|Judgments - Cockburn v. Chief Adjudication Officer and Another and Secretary of State for Social Services v. Fairey continued|
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The issues in Mrs Cockburn's case are thus different.
In her case it seems to me that two bodily functions have to be considered. The first one is urination. Her disability is that she does not and cannot urinate in a controlled way. The second bodily function is the movement of the limbs, the legs but more particularly the hands and arms. Her disability in that respect is that she cannot use them for the purposes of adequately cleaning herself, changing and cleaning the clothes she wears and the sheets in which she sleeps. The acts claimed to constitute the attention which is required throughout the day in connection with her bodily functions are the cleaning of her body, the changing and cleaning of her clothes and sheets.
There is no question here as to whether these are essential or desirable. Her daughter's evidence accepted by the Tribunal makes it plain that they are essential. They are in any event required as part of normal life.
It is not in my view arguable, and has not been argued, that cleaning the body of a person who is incontinent is not "attention in connection with bodily functions" even if the need for cleaning results from a disability. Apart from helping to put in place incontinence pads or clothing there is no attention more closely connected with this particular bodily function.
Is the necessary washing of soiled clothing and sheets due to the incontinence, which she herself cannot do because of her arthritis, in a different position?
It is suggested first that laundry is a household chore and that household chores do not constitute "attention" within the meaning of the section. There is some support for that view in the judgment of Lord Denning and Dunn L.J. in Packer and of Butler Sloss L.J. in the present case.
I do not consider, however, that the right approach is to begin by asking whether a particular act is normally regarded as a household chore and, if it is, to exclude it from what may constitute "attention" for the purposes of the section. Thus to say that dealing with soiled clothes is "laundry" or "washing" does not conclude the matter. That is not the right question. It must specifically be asked whether the particular washing is required in connection with bodily functions.
This problem arose for Mr Commissioner Reith in Decision Number R(A) 1/91. That was a case which involved a young boy who suffered from a scaling erythematous skin condition which required a great deal of care and attention from his mother. Such care required, inter alia, "a great deal of laundry because of his ointment and his profuse scaling". The Delegated Medical Practitioner decided that the washing of bedding and clothing was not attention in connection with bodily functions within the meaning of the Act of 1975 on the basis of the judgments in Packer. The Commissioner accepted that "the normal washing of clothes and bedclothes, and of course children's clothes need frequent washing, are doubtless not relevant to the attention condition". He rejected the view, however, that the washing of clothes and bedclothes could never be relevant when considering whether the attention condition is satisfied. He held:
I agree with that opinion. The case was concerned with 'treatment' but the Commissioner regarded that as but an instance of the situation where laundry might be capable of constituting "attention." In my view it may also be relevant where it is necessary to deal with the result of the malfunctioning of a bodily organ.
I do not for my part regard this result as necessarily inconsistent with the actual decision in Packer and in Woodling. There ordinary cooking was involved. Even if preparing normal meals is ruled out there could well have been, before the amendment of the statute to provide for the cooking of meals, a need for someone with severe malfunctioning of the digestive organs to have special cooking and that, it seems to me, is capable of amounting to "attention".
In considering these cases it is important to bear in mind that the "care component" of the attendance allowance is concerned with "care" and with "attention." The question in each case is whether the particular activity said to be "attention" is reasonably required by the individual because of the severe disability affecting the relevant bodily function and is reasonably required in connection with that function. This question must be considered as a whole and I do not think that it helps to adopt particular categories which cannot ever be capable of constituting "attention."
In answering that question, and accepting that what is done must have the active, close, caring personal qualities referred to by Lord Woolf in Mallinson (p.639) must the attention in order to qualify involve physical contact? The attention will very often require physical contact with the person but, like Lord Woolf, I do not think that attention necessarily involves physical contact. In particular in a case like the present the attention may involve acts of physical contact and acts where there is no physical contact. Preparing a warm sponge and soap and rinsing the sponge afterwards is as much a part of attention as the physical contact involved in cleaning the body. So equally I do not think that removing soiled, and providing clean, clothes and bedclothes, though in both cases it may begin by physical contact with the person involved, ceased to be capable of attention because the cleaning of the clothes does not involve physical contact.
Does the act necessarily have to be carried out "in the presence of the disabled person" as Dunn L.J. thought? Very often the act done, or part of it, will be done in the presence of the disabled person. I do not, however, regard this either as an absolute test, though I accept that the less that is done in the presence of the person may reduce the likelihood of it constituting the necessary attention. But it would be quite absurd to say that to prepare a sponge in a basin in the bedroom qualifies but that the same prepared in a bathroom on the same or on a different floor does not.
