Mallinson v Secretary of State for Social Services

Decision of the House of Lords April 1994

LORD TEMPLEMAN My Lords By section 35(1) of the Social Security Act 1975 attendance allowance is payable to a severely disabled person if he requires from another person: "...... frequent attention throughout the day in connection with his bodily functions." The Courts have given a wide meaning to the expression "bodily functions" and your Lordships were not asked to quarrel with the definition given by Lord Denning M R in R v The National Insurance Commissioner, Ex parte Secretary of State for Social Services (Packer's case) (1981) 1 W L R 1017 when he said at p. 1022:   "Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself. But they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties: or generally which one of the household normally does for the rest of the family."

In the present case the appellant, Mr Mallinson, is severely disabled by blindness. It is conceded that, though Mr Mallinson can wash himself when he is in the bath, he requires attendance in connection with his bodily function of bathing in the form of assistance in getting into and out of the bath. It is also conceded that, although Mr Mallinson can feed himself, he requires attention in connection with his bodily function of eating in the form of assistance in cutting up his food. Mr Mallinson can walk but he requires attention in connection with his bodily function of walking in the form of assistance to guide and help him when he is outdoors. True it is that Mr Mallinson can walk within the confines of his flat without attention but this facility is only a factor which the adjudication officer will bear in mind in deciding whether the aggregate attention required by Mr Mallinson in connection with his bodily functions of bathing, eating and walking amount to "frequent attention throughout the day". For these reasons and for the reasons given by my noble and learned friend Lord Woolf I would allow this appeal.

LORD BROWNE-WILKINSON My Lords For the reasons given in a speech to be delivered by my noble and learned friend Lord Woolf I too would allow the appeal.

LORD MUSTILL My Lords I have found this a difficult case, but have come to the conclusion that the appeal should be dismissed for the reasons given by my noble and learned friend Lord Lloyd of Berwick. I will add only this, that whilst section 35(1)(a)(i) are aimed at the relationship between the disability and the performance of the bodily functions themselves, the focus of sections 35(1)(a)(ii) and (b)(ii) is the danger which the continued supervision is intended to avert. Since the problem faced by Mr Mallinson is not that he cannot walk but that in some outdoor situations he cannot walk without risk, it is the continued supervision called for by paragraph (b) rather than the frequent attention demended by paragraph (a) which one would expect to find as the touchstone of the right to an attendance allowance; and which for the reasons given by my Lord I believe one does find.

LORD WOOLF My Lords The issue raised on this appeal is a short one. However, as indicated by Ralph Gibson L J in the Court of Appeal, it is by no means easy to resolve. The issue is whether the assistance required by a blind person while walking out-of-doors in unfamiliar surroundings is "attention" "required" by the blind person "in connection with his bodily functions" within section 35(1)(a) of the Social Security Act 1975.

The terms of that subsection are as follows: "(1) A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to residence or presence in Great Britain and either - (a) he is severely disabled physically or mentally that, by day, he requires from another person either - (i) frequent attention throughout the day in connection with his bodily functions, or (ii) continual supervision throughout the day in order to avoid substantial danger to himself or others or (b) he is so severely disabled physically or mentally that, at night, he requires from another person either- (i) prolonged or repeated attention during the night in connection with his bodily functions or (ii) continual supervision throughout the night in order to avoid substantial danger to himself or others." The answer to the issue can also be of relevance to a carer of a severely disabled person. This is because under section 37 of the Act of 1975 invalid care allowance was payable, subject to certain requirements, to a person who cared for a severely disabled person and the definition of a severely disabled person included "a person in respect of whom there is payable either an attendance allowance or such other payment out of public funds on account of his need for attendance as may be prescribed." While sections 35 and 37 of the Act of 1975 are no longer in force the outcome of this appeal is of relevance to the similar requirements that have to be fulfilled to qualify for allowances under the current Social Security Contributions and Benefits Act 1992.

The appellant, Mr Mallinson, is blind. He suffers from no mental disability but requires assistance with getting in and out of the bath and with cutting up food. He can walk about his flat and outside in familiar surroundings without risk of danger to himself, but, because he cannot see, when walking in unfamiliar surroundings he risks injury to himself unless he is guided by someone else. Mr Mallinson first claimed attendance allowance on a form dated 22 August 1989. On 6 October 1989 a delegated medical practitioner ("DMP"), acting on behalf of the Attendance Allowance Board, decided that Mr Mallinson did not satisfy any of the attendance conditions set out in section 35(1) of the Act of 1975. That decision was subsequently reviewed on 2 March 1990 and again on 12 December 1990 without the decision being altered. There was then an appeal, with leave, to Mrs Heggs, a Social Security Commissioner, which was dismissed on 25 September 1991. A further appeal, with leave, against her decision to the Court of Appeal was dismissed by a majority (Ralph Gibson and Mann L JJ, Nolan L J dissenting). However, the Court of Appeal gave leave for this appeal.

