Secretary of State for Work & Pensions v June Batty [2005] EWCA Civ 1746

The respondent (B) was 76 years of age and suffered from severe arthritis in her back and knees.  She was unable to stand upright and the arthritis in her knees prevented her from walking any distance even with the help of a stick.  She required a wheelchair or a scooter whenever she left the home.

She claimed an attendance allowance under s.64 Social Security Contributions and Benefits Act 1992, being a person over the age of 65 who was so severely physically disabled so as to require from another person ‘frequent attention throughout the day in connection with her bodily functions.’  The Secretary of State (SS) refused her application as did the Appeals Tribunal. B appealed to the Social Security Commissioners, who allowed her appeal.

This case concerns the appeal by the SS against that decision of the Commissioner.

There were 2 grounds for the appeal.  It was alleged that the Commissioner had erred in law in
(i) holding that contrary to established authority, carrying hot drinks was capable of constituting attention…. in connection with …. bodily functions’ …. and
(ii) concluding without evidence as to whether without such help B could reasonably have access to hot drinks by other means, and that she ‘required’ such help.

The Appeals Tribunal had found that the hot drinks brought to B throughout the day by her husband or work mates, was help in connection with her bodily function, and it therefore concluded that they could not count towards acts of assistance towards the test for attendance allowance, which required frequent attention throughout the day in connection with bodily functions.  On her appeal to the Commissioner, B had claimed that the Tribunal had erred in law by ignoring her need for drinks to be brought to her and generally in the way the Tribunal had treated her disability.  The Commissioner found that B would not be able to carry a drink with the difficulties she had in walking.  She could not use a cooker or cope with hot pans.  He found that there was evidence that she needed help with her drinks, if only to get then to a position where she was safely able to drink them, and that such help  would be reasonably required on a number of occasions in any day.     The help she needed was within the test of what could reasonably be expected for her personal care and the Commission disagreed that there were long periods during the day when she did not reasonably require any help.

The Court of Appeal’s approach was to ask the question whether or not there had been an error of law by the Commission.  It referred to a number of cases which had been heard by the House of Lords such as R v National Insurance Commissioner ex parte S of S for Social Services [1981] (Packer’s Case), Mallinson v SS Social Security [1994],
Cockburn v Chief Adjudication Officer [1997], Re Woodling [1984]  

It found that in those cases, their Lordships had established a number of propositions which were relevant.  Firstly, the phrase “requires from another person frequent attention in connection with his bodily functions” ought to be read as a whole. The word “attention” and “functions” gave colour to each other and denoted a special and personal requirement created by the disability beyond the normal run of domestic assistance. Secondly, “attention” in this context had to be something more than personal service and involved care, consideration and vigilance for the person being attended.  It was service of a close and intimate nature. Thirdly, the word “functions” was narrower than “needs” and referred generally to the normal physiological actions which a fit person normally performed for himself. This was taken from the decision of the Commissioner, and cited with approval in Packer’s case by Dunn LJ.

The assistance provided for B had none of the characteristics of a service of a close and intimate character which was the clear theme running through the decisions in the House of Lords.  The court was not persuaded that the Commissioner had found or had been entitled to find any more than that B’s disability meant that she could not carry drinks to where she could drink them. The physiological function in question was drinking. The assistance required was just the transportation of drinks and had none of the characteristics of service of a close and intimate character. In those circumstances, the decision could not stand and the matter was remitted for a re-hearing.

Appeal allowed.

Comment

This approach will be of relevance no doubt, in cases where care establishments are arguing that they are no longer providing registrable care together with accommodation, and are trying to de-register.

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