Judgments - Cockburn v. Chief Adjudication Officer and Another and Secretary of State for Social Services v. Fairey  continued

(back to preceding text)

     In his view "social activity" was more than "the normal actions of any organs or set of organs of the body" as referred to by Dunn L.J. To include any physical activity as a bodily function led to the position that requirements in connection with bodily functions became equated with cultural needs. Though accepting that a deaf person's desire for communication and entertainment and that the attention he or she requires "in connection with those activities" was reasonable, he concluded that the words of the statute were not satisfied when a claim is made for an interpreter for the kind of activities in question due to a person's complete deafness. He would therefore have dismissed the appeal.


     There is no issue in Miss Fairey's case as to whether or not she is severely disabled by her deafness. She plainly is; she is not able to hear and that reduces or impedes her ability to speak. Nor is it challenged that, as a result of her disability, some attention throughout the day may be required in connection with her bodily functions. The question is the particular one as to whether such attention given to her ("consisting of the help given by an "interpreter" skilled in the use of sign language) as may enable the claimant to carry out a reasonable degree of social activity" falls within the scope of section of 72(1)(b)(i). Is that help capable of being attention in connection with her bodily functions?

     Although movement of the limbs (including their use for walking and running) is a bodily function, so also in my view is the operation of the senses. The reception of sound, its communication to the brain and the brain's "instruction" to the limbs or other parts of the body to act or refrain from acting are all as much bodily functions as the movement of the limbs and the actions of the digestive or excretory organs. This seems to me to follow from the words of Dunn L.J. in Packer [1981] 1 W.L.R. 1017, 1023 to which I have already referred and which, like Lord Bridge in Woodling, I find helpful--viz: "To my mind the word 'functions' in its physiological or bodily sense connotes the normal action of any organs or set of organs of the body, and so the attention must be in connection with such normal actions." It is also consistent with the opinion of Mr Commissioner Monroe, approved in Woodling by Lord Bridge at p. 352/3, that the words of the section "are directed primarily to those functions which the fit man normally performs for himself."

     Although I regard the decision in Mallinson as binding on your Lordships (which leads inevitably to the conclusion that hearing like seeing is a bodily function) if Mallinson were not binding I would come to the same conclusion in the present case. I do not consider that such a result blurs the distinction between "bodily functions" and "disability" in a way which Hobhouse L.J. found unacceptable. The two are in any event linked and it is not possible to treat them as wholly separate. If the bodily function is not working properly that produces the disability which makes it necessary to provide attention. The attention is provided by removing or reducing the disability to enable the bodily function to operate or in some cases to provide a substitute for it. In the present case the bodily function is hearing, the disability is the inability to hear. I consider like Hobhouse L.J. that there is linked to that a further bodily function, that of speech; the disability is the inability or the severely restricted ability to speak resulting from the deafness.

     It may also be said here that two bodily functions are involved in the sense that the inability to hear, like the inability to see, may restrict the area in which, or the ways in which, a person has the ability to walk. It seems to me, however, that the relevant bodily function in this case is hearing rather than walking and that the primary disability is the inability to hear. Restricted movement is consequential on that in that there is no independent disability relating to movement of the limbs and, though this does not affect the principle, it is likely to be less than in the case of an inability to see.

     Insofar as the guidance of another person's arm is reasonably required to enable a deaf person to move about such guidance is just as much capable of being "attention in connection with bodily functions" as it was in respect of a blind person though the need is likely to be less and less frequent.

     Providing someone who can explain or translate normal conversation, or radio or film speech, is different from providing physical guidance by an arm. It seems to me, however, that it is also capable of constituting "attention". It is the one, or the principal, way in which messages to the brain normally conveyed through hearing can be conveyed by alternate means. This obviously does not improve natural hearing. Nor does it produce a replacement method of hearing but it provides an alternative way of fulfilling the hearing function.

