United Kingdom House of Lords Decisions

LORD GOFF OF CHIEVELEY

My Lords,

     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 [1981] 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 [1984] 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.

LORD MUSTILL

My Lords,

     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.

 1. Is the voluntary emptying of the bladder a bodily function? Plainly it is. Next, is the involuntary emptying of the bladder a bodily function? I would give the same answer, for if the section does not cover the malfunctioning of the body it loses much of its purpose. I do not accept the submission for the respondents that the assistance must be in connection with a "normal bodily function."

 2. If another person accompanies the claimant into the lavatory to help with the business of urination, is this providing "attention" to the applicant, and is it "in connection with" the bodily function? Surely it is. I would say the same if the other person helps a lame or infirm claimant to get to the lavatory for the purpose of the voluntary emptying of the bladder. What if the other person having helped the claimant to get to the lavatory in time afterwards helps him or her back to the living room? I would give the same answer with equal confidence.

 3. Assume now that the applicant does not manage to get to the lavatory in time and needs help to change his or her clothes and put things straight. I think it quite a small step to say that here the help is given in connection with a bodily malfunction which, as I have said, I would equate with a bodily function. And if this is right the same must be the case with the changing of bedclothes and nightwear and other tasks.

 4. I would go one step further still. If the other person, having come in to strip the bed etc., had stayed to rinse the linen and hang it up to dry I believe that this too would have fallen within the section. Relying on earlier authority the Secretary of State describes laundry as a "household chore", and so it usually is. But I believe that this is too mechanical an application of the refined and substantial jurisprudence which has built up around the few words of section 64(2)(a). There are cases where it is better to concentrate on the words themselves, in the context of the actual dispute. In my opinion this is one. I see here a sufficient continuity between the applicant's incontinence and the presence of the other person to deal with the consequences on the spot to satisfy the section. If the other person had been asked why she spent an hour or so in the flat she would say that she had gone to help out with the applicant's bladder problem.

     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

My Lords,

     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:

 "(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 a disability living allowance and he satisfies either--

  (a) the condition specified in subsection (2) below ("the day attendance condition"), or

  (b) the condition specified in subsection (3) below ("the night attendance condition"),

and prescribed conditions as to residence and presence 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 either--

  (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.

 (3) A person satisfies the night attendance condition if he is so severely disabled physically or mentally that, at night,--

  (a) he requires from another person prolonged or repeated attention in connection with his bodily functions, or

  (b) . . . . "

By section 71, disability living allowance, which applies to Miss Fairey, it is provided that:

 "(1) Disability living allowance shall consist of a care component and a mobility component.


 (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,:-

 "(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which--

  (a) he is so severely disabled physically or mentally that--

   (i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or


   (ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

  (b) he is so severely disabled physically or mentally that, by day, he requires from another person--

   (i) frequent attention throughout the day in connection with his bodily functions; or


   (ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

  (c) he is so severely disabled physically or mentally that, at night,--

   (i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or


   (ii) . . . ."

 "(3) Three weekly rates of the care component shall be prescribed."

In respect of the period in which a person is under the age of 16 the provisions of subsection (1) other than subparagraph 1(a)(ii) are deemed not to be satisfied unless the person has requirements substantially in excess of the normal requirements of persons of his age. A comparable provision was to be found in relation to the Act of 1975 in Regulations 6(2)(c) and (d) of the Social Security Attendance Allowance (2) Regulations 1975. This requirement did, but does no longer, apply to Miss Fairey.

     Section 73 of the Act of 1992 deals with the mobility component and provides inter alia that the mobility component of a disability living allowance shall be payable during the period when a person is suffering from physical disablement such that he is either unable to walk or virtually unable to do so or he is both blind and deaf. This section is not an issue in the present case but the mobility component is clearly a part of the scheme. It is right to notice also in passing that by section 70, Invalid Care Allowance, a person is entitled to an invalid care allowance for any day in which he is engaged in caring for a severely disabled person on certain conditions. Allowances may thus be paid in respect of a severely disabled person in addition to the one which is in issue in the present cases.

