Secretary of State for Social Security v. Fairey (otherwise) Halliday) Cockburn v. Chief Adjudication Officer CA 124 1993
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. Heald Q.C.Mr R. A. Sanders |
| Judgment Date | 21 May 1997 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA, AA: personal care |
| Docket Number | CA 124 1993 |
| Appellant | Secretary of State for Social Security v. Fairey (otherwise) Halliday) Cockburn v. Chief Adjudication Officer |
R(A) 2/98
(Secretary of State for Social Security v. Fairey (aka Halliday)
(Cockburn v. Chief Adjudication Officer and Anor.)
Mr. M. Heald QC CA/124/1993
18.8.94 (Cockburn)
Mr. R. A. Sanders CA/780/1991
14.10.94 (Fairey)
HL (Lord Goff of Chieveley, Lord Mustill,
Lord Slynn of Hadley, Lord Hope of Craighead,
and Lord Clyde)
21.5.97
Attendance allowance - need for extra domestic laundry as a result of disability - whether amounted to attention in connection with bodily functions
Care component - profoundly deaf claimant - whether assistance or attention to enable claimant to live a normal life was reasonably required
Mrs. Cockburn was awarded attendance allowance at the lower rate by a disability appeal tribunal on the basis that her attendance needs for dressing and undressing and getting into and out of bed, when added to laundry generated by her disability, amounted to frequent attention throughout the day. The adjudication officer appealed to the Commissioner. The Commissioner allowed the appeal and the claimant appealed to the Court of Appeal, which dismissed the appeal. The claimant appealed to the House of Lords
Miss Fairey, aged 20 at the date of the decision of the Commissioner, was profoundly deaf. It had earlier been conceded that she had satisfied the day attention condition for an award of attendance allowance until 16 August 1990 when she turned 16 and the Commissioner had given an interim decision to that effect. The resumed hearing concerned entitlement from when the claimant turned 16 and had been postponed at the request of the Secretary of State pending the outcome in the House of Lords of Mallinson v. Secretary of State for Social Security [1994] WLR 630 [R(A) 3/94]. At the resumed hearing it was not in issue that the attention required because of a claimant’s hearing loss was or might be attention in connection with the bodily function of hearing or communication
Held, by the Commissioner, allowing the appeal, 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.
The Secretary of State appealed to the Court of Appeal, which (by a majority) upheld the decision of the Commissioner. The Secretary of State appealed to the House of Lords.
Held, by the House of Lords, dismissing both appeals (in the case of Mrs. Cockburn, by a majority, Lord Slynn of Hadley dissenting), that:
1. in the case of Miss Fairey, per Lord Slynn of Hadley, (i) the operation of the senses is a bodily function; (ii) the provision of an “interpreter” to use sign language is capable of providing “attention”; and (iii) there is no requirement that the “attention” must be essential or necessary for life or that attention must not be taken into account if it is merely desirable, and that the test is whether the attention is reasonably required to enable the disabled person as far as reasonably possible to live a normal life;
2. in the case of Mrs. Cockburn, per Lord Hope of Craighead, adopting the formulation of Mr. Commissioner Monroe in CA/60/1974 approved of by Lord Bridge in In re Woodling [1984] WLR 348 [also reported as appendix 2 to R(A) 2/80], at 352H-353B that the statutory criteria “are directed primarily to those functions which the fit man normally performs for himself”, the help received by the appellant with her extra laundry is help in connection with a task, such as cooking, shopping or keeping the house clean, which the fit person need not, and frequently does not, perform for himself. R(A) 1/91 by implication disapproved of.
DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CA/780/1991
1. At the resumed hearing of this appeal the claimant, now 20 years old, was represented by Ms. J. Jones of the National Deaf Children’s Society. The Secretary of State was represented by Mr. J. R. McManus of Counsel. Ms. Jones had not known that Counsel would appear against her and was concerned lest she and her client should be at a disadvantage. In the event she elected to proceed and very ably put her client’s case.
2. It was conceded on behalf of the Secretary of State at the last hearing that the Attendance Allowance Board through its delegated medical practitioner had, on review, erred in law by not having considered the amount of attention required by this profoundly deaf claimant in order to achieve a sufficient level of communication. It was also then accepted that the case was indistinguishable from CSA/113/1991 in which the Commissioner had decided that a congenitally deaf boy satisfied the day attention condition, at least until he turned 16, because of the attention required for the purpose of communication. It followed that this claimant had satisfied the day attention condition for an award of attendance allowance (or, as it is now known, the care component of disability living allowance) from at least six months before the date of her last claim until 16 August 1990, when she was 16, and I gave an interim decision to that effect. The resumed hearing concerned entitlement after that date. The resumption had been postponed at the request of the Secretary of State pending the outcome in the House of Lords of Mallinson v. Secretary of State for Social Security (judgment 21 April 1994) [reported as R(A) 3/94] and then for written submissions as to the effect of that case on this. What emerges is that it is not in issue that the attention required because of a claimant’s hearing loss is or may be attention in connection with the bodily function of hearing or communication; there is nothing in Mallinson inconsistent with CSA/113/1991 or my interim decision in this case.
3. Attendance allowance as such has been abolished except for those over 65. For those under 65 attendance allowance has been replaced by the so‑called care component of disability living allowance: see section 72(1) of the Social Security Contributions and Benefits Act 1992 which provides that:
“(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-
(a) he is so severely disabled physically or mentally that-
(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or
(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or
(b) he is so severely disabled physically or mentally that by day, he requires from another person-
(i) frequent attention throughout the day in connection with his bodily functions; or
(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or
(c) he is so severely disabled physically or mentally that, at night-
(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or
(ii) in order to avoid substantial danger to himself or others he requires another person to be aware for a prolonged period or at frequent intervals for the purpose of watching over him.”
There are three different rates of payment depending on which of those conditions is satisfied. The first issue in this case is whether the claimant satisfies the condition imposed by section 72(1)(b)(i). That condition is identified to the day attention condition in the old attendance allowance. If the claimant does not satisfy that condition then it is no doubt open to consideration whether she might be entitled to the lowest rate of the care component by virtue of satisfying section 72(1)(a).
4. As I have said, it is not in question that hearing or communication is a bodily function. What is for determination in this case is whether the claimant, since she turned 16, requires frequent attention throughout the day in connection with those bodily functions. “Requires” in section 72(1)(b)(i) means reasonably requires, see Regina v. Social Security Commissioner, ex parte Connolly [1986] 1 WLR 421 and R(A) 3/86.
5. The claimant’s principal means of communication is by sign language; she has, I understand, a certain limited ability to vocalise her language and to lip read. Ms. Jones made the point, which did not appear to be challenged, that because of her profound deafness, the claimant’s ability to use language was relatively poor so that she would have that disadvantage whatever...
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