Re Woodling

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I would dismiss this appeal.

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons he gives I would dismiss the appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons he gives I would dismiss the appeal.

This is an appeal which comes by leave direct to your Lordships' House from a decision of Woolf J. refusing to reverse by prerogative order decisions of the Attendance Allowance Board and the Social Security Commissioner which had held that the appellant was not in law entitled to an attendance allowance under section 35 of the Social Security Act 1975 (the Act). The learned judge very properly certified pursuant to section 12 of the Administration of Justice Act 1969 that a point of law of general public importance was involved in the decision and that that point of law was one in respect of which he was bound by a decision of the Court of Appeal in previous proceedings and was fully considered in the judgments given by the Court of Appeal in those previous proceedings. The case binding on the judge was Regina v. National Insurance Commissioner, Ex parte Secretary of State for Social Services [1987] 1 W.L.R. 1017 ( Packer's case) and the present appeal is, in effect, an appeal from that decision.

Section 35(1) of the Act provides as follows:-

"A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence 1in 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."

A person requiring attention only by day or only by night receives an attendance allowance at one rate, a person requiring attention both by day and by night at a higher rate.

It is unnecessary for the purpose of deciding this appeal to examine in detail the nature or extent of the appellant's disability but suffices to say that the sole criticism of the decision of the delegated medical practitioner (duly discharging the function delegated to him by the Attendance Allowance Board) was that, in concluding that the appellant was not entitled to attention by day under section 35(1)( a) (no claim for attention at night having been made), he erred in law in excluding from consideration the appellant's requirement of another person's assistance (to use a neutral term) in preparing her meals as an element of "attention … in connection with her bodily functions".

The scope of this provision in its context has been a matter of controversy for some time. The legislation assumed its present form in 1972. The Court of Appeal was told in Packer's case that until 1979 it was the universal practice of delegated medical practitioners to exclude cooking from the relevant "attention" to be considered under section 35(1) (a). Before 1979, in cases in which the point was not directly in issue, there were some conflicting dicta of different Commissioners. The only decision directly on the point was a decision of Mr. Commissioner Monroe in 1974, who held that cooking was not within the scope of the relevant "attention" to which the section applied. In 1979, however, the matter came before the Chief Commissioner, Sir Rawden Temple, who took a different view. He said:-

"In my opinion 'attention.… in connection with bodily functions' should be broadly interpreted, so as to include not only any physical assistance ultimately given to enable the disabled person to eat (or drink), but also to include the necessary steps taken by the attendant to prepare the food (or drink) which is to...