     It may well be that, on a strict analysis and in logic, attention cannot be in connection with a bodily function which does not function and never has functioned since birth, but it seems to me impossible to attribute to Parliament the intention to exclude from the section attention given to a person whose bodily functions (sight or hearing) are wholly impaired and to limit it to someone whose bodily functions are partially impaired. If an over-fine analysis of each of the words in the section leads to such an absurd result it is necessary, as Lord Bridge stressed in Woodling "to look at the language of the section as a whole to find the intention."

     In my view providing interpretation by sign language (which involves personal communication between two people even if the message is at the same time by the making of signs communicated to others) has sufficiently "the active and the close, caring, personal qualities referred to in the authorities" (Lord Woolf in Mallinson at p. 639C) as to constitute attention for the purposes of the Act. The provision of an "interpreter" to use sign language is therefore capable of providing "attention" within the meaning of the section. It must still be reasonably required both in its purpose and in its frequency. Can it reasonably be required if it is to enable the claimant to carry out a reasonable level of social activity as the Commissioner held, though accepting that some such activities may never be available to deaf people, or is it, as the Secretary of State submits, excluded because "there is no reasonable requirement for a deaf person to have an interpreter to carry out social activities?" The Secretary of State contends that not only must attention be reasonably required but it "attaches only to activities which are essential in daily life and attention cannot be (reasonably) 'required' within the meaning of the section for activities which are not essential." (Paragraph 4(1(b) of the case).

     The Secretary of State further submits that "it is a well established principle of social security law that the courts do not lightly interfere with long standing decisions of Commissioners." It is obviously sensible that the rulings of the Commissioners and the practice of administering the scheme which they have laid down and which have been followed over many years should not lightly be interfered with. But if the Court of Appeal, and even more so if your Lordships' House, is satisfied that wrong distinctions have been drawn as a matter of principle which ought not to be followed they are entitled to say so. It is true that the distinction has been drawn in the Commissioners' Decisions between what is desirable and what is necessary or essential and that in one case (C.A./42/85 paragraph 6) it was held that it was not justified to include the use of an interpreter for communication "by way of casual and commonplace conversation undertaken for social reasons." As to this submission I consider that the question here is one on which your Lordships should rule and that there is no long standing line of Commissioners' decisions which should deter the House from doing so.

     On the question of principle I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test, in my view, is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life. He is not to be confined to doing only the things which totally deaf (or blind) people can do and provided with only such attention as keeps him alive in such a community.

     In his Decision the Commissioner referred to the decision of the Northern Ireland Commissioner in Case 2/84(AA) in which the latter referred to the applicant's entitlement to lead as normal a life as possible. In my opinion the yardstick of a "normal life" is important; it is a better approach than adopting the test as to whether something is "essential" or "desirable". Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life. It is not in any way unreasonable that the severely disabled person should wish to be involved in them despite his disability. What is reasonable will depend on the age, sex, interests of the applicant and other circumstances. To take part in such activities sight and hearing are normally necessary and if they are impaired attention is required in connection with the bodily functions of seeing and hearing to enable the person to overcome his disability. As Swinton Thomas L.J. in the Court of Appeal said: "Attention given to a profoundly deaf person to enable that person to carry on, so far as possibly in the circumstances, an ordinary life is capable of being attention that is reasonably required" (p. 39 of transcript).

     How much attention is reasonably required and how frequently it is required are questions of fact for the adjudicating officer. The Commissioner, however, did not err in law, and the majority in the Court of Appeal were correct in law to uphold his decision that it was right to include in the aggregate of attention that is reasonably required "such attention as may enable the claimant to carry out a reasonable level of social activity."

     I would accordingly dismiss the Secretary of State's appeal.