Thus as I see it, the attention here is not to be seen as the act of taking a bundle of clothes to the laundry or to the launderette or putting them in the washing machine or wash tub at home. The attention relied on is the act of making sure that the severely disabled person who cannot do these things for herself is kept clean and comfortable in decent conditions. If, as I consider, is plain, it is part of "attention" justifying the care component of an attendance allowance to wash and dry the person who has been incontinent, and to change soiled nightclothes or underclothes, it is no less care and attention to remove and change the sheets in which that person was lying and which, when she was in bed, were soiled on the same occasion as the clothes by the same excretion. To prepare and provide fresh clothes means that they have to be washed. The same is true of the sheets. It is I consider unrealistic to distinguish between soiled clothes and soiled bedclothes. It seems to me that the district nurse or healthcare worker who had to change and possibly wash, or at any rate hand to another person to wash, underclothing and sheets for an incontinent person would be astonished that lawyers should draw such distinctions on the language of the statute unless that language compelled them to do so. In my view the language does not so compel them.
Clearly some laundry and some domestic chores have no connection with the bodily functions or the situation caused by the disability relating to those functions. The ordinary washing of unsoiled clothes and of domestic items such as tablecloths and curtains would normally not fall for consideration but dealing with soiled clothes and sheets as described here is, in my view, capable of constituting attention within the meaning of the Act and is far from being remote.
It is to be noted in the present case that the sheets were apparently soiled at night but dealt with by day. No claim is made in respect of attention during the night but it seems that the nightclothes and sheets are changed during the day after the lady gets up and day clothes are attended to from time to time. Whether, coupled with other acts of attention, this constitutes "frequent attention throughout the day" is for the statutory authorities to decide.
It was said in argument that the financial consequences of accepting that the cleaning of clothes and bedclothes of incontinent people were capable of constituting "attention" would be grave. It must, however, be taken into account that many people who are incontinent are likely to be capable of changing clothes and for example using a washing machine and there may be cases of incontinence where the soiling of clothes can to some extent be avoided so that there is no need for frequent attention. Mrs Cockburn's case as apparently accepted by the Tribunal is different. Her severe arthritis prevents her from doing these things for herself and the problem occurs regularly.
Although the views I have expressed are different from some views expressed in earlier cases this particular problem has not been considered by your Lordships' House directly. The result in my view in no way amounts to treating the section as if it provided "open-ended assistance" to persons suffering from severe disability. I am satisfied that what is claimed as "attention" is within the ambit of the section. On this approach there may be some overlap between the care allowance and the mobility allowance and between them and the invalid care allowance payable to the carer, but if so this seems to me to follow from what I regard as the proper interpretation of the statutory language relating to the care allowance.
I consider therefore for the reasons I have given that the Nottingham Disability Appeal Tribunal directed itself correctly in law and was entitled to reach the conclusion it did. In reversing that decision, albeit on the basis of what they regarded as earlier binding authorities, the Commissioner and the Court of Appeal erred in law. I would allow the appeal and rule that the cleaning of clothes and bedclothes soiled by an incontinent person who cannot clean them for herself is capable of constituting "attention" in connection with [her] "bodily functions" within the meaning of section 64(2)(a) of the Social Security Contributions and Benefits Act 1992.
LORD HOPE OF CRAIGHEAD
For the reasons given by my noble and learned friend, Lord Slynn of Hadley, whose speech I have had the advantage of reading in draft, I also would dismiss the appeal in Miss Fairey's case. I have come to the conclusion however that the appeal in Mrs Cockburn's case should be dismissed also, for the following reasons.
Mrs Cockburn, who was born on 14 December 1925, was already over the age of 65 when she applied on 13 July 1992 for a daytime attendance allowance under section 64 of the Social Security Contributions and Benefits Act 1992. She was not entitled to the care component of a disability living allowance under sections 72 and 75 of that Act because an award of that allowance had not been made to her before she attained that age. The award of an attendance allowance to her depended therefore on whether or not she was able to satisfy the day condition specified in subsection (2) of section 64, which is in these terms:
(a) frequent attention throughout the day in connection with his bodily functions, or
(b) continual supervision throughout the day in order to avoid substantial danger to himself or others."
