Regulations. And the Secretary of State was entitled to come to the same view, having considered all of the options, the evidence and the consultation responses, with an open mind.