R v National Insurance Commissioner.ex parte Secretary of State for Social Services

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DUNN,LORD JUSTICE O'CONNOR
Judgment Date14 April 1981
Judgment citation (vLex)[1981] EWCA Civ J0414-1
Date14 April 1981
Docket Number81/0129

[1981] EWCA Civ J0414-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice.

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Dunn

and

Lord Justice O'Connor

81/0129

In the Matter of an Application by the Secretary of State for Social Services for Judicial Review

And in the Matter of a Decision of the National Commissioner Dated 15th January, 1980

The Queen
and
The National Insurance Commissioner (Ex Parte the Secretary of State for Social Services)

MR. SIMON BROWN (instructed by The Solicitor, Department of Health and Social Security) appeared on behalf of the Appellant.

MR. DAVID LATHAM (instructed by the Treasury Solicitor) appeared as amicus curiae.

THE MASTER OF THE ROLLS
1

It seems a small matter to bring to this court. It is whether an old lady of 83 should get an "attendance allowance" of £14 a week or £21 a week. But there are many old ladies in a similar position. So it is desirable to have the matter cleared up. Especially as there have been conflicting decisions about it by the National Insurance Commissioners. The case comes well within what we said in Reg. v. National Insurance Commissioner, ex parte Stratton (1979) 1 Queen's Bench at pages 368–9.

2

Under our social security system, an "attendance allowance" is paid to a person who is so disabled that he needs help to cope with his disability. The relevant provision is in section 35(1) of the Social Security Act 1975 which I will set out in full:

3

"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".

4

You will see that (a) covers "by day" and (b) "by night". If the person requires a good deal of attention both by day and night he or she gets £21 a week. If only by day or onlyby night, he or she gets £14 a week.

5

Our old lady Mrs. Martha Packer used to get only £14 a week because it was said that she only required attention by night. Her daughter now says that she ought to get £21 because she requires attention by day as well as by night. Strange to relate, after all said and done, the point depends on the cooking of her meals. She cannot cook her own meals. Her daughter has to cook them for her. Does "cooking" come within the words "attention in connection with her bodily functions"?

6

THE FACTS OF THE CASE

7

I take the facts from the report of the Attendance Allowance Board. The Board acted through a delegated medical practitioner. He said that Mrs. Martha Packer was entitled to an attendance allowance for the night:

8

"With regard to the night conditions, I note from the medical report that attention was required twice a night, for 5–10 minutes at a time, seven nights a week when she was helped out of bed to go to the toilet and given a drink to help her back to sleep…I accept that she requires repeated attention during the night in connection with her bodily functions".

9

But the delegated medical practitioner rejected her claim for an allowance for the daytime. He said:

10

"Before, however, I can…issue a certificate for the higher rate of attendance allowance I must be satisfied that in addition to fulfilling the night requirement, Mrs. Packer also satisfies one of the day conditions. In this connection I note that Mrs. Packer was watched when getting into bed. She could, however, without assistance from another person get out of bed, walk, use stairs although she came down backwards, dress and undress, wash, bathe, eat, drink and go to the toilet. She was able to be up for 15 hours during the day and was not dependent upon any apparatus. She was not incontinent of bowels or bladder, needed no help with adjusting her clothes or wiping herself at the toilet…Miss Packer says in her signed statement, 'I have to do all the washing and prepare all the meals for my mother. I do all the shopping and see to all the accounts'".

11

The delegated medical practitioner then directed himself on the law:

12

"However, Mrs. Packer's inability to carry out domestic duties is not a factor which I can take into account in assessing her need for attention in connection with her bodily functions. It is clear that she is able to manage the majority of functions connected with daily living and I do not accept that she requires frequent attention throughout the day in connection with her bodily functions".

13

THE COMMISSIONER'S VIEW

14

The daugher appealed to the National Insurance Commissioner. The discussion turned on the question of cooking. He held that it was "attention", etc. He said:

15

"It seems to me that the personal service of an active kind involved in cooking is immediately and not remotely connected with the bodily function of eating. Indeed preparing food for an invalid cannot reasonably be regarded as having any purpose other than satisfying the bodily function of eating. The fact that the statute uses the phrase 'in connection with' (which connotes a wider concept than 'with') means in my judgment that there must be a sufficient nexus between the personal service and the bodily function it is intended to satisfy. I reject the contention of the Secretary of State that cooking is too remote from the bodily function of eating. In my judgment cooking is an attention in connection with the bodily function of eating".

16

So the Commissioner held that eating is a bodily function: and that cooking is attention in connection with it.

17

THE JUDGE'S VIEW

18

The judge seems to have gone much further than the Commissioner. He seems to have interpreted the phrase "bodily functions" as including cooking. He said that the phrase "includes every mode of action of which the fit body is capable at the dictate of the normal brain". He explained this by saying:

19

"A man must eat and drink and keep clean. In the normal way he could buy his food and drink, cook it and consume it; he could wash his dishes and his clothes as well as himself. If he is disabled and cannot do some of these things, they may have to be done for him. They involve bodily functions in connection with which attendance may be required".

20

So the judge held that "cooking" itself is a bodily function. He said "that cooking is an activity which consists of the application of a number of bodily functions to a particular task and that if a disabled person cannot perform the requisite bodily functions himself then someone who performs them on his behalf is rendering attention in connection with those bodily functions".

21

THE DIVERGENT VIEWS

22

So we have these divergent views. The judge held that cooking is a "bodily function". So that if a disabled person cannot cook for himself—and someone has to do it for him—it is attention which qualifies for an attendance allowance.

23

The Commissioner held that eating is a "bodily function": and that cooking is sufficiently closely connected with it that, if anyone has to do it for a disabled person it is attention which qualifies.

24

The Department submit that eating is a "bodily function", but say that cooking is too remote from it for it to be considered as "attention in connection with it".

25

PREVIOUS DECISIONS

26

We were given a selection of previous decisions which illustrate the difference of opinion.

27

1. Mr. Robert Lazarus, Q.C. on the 25th September, 1972:

28

"In my judgment, the word 'attention' denotes a concept of some personal service of an active nature; for example, helping the disabled person to bath or to eat his food, cooking for him, or dressing a wound".

29

2. Mr. J.G. Monroe on the 23rd October, 1974:

30

"Although it might perhaps be argued that, as eating is a bodily function and as there is an obvious connection between cooking and eating, the person who needs to be cooked for requires attention in connection with one of his bodily functions. I do not consider that there is any substance in such an argument. It is wholly unnatural to say of a man whose wife regularly cooks his meals, that his wife gives him attention in connection with his bodily functions. I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions, and that they are directed primarily to those functions which the fit man normally performs for himself".

31

3. Mr. Robert Lazarus, Q.C. on the 8th July, 1975:

32

"I find myself unwilling to go so far as to say that the preparation of food or drink for a disabled person can never be regarded as an attention in connection with his bodily functions…In my view, it is open to the determining authority to hold that the heating of liquids in order to have a hot drink is an activity in connection with bodily functions".

33

4. Sir Rawden Temple, Q.C. on the 27th August, 1979:

34

"It was a question of fact and degree whether in the particular case the service performed could be said to be attention in connection with bodily functions. He (the Chief Commissioner) rejected the narrow interpretation of physical assistance. His view was that...

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