It is not suggested that Mrs Cockburn requires constant supervision throughout the day in order to avoid substantial danger to herself or others, or that she suffers from any mental disability. The question which was before the Adjudication Officer in her case was whether she is so severely disabled physically that she requires from another person frequent attention throughout the day in connection with her bodily functions. Her application was refused by the Adjudication Officer on 8 September 1992 and again on 7 January 1993. On 16 April 1993 the Disability Appeal Tribunal allowed her appeal and found her entitled to attendance allowance at the daily rate from the date of her claim. In their findings of fact the Tribunal stated:
The reasons for their decision were in these terms:
The Commissioner, Mr Commissioner Heald, allowed an appeal by the Adjudication Officer against the Tribunal's decision on 18 August 1994. He noted that the qualification for the award which was found established by the Tribunal was that Mrs Cockburn's attendance needs for dressing and undressing and getting out of bed, when added to the laundry generated by her incontinence, meant that she required frequent attention throughout the day. The sole issue which he was asked to decide--in view of the Tribunal's finding that her daughter had to do the washing for her--was whether the generation of the additional laundry arising from Mrs Cockburn's incontinence amounted to something which required frequent attention from another person in connection with her bodily functions within the meaning of section 64(2)(a) of the Act of 1992. The test which he applied in reaching his decision that this question had to be answered in the negative was whether this was a necessary chore of the kind which is normally done without personal or intimate connection with the claimant, or was something which, although normally done by a person for his own benefit, had to be done by some other person by reason of the claimant's disability.
In the Court of Appeal Butler Sloss L.J. agreed with the Commissioner that the volume of laundry, although larger and more distasteful by reason of the incontinence, did not meet the requirements of the statute. She referred to O'Connor L.J.'s observation in Regina v. National Insurance Commissioners, Ex parte Secretary of State for Social Services ("Packer's case")  1 W.L.R. 1017, 1027A that a line must be drawn somewhere as to what constitutes "attention in connection with bodily functions" for the purposes of section 64(2)(a). She distinguished housework such as dusting, cleaning, sweeping and laundry on the one hand from close personal attention such as helping to get in and out of bed, eating, drinking, bathing, washing hair and going to the lavatory on the other. The additional soiled laundry in the present case did not have the required degree of physical intimacy. Peter Gibson L.J. said that the authorities established that the frequent attention must involve some service involving personal contact carried out in the presence of the disabled person and that, as that element was absent in the case of the additional laundry, it did not qualify as attention in connection with her bodily functions.
The issue in this case is a narrow one, and it requires a careful analysis of the facts. There is no difficulty in seeing that Mrs Cockburn is so severely disabled physically that she requires attention in connection with her bodily functions. It is the frequency of that attention which is in issue, and on the facts which were found by the Tribunal it was essential to a finding in Mrs Cockburn's favour that the assistance which she receives from her daughter in dealing with the additional soiled laundry could be taken into account. And the question relates to the actual doing of the washing, not to the daughter's visits to the house to collect it and to return it afterwards. Happily Mrs Cockburn has now been held to be entitled to an attendance allowance for other reasons with effect from 11 March 1996, but that is not the decision which is before us in this appeal. What we have to consider is whether the additional laundry which her daughter does for her constitutes attention in connection with her bodily functions within the meaning of section 64(2)(a).
There are two bodily functions involved in Mrs Cockburn's case. The first is that of urinating. Her disability in regard to that function is her incontinence. But she does not require assistance in the performance of the function of urinating. Her problem is that she cannot cope with the consequences of her incontinence due to her arthritis. The assistance which she requires is in connection with the other bodily function, which is that of moving her limbs. Her disability in this regard is that she cannot walk properly, and she cannot dress herself without help. Her requirement for assistance to enable her to perform the bodily function of moving her limbs in order to dress and undress is not disputed. Nor is it disputed that she needs assistance with the extra laundry which results from her incontinence, because she cannot do this for herself due to her arthritis. Plainly the services which are performed by her daughter on her behalf are important to her well-being. But can it properly be said that they satisfy the statutory requirement for the daytime allowance?
In Packer's case  1 W.L.R. 1017, 1023F-G Dunn L.J. observed:
Lord Bridge of Harwich referred to these observations with approval in In re Woodling  1 W.L.R. 348, 352H as did Lord Woolf in Mallinson v. Secretary of State for Social Security  1 W.L.R. 630, 637B, subject to only one caveat, namely that the contact to which Dunn L.J. referred need not be physical contact but could be that established, for example, by the spoken word in the case of a blind person who needs guidance in the performance of his bodily functions of seeing or walking. In Woodling  1 W.L.R. 348, 352H-353B Lord Bridge went on to say:
Earlier in his speech in Woodling at p. 352D Lord Bridge pointed out that the policy underlying section 35 of the Social Security Act 1975, of which section 64 of the Act of 1992 is a re-enactment, had stopped short of providing an attendance allowance for all who are incapable of looking after themselves without some outside help even if that help is frequently required. So large areas of domestic work in respect of which the disabled are necessarily dependent on others are deliberately excluded. I agree with that analysis, and I regard it as decisive of the issue which is before us in this case.
