Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32

Disability Living Allowance – care component – attention – bodily functions

The case concerned a 12 year old boy, G, who suffered from incontinence of the bowel as a result of spina bifida and subsequent corrective surgery.  He denied his condition and refused to wear any sort of incontinence pads. The medical evidence from his GP was that, due to lax muscles and poor sensation, he was unaware of the need to defecate and, as a result, frequently had accidents which could be quite dramatic, with soiling not only of his clothes but also of beds, chairs, carpets and furniture. Although G was generally able to clean himself and dress and undress, he sometimes required attention in the morning when he got up and most days when he returned from school.  On some occasions it was necessary for G to get into the bath before being helped to undress, for his clothes to be removed carefully and to be rinsed, and for him to be showered until he was clean. In addition, G’s mother had to devote time to laundering G’s soiled clothes and bed linen and carrying out a number of cleaning tasks which were immediately necessary as a result of G’s condition, such as cleaning the toilet and shower area, the immediate washing of towels, and the need to sometimes clean the floor, carpet or furnishings.

An application to the Benefits Agency for the care component of DLA was turned down by the Adjudication Officer and subsequent appeals to the Social Security and Child Support Tribunal and the Social Security Commissioner were unsuccessful. The Tribunal accepted that G required reasonable attention in connection with his bodily functions and that persons of G’s age in normal health would not have that requirement. However, it found that, on average, that attention amounted to no more than 30 minutes at a time, once or twice a day. In the Tribunal’s reasoning, that was not sufficient to conclude that attention was required for a “significant portion” of the day. The time spent laundering and cleaning up after G was excluded by the Tribunal, whose findings were supported by the Social Security Commissioner.

The Tribunal appeared to base its reasoning on a decision by the House of Lords in Cockburn v Chief Adjudication Officer.  That case considered the situation where a disabled person needed more laundry washing than a normal person and concluded ‘…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 bed linen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to [count as attention in connection with bodily functions]. But taking her laundry away to be washed transcends personal attention of that kind’.

G’s case went before the Court of Appeal which held that the formulaic approach taken by the Tribunal was incorrect and that it had interpreted the decision in Cockburn too narrowly. The Court went on to find that the Cockburn case, while plainly drawing a distinction between, on the one hand, attention required in connection with the applicant’s bodily functions and, on the other, subsequent washing or cleaning done elsewhere in consequence of the applicant’s incontinence, nonetheless recognised the requirement for a degree of flexibility and/or the existence of a grey area in respect of the attention given. Certain acts of attendance performed by way of immediate and essential cleaning-up, in the interests of hygiene, after an incident of incontinence might qualify as such attendance and the time spent in cleaning-up should be taken into account when assessing whether or not the attention given amounted to a “significant portion of the day”.  The case was remitted to a differently constituted Tribunal for a fresh decision.

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