On analysis of the section it is apparent that in order to satisfy the conditions prescribed by section 35(1)(a) a claimant must establish (a) that he is severely disabled (b) that his disablement is so severe that he requires from another person frequent attention throughout the day and (c) that the frequent attention is in connection with his bodily functions. As Mr Mallinson is blind it has always been accepted that he fulfils condition (a). It is part of (b) and (c) which have given rise to the difficulty.

In his decision announcing the result of the second review, on 12 December 1990, the third DMP in a determination which was upheld by the Commissioner as being correct, said:

"Day Attention"

"4. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson required assistance to bathe and to cut up food. The medical evidence indicates that Mr Mallinson uses a white stick.

"5. I appreciate that Mr Mallinson is blind but he has suffered from blindness for a number of years and it is clear from the evidence before me that he has adjusted well to disability.

"6. Your letter dated 31 July 1990 indicates that Mr Mallinson regularly needs assistance with the bodily function of walking but this is not borne out by the medical evidence. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson could walk without assistance from another person and having considered the clinical picture I agree with his opinion.

"7. Mr Mallinson has no physical disorder of mobility and, therefore, he should be able to walk and to get about within his familiar surroundings without assistance.

"8. Mr Mallinson requires assistance to bathe and to cut up food but this does not amount to frequent attention throughout the day. Consequently, my conclusion is that Mr Mallinson does not satisfy the day attention condition.

"Day Supervision"

"9. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson was aware of common dangers both inside and outside the house but he went on to indicate that Mr Mallinson cannot see dangers outside the house. He further indicated that Mr Mallinson could safely be left unsupervised all day. Mr Mallinson is described as having normal mental ability.

"10. Mr Mallinson has been blind for a number of years but he is stated to be mentally normal. I can see no medical reason why he should not be aware of his surroundings. He has no physical disorder of mobility and I consider that he should be able to find his way around in the familiar surroundings of his home.

"11. I accept that supervision is required when he is out in traffic or in unfamiliar surroundings but such supervision is limited in time and frequency and can be arranged in advance.

"12. Taking an overall view my conclusion is that this condition is not satisfied."

The medical report of 20 September 1990 referred to in the decision sets out Mr Mallinson's description of his condition as being that: "I do not go out into unfamiliar surroundings without someone with me as I have walked into lampposts and broken glasses and knocked teeth out in the past." and it includes the opinion of the doctor that "(Mr Mallinson) is relatively safe in the familiar surroundings of his own home but he would need supervision outdoors in view of his previous injuries (knocked out front teeth on lamppost)." To a question on the form " In your opinion can the disabled person's condition give rise to danger to himself or someone else?" the doctor answers: "Needs supervision in unfamiliar surroundings." The medical report is silent as to what form of "supervision" in unfamiliar surroundings was required. However, in the course of argument before your Lordships and, it appears, in the Court of Appeal, it was sensibly accepted that what Mr Mallinson required in unfamiliar surroundings was to have a person to accompany him. That person would act as his guide. He would guide Mr Mallinson either physically, perhaps by linking arms, or orally by describing to Mr Mallinson what he should do. Both methods involve the guide, in unfamiliar surroundings, acting as Mr Mallinson's eyes, doing for Mr Mallinson what he could not do for himself, which was to see where he was going.

The Commissioner stated that Mr Mallinson " is able to walk and even does so out-of-doors. However, he does risk injury when walking in unfamiliar surroundings because he cannot see." She endorsed the DMP's classification of the assistance required by Mr Mallinson when walking as "supervision" rather than "attention". If this classification is justified then it is conceded by Mr Drabble, on behalf of Mr Mallinson that he cannot qualify for attendance allowance under section 35(1)(a)(ii) because any such supervision would not be "continual ... throughout the day", which is the standard set by the second limb of section 35(1).