In my opinion it is not enough to ask whether the act in question is done with the aim of keeping the disabled person clean and comfortable and in decent conditions. No doubt an act of that kind is of help to the disabled person, especially if--as in this case--the disabled person cannot perform that act for herself. The care, consideration and vigilance which the act involves may indeed be of such a degree and involve such devotion to duty as to amount to attention, rather than mere assistance, within the meaning which Dunn L.J. gave to that word. But it must also be "in connection with" the bodily functions of the person concerned. As Mr Commissioner Monroe put it in the passage which was quoted with approval by Lord Bridge in Woodling  1 W.L.R. 348, 352H-353A, the words of the section are directed primarily to those functions which the fit person normally performs for himself. The close connection which requires to be shown between the act and the bodily function will not in all cases depend on physical contact but, as Lord Bridge himself said, a high degree of physical intimacy is required.
As I see it therefore the correct analysis in Mrs Cockburn's case, in the light of the facts found by the Tribunal, is as follows. She requires attention in connection with her bodily functions of walking and dressing and undressing herself. She does not require attention in connection with the performance of the bodily function of urinating, but the fact that she is incontinent of urine increases her need for attention in connection with the other bodily functions which I have described. All the other help which she receives within the limited range of activities which a fit person normally performs for himself and which she cannot perform for herself, or can only perform with difficulty, due to her arthritis is relevant to her claim. But the help which she receives with her extra laundry is help in connection with a task, such as cooking, shopping or keeping the house clean, which the fit person need not and frequently does not perform for himself. It is the kind of task which, when several people are living together in the same family, can be done by one person for the rest of the household, the other members of which need not be present while it is being done although it is done for their benefit. It is too remote from the bodily functions which each fit member of the household normally performs for himself. In Mrs Cockburn's case there is normally no-one else in the house where she lives, and the volume of laundry is much greater than it would otherwise be due to her incontinence. But I do not see these features of her case, although distressing, as altering the fundamental problem which affects this part of her claim, which is that the help which she receives is not designed to assist her in the performance of her bodily functions. The washing is done, not in her presence, but elsewhere. The best that can be said is that the need for it is a consequence of her incontinence, but that is not enough to satisfy the terms of the statute in the light of the policy which Lord Bridge has described.
I would therefore, for these reasons, dismiss her appeal.
I also agree that the appeal in the case of Miss Fairey should be dismissed for the reasons given by my noble and learned friend Lord Slynn of Hadley, whose speech I have had an opportunity of reading in draft. I would only add that in my view the connection which is envisaged by the phrase "in connection with," which links the attention with the bodily functions, should be direct and immediate. The service of an interpreter seems to me to be closely linked with the severe impairment in Miss Fairey's function of hearing and satisfies that part of the statutory provision. I am not prepared to hold that the services of an interpreter to enable her to extend her social life beyond the limits of the circle of those with whom she can communicate without an intermediary could never be reasonably required. Whether it is required and, if so, to what extent, are matters yet to be explored.
So far as the appeal in the case of Mrs Cockburn is concerned I consider that it should be dismissed for the reasons given by my noble and learned friend Lord Hope of Craighead whose speech I have had an opportunity of reading in draft. Here again I would stress that the attention which is desiderated in connection with the bodily function must be some close and intimate service to the person of the claimant. The service is narrower than that of assistance. Assistance would cover activities done for the person. Attention implies services done to the person. The personal nature of what is comprised in attention prompts the observation made by Dunn L.J. in the passage in his judgment in Packer  1 W.L.R. 1017, 1023F that the attention must be a service involving personal contact carried out in the presence of the disabled person. But that should not be understood as being so absolute a requirement as to exclude the changing of bed linen which might be achieved without physical contact between the claimant and the person providing the service. Nor should it be understood to exclude an incidental activity which might occur outwith the presence of the claimant during the course of what is otherwise an attention given to and in the presence of the claimant. But the laundry work in the present case seems to me to fall outwith a service which is directed at the person of the claimant. It involves attention to the linen rather than attention to the claimant.
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