Secretary of State for Social Security v Rebecca Anne Fairey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Glidewell,Lord Justice Hobhouse,Lord Justice Swinton Thomas |
| Judgment Date | 15 June 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0615-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CA-780-91 |
| Date | 15 June 1995 |
[1995] EWCA Civ J0615-3
IN THE SUPREME COURT OF JUDICATURE
OURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Before: Lord Justice Glidewell Lord Justice Hobhouse Lord Justice Swinton Thomas
CA-780-91
MR. M. BELOFF Q.C., MR. R. McMANUS & MR. HIND (Instructed by the Department of Social Security, New Court, 48 Carey St, London, WC2) appeared on behalf of the Applicant.
MR. R. DRABBLE & MISS LIVEN (Instructed by the Citizens Rights Office, Child Poverty Action Group, 4th Floor, 1–5 Bath St, London, EC1V) appeared on behalf of the Respondent.
( )
This is an appeal, with leave granted by the Commissioner, by the Secretary of State for Social Security against the decision of a Social Security Commissioner, Mr R A Sanders, given on l4 October 1994. The Commissioner decided an issue of law in favour of the Applicant, Miss Rebecca Fairey, but concluded that he did not have sufficient evidence to determine the claim on the facts. He therefore referred the case back to an Adjudication Officer to find the necessary facts. The Secretary of State's appeal is, as it can only be, in relation to the issue of law.
The legislation
This appeal relates to a benefit which is now called a "Disability Living Allowance". The relevant statutory provisions are contained in sections 71 and 72 of the Social Security Contributions and Benefits Act 1992. The provisions of the Act relevant to this appeal are:
"71(1)Disability living allowance shall consist of a care component and a mobility component.
"72(1)Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which
(a)he is so severely disabled physically or mentally that
i)he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or
ii)….
(b)he is so severely disabled physically or mentally that, by day, he requires from another person —
i)frequent attention throughout the day in connection with his bodily functions.
ii) ….
(3)Three weekly rates of the care component shall be prescribed."
By section 72(4), the middle rate is paid to a person who satisfies section 72(1)(b)(i), the lower rate to a person who satisfies section 72(1)(a)(i).
Section 72(1)(b) replaced section 35(1)(a) of the Social Security act 1975, which applied the same test to the benefit which was then payable, ie attendance allowance.
Regulation 6(2)(c) and (d) of the Social Security Attendance Allowance (No. 2) Regulations 1975 imposed an additional test for children under the age of l6 who otherwise satisfied one of the criteria in section 35(1) of the 1975 Act. Such a child was entitled to attendance allowance only if the attention (or supervision) she required was substantially in excess of that required by a child of the same age and sex.
The claimant
Rebecca Anne Fairey was born on l6 August 1974. She is thus now aged 20 —she will be 21 in August this year. She has the misfortune to have been born deaf. Inevitably this means that she has had great difficulty in learning to speak.
In January 1989, when she was fourteen-and-a-half, a medical examiner for the then Department of Health and Social Security said of her:
"This l4 year old girl was born deaf, she communicates mainly by signing and also can lip read but not very well, and speaks a little. She can make herself understood with simple words only. She is doing fairly well at deaf school, she did not manage at a normal school last year as an experiment. She is fairly bright. Physically there are no other problems at all. Eyesight good. Speech —difficult to understand. Mental state —difficult because of difficulties in communication but orientation x 3, memory and concentration good, alert, no confusion. Mood -bored."
In the same report her mother said:
"I have to go out with her as people do not understand what she is saying and I have to interpret for her."
In a report prepared in support of this claim in January 1994 when Rebecca was nineteen-and-a-half, Dr. Monteiro, a Consultant Psychiatrist, said:
"For the child who is deaf from birth or early age and whose deafness cannot be alleviated by an aid to hearing, the development of speech and verbal language are extremely difficult tasks. The majority do not develop intelligible speech for they cannot imitate the speech of others or monitor their own voices. Of fundamental importance also is the fact that they cannot develop verbal language normally through hearing. …
"The deaf child has, therefore, a long pre-verbal stage. She begins to acquire the rudiments of verbal language much later than her hearing peers, and even then progresses very slowly. Deaf children receive special education but it is well recognised that the majority of deaf school leavers, in spite of special help, have poor speech and limited verbal language. They invariably come to use sign language and, within the limits of their verbal language, finger spelling, when communicating with each other, and have to rely upon the written word when communicating with hearing persons. This form of communication with hearing people will be at a very basic level and will not fulfil all the intellectual, psychological and emotional needs of the deaf person.
"Thus it is apparent that Rebecca has a limited ability to communicate using the written word or speech and therefore is dependent on others in communicating with hearing people. In this context, the word independence is important. This word needs to be viewed in the context as meaning the ability to communicate independently. Rebecca cannot communicate independently with hearing people. …
"Rebecca communicates using British Sign Language, a language which is not used by the mainstream population in Britain. Therefore, in order to properly discharge her duties and have a reasonable quality of life, Rebecca is dependent on her mother and others to enable her to communicate. Rebecca claims that she thinks she is placed at a disadvantage, and is unable to live a good quality life as a result of her inability to communicate effectively with hearing people. …"
Despite her disability, after schooling in a school for deaf children until the age of ll and then another school to the age of l5, Rebecca transferred to a mainstream school in Nottingham for a year and then became a qualified Nursery Nurse, having completed her training at Newark Technical College with a full-time sign supported English communicator as support. She is now employed at Sherwood School in Nottingham, which is a mainstream nursery. She provides input for a deaf youth.
History of the application and the appeal
On 4 November 1988 Rebecca's mother, who is now Mrs Halliday, applied on her behalf for an attendance allowance. The application was refused. Mrs Halliday asked for a review which was conducted by a Delegated Medical Practitioner, Dr. Thompson. In a decision dated 3 October 1989 he declined to alter the previous refusal. His reasoning so far as this appeal is concerned was contained in paragraph 2 of his decision in the following terms:
"I accept that members of Rebecca's family act as interpreter to help her to communicate with people who are not deaf and that Rebecca still requires a measure of attention in connection with the bodily functions communication, but I am satisfied from the evidence before me that she has reached a reasonable level of communication and her attention needs in this respect are in my opinion insufficient to fulfil the requirements of the 1975 Social Security Act. She is independent in the management of the bodily functions listed in the medical report and viewing the overall picture I do not accept that she requires frequent attention from another person throughout the day in connection with her bodily functions, or that she has required such attention throughout the period relevant to the claim, being attention substantially in excess of that normally required by a girl of her age."
Mrs Halliday appealed against that decision. Before her appeal was heard, however, another Commissioner, Mr Walker, in a decision dated 7 December 1992 number CSA/113/91 allowed an appeal by another severely deaf child. Mr Walker's reasoning was contained in the following passages from his decision:
"I have concentrated solely upon the attention required in gaining the child's co-operation in the two-way process of communication. The DMP has not considered that aspect of the day attention condition and, given the evidence before him, it is clear that he should have considered it. That is an error of law and indeed is the sole error of law upon which I have set aside his determination …. I would have held, had it been necessary, that the DMP was ill-founded in law when apparently rejecting attention required to facilitate communication at school. Insofar as that was related to the initiation of the conduct of communication it was, in my judgment, attention in connection with a bodily function however much it may also have been in connection with an intellectual function as well. To that extent I have included attention in the sense in which I have been using it hereinbefore as being required because of the child's physical disability as counting towards the total attention required from another person."
Mr Commissioner Walker accordingly found that what he called the "day attention condition" was satisfied and allowed the appeal.
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