     For the present cases the relevant question is whether the claimant is so severely disabled physically that she requires from another person "frequent attention throughout the day in connection with [her] bodily functions."

II. Previous Decisions

 "Bodily Functions"

     "Bodily functions" are not defined. If this legislation were being construed for the first time it could be argued forcefully that the kind of case contemplated by Parliament as meriting an allowance related only to care of an intimate physical nature--help in the taking in of food and liquid and the excretion of waste. I do not, however, consider that it would be right to adopt such a limited interpretation today even if it was ever possible. As early as 1981 the Court of Appeal in Regina v. National Insurance Commissioner, Ex parte Secretary of State for Social Services [1981] 1 W.L.R. 1017 took a broader view of the meaning of the word. Mrs Packer, a lady of eighty-three, claimed an attendance allowance under the Act of 1975 in respect of the cooking of her meals which she could not do herself. The Commissioner thought that eating was a bodily function and that cooking was so closely connected with it that it constituted "attention" in connection with a bodily function. The judge thought cooking was itself a bodily function. Though disagreeing with both in the result the Court of Appeal took a broader view of the meaning of bodily functions than those of merely eating and excreting. Lord Denning M.R. said, at p. 1022B-C:

 "'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products--and the like - all of which an ordinary person--who is not suffering from any disability--does for himself."

I would not myself regard all of these as separate bodily functions. Thus walking, sitting, getting in and out of bed, dressing and undressing are not, in my view, functions in themselves. They are actions done by organs of the body, the limbs, fulfilling their function of movement. This does not, however, affect the result that a narrow meaning of the words is not to be taken.

     Dunn L.J. also avoided a narrow interpretation, at p. 1023E-F: "To my mind the word 'functions' in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions."

     In In re Woodling [1984] 1 W.L.R. 348 your Lordships' House agreed that cooking did not fall within the section, but Lord Bridge said at p. 352G: "The phrase 'bodily functions' is a restricted and precise one, narrower than, for example, 'bodily needs.'"

     The approach of the Court of Appeal has, however, been followed by Commissioners since that time and again in Mallinson v. Secretary of State for Social Security [1994] 1 W.L.R. 630D Lord Woolf and Lord Browne-Wilkinson clearly accepted that seeing was a bodily function. In my view so did Lord Templeman. Although he apparently preferred to treat walking as the bodily function in connection with which Mr Mallinson needed help and guidance, he also allowed the appeal for the reasons given by Lord Woolf. These included treating seeing as a bodily function. The majority of the House in Mallinson thus accepted that seeing is a bodily function.

     I am confirmed in the view that a restricted interpretation is not to be taken by the fact that when Parliament enacted the Act of 1992 it added in section 72(1)(a)(ii), as an alternative ground of entitlement to the disability living allowance, the case of a person so severely disabled that he cannot prepare a cooked meal for himself if he has the ingredients. It did not, however, make any change to the language relevant to the present case and in particular to limit the meaning of "bodily functions" as could have been done if it was considered that the interpretation given by the Court of Appeal was too wide.

 "Attention in Connection With"

     But accepting that seeing is a bodily function is only the beginning of the problem. In Packer Lord Denning thought that it was the words "in connection with" which gave rise to the difficulty. In his view some kinds of attention are closely connected with 'his bodily functions:' other kinds are too remote. On this basis he held that ordinary domestic duties, such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as 'attention . . . in connection with [the] bodily functions' of a disabled person. But duties that are out of the ordinary, doing for the disabled person what a normal person would do for himself, such as cutting up food, lifting the cup to the mouth, helping to dress and undress, or at the toilet, all do qualify as 'attention . . . in connection with [the] bodily functions' of the disabled person. p. 1022C-G.

Dunn L.J. added, at p. 1023F:

 "The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention . . . in connection with . . . bodily functions' involves some service involving personal contact carried out in the presence of the disabled person."

He approved the words of Mr Commissioner Monroe in Decision C.A./60/74, at p. 1025FC:

 "I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself."

Dunn L.J. on this basis ruled out cooking and housework.