 Mrs Cockburn's Case

     Mrs Cockburn was born on the 14th December 1925. On the 21st July 1992 she applied for an attendance allowance (as a person over sixty-five) under section 64(2)(a) of the Act of 1992. Her application was refused by an adjudicating officer and his refusal was upheld by another adjudicating officer on the 7th January 1993. On the 16th April 1993 the Nottingham Disability Appeal Tribunal allowed her appeal and awarded her attendance allowance at the "daytime" or lower rate. The Tribunal found that she could not walk properly, due to arthritis of her knee and that she required assistance to walk, otherwise she had to stay at home. She could not get up without difficulty which took a long time and she could not dress herself properly without help. She was incontinent. That generated a lot of washing which she could not do herself. The evidence was that she wet her bed twice at night and during the day went to the toilet every half-hour. "Mrs Cockburn stated that she can be sitting on the chair and thinks she needs to go to the toilet and she stands up and finds that she has wet herself." (Appendix p. 2) The washing was done by her daughter once a week--"there is a big bundle every week." The daughter wrote in support of her mother's appeal:

     "My mother only gets her hair and body washed properly with my help as she cannot get into the bath.
     She is also prone to have accidents in bed at night and has an awful amount of washing which I try to do every day. But . . . it has become impossible for me to go to my mother's except on a Saturday. So my mother is stuck with dirty and smelly bedclothes and her own clothes for almost a week. You can imagine the smell.
     She is not having a proper wash from one week to the next. . . ."

The Tribunal in its reasons said:

     "In accordance with Commissioner's Decision R(A)2H, the Tribunal is satisfied that frequent attention is required and the things that Mrs Cockburn cannot do, fall into the definition of "bodily functions" in that decision. Incontinence is a bodily function and this incontinence generates extra washing Mrs Cockburn cannot do the extra washing which is in connection with a bodily function. Consequently Mrs Cockburn is entitled to Attendance Allowance."

     The Commissioner in his Decision on the appeal referred in particular to the distinction drawn in Packer between an "ordinary" and an "out of the ordinary" act done for the claimant, the latter being an act normally done by a person for his own benefit which could not be done by the particular claimant. He held that "clearly it cannot be said that doing laundry, of whatever volume, must be intimate, or personal, or needs to be done in the presence of the disabled person." Accordingly he allowed the appeal but remitted the case to another tribunal to consider all matters afresh. In particular the tribunal may:

     "if the parties put forward arguments to that effect, consider such further possible areas of attention such as the services of another person, probably the daughter of the claimant, to assist in removing and handling the soiled clothes or other personal attention."

     Following a request for a review dated 1st March 1996 Mrs Cockburn was accorded an attendance allowance with effect from 11th March 1996 but that decision is not in issue before your Lordships. The Court of Appeal, however, dismissed an appeal against the Commissioner's Decision on the earlier application.

     Butler-Sloss L.J. accepted that the Court of Appeal was bound to decide the question in the light of the previous decisions to which I have referred. But "adopting the same approach as Dunn L.J. and looking at the words of the section without recourse to decided cases, I come, reluctantly, to the same conclusion on soiled laundry as he did in respect of cooking." The authorities confirmed that view and she included laundry as part of housework with dusting, sweeping and cleaning as activities falling outside the section whereas "close personal attention such as helping to get in and out of bed, eating, drinking, bathing, washing hair, going to the lavatory" constituted "attention" in connection with bodily functions. Reluctantly dismissing the appeal she expressed the hope that the "manifest needs of the appellant might be reconsidered as soon as possible."

     Peter Gibson L.J. regarded the case as relating to the extra washing not only of sheets but also the clothes caused to be soiled by her incontinence. Though plainly accepting that in the absence of authority it was well arguable that the extra laundry is a "direct consequence of her incontinence requiring frequent attention", he held that the court was bound by authority to hold that "the extra laundry, which need not be done in the presence of Mrs Cockburn, does not qualify as attention in connection with bodily functions." Peter Gibson L.J. added that it was important to bear in mind that the attention which she required may well differ from the attention which she was at that time receiving, limited as it was by her own indigence and family circumstances. I agree; it is difficult to imagine anyone contending that she was not in need of home help provided from local sources which it seems was not available.