Law Report: Deaf person can claim for social activity

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Secretary of State for Social Security v Fairey; Court of Appeal (Lord Justice Glidewell, Lord Justice Hobhouse and Lord Justice Swinton Thomas); 15 June 1995

The attention required by a deaf claimant to carry out a reasonable level of social activity could constitute attention in connection with her bodily functions so as to entitle the claimant to a disability living allowance under section 72 of the Social Security Contributions and Benefits Act 1992.

The Court of Appeal (Lord Justice Hobhouse dissenting) dismissed an appeal by the Secretary of State from a social security commissioner's decision that, for the purposes of a claim for an attendance allowance under the 1992 Act, the claimant who is deaf reasonably required such attention as enabled her to carry out a reasonable level of social activity.

The claimant, aged 20, was born deaf and had great difficulty speaking. She qualified as a nursery nurse and was employed in a mainstream nursery providing input for a deaf youth. On her claim for an attendance allowance on the basis that she required attention in connection with her bodily functions within section 72, the commissioner decided that, applying Mallinson v Secretary of State for Social Services [1994] 1 WLR 630, it was right to include as attention which is reasonably acquired such attention as enabled her to carry out a reasonable level of social activities. He referred the case back to an adjudicator to make the necessary findings of fact to determine the claim. The Secretary of State appealed on the ground that social activities were desirable rather than being reasonably required.

Michael Beloff QC and Richard McManus (DSS solicitor) for the Secretary of State; Richard Drabble QC (David Thomas) for the claimant.

Lord Justice Glidewell said that in Mallinson the claimant was blind and the House of Lords by majority decided that attention he required when walking in unfamiliar surroundings was attention in connection with bodily functions. Lord Templeman decided that the relevant bodily function was walking but he also agreed with Lord Woolf, who gave the principal speech, that the attention was in connection with the bodily function of sight.

A claimant was entitled to a disability living allowance if she was so severely disabled physically or mentally that she required from another person frequent attention throughout the day in connection with her bodily functions.

It was accepted that the attention which enabled a deaf person to understand what she would understand for herself if she could hear was attention in connection with the bodily function of hearing. The issue which arose was: was the attention required by the claimant to live, as nearly as possible, a normal social life "reasonably required". There was nothing in the section or statutory provisions generally which led to the conclusion that only attention which was necessary in order to maintain life itself was reasonably required. The commissioner's decision that it was right to include in the aggregate of attention that was reasonably required such attention as might enable the claimant to carry out a reasonable level of social activity was correct in law.

Lord Justice Hobhouse, dissenting, said that the commissioner's decision involved an error of law because it elided the statutory criteria. It must be the physical disability that required the attendance. The attendance must be in connection with her bodily functions. Engaging in social activity was almost the antithesis of what one would understand by the words "bodily functions". It was correctly described as an activity rather than a function. The claimant's argument led to a situation where any physical activity became a bodily function: social intercourse, being entertained, recreational activities, working. The ratio decidendi of Mallinson was the narrower one stated by Lord Templeman and the court was not bound to apply the broader view preferred by Lord Woolf.

Lord Justice Swinton Thomas, agreeing with Lord Justice Glidewell, said that in Mallinson the House of Lords found that assistance given to a blind person to help him when he went out walking was "attention" in connection with a bodily function; so also was assistance with the reading of correspondence which the blind person could not read for himself. The attention given to a profoundly deaf person to enable that person to carry on, so far as possible in the circumstances, an ordinary life was capable of being attention that was reasonably required.

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