In In re Woodling [1984] 1 W.L.R. 348 Lord Bridge said that if the statutory provision was to be broken down:

 "The phrase 'attention . . . in connection with bodily functions', which must, I think, be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention."

He added, however, that:

 "The language of the section should, I think, be considered as a whole, and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word or phrase separately."

As to the general policy behind the allowance:

 "It is clear that the policy underlying section 35 of the Act stops 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. Very large areas of domestic work in respect of which the disabled are necessarily dependant on others are deliberately excluded . . .

 Again, it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution." (p.352D-E)

     In Mallinson the attendance allowance was claimed for a blind man in respect of assistance with getting in and out of the bath and with cutting up food and with guidance when walking in unfamiliar surroundings. The case proceeded as far as your Lordships' House on the basis that the relevant bodily function was walking, but as I have already indicated, in my opinion the majority accepted that the relevant bodily function was, or was also, seeing. A major issue in that case, which does not arise in the present case, was whether what was required in regard to walking was "attention" within what is now section 72(1)(b)(i) of the Act of 1992 or "supervision" within the meaning of (ii). Lord Woolf approved the distinction drawn by Nicholls L.J. in Moran v. Secretary of State for Social Services (unreported 13th March 1987) that "attention" denotes a concept of some personal service of an active nature whereas "supervision" denotes a more passive concept, the person watching and being able to intervene only if necessary. He accepted that guiding was an active rôle involving personal qualities necessary to constitute "attention" and said, at p. 640B:

 "The only attention which can be given to a person 'in connection with' a slight handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight."

     Lord Woolf considered that it did not cease to be attention in connection with a bodily function if the disability prevented totally the exercise of that function and added:

 "The attention is in connection with the bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired."

The fact that with experience a person learned to cope with his disability so that less attention was required did not change the nature of the disability or the attention. It might affect the question whether the attention was needed frequently during the day. Lord Templeman and Lord Browne-Wilkinson agreed with his reasoning.

     Lord Lloyd of Berwick, dissenting, with whom Lord Mustill agreed, considered that walking was the relevant bodily function and that what was required in that case was supervision and not attention; that since Mr Mallinson could move about in familiar surroundings he was limited to claiming in respect of walking about in unfamiliar surroundings. That Lord Lloyd of Berwick found too vague and imprecise to count as a separate bodily function. He rejected the argument that seeing was a bodily function which a person "performed."

     It is, however, the majority view as to the meaning of "attention in connection with" which must be accepted. That the attention required must be "reasonably" required was stated in Regina v. Secretary of State for Social Services, Ex parte Connolly [1986] 1 W.L.R. 421 and has not since been questioned.

III. The present appeals

 Miss Fairey's Case

     Miss Rebecca Fairey, who was born on the 16th August 1974, claimed an attendance allowance on the 4th November 1988. She was then subject to the special provisions made under the Act of 1975 relating to children under sixteen years of age. The examining doctor on the 12th January 1989 found that she was "born deaf, she communicates mainly by signing and also can lip read but not very well, and speaks a little." She "may be in trouble if she gets lost and couldn't communicate to find her way. She is difficult to understand and doesn't lip read very well." She could not hear a fire burning or hear traffic in the street. Physically and mentally she had no other disabilities than those arising from her deafness. Her mother wrote that she had to go out with her daughter as people do not understand what she is saying and she has to interpret for her.

     On the 20th January 1989 the doctor rejected her claim and on the 3rd October 1989 the Delegated Medical Practitioner on review refused to revise the earlier decision. He said: "I find from the medical report completed on the 12th January 1989 that Rebecca, who has been deaf since birth, can manage all the bodily functions listed without someone's help." On the 31st May 1991 Miss Fairey applied for leave to appeal to a Social Security Commissioner on the ground that communication is a bodily function and that she needed attention in communicating with others which took a vast amount of time. Having initially contended before the Commissioner that there was no error of law in the decision of the 3rd October the Secretary of State for Social Security, in the light of later decisions by the Commissioners very fairly submitted that the "Delegated Medical Practitioner has erred by considering only the degree of communication that can be achieved and by failing to address the question of the amount of attention required in order to achieve it" and that even if the Delegated Medical Practitioner came to the same result the matter ought to be looked at again. The Commissioner ordered an oral hearing and on the 8th October 1993 he gave an interim decision that Miss Fairey was entitled to an attendance allowance for a period culminating on her sixteenth birthday, 16th August 1990. He adjourned the rest of the hearing and it is with this that the subsequent appeal was concerned.

