Allowance for deaf can include interpreter

LAW REPORT v 10 June 1997: Cockburn v Chief Adjudication Officer; Secretary of State for Social Security v Fairey (aka Halliday); House of Lords (Lord Goff of Chieveley, Lord Mustill, Lord Slynn of Hadley,Lord Hope of Craighead, Lord Clyde) 21 May 1997

The provision of an interpreter to assist a totally deaf person in social activity could constitute attention which was reasonably required in connection with a bodily function, and thus be included in a claim for a disability living allowance. Help given to an arthritic person with extra laundry generated by her incontinence was not, however, assistance required in connection with a bodily function and could not be included in a claim for an attendance allowance.

The House of Lords dismissed the Secretary of State's appeal against the award of disability living allowance to Rebecca Fairey, and, Lord Slynn dissenting, dismissed Gladys Cockburn's appeal against the refusal to grant her an attendance allowance.

Mrs Cockburn suffered from arthritis and incontinence. A decision to grant her an attendance allowance under section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 was reversed by a Social Security Commissioner. The Court of Appeal upheld the Commissioner's decision.

Rebecca Fairey was born deaf. Her application for disability living allowance, including the use of an interpreter for social activities, under section 72(1)(b)(i) of the 1992 Act was granted by a Social Security Commissioner on appeal. The Court of Appeal dismissed the Secretary of State's appeal against the Commissioner's decision.

Michael Beloff QC and Richard McManus (Department of Social Security Solicitor) for the Chief Adjudication Officer and the Secretary of State; Richard Drabble QC and David Wolfe (David Thomas) for Mrs Cockburn and Miss Fairey.

Lord Slynn said that the question in the two cases under consideration was the same: was the claimant so severely disabled physically that she required from another person "frequent attention throughout the day in connection with [her] bodily functions"?

The attention must be "reasonably" required: R v Secretary of State for Social Services, ex p Connolly [1986] 1 WLR 421. The issue in Miss Fairey's case was whether that meant it had to be necessary in order to maintain life itself.

On the question of principle his Lordship rejected the contention that the relevant attention must be essential or necessary for life, and not merely desirable. The test was whether the attention was reasonably required to enable the severely disabled person, as far as reasonably possible, to live a normal life. He was not to be confined to doing only the things which totally deaf (or blind) people could do and provided with only such attention as kept him alive in such a community.

The yardstick of a "normal life" was important; it was a better approach than adopting the test as to whether something was "essential" or "desirable". Social life could be part of normal life. It was not in any way unreasonable that the severely disabled person should wish to be involved in that despite his disability.

How much attention was reasonably required and how frequently were questions of fact for the adjudicating officer. The Commissioner had not, however, erred in law and the majority of the Court of Appeal were correct in law to uphold his decision.

Lord Hope said that the issue in Mrs Cockburn's case was a narrow one. There was no difficulty in seeing that she was so severely disabled physically that she required attention in connection with her bodily functions. It was the frequency of that attention which was in issue.

Mrs Cockburn's problem was that, due to her arthritis, she could not cope with the consequences of her incontinence. It was not disputed that she needed assistance with the extra laundry which resulted from her incontinence. Plainly the services performed by her daughter on her behalf, in doing her washing, were important to her well-being. Could it, however, properly be said that they satisfied the statutory requirement for the daytime allowance?

It was not enough to ask whether the act in question was done with the aim of keeping the disabled person clean and comfortable and in decent conditions. It also had to be "in connection with" the bodily functions of the person concerned.

The fundamental problem which affected this part of Mrs Cockburn's claim was that the help which she received was not designed to help her in the performance of her bodily functions. The washing was done, not in her presence, but elsewhere. The best that could be said was that the need for it was a consequence of her incontinence, but that was not enough to satisfy the terms of the statute. Her appeal would, therefore, be dismissed.

Kate O'Hanlon, Barrister