Benefits, Bodily Functions and Living with Disability

DOIhttp://doi.org/10.1111/1468-2230.00162
Publication Date01 Jul 1998
AuthorNick Wikeley
CASES
Benefits, Bodily Functions and Living with Disability
Nick Wikeley*
The decision of the House of Lords in the joined appeals of Cockburn vChief
Adjudication Officer and Secretary of State for Social Security vFairey (also
known as Halliday)1raises important questions as to the scope of social security
benefits for severely disabled people. The appeals concerned entitlement to
attendance allowance and the care component of disability living allowance
respectively, but gave rise to a common issue of statutory interpretation, namely
whether either claimant reasonably required ‘frequent attention throughout the day
in connection with [her] bodily functions’.2Mrs Cockburn, aged 71, lived alone
and suffered from severe arthritis and incontinence. She claimed attendance
allowance on the basis that she needed help with washing, dressing and in
particular with laundering soiled clothes and sheets. Miss Fairey, who was deaf,
made a claim for the care component of disability living allowance on reaching 16
on the basis of her need for help with communication.
The benefit criteria
Attendance allowance was introduced in 1970 as a non-contributory and non-
means tested benefit, payable at a single flat rate. In order to qualify, the claimant
had to be severely physically or mentally disabled and require ‘frequent attention
throughout the day and prolonged or repeated attention during the night; or ...
continual supervision from another person in order to avoid substantial danger to
himself or others’.3A lower rate of benefit was added in 1973 for claimants who
required the necessary attention or supervision either during the day or at night.4
Three years later a quite separate benefit, mobility allowance, was launched for
those who were either unable or virtually unable to walk.5
In 1992 attendance allowance and mobility allowance were merged to create a
‘new’ benefit, disability living allowance (DLA).6Attendance allowance was
retained for people with personal care needs who made a claim after the age of 65
(as was the case with Mrs Cockburn), while mobility allowance was abolished.
The Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 551
* Faculty of Law, University of Southampton.
I am grateful to Elizabeth James and Philip Larkin for their research assistance.
1 [1997] 1 WLR 799.
2 Social Security Contributions and Benefits Act (SSCBA) 1992, s 64(2)(a) (attendance allowance) and
s 72(1)(b)(i) (disability living allowance).
3 National Insurance (Old persons’ and widows’ pensions and attendance allowance) Act 1970, s 4(2).
4 National Insurance Act 1972, s 2(1).
5 Social Security Pensions Act 1975, s 22, inserting Social Security Act 1975, s 37A.
6 See the Disability Living Allowance and Disability Working Allowance Act 1991, the relevant
provisions of which were subsequently consolidated in SSCBA 1992, ss 72 and 73. On the back-
ground to these reforms, see Social Security Advisory Committee, Benefits for Disabled People: A
Strategy for Change (London: HMSO, 1988) and DSS, The Way Ahead: Benefits for Disabled People,
Cm 917 (London: HMSO, 1990).

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