In the Court of Appeal, Ralph Gibson L J in stating his conclusions indicated that his initial impression was favourable to Mr Mallinson and that "the act of guiding a blind man or woman, when walking, could be held to be something involving care, consideration and vigilance for the blind person and a service of a close and intimate nature, in connection with the bodily function of walking,", all of which, on the authorities to which I will have to refer, suggest that "attention" rather than "supervision" was provided by the guide. However, he then stated that he had changed his view because of the difficulties which could arise if different blind persons were not treated in the same way: that is, if some are to be treated as qualifying and others not doing so. The allowance is not on a sliding scale increasing with the attention you need. He considered that the bodily function in connection with which assistance is given was that of walking and could not accept the alternative contention made on behalf of Mr Mallinson that it was in connection with seeing since, according to Ralph Gibson LJ, "Mr Mallinson cannot see and he cannot require or receive attention with seeing." Mann L J was also influenced by the undesirability of reaching a decision which "would result in fine adjudications as to the need for accompanied walking amongst claimants who could not readily understand distinctions between themselves." However, he appears to have taken the view that while guiding constituted "attention" it was not "attention" in connection with a bodily function since it only arose as a result of a "physical need or desire which Mr Mallinson may have to walk outside his familiar surroundings for therapeutic or recreational reasons." This Mann L J regarded as being "an immaterial consideration.". Nolan L J took a different view because he considered that it was inevitable that results will differ from case to case and "the suggestion that a blind person walking on or across the highway needs only passive supervision coupled with a readiness to intervene in an emergency seems to (him) to be unrealistic." Assisted by the extremely able argument of Mr Drabble on behalf of Mr Mallinson and Mr Ouseley QC on behalf of the Secretary of State, it is apparent that the judgments of the majority of the Court of Appeal seek to give effect to what has been said which is of general application in the earlier authorities. Those authorities were dealing with claims for attendance allowance which were made in different circumstances from those of this appeal but which contain valuable guidance as to the proper approach to the application of section 35(1).

The earliest of those cases if R v The National Insurance Commissioner, Ex parte Secretary of State for Social Services (Packer's case) (1981) 11 W L R 1017. That case involved an 83 year old lady who had numerous disabilities associated with advancing years. The activity which it was sought to take into account was the assistance which she received with cooking. In the course of giving the first judgment in that case, Lord Denning M R, at p. 1022, said: "In order to qualify at all, the person must be 'so severely disabled physically or mentally' that he requires attention. This conveys the thought that the attention must be required so as to enable him to cope with his disability, whatever it is." This is surely just what the guide does for Mr Mallinson in unfamiliar surroundings - helps him to cope with his disability of being unable to see. Lord Denning added that "attention" is different from "activity" or "attendance" and he continued: "Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself. But they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties; or generally which one of the household normally does for the rest of the family." Lord Denning's reference to the role of different members of the family, as he perceived them to be, are not in contemporary circumstances of any real assistance. He did, however, correctly point out that it was "in connection with" which give rise to difficulty, and he went on to say: ".....ordinary domestic duties such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as 'attention .... in connection with (the) bodily functions' of the disabled person. But that duties that are out of the ordinary - doing for the disabled person what a normal person would do for himself - such as cutting up food, lifting the cup to the mouth, helping to dress and undress or at the toilet - all do qualify as 'attention ... in connection with (the) bodily functions' of the disabled person." In this later passage Lord Denning correctly focuses on the close connection required between the activity and bodily function if it is to qualify as "attention... in connection with his bodily functions." This is a feature to which Dunn L J also drew attention, at p. 1023, when he said: "I look first at the section without regard to authority. To my mind the word 'functions' in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions. The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention ... in connection with .... bodily functions' involves some service involving personal contact carried out in the presence of the disabled person." In that passage Dunn L J adopts an approach which I would commend subject to one minor caveat and that is that "contact" need not be physical contact; it can be the contact established by the spoken word in the type of situations to which I will refer later.

The next decision is that of this House in In re Woodling (1084) 1 W L R 348, when this House came to the same conclusion as to cooking as in Packer's case. Lord Bridge of Harwich in a speech with which the other members of the House agreed, approved the observations of Dunn L J in Packer's case which I have already cited. Lord Bridge also, in giving general guidance as to the correct approach to the section, indicated that the section should be considered as a whole, that the phrase "bodily function " is restrictive and precise, narrower than, for example "bodily needs" and that when read as a whole the provision "connotes a high degree of physical intimacy between the person giving and person receiving the attention" (as p. 352). Lord Bridge doubted that: ".... the construction of the relevant words can be more accurately or more concisely expressed than in the passage from the decision of Mr Commissioner Monroe in 1974, cited by Dunn L J at p. 1025: 'I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself'". These words of Mr Commissioner Monroe which received such a strong endorsment of this House in 1984 are not wide enough to cover "domestic chores". Nonetheless, they mean that attention qualifies if it is "in connection with the performance" of the many "functions which the fit man normally performs for himself."

