Secretary of State for Work and Pensions v June Batty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE GAGE,Lord Justice Latham,LORD JUSTICE MUMMERY |
| Judgment Date | 13 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1746 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2005 |
| Docket Number | C3/2005/0936 |
[2005] EWCA Civ 1746
IN THE SUPREME COURT OF JUDICAT
IN THE COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIO
(COMMISSIONER DAVID WILLIA
Royal Courts of Justice
Strand
London, WC2
Lord Justice Mummery
Lord Justice Latham
Lord Justice Gage
C3/2005/0936
MR MARTIN CHAMBERL (instructed by Office of the Solicitor, Litigation Division, New Court, Room 516, 48 Carey Street, London WC2A 2LS ) appeared on behalf of the Appellant
MR DANIEL KOLIN (instructed by Messrs Davies Gore Lomax, 63 Great George Street, Leeds, LS1 3BB) appeared on behalf of the Respondent
Judgement
The respondent, who was born on 17th June 1930, is seriously disabled by reason of arthritis in her back and her knees. She is unable to stand upright; her back is fixed at about forty degrees. The arthritis in her knees is such as to prevent her from being able to walk any distance, even with the help of a stick or sticks. She requires a wheelchair or her scooter whenever she is outside her home.
On 5th August 2003, she claimed an attendance allowance pursuant to Section 64 of the Social Security Contributions and Benefits Act 1992 ("the Act") , which provides:
"(1) A person shall be entitled to an attendance allowance if he is aged 65 or over, he is not entitled to the care component of the disability living allowance and he satisfies either—
(a) the condition specified in subsection (2) below ("the day attendance condition") …"
"and prescribed conditions as to residence in Great Britain.
"(2) A person satisfies the day attendance condition if he is so severely disabled physically or mentally that, by day, he requires from another person —
"(a) frequent attention throughout the day in connection with his bodily functions…"
The Secretary of State refused her application and, on 1st April 2004, her appeal to the Appeals Tribunal was likewise refused. She appealed to the Social Security Commission, who allowed her appeal on 15th December 2004. The appellant appeals that decision to this court by permission of the Commissioner, granted on 16th March 2005.
There are two grounds of appeal:
"The Secretary of State submits that the Commissioner erred in law in:
(a) holding—contrary to established authority—that help in carrying (as opposed to drinking) hot drinks was capable of constituting a 'attention … in connection with … bodily functions' … and
(b) concluding—without evidence as to whether, without such help, the claimant could reasonably have access to hot drinks by other means (e.g. a thermos flask) —that the claimant 'requires' such help…"
5. The ground of appeal which the commission considered to be of importance was (a) . He made the point that not only was this ground of significance in relation to claims made under Section 64 of the Act but also claims under Section 72 of the Act, which uses identical formulation for the purposes of determining the care component of a Disability Living Allowance. In order to understand that ground of appeal, it is necessary to consider the decisions of the Appeal Tribunal as well as the conclusions of the Commissioner. The statement of reasons for the decision by the Appeal Tribunal was in the following relevant terms:
"2. Mrs Batty suffers from severe arthritis and also hypertension. Her condition was such that she has to rely on a wheelchair outside her home for any other than very short distances, and she has restricted movement in her arms. Unfortunately, because of her age, she is not eligible to apply for Disability Living Allowance mobility component and is restricted to Attendance Allowance, which only takes her mobility problems into account in a limited fashion, and for which a higher test for her care needs applies."
"4. Mrs Batty was born on 17 June 1930 and impressed the Tribunal as an indomitable and spirited lady who managed her disability well; she said she would not give into it. The examining medical practicioner stated that she cannot straighten her back and that she walks bent forward 40 degrees. She has a wheelchair but also uses a scooter to go to the shops, and still has a part-time job and was able to drive to work, getting the short distance to her desk, which she would not leave, apart from going to the toilet (a few paces away) which she managed with difficulty but without help. She brought her lunch in sandwich form.
"5. The help that we found that she normally needed daily was:
A) to fix her bra on and to put her tights on in the morning, and undressing at night;
B) help to get in and out of the bath or shower;
C) preparation of meals.
