Law Report: Blind person can claim allowance: Mallinson v Secretary of State for Social Security. House of Lords (Lord Templeman, Lord Browne-Wilkinson, Lord Mustill, Lord Woolf and Lord Lloyd of Berwick). 21 April 1994

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A blind person who needs assistance when walking in unfamiliar surroundings requires 'attention . . . in connection with his bodily functions' and therefore may be eligible for an attendance allowance.

The House of Lords, by a majority, allowed an appeal by the claimant and remitted his case to an adjudication officer to assess the frequency of attention required by the claimant.

The claimant, who is severely disabled by blindness, requires assistance while walking out-of-doors in unfamiliar surroundings. By section 35(1)(a) of the Social Security Act 1975 attendance allowance is payable to severely disabled person if he required from another person 'frequent attention throughout the day in connection with his bodily functions'. The claimant's claim for the allowance was refused on the basis that the assistance he required when walking was 'supervision' rather than 'attention' and was not in connection with a bodily function.

Richard Drabble (Child Poverty Action Group) for the claimant; Duncan Ouseley QC and Paul Stinchcombe (Department of Social Security) for the Secretary of State.

LORD WOOLF said that the phrase 'attention . . . in connection with . . . bodily functions' involved some service involving personal contact carried out in the presence of the disabled person and the 'contact' need not be physical contact: it could be established by the spoken word. 'Attention' denoted a concept of some personal service of an active nature, such as helping the disabled person to wash or eat. The vital contrast between supervision and attention was between activity and a state of passivity coupled with a readiness to intervene.

The guiding which the claimant required in unfamiliar surroundings constituted 'attention' and not 'supervision'. The process of guiding had the active and the close, caring, personal qualities, different from the position which would exist in a case of supervision. There would be cases which were borderline as to whether they were supervision or attention. If the function could not take place without assistance, that assistance was likely to constitute attention. The requirement of frequency of attention through the day was a significant control on the circumstances in which the allowance was payable. The problem that the claimant had was that, although his walking ability was unimpaired, because he could not see he did not know, in unfamiliar surroundings, where or when to walk. The only attention which could be given to a person 'in connection with' a sight handicap was to provide the assistance to enable that person to do what he could physically do for himself if he had sight.

The fact that your disability is so severe that you are incapable of exercising a bodily function did not mean that the attention received was not in connection with that bodily function. The attention was in connection with the bodily function if it provided a substitute method of providing what the bodily function would provide if it were not totally or partially impaired.

Four questions should be asked. (1) Has the claimant a serious disability? (2) If so, what bodily function did it impair? (3) Did he reasonably require attention in connection with those functions? (4) Was that attention frequent? The appeal should be allowed and the case remitted.

Lord Templeman and Lord Browne-Wilkinson agreed with Lord Woolf.

LORD LLOYD, dissenting, said that the claimant could walk without assistance. It was much too vague and imprecise to count 'walking in unfamiliar surroundings' as a separate bodily function. It was difficult to regard hearing and seeing as bodily functions within the section. Whereas eating, drinking, walking and washing were all bodily functions which a fit man performed for himself, it would not be a normal use of language to say that seeing was a function which a fit man performed.

Lord Mustill agreed with Lord Lloyd.