The third case to which I should refer is the decision of the Court of Appeal of 13 March 1987 in Dorothy Moran v Secretary of State for Social Services which is an appendix to a Commissioner's decision R(A)1/88. In that case, the Judgment was given by Nicholls L J. The case concerned supervision of rather than attention to someone who suffered from epileptic fits. In the course of his judgement, Nicholls L J pointed out that "attention" and "supervision" are intended to denote two different concepts. "Attention" denotes a concept of some personal service of an active nature, such as helping the disabled person to wash or eat. "Supervision" denotes a more passive concept, such as being in the same room with the disabled person so as to be prepared to intervene if necessary but not actually intervening save in emergency. That is a helpful guide as to the way in which to draw the distinction between supervision and attention. The vital contract is between activity and a state of passivity coupled with a readiness to intervene.

Before examining the actual circumstances of this appeal, it is necessary to deal with two general submissions of Mr Ouseley. The first was that the two limbs of section 35(1)(a)(i) and (ii) are mutually exclusive and at least involve the fact finding body being required, if a claim is to succeed, having examined the circumstances of a particular case, placing it in one or other category, that is, as being either "attention" or "supervision", and then deciding whether it complies with the other requirements of the relevant limb. The consequence of this approach is that if the situation is one which primarily involves supervision then there can be no attention to be taken into account under section 35(1)(a)(i). Likewise, if the situation is one which primarily involves attention, the fact that continual supervision is also involved will not result in the case qualifying for attendance allowance under section 35(1)(a)(ii). According to this argument, a case must only be assessed against the requirements of its dominant category. In the circumstances of this appeal Mr Ouseley submits that this involves primarily "supervision" and that if this is so it cannot involve "attention." This is a mistaken approach to the application of section 35(1). There can be situations where supervision is taking place with the object of the person supervising being in the position to give attention which falls within section 35(1)(a)(i) if, and when, an incident occurs. A good example is provided by the supervision which is given to an epileptic which was considered in the Moran case. If the person suffering from epilepsy does not have an attack, there will be supervision which is capable of falling within section 35(1)(a)(ii) alone but only if it is constant. If the claimant does have an attack then there can be assistance which will amount to "attention" for the purposes of section 35(a)(i). The attention during the incident can then be aggregated with other incidents where attention is given and in the result there may be "frequent attention". Here it is to be noted that the allowance is payable under section 35(2)(a) during "a period throughout which he has satisfied or is likely to satisfy the condition mentioned in subsection(1)(a)" (my emphasis).

The other submission of Mr Ouseley was based on Hillingdon London Borough Council Ex parte Puhlhofer (1986) 1 AC 484. That case involved an application for judicial review of a decision by a local authority under the Housing (Homeless Persons) Act 1977. Lord Brightman, in giving a speech with which the other members of this House agreed, indicated that the question of what is accommodation for the purpose of that Act was a question of fact and that considerable restraint should be exercised by the Courts in giving leave to proceed by judicial review as to decisions of the Local Authority of this nature. He concluded his remarks on this subject by saying at p.518: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." Similarly here, Mr Ouseley contends, the courts should exercise the same restraint and not intervene with the decision of the D M P or the Commissioner unless the court is satisfied that they have acted perversely. I do not accept that it is appropriate to apply Lord Brightman's approach to the present issue. This is a statutory appeal on a point of law. The court on such an appeal does not have the residual discretion which it has on an application for judicial review to limit the circumstances in which it grants leave or relief. It is contended on Mr Mallinson's behalf that there have been errors made in the adjudication of his claim for attendance allowance in that what in law constitutes attention in connection with bodily functions has been treated as supervision. If he is right as to this, then this constituted an error of law which on appeal the courts are required to rectify. Other issues in other circumstances, for example, as to whether acts which are attention constitute frequent attention, will normally be questions of fact and therefore findings which cannot be disturbed on appeal.

I turn now to consider whether Mr Mallinson can establish that the assistance which he requires in unfamiliar surroundings in connection with his bodily functions amounts to attention for the purposes of section 35(1). I consider first whether the guiding he requires in unfamiliar surroundings constitutes "attention" and not "supervision". In my opinion it does. The process of guiding has the active and the close, caring, personal qualities referred to in the authorities which I have cited. The position is different from that which would exist in the case of, for example, a mother coming out to watch her child cross the road. She would, no doubt, be in a position to intervene if there was a situation of danger but until she did intervene she would be supervising, not attending to, her child. No doubt there will be cases which are borderline as to whether they are supervision or attention. If, however, the situation is one where,as here, the function cannot take place without assistance, that assistance is likely to constitute attention.