     In a report of the 6th January 1994, part of the evidence on the appeal, Dr Brendan Monteiro, a consultant psychiatrist, said:

 "In order to properly discharge her duties and have a reasonable quality of life, Rebecca is dependent on her mother and others to enable her to communicate. Rebecca claims that she thinks she is placed at a disadvantage and is unable to live a good quality life as a result of her inability to communicate effectively with hearing people. She lacks confidence and narrated incidents to me where she felt inadequate and was seriously disadvantaged."

 "Rebecca cannot communicate independently with hearing people . . . without communication, it is impossible for human beings to be able to relate to each other, learn, develop social and individual skills and it is my opinion that cognitive development can be restricted without communication."

He appears to have accepted Miss Fairey's evidence that she did not experience problems with communication at work though "she describes a feeling of isolation as she cannot communicate freely with her colleagues."

     It has to be said that despite her handicap she has achievements to her credit. She attended deaf schools including a boarding school. She trained and qualified as a nursery nurse and has been working as a teaching assistant in a school assisting with the education of a deaf child.

     Before Mr Commissioner Sanders it was not in issue, in the light of the decision of your Lordship's House in Mallinson, that the attention required because of a claimant's hearing loss is or may be attention in connection with the bodily function of hearing or communication. The question was taken to be whether she reasonably required frequent attention throughout the day in connection with such bodily functions.

     The Commissioner found that when she was with her family the usual method of communication was by sign language. He thought that the need for help from a third person to act as interpreter for someone with difficulties of hearing or speech can count as attention in connection with those functions but that to communicate with her family who were proficient in sign language did not mean that she was receiving attention for the purpose of section 72(1)(b)(i) of the Act of 1992. There were other situations when an interpreter would be required.

     On behalf of the Secretary of State it was submitted that the social activities, such as going to the cinema or theatre, travelling, visiting museums, were not "essential" and that it could not be said that attention in respect of them was reasonably required. The Commissioner, following earlier decisions of other Commissioners, rejected the suggestion that a deaf person must limit her activities to those which she could undertake without assistance. He said:

 "I take the view following, as it seems to me, the approach in the last few cases to which I have referred that it is 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; it may be of course that various social activities that are open to hearing people would not become more accessible to a deaf person whatever additional assistance or attention was given."
He thought that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72.

     He referred to the adjudication officer the question of fact as to what attention was reasonably required by the claimant throughout the day. Subject to that, and to his opinion that any extra effort involved in communicating with persons reasonably skilled in sign language did not constitute attention for the purposes of section 72, he allowed the appeal.

     The Secretary of State appealed to the Court of Appeal on the ground that the Commissioner had erred in law in holding that Miss Fairey had a reasonable requirement for an interpreter to carry out a reasonable level of social activity. Social activities it was said are merely desirable and not reasonably required and the Commissioner's decision was inconsistent with, or not supported by, previous Commissioners' decisions which had been relied on by Mr Commissioner Sanders.

     The respondents served a counter notice contending that the latter's decision was wrong insofar as it failed to include a direction that the extra effort incurred by a hearing person to enable a profoundly deaf person to communicate was capable of constituting attention within the meaning of section 72(1)(b)(i) of the Act of 1992. The point, which was argued in the Court of Appeal, was rejected by all members of the Court of Appeal and was expressly abandoned in your Lordships' House.

