Mallinson v Secretary of State for Social Security
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1994 |
| Date | 21 April 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Ralph Gibson, Lord Justice Mann and Lord Justice Nolan
Social security - attendance allowance - guidance of blind person in unfamiliar surroundings
Guidance of a blind person walking in unfamiliar surroundings, when the blind person had no other relevant disability, was not "attention required from another person throughout the day in connection with his bodily functions" which would have entitled the blind person to an attendance allowance under section 35(1) of the Social Security Act 1975, now section 64 of the Social Security Contributions and Benefits Act 1992.
The Court of Appeal so held in a reserved judgment, Lord Justice Nolan dissenting, when dismissing the appeal of Mr Eric Mallinson from the dismissal by Mrs R F M Heggs, a social security commissioner, on September 25 1991 of his appeal from a determination on review by a delegated medical practitioner, acting on behalf of the Attendance Allowance Board, on December 12, 1990 to the effect that Mr Mallinson's blindness did not entitle him to an attendance allowance under section 35(1) of the 1975 Act.
Mr Mark Rowland for Mr Mallinson; Mr Duncan Ouseley, QC, for the secretary of state for social security.
LORD JUSTICE RALPH GIBSON said that the issue was whether assistance required by a blind claimant while walking out of doors in unfamiliar surroundings was to be taken into account as "attention" or "supervision" or both, in the context of a claim for attendance allowance.
Mr Mallinson, now aged 48, had been blind for 15 years. He could distinguish between light and dark but no more. He was capable of walking and suffered from no mental disability.
He walked about his own first floor flat and in familiar surroundings without risk of danger to himself. He was at risk of injury when walking in unfamiliar surroundings. He required assistance in actions such as taking a bath and cutting up food.
On October 6, 1989 the delegated medical practitioner decided that Mr Mallinson did not satisfy any of the conditions of section 35(1). Another delegated medical practitioner reconsidered the claim, on Mr Mallinson's application for a review of that decision, but on March 2, 1990 again rejected the claim. On December 12, 1990 a third delegated medical practitioner refused to revise the decision.
The provisions enacted in section 35 must have been intended to be applicable by the Attendance Allowance Board or the delegated medical practitioner, with a sufficient degree of certainty to avoid the unfairness of claimants with similar degrees of the same sort of disability being treated differently.
A blind person, who suffered from no other significant physical or mental disability, would be entitled to attendance allowance, by reason of his requiring "attention throughout the day in connection with his bodily functions" only if all forms of attention required by him were judged by the board to be such that the requirement for attention was "frequent throughout the day".
If the attention in connection with his bodily functions was required to enable him to perform a boldily function which a fit person normally
performed for himself or herself, such as eating or bathing, the frequency throughout the day when attention would be required would be much the same for all blind people.
People with similar states of the same disability would be treated in the same way.
If such a blind person could, however, claim to require attention, within section 35(1)(a)(i) in connection with the bodily function of walking, on the basis that he needed the help of a guide when in unfamiliar...
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...to clear criteria. The very section that we are concerned with was the subject of an appeal to the House of Lords: Mallinson v Secretary of State for Social Security [1994] 1 WLR 631. In relation to a similar argument which had been addressed to the house, Lord Woolf said, having referred t......
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