For the purpose of this appeal, the remaining part of requirement (b), the frequency of the attention, need not be considered. Mr Drabble recognises that the quantum of assistance which Mr Mallinson receives in unfamiliar surroundings cannot, by itself, amount to "frequent attention throughout the day." He accepts that if he is to succeed on this appeal, the case will have to be remitted so that the appropriate fact-finding tribunal can consider whether, when the attention Mr Mallinson admittedly receives in cutting his food and with bathing is aggregated with the attention which he receives when walking in unfamiliar surroundings, the aggregation as a matter of fact fulfils the requirement that there should be "frequent attention throughout the day". This could prove a formidable hurdle for Mr Mallinson to surmount on this appeal. The requirement of frequency of attention throughout the day is a significant control on the circumstances in which the allowance is payable.

There remains, therefore, the final requirement, requirement (c), which creates the most difficulty in this case. Is the attention Mr Mallinson receives when walking "in connection with his bodily function"? In order to answer this question it is necessary to identify the bodily function or functions to which the attention relates. So far the suggestion that this could be in connection with Mr Mallinson's bodily function of seeing has been rejected out of hand. This approach I believe to be wrong.

The problem that Mr Mallinson has is that because he cannot see he does not know, in unfamiliar surroundings, where to walk or, for example, when crossing the road, when to walk. His walking ability itself is unimparied and if he cannot overcome his inability to see his mobility is also unimpaired. He overcomes the lack of the bodily function of seeing which restricts his mobility in his home by memorising his surroundings and in surroundings with which he is unfamiliar by having the attention of a guide who can see the surroundings for him. Mr Ouseley submitted that, as Ralph Gibson L J concluded, that the attention cannot be with the bodily function of seeing because Mr Mallinson cannot see. I confess that initially I was attracted by this approach but on further consideration I am satisfied it is mistaken.

The only attention which can be given to a person "in connection with" a sight handicap is to provide the assistance to enable that person to do what he could physically do for himself if he had sight. If for example, a person with a sight handicap receives correspondence, someone has to read the contents to him if he cannot read them for himself. That I would regard as being the active personal assistance which constitutes the attention which a normal person does not require which the subsection demands. It would be inconceivable that Parliament intended that in those circumstances a partially sighted person should qualify for an allowance but in the same circumstances a totally blind person should not qualify. Consistently with his submission, Mr Ouseley argued that, while a one-legged man who was supported when walking or standing if he received assistance from someone else would be receiving attention the person who had lost the use of both his legs and was therefore pushed in a wheelchair rather than supported would not be receiving attention in respect of his bodily function of walking because he was incapable of performing the function of walking. Such a result is obvious nonsense and does not cease to be nonsense because there is a different allowance which can be payable for lack of mobility. The fact that your disability is so severe that you are incapable of exercising a bodily function does not mean that the attention you receive is not in connection with that bodily function. The attention is in connection with the bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired. Whether the result of a sight defect is partial loss or total loss of vision, the function impaired, namely that of seeing, is the same although the degree of impairment differs. Thus reading to or guiding of a man with a sight defect remains attention in connection with bodily functions, even if it replaces a total rather than a partial incapacity. If the position were otherwise, this would disqualify not only the person receiving the attention from receiving the care allowance under what was previously section 35 but also the person providing the attention from receiving invalid care allowance under what was previously section 37. Then it might be suggested that the section requires a "disability" which differs from the loss of "function" and that that is why in the present case you have to treat the inability to walk as the loss of function and the loss of sight as the disability. Again I do not agree. If a man loses his leg and cannot walk, the loss of the leg is the disability and the inability to walk is the bodily function which is impaired. If a man's eyes are injured (he could lose one or both eyes), the disability is partial or total blindness and the bodily function which is impaired is the ability to see. I note that section 35 refers to bodily functions, in the plural, and I recognise that the same result can be achieved by treating the assistance with walking required due to blindness as being in connection with both the bodily function of seeing and that of walking. This is a possible approach. But take the cutting of Mr Mallinson's food or the assistance with bathing which, correctly, in accordance with earlier decisions, are treated as attention. There is nothing wrong with Mr Mallinson's hands. They function satisfactorily and still perform many functions without assistance but he still cannot use them for these functions because they require sight. In time he may well be able to do so but for the time being he needs help. Therefore where, as is the case with blindness and other disabilities, such as deafness or paralysis, the function which is primarily impaired as a result of the disability can be readily identified, I suggest that it is preferable to focus on that function. So here, the assistance with cutting of food, with bathing and guiding would all be attention which should be aggregated as being required in connection with Mr Mallinson's totally impaired sight. This is a more straightforward approach than seeking to link the attention with those different functions which he could perform perfectly but for his loss of sight.

