Mallinson (A.P.) v Secretary of State for Social Security

By section 35(1) of the Social Security Act 1975 attendance allowance is payable to a severely disabled person if he requires from another person:

"… frequent attention throughout the day in connection with his bodily functions."

The courts have given a wide meaning to the expression "bodily functions" and your Lordships were not asked to quarrel with the definition given by Lord Denning M.R. in R. v. The National Insurance Commissioner, Ex parte Secretary of State for Social Services (Packer's case) [1981] 1 W.L.R. 1017 when he said at p. 1022:

"'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products — and the like — all of which an ordinary person — who is not suffering from any disability — does for himself. But they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties: or generally which one of the household normally does for the rest of the family."

In the present case the appellant, Mr. Mallinson, is severely disabled by blindness. It is conceded that, though Mr. Mallinson can wash himself when he is in the bath, he requires attendance in connection with his bodily function of bathing in the form of assistance in getting into and out of the bath. It is also conceded that, although Mr. Mallinson can feed himself, he requires attention in connection with his bodily function of eating in the form of assistance in cutting up his food. Mr. Mallinson can walk but he requires attention in connection with his bodily function of walking in the form of assistance to guide and help him when he is outdoors. True it is that Mr. Mallinson can walk within the confines of his flat without attention but this facility is only a factor which the adjudication officer will bear in mind in deciding whether the aggregate attention required by Mr. Mallinson in connection with his bodily functions of bathing, eating and walking amount to "frequent attention throughout the day".

For these reasons and for the reasons given by my noble and learned friend Lord Woolf I would allow this appeal.

For the reasons given in a speech to be delivered by my noble and learned friend Lord Woolf I too would allow the appeal.

I have found this a difficult case, but have come to the conclusion that the appeal should be dismissed for the reasons given by my noble and learned friend Lord Lloyd of Berwick. I will add only this, that whilst section 35(1)(a)(i) and (b)(i) are aimed at the relationship between the disability and the performance of the bodily functions themselves, the focus of sections 35(1)(a)(ii) and (b)(ii) is the danger which the continued supervision is intended to avert. Since the problem faced by Mr. Mallinson is not that he cannot walk but that in some outdoor situations he cannot walk without risk, it is the continued supervision called for by paragraph (b) rather than the frequent attention demanded by paragraph (a) which one would expect to find as the touchstone of the right to an attendance allowance; and which for the reasons given by my Lord I believe one does find.

The issue raised on this appeal is a short one. However, as indicated by Ralph Gibson L.J. in the Court of Appeal, it is by no means easy to resolve. The issue is whether the assistance required by a blind person while walking out-of-doors in unfamiliar surroundings is "attention" "required" by the blind person "in connection with his bodily functions" within section 35(1)(a) of the Social Security Act 1975. The terms of that subsection are as follows:

"(1) A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence in Great Britain and either -

• (a) he is so severely disabled physically or mentally that, by day, he requires from another person either -

  (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

• (b) he is so severely disabled physically or mentally that, at night, he requires from another person either -

  (i) prolonged or repeated attention during the night in connection with his bodily functions, or

  (ii) continual supervision throughout the night in order to avoid substantial danger to himself or others."

The answer to the issue can also be of relevance to a carer of a severely disabled person. This is because under section 37 of the Act of 1975 invalid care allowance was payable, subject to certain requirements, to a person who cared for a severely disabled person and the definition of a severely disabled person included "a person in respect of whom there is payable either an attendance allowance or such other payment out of public funds on account of his need for attendance as may be prescribed". While sections 35 and 37 of the Act of 1975 are no longer in force the outcome of this appeal is of relevance to the similar requirements that have to be fulfilled to qualify for allowances under the current Social Security Contributions and Benefits Act 1992.

The appellant. Mr. Mallinson, is blind. He suffers from no mental disability but requires assistance with getting in and out of the bath and with cutting up food. He can walk about his flat and outside in familiar surroundings without risk of danger to himself, but, because he cannot see, when walking in unfamiliar surroundings he risks injury to himself unless he is guided by someone else.

Mr. Mallinson first claimed attendance allowance on a form dated 22 August 1989. On 6 October 1989 a delegated medical practitioner ("D.M.P."), acting on behalf of the Attendance Allowance Board, decided that Mr. Mallinson did not satisfy any of the attendance conditions set out in section 35(1) of the Act of 1975. That decision was subsequently reviewed on 2 March 1990 and again on 12 December 1990 without the decision being altered. There was then an appeal, with leave, to Mrs. Heggs, a Social Security Commissioner, which was dismissed on 25 September 1991. A further appeal, with leave, against her decision to the Court of Appeal was dismissed by a majority (Ralph Gibson and Mann L.JJ., Nolan L.J. dissenting). However, the Court of Appeal gave leave for this appeal.

On analysis of the section it is apparent that in order to satisfy the conditions prescribed by section 35(1)(a) a claimant must establish (a) that he is severely disabled, (b) that his disablement is so severe that he requires from another person frequent attention throughout the day, and (c) that the frequent attention is in connection with his bodily functions.

As Mr. Mallinson is blind it has always been accepted that he fulfils condition (a). It is part of (b) and (c) which have given rise to the difficulty.

In his decision announcing the result of the second review, on 12 December 1990, the third D.M.P., in a determination which was upheld by the Commissioner as being correct, said:

" Day Attention

4. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr. Mallinson required assistance to bathe and to cut up food. The medical evidence indicates that Mr. Mallinson uses a white stick.

5. I appreciate that Mr. Mallinson is blind but he has suffered from blindness for a number of years and it is clear from the evidence before me that he has adjusted well to disability.

6. Your letter dated 31 July 1990 indicates that Mr. Mallinson regularly needs assistance with the bodily function of walking but this is not borne out by the medical evidence. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr. Mallinson could walk without assistance from another person and having considered the clinical picture I agree with his opinion.

7. Mr. Mallinson has no physical disorder of mobility and, therefore, he should be able to walk and to get about within his familiar surroundings without assistance.

8. Mr. Mallinson requires assistance to bathe and to cut up food but this does not amount to frequent attention throughout the day. Consequently, my conclusion is that Mr. Mallinson does not satisfy the day attention condition.

Day Supervision

9. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr. Mallinson was aware of common dangers both inside and outside the house but he went on to indicate that Mr. Mallinson cannot see dangers outside the house. He further indicated that Mr. Mallinson could safely be left unsupervised all day. Mr. Mallinson is described as having normal mental ability.

10. Mr. Mallinson has been blind for a number of years but he is stated to be mentally normal. I can see no medical reason why he should not be aware of his surroundings. He has no physical disorder of mobility and I consider that he should be able to find his way around in the familiar surroundings of his home.

11. I accept that supervision is required when he is out in traffic or in unfamiliar surroundings but such supervision is limited in time and frequency and can be arranged in advance.

12. Taking an overall view my conclusion is that this condition is not satisfied."

The medical report of 20 September 1990 referred to in the decision sets out Mr. Mallinson's description of his condition as being that:

"I do not go out into unfamiliar surroundings without someone with me as I have walked into lampposts and broken glasses and knocked teeth out in the past."

and it...