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Notes:
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Attendance allowance - need for extra domestic laundry as a result of disability - whether amounted to attention in connection with bodily functions
Care component - profoundly deaf claimant - whether assistance or attention to enable claimant to live a normal life was reasonably required
Mrs. Cockburn was awarded attendance allowance at the lower rate by a disability appeal tribunal on the basis that her attendance needs for dressing and undressing and getting into and out of bed, when added to laundry generated by her disability, amounted to frequent attention throughout the day. The adjudication officer appealed to the Commissioner. The Commissioner allowed the appeal and the claimant appealed to the Court of Appeal, which dismissed the appeal. The claimant appealed to the House of Lords.
Miss Fairey, aged 20 at the date of the decision of the Commissioner, was profoundly deaf. It had earlier been conceded that she had satisfied the day attention condition for an award of attendance allowance until 16 August 1990 when she turned 16 and the Commissioner had given an interim decision to that effect. The resumed hearing concerned entitlement from when the claimant turned 16 and had been postponed at the request of the Secretary of State pending the outcome in the House of Lords of Mallinson v. Secretary of State for Social Security [1994] WLR 630 [R(A) 3/94]. At the resumed hearing it was not in issue that the attention required because of a claimants hearing loss was or might be attention in connection with the bodily function of hearing or communication.
Held, by the Commissioner, allowing the appeal, 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.
The Secretary of State appealed to the Court of Appeal, which (by a majority) upheld the decision of the Commissioner. The Secretary of State appealed to the House of Lords.
Held, by the House of Lords, dismissing both appeals (in the case of Mrs. Cockburn, by a majority, Lord Slynn of Hadley dissenting), that:
1. in the case of Miss Fairey, per Lord Slynn of Hadley, (i) the operation of the senses is a bodily function; (ii) the provision of an interpreter to use sign language is capable of providing attention; and (iii) there is no requirement that the attention must be essential or necessary for life or that attention must not be taken into account if it is merely desirable, and that the test is whether the attention is reasonably required to enable the disabled person as far as reasonably possible to live a normal life;
2. in the case of Mrs. Cockburn, per Lord Hope of Craighead, adopting the formulation of Mr. Commissioner Monroe in CA/60/1974 approved of by Lord Bridge in In re Woodling [1984] WLR 348 [also reported as appendix 2 to R(A) 2/80], at 352H-353B that the statutory criteria are directed primarily to those functions which the fit man normally performs for himself, the help received by the appellant 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. R(A) 1/91 by implication disapproved of. |