In the case of mental, as opposed to physical, disabilities the position would usually be different. If a mental disability is not serious it will be a case for supervision, which if it is to qualify must meet the requirements in the second limb of the subsection. However, a severe case of mental disability may well require attention with a wide range of independent bodily functions as opposed to primarily one function. If guiding a person who is blind can be attention in connection with the bodily functions, then it does not cease to be attention because the attention is only required in limited circumstances as, for example, when the blind person is walking in unfamiliar as opposed to familiar surroundings. It will usually be the case that, as a person who has the misfortune to lose his sight learns to cope with his disability, the circumstances in which he may need attention will progressively diminish. Initially, he will probably need attention both inside his home and in public with walking, and likewise with reading until he learns to "read" Braille. As he learns to cope with his disability his needs will be less. However, in those situations when he is still dependent upon help he will require attention. This may mean that he no longer receives "frequent attention throughout the day" and if this is the case he will not qualify for the allowance because the attention is infrequent, not because the nature of the attention has changed. The section in its first limb provides two safeguards against being applied too broadly: the need for the attention to be frequent throughout the day; and the need for it to be in connection with bodily functions. The safeguards are perfectly adequate without adopting a restrictive approach to the other requirements. It is possible to imagine extreme situations where a blind person would require assistance which is unlikely to have been intended to qualify for aggregation in order to establish that the person concerned required "frequent attention throughout the day." Those extreme situations would not have to be taken into account because either they would not result from the severity of the disability or the attention would not be reasonably required.

Although the section does not make any reference to the attention having to be reasonably required, as Mr Drabble concedes on behalf of Mr Mallinson, it is only attention which is reasonably required by the person subject to the disability which qualifies for the purposes of section 35(1)(a)(i). Concern has been expressed that to allow attention to qualify which relates to walking in unfamiliar surroundings would lead to a situation which is difficult to administer or enforce. I do not believe that this will be the result. The DMP already has the task of applying the relevant statutory formula to a multiplicity of factual situations. But this usually involves doing no more than looking, as in this case, at the claimant's account of what he can and cannot do together with the relevant medical report and asking four simple questions: (1) Has the claimant a serious disability? (2) If so, what bodily functions does it impair? (3) Does he reasonably require attention in connection with those functions? (4) Is that attention frequent? For a doctor, having to answer such questions should not be an over-demanding task. While there are always going to be a minority of cases where it is difficult for him to decide on which side of the line a case falls, in the majority of cases the answer will be straightforward and a result should be achieved without creating any sense of justified grievance between one claimant and another. For these reasons I consider that this appeal should be allowed and so that the frequency of the attention throughout the day can be reassessed the case should be remitted for reconsideration and a second-tier adjudication by an adjudication officer.

LORD LLOYD My Lords The appellant, Mr Eric Mallinson, has been a registered blind person since 1974. On 22 August 1989 he made a claim for an attendance allowance under section 35(1) of the Social Security Act 1975. That subsection (now repealed and replaced) provides: "(1) A person shall be entitled to an attendance allowance if he satisfies prescribed conditions as to resident or presence in Great Britain and either - (a) he is so severely disabled physically or mentally that, by day, he requires from another person either - (i) frequent attention throughout the day in connection with his bodily functions, or (ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or (b) he is so severely disabled physically or mentally that, at night, he requires from another person either - (I) prolonged or repeated attention during the night in connection with his bodily functions, or (ii) continual supervision throughout the night in order to avoid substantial danger to himself or others."

On 23 September 1989 he was seen by an examining medical officer. On 6 October 1989 the delegated medical practitioner acting on behalf of the Attendance Allowance Board rejected Mr Mallinson's claim. In his view Mr Mallinson did not satisfy any of the four conditions set out in section 35(1) of the Act. Mr Mallinson asked for a review. In his letter dated 28 November 1989 he said that he needed frequent attention throughout the day with his bodily functions and also continuous supervision throughout the day in order to avoid substantial danger to himself. Under the heading " bodily functions" he listed cutting up food, drinking, bathing, washing his hair, shaving, and cutting his fingernails and toenails. Under the heading "supervision" he said: "Outdoors I require supervision and guidance to get from A to B. Crossing roads is extremely hazardous for me and ther have been a few incidents where I have been in danger from oncoming traffic .. Obstacles, such as lampposts, are a danger to me. In the past I have walked into them, one of these incidents resulted in two of my teeth being knocked out. Indoors I require help and supervision when dealing with hot liquids and cooking as I have suffered many burns in the past ... Although I can move around my own flat adequately I cannot do so in unfamiliar surroundings. I also require constant supervision whilst bathing."

