Development Risks: Unanswered Questions

Publication Date01 Jul 1998
AuthorChristopher Hodges
the more acute as attendance allowance was designed to assist those who were so
severely disabled that they were ‘wholly or largely dependent on help from other
people in coping with the ordinary functions of daily living’.70 Moreover, the most
likely beneficiaries of the scheme were envisaged to be elderly women whose
daughters were sacrificing their own earnings potential in order to care for them.71
The apparent injustice involved in contrasting the decisions in Cockburn and
Fairey immediately attracted hostile press comment.72 The analysis above,
however, suggests that on closer examination the respective decisions are
explicable at least in terms of the somewhat haphazard development of precedent.
Ultimately the present state of the case law can be directly attributed to the failure
of successive governments to address what should be the underlying principles for
disability benefits.73
Cockburn and Fairey have a wider significance in terms of social constructions
of disability. In the last three decades perceptions of disability have begun to
undergo a fundamental transformation. In particular, the decision in Fairey reflects
a shift away from a purely medical model of disability. In this respect the change in
nomenclature from the more passive attendance allowance to disability living
allowance in 1992, implying a more integrationist model of disability, might be
seen as significant. Yet this change in terminology was largely presentational; at
heart the 1992 reforms simply involved repackaging two old benefits, catering
solely for the care and mobility costs associated with disability, as one new benefit.
The reality is that many disability costs are not met by attendance allowance and
DLA, and the level of the benefits is such that they are usually spent not on care but
on general living expenses.74 In the starkest possible terms, Cockburn and Fairey
demonstrate that an integrated disability benefit remains an elusive goal.
Development Risks: Unanswered Questions
Christopher Hodges*
Since Directive 85/374/EEC on product liability was passed in 1985, the question
which has aroused the most interest in this field has been whether the United
Kingdom has correctly implemented what has been known as the ‘development
risk’ defence from Article 7(e) of the Directive into section 4(1)(e) of the
Consumer Protection Act 1987. The issue has been important for two reasons
which are of much greater political and social importance than the short legal point
70 DHSS, National Superannuation and Social Insurance, Cmnd 3883, para 90 (London: HMSO, 1969).
71 n 22 above col 546, per Mr D. Ennals.
72 The headline in the news report in The Times (22 May 1997) was State to pay for deaf nurse’s nights
out. The report began: ‘A deaf woman yesterday won the right to claim a special benefit to help her to
enjoy nights out with friends and at the theatre. The House of Lords ruling could unleash a flood of
similar claims.’
73 On which see Social Security Advisory Committee, Social Security Provision for Disability: A Case
for Change? (London: The Stationery Office, 1997) and Larkin (1998) 5 Journal of Social Security
Law 9.
74 C. Horton and R. Berthoud, The Attendance Allowance and the Cost of Caring (London: PSI, 1990).
* Cameron McKenna, Solicitors, London.
The Modern Law Review [Vol. 61
560 The Modern Law Review Limited 1998

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