"6. In all other respects the evidence showed that she is normally self-sufficient, as far as her bodily functions are concerned, but she is dependent on her husband for household tasks such as cleaning and also lifting her scooter into the car when it is necessary. Unfortunately, these needs do not fall to be taken into consideration in meeting the eligibility criteria for Attendance Allowance.
"7. She is used to having drinks brought to her throughout the day by her husband or workmates, but we did not find that this help was in connection with her bodily function and, therefore, could not count these acts of assistance to her towards the test for lower rate Attendance Allowance, which requires 'frequent' attention throughout the day in connection with bodily functions.' If such assistance could be counted then we judge that Mrs Batty would be entitled to an award at the lower rate because of the frequency of the assistance required and afforded throughout the day…"
On her appeal to the Commissioner, it was urged that the Tribunal had erred in law in ignoring her need for drinks to be brought to her and generally in relation to the way in which the Tribunal had assessed her disability. The Commissioner considered that the Tribunal had failed to give adequate reasons for rejecting the evidence of the examining medical practicioner to set aside the decision. He then exercised his powers under Section 14(8) of the Social Security Act 1998 to determine himself the issue which he has identified as justifying the appeal to this court. He did so in the following terms:
"I heard full argument about whether drinking and being provided with drinks constitutes a proper element of attention. It was common ground that help with drinking itself would constitute required attention. And drinks, unlike meals, cannot be limited to preparing just one hot meal a day. If the claimant reasonably required several drinks — perhaps several hot drinks — a day, then any attention necessary to ensure she was able to consume those drinks would be relevant. How far will such attention go beyond helping her lift a pre-filled cup or glass to her lips? I reject the view of the Secretary of State that attention can be considered only in so far as it is with the actual act of drinking. In my view, that — like the frequency with which cold or hot drinks are needed — is a question of fact in each case."
"In this case it is common ground the claimant is unable to stand up straight or straighten one of her knees. She walks only with a limp and with the use of a walking stick and any available grab bars. How can someone carry a drink in such a condition? The evidence was that the claimant could not. And how can she get her drink from the tap, bottle or kettle into a cup, glass or container and then to a location so that she can drink it (which presumably involved her sitting down) ? That question was not fully explored, but is relevant to this claimant's reasonable attention needs. Her evidence was that she could, but did not, make a hot drink, but could not carry it. But the evidence of the examining medical practitioner was that while she could use taps she could not use a cooker or cope with hot pans. In my view, taking all this together there is evidence that the claimant reasonably needed some help with her drinks, if only to get them to a position where she was able safely to drink them, and that such help would be reasonably required on a number of occasions in any day. I do not think that the law is so strict as to limit the attention needs for a person such as the claimant to the physical act of lifting a pre-positioned and pre-filled cup or glass to the lips. The claimant's representatives rightly reminded me of the well-known caselaw about 'the yardstick of a "normal life"' and the test of immediacy used in Cockburn ([RA]2/98) . I do not need to repeat those citations. Even quite disabled people can normally get themselves drinks without difficulty if they are mobile. The claimant is severely limited in her ability to do that. The help she reasonably needs so that she has her drinks available as others would is within the test of what is reasonably required for her personal care. While that does not extend so far as to include all the aspects of preparing drinks by what might be termed 'room service' or 'desk service', it is a factor in evaluating what she reasonably needs.
"13. I accept from the examining medical practitioner (and the decision of the Secretary of State) that during the day the claimant reasonably requires help getting into and out of bed, with washing and bathing, with using any stairs, with dressing and undressing. She also reasonably needs some help with getting drinks (and I assume from the same arguments food) into a cup or container and a position where she can drink it, and with picking things up and with carrying things. There is also evidence that sometimes she has to use a wheelchair. At night there is evidence that...
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Secretary of State for Work and Pensions v Batty [2005] EWCA Civ 1746 CA 2034 2004
...R(A) 1/06 (Secretary of State for Work and Pensions v Batty [2005] EWCA Civ 1746) CA (Mummery, Latham, Gage 13 December 2005 CA/2034/2004 Attention in connection with bodily functions – attention in connection with drinking – whether bringing drinks to claimant counts The claimant was serio......