On 2 March 1990 another delegated medical practitioner upheld the previous decision. Mr Mallinson's case was then taken up by Mr Martin Rathfelder, a hospital welfare rights officer employed by Manchester City Council. On 31 July 1990 Mr Rathfelder wrote on behalf of Mr Mallinson to the Attendance Allowance Unit, asking for a further review. I quote from his letter: "Mr Mallinson tells me he regularly needs assistance with the bodily function of walking. Because he does not generally have access to such assistance he tells me he walks into trees, lampposts and similar obstructions, and has knocked teeth out and broken his glasses on a number of occasions. He also needs supervision when cooking or making a drink because he is in danger of burning himself."

On 20 September 1990 Mr Mallinson was seen by another examing medical officer, Dr Woodhouse. Dr Woodhouse's report is set out on a form issued by the Department of Social Security. In answer to question 3, Dr Woodhouse described Mr Mallinson's general state as follows: "He can get around the flat well, using furniture and familiar objects to guide him. He was able to walk up and down the stairs to let me in. He can get on and off the toilet and in and out of bed....He is relatively safe in the familiar surroundings of his own home but would need supervision outdoors in view of his previous injuries (knocked out front teeth on lamppost)". In answer to question 4, Dr Woodhouse considered that Mr Mallinson's condition was such as to give rise to danger to himself. He concluded that he needed supervision in unfamiliar surroundings. In a supplementary report dealing specifically with supervision, Dr Woodhouse repeated his view that Mr Mallinson needed supervision out-of-doors, but added that he could be safely left unsupervised all day. In another part of the main form there is a list of functions which may be of some importance. The list is as follows: "Move position in bed, get out of bed, get into bed, rise from usual chair, walk, use stairs, dress and undress, wash, bath, get to the toilet, cut up food, eat, drink, use wheelchair." Dr Woodhouse considered that Mr Mallinson was able to perform all these functions without assistance, except having a bath, for which he needed help getting in and out, and cutting up food.

In the light of that report Mr Mallinson's case was considered by yet another delegated medical practitioner. His decision is dated 12 December 1990. He upheld the previous decisions. Since it is the decision of 12 December 1990 which is attacked as being erroneous in law, it is necessary to set out the relevant paragraph verbatim:

"Day Attention

"4. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson required assistance to bathe and to cut up food. The medical evidence indicates that Mr Mallinson uses a white stick.

"5. I appreciate that Mr Mallinson is blind but he has suffered from blindness for a number of years and it is clear from the evidence before me that he has adjusted well to disability.

"6. Your letter dated 31 July 1990 indicated that Mr Mallinson regularly needs assistance with the bodily function of walking but this is not borne out by the medical evidence. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson could walk without assistance from another person and having considered the clinical picture I agree with his opinion.

"7. Mr Mallinson has no physical disorder of mobility and, therefore, he should be able to walk and to get about within his familiar surroundings without assistance.

"8. Mr Mallinson requires assistance to bathe and to cut up food but this does not amount to frequent attention throughout the day. Consequently, my conclusion is that Mr Mallinson does not satisfy the day attention condition.

"Day Supervision

"9. The examining doctor in the medical report of 20 September 1990 was of the opinion that Mr Mallinson was aware of common dangers both inside and outside the house but he went on to indicate that Mr Mallinson cannot see dangers outside the house. He further indicated that Mr Mallinson could safely be left unsupervised all day. Mr Mallinson is described as having normal mental ability.

"10. Mr Mallinson has been blind for a number of years but he is stated to be mentally normal. I can see no medical reason wby he should not be aware of his surroundings. He has no physical disorder of mobility and I consider that he should be able to find his way around in the familiar surroundings of his home.

"11. I accept that supervision is required when he is out in traffic or in unfamiliar surroundings but such supervision is limited in time and frequency and can be arranged in advance.

"12. Taking an overall view my conclusion is that this condition is not satisfied."

