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|Judgments - Cockburn v. Chief Adjudication Officer and Another and Secretary of State for Social Services v. Fairey
SECRETARY OF STATE FOR SOCIAL SECURITY
ON 21ST MAY 1997
LORD GOFF OF CHIEVELEY
For the reasons given by my noble and learned friend Lord Slynn of Hadley, I would (while sharing the reservations expressed by my noble and learned friend, Lord Mustill) dismiss the appeal in the case of Miss Fairey. Furthermore I have, like my noble and learned friends Lord Mustill, Lord Hope of Craighead and Lord Clyde, come to the conclusion that the appeal of Mrs. Cockburn must also be dismissed.
Lord Mustill founds himself directly on the words of the relevant subsection of the statute (section 64(2)(a) of the Social Security Contributions and Benefits Act 1992) which speaks of the disabled person requiring from another person "frequent attention throughout the day in connection with his bodily functions." The relevant service rendered to Mrs. Cockburn by her daughter was dealing with the laundry, generated by her mother's incontinence, after she had taken the laundry away from her mother's flat. Lord Mustill has concluded, and in this I respectfully agree with him, that a service of this kind cannot constitute such "attention" because, having regard to the section and the purpose which it is intended to fulfil, the activities must be performed while in attendance on the applicant, i.e. in the applicant's presence. This is consistent with the reasoning of Peter Gibson L.J. in the Court of Appeal, and also with the requirement of a degree of physical intimacy, derived from the judgment of Dunn L.J. in Packer's case  1 W.L.R. 1017, which has often been stated to be implicit in the subsection, and which has been stressed by my noble and learned friend, Lord Clyde, Obviously, the requirement of presence has not to be applied too strictly, because attention of this kind may inevitably involve brief absences from the dependent person; but it marks a characteristic of the attention which is required, and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention.
But, though performance of the relevant activity away from the applicant excludes it from the ambit of the section, the mere fact that it is performed in the applicant's presence is not of itself a qualification. Only if the attention is "frequent attention throughout the day in connection with [the applicant's] bodily functions" does it qualify. It is for this reason that, as I understand it, my noble and learned friend Lord Hope of Craighead has addressed the question of the kind of activity which falls within the statute. He has referred to a passage from a decision of Mr. Commissioner Monroe quoted with approval by Lord Bridge of Harwich in In re Woodling  1 W.L.R. 348, 352-3, and has concluded that the service in question must be directed primarily to those bodily functions of the dependent person "which the fit person normally performs for himself."
I myself read these words "for himself" in this passage as meaning "without assistance from another person." Take the case of a lady who, because of her arthritis, is unable to get to the lavatory by herself. As a result, she may need help to get to the lavatory; or alternatively, if she has an accident because she cannot get to the lavatory in time, she may need help in cleaning up afterwards. I would regard these as cases in which, by reason of her disability, i.e. arthritis, she needs attention in connection with her bodily function of urinating, this being a bodily function which a fit person (one who does not suffer from arthritis) can perform without assistance. But, once again, this criterion does not provide the full answer, because it does not explain why helping a lady go to the lavatory is within the section, but cooking a meal for her, or dusting her room, is not, even though ladies living alone, who do not suffer from arthritis, habitually do these things for themselves, and the cooking or dusting may be done in their presence. The answer in the first case, cooking a meal, seems to be that this is not sufficiently personal to constitute attention in connection with the bodily function of eating, and in the second case, dusting her room, that it is not in connection with a bodily function at all.
It follows that, in the case of Mrs. Cockburn, the question has to be asked whether the service in question is sufficiently personal to constitute part of "frequent attention throughout the day in connection with [Mrs. Cockburn's] bodily functions," on the basis that her disability is arthritis, and her relevant bodily function is urination. In my opinion, in the case of an unfortunate woman who because of her arthritis cannot cope with her incontinence, the services of changing her clothes or her bedlinen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to fall within the section. But taking her laundry away to be washed transcends personal attention of that kind; and it follows that, as I have said, Mrs. Cockburn's appeal must be dismissed.
I begin with the case of Miss Fairey (or Halliday, as she prefers to be called) the respondent in the first appeal. That a profoundly deaf person bears a heavy physical, intellectual and emotional burden nobody could doubt, and if this burden could be lightened by the services of an interpreter I believe that all would be glad. But the question before the House is whether the respondent is entitled to be reimbursed for the cost of such provision out of public funds through the medium of a non-contributory benefit under Part III of the Social Security Contributions and Benefits Act 1992. The aspect of the services concerned in the present appeal is the enablement of the respondent to be involved in a "reasonable level of social activity." My Lords, I must confess that without the guidance of previous decisions in this House and elsewhere it would never have crossed my mind that helping the respondent to enjoy going to the cinema or to a party (two examples given in argument) could involve the interpreter in furnishing "attention . . . in connection with [the respondent's] bodily functions." The expression would have conveyed to my mind activities of an altogether more intimate and corporeal kind.
It is, however, quite clear on the authorities that such a reaction would be mistaken. Building on the law as it stands I must follow the careful analysis of my noble and learned friend Lord Slynn of Hadley to the conclusion that the services performed by the interpreter fall within section 64(2)(a) of the Act of 1992.
I turn to the appeal of the applicant Mrs. Cockburn. The facts are important, and not as clear as could be wished. So far as I can make them out they are as follows. The applicant lived in a flat alone. She suffered from arthritis and intermittent dizziness which made it hard for her to get about. More to the present point she seems to have been a victim of urinary incontinence in a major degree. Apart from episodes during the day she wet the bed on average twice each night. Naturally, the bedclothes and night-wear needed to be removed, washed and replaced. It seems that for a time the applicant's daughter visited each day to help, but other family commitments eventually made this impossible. During the period in question the daughter could visit only once a week, on Saturdays. It seems that on the remaining days nothing was done, for in a letter supporting the claim her daughter wrote: "My mother is stuck with dirty and smelly bedclothes and her own clothes for almost a week." During her Saturday visits the daughter gave the applicant a good wash and took her laundry away. Whether the daughter herself stripped and remade the bed we do not know. Nor is there any information whether the daughter laundered the clothes herself, or gave them a preliminary rinse before leaving them at a launderette to be put through by an employee.
The sole question to be decided is whether the daughter's dealings with the laundry after she left the flat can be added to such relevant services as were performed for the applicant by other people when deciding whether the applicant required from another person "frequent attention throughout the day in connection with [her] bodily functions."
I pause to express a difficulty with the question thus posed. Either the visits on Saturdays were the only activities which could in law be capable of falling within section 64(2)(a), or there were others about which we know nothing. If the former then even if the applicant is right on the present appeal I found it hard to see how one visit a week could be "frequent attendance throughout the day." Whereas if the applicant had help falling within the section with sufficient regularity to be within striking distance of "frequent . . . throughout the day" I find it equally hard to envisage how one visit a week could turn the scale. I am, therefore, troubled by the thought that the present issue, important as it may be to future claimants and to those who administer and rule upon claims for these benefits, may have had no practical effect on the position of Mrs. Cockburn. It is now more than four years since her claim was first made and rejected. We are told that before her appeal reached your Lordships' House the entitlement of the applicant was recognised on other grounds. I am glad to hear this, and can only hope that the grant of benefit has not been postponed whilst five sets of decision-makers have pondered a question which, so far as she was concerned, may have made no difference at all.
The question is, however, before the House and must be addressed. All turns on the expressions "attention," "in connection with" and "bodily functions." I will approach problem by stages.
The present appeal is more difficult, but I would still prefer to approach it in the same non-technical fashion. The case for the applicant concentrates on the work of laundering, not on the visit itself, and postulates that this is as much a part of the continuous operation of dealing with the applicant's bodily malfunction as would have been the doing of the work in the flat: and hence it is done "in connection with" that malfunction. Thus far I would perhaps have been willing to go. But the work must also be "attention," and it is attention which the claimant "requires." Whether in some senses of the word it may be possible to furnish attention to someone without being physically proximate I think it unnecessary to decide. But looking at section 64 as a whole, and at the purpose which I believe it is intended to fulfil, I cannot escape the conclusion that all the activities comprising the "day attendance condition" must be performed whilst the other person is in attendance on the applicant: i.e. in his or her presence. I feel obliged to hold that any other conclusion would shift into this tightly constrained non-contributory benefit elements of need which perhaps ought to be catered for in a properly ordered society but which do not properly belong to this particular form of social support. The courts must I believe bear in mind that the entire shape of the social services legislation represents a strategy about the deployment of limited funds, and that to overstrain one element of the legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme. The applicant suffers from a distressing and demoralising scourge of advancing years which all would like to be systematically relieved. But it must be done within the true intent of the legislation, and I feel unable to reflect this by holding that attendance can exist when those concerned are not in the same place. I would therefore, with some regret, dismiss the appeal.
LORD SLYNN OF HADLEY
These two appeals, which were heard consecutively, concern claims for statutory allowances by severely disabled persons. One lady is completely deaf; the other is incontinent and unable fully to look after herself because of severe arthritis which restricts the movements of her limbs. Although the claims are made under different statutory provisions the language, so far as now relevant, is the same. Accordingly it seems convenient to consider the statutory provisions and the authorities dealing with them together before considering the facts of the two cases and my conclusions on them separately.
I. The Statutory Provisions
Section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 re-enacted section 35 of the Social Security Act 1975 which has been considered in some of the earlier decisions to which I shall refer. Section 64, which applies to Mrs Cockburn, provides:
and prescribed conditions as to residence and presence in Great Britain.
By section 71, disability living allowance, which applies to Miss Fairey, it is provided that:
(2) A person's entitlement to a disability living allowance may be an entitlement to either component or to both of them."
By section 72, the care component,:-
(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or