     For the majority in the Court of Appeal the sole issue was whether the attention required in order to be reasonably required had to be necessary in order to maintain life itself. Glidewell L.J. found nothing in the statutory provisions which justified such a "stark proposition". If that was abandoned it was in his view "difficult to draw a sensible line between what is and what is not reasonably required short of the test adopted by Mr Commissioner Sanders, namely "it is 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." Glidewell L.J. accepted that that was correct in law. Swinton Thomas L.J. agreed. He said, on the basis of the decision in Mallinson: "in my view Mr Drabble is right in submitting that attention given to a profoundly deaf person to enable that person to carry on, so far as possible in the circumstances, an ordinary life is capable of being attention that is reasonably required." He too accepted the Commissioner's test. On that basis the majority dismissed the appeal.

     Hobhouse L.J. disagreed. Dealing first with the language of the section he stressed the need to distinguish a "physical disability" (here the "inability to hear" with which is associated "what may be called an inability to speak") and mere lack of a particular skill such as the ability to speak or understand a particular language. "It is not clear on the present evidence to what extent her inability to speak in a manner which others can understand is to be attributed relatively to her physical disability and to the lack of a skill."

     Secondly he emphasised that the disability had to be in connection with the claimant's bodily functions; the words were not "in connection with her disability." In a case like the present "The disability of a blind person is his inability to see; the relevant bodily functions include seeing." He considered that the speech of Lord Woolf in Mallinson ignored or elided the distinction between bodily functions and disability and was contrary to the decisions of the Court of Appeal in Packer and in this House in Woodling. In any event, he held that there was not a majority in the House for the view expressed by Lord Woolf that the bodily function in question was seeing rather than walking, Lord Templeman having considered that the relevant bodily function was walking.



 

     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.

 Conclusions

     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.


 

 Conclusions

     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:

 "In my opinion the washing of clothes and bedclothes can in certain cases constitute attention in connection with bodily functions under said section 35--if, for instance, the abnormal amount of laundry changes are regarded as required as part of the overall treatment of the person's condition."

     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

My Lords,

     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:

 "(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 either--
  (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:

 "1. Mrs Cockburn was born on 14th December 1925 and claimed Attendance Allowance on 13th July 1992.

 2. Mrs Cockburn cannot walk properly due to arthritis of her knees and requires assistance to walk, otherwise she has to stay at home.

 3. Mrs Cockburn cannot get up without difficulty and she cannot dress herself properly without help.

 4. Mrs Cockburn is incontinent which gives rise to washing and the washing generated as a result of this incontinence can be considered to be 'in connection with the bodily functions.' Mrs Cockburn cannot do the washing, her daughter has to do the washing for her.

 5. Due to her severe physical disabilities Mrs Cockburn requires frequent attention throughout the day in connection with her bodily functions and this is required every day."

The reasons for their decision were in these terms:

 "Mrs Cockburn cannot walk unaided and cannot get out of bed except with difficulty and she cannot dress herself properly without assistance. Mrs Cockburn is incontinent and as a result of this, a lot of washing is generated which Mrs Cockburn is unable to do herself and relies on her daughter. Taking all these together Mrs Cockburn requires frequent attention throughout the day in connection with her bodily functions because she is so severely physically disabled.

 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, 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") [1981] 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 [1981] 1 W.L.R. 1017, 1023F-G Dunn L.J. observed:

 "The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention . . . in connection with . . . bodily functions' involves some service involving personal contact carried out in the presence of the disabled person."

Lord Bridge of Harwich referred to these observations with approval in In re Woodling [1984] 1 W.L.R. 348, 352H as did Lord Woolf in Mallinson v. Secretary of State for Social Security [1994] 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 [1984] 1 W.L.R. 348, 352H-353B Lord Bridge went on to say:

 "At the end of the day I doubt if the construction of the relevant words can be more accurately or more concisely expressed than in the passage from the decision of Mr Commissioner Monroe in 1974, cited by Dunn L.J. at p. 1025F:

  'I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself.'

 This criterion has the great merit of being clear and easily applied. I would find it very difficult to formulate any alternative criterion which would not give rise to difficulties in practice."

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 [1984] 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.

LORD CLYDE

My Lords,

     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 [1981] 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.