There is an appeal from a decision of the Attendance Allowance Board to a Social Security Commissioner, but only on a question of law. In the present case there was an oral hearing before Mrs R F M Heggs, at which Mr Mallinson was represented by Mr Rathfelder. Mr Rathfelder argued that the decision of 12 December 1990 was erroneous in law in two respects; first, because the delegated medical practitioner had failed to deal explicitly with the question whether the help needed with walking was to be considered as supervision or attention, and that he had therefore given inadequate reasons for his decision; and secondly, because the help which he needed with walking should have been considered under the "attention condition", and not under the "supervision condition". Mrs Heggs rejected both submissions. I quote from paragraph 6 of her decision: "It is not in dispute that the claimant is physically capable of walking. What is contended is that he requires assistance when walking in unfamiliar surroundings so that he does not injure himself. Section 35(1)(a)(i) relates to assistance without which the person with severe disabilities would not be able to perform his bodily functions. The DMP makes this clear in paragraph 6 and 7 of his determination. The claimant in the present case is able to walk and even does so out-of-doors. However he does risk injury when walking in unfamiliar surroundings because he cannot see. In my view, the DMP correctly considered the assistance required by the claimant when walking as "supervision" rather than "attention". It follows that I cannot accept Mr Rathfelder's argument that the aggregate of the "attention" required by the claimant throughout the day when bathing, cutting up his food and walking satisfy the conditions contained in section 35(1)(a)(ii) of the Act." Mrs Heggs concluded that the D M P's decision was not erroneous in point of law.

Mr Mallinson appealed with leave to the Court of Appeal. The grounds of appeal consist of a single paragraph. It is said that the Commissioner erred in law in holding that the assistance required by the appellant while walking out-of-doors in unfamiliar surroundings was not "attention... in connection with his bodily functions" for the purpose of section 35(1)(a)(i). The case was argued by junior counsel instructed by the Child Poverty Action Group. The appeal was dismissed by a majority. Ralph Gibson L J held that the decision of the delegated medical practitioner contained no error of law. He accepted, as indeed is obvious, that walking is a bodily function within the meaning of the section. But Mr Mallinson could walk without assistance. The only assistance he needed was when he was walking in unfamiliar circumstances. No doubt Mr Mallinson enjoyed getting out of his flat. But walking in unfamiliar circumstances was not a bodily function within the concept of the section. Mann L J defined the question as being whether Mr Mallinson required attention in connection with his walking. He answered that question in the negative. "Mr Mallinson could walk but his blindness prevented him enjoying the exercise of that bodily function outside a familiar area. Outside it he required an attender. However, an attendance in order to enlarge the practical enjoyment of an unimpaired bodily function is (not) in my judgment a required attendance in connection with that bodily function." Mann L J could find no error of law in the delegated medical practitioner's decision. Nolan L J dissented. He held that Mr Mallinson suffers from a "physical disorder of mobility", since he cannot see to walk. The delegated medical practitioner was wrong in law to hold otherwise. Secondly, he was wrong in law to hold that Mr Mallinson required supervision rather than attention. There was an alternative argument that Mr Mallinson required attention in connection with his bodily function of seeing. Ralph Gibson L J dealt with that argument as follows: "As to the bodily function in connection with which the assistance is given, it has, I think, been correctly identified throughout this case all its stages as being that of walking. I cannot accept the alternative contention now made that the relevant bodily function is that of seeing. Mr Mallinson cannot see and he cannot require or receive attention with seeing."

Paragraph 1 of the appellant's printed case reads: "As the statement of issue and facts makes clear, Mr Mallinson is blind. Although he can move in familiar surroundings without a guide, he cannot do so in unfamiliar surroundings. He contends that the assistance given to him by a guide is 'attention' that he requires in connection with the 'bodily function' of walking, and accordingly that this attention can be considered in deciding whether he met the condition in section 35(1)(a)(i) of the Social Security Act 1975" So Mr Drabble, a most experienced advocate in this field, was accepting that the relevant bodily function in this case is walking. Nowhere in the printed case is it suggested that the relevant bodily function is seeing, or a combination of the two bodily functions of seeing and walking. It appears, therefore, that at that stage Mr Drabble did not intend to resurrect the alternative argument which had failed in the court below. The thrust of the printed case and of Mr Drabble's oral argument was that the activity of guiding a blind man involves attention rather than supervision, and that such attention was required in this case in connection with Mr Mallinson's bodily function of walking in unfamiliar surroundings.

I take each of these matters in turn. The distinction between attention and supervision has long been recognised. In a case involving an epileptic (6/72) Mr Commissioner Lazarus QC pointed out that attention and supervision are intended to denote two separate concepts. Attention denotes a concept of some personal service of an active nature, such as helping the disabled person to wash or eat. Supervision denotes a more passive concept, such as being in the same room with the disabled person so as to be prepared to intervene if necessary, but not actually intervening save in emergencies. In a later case (2/75) it was stated that the object of supervision is: "to avoid substantial danger which may or may not in fact arise; so supervision may be precautionary and anticipatory, yet never result in intervention, or may be ancillary to and part of active assistance given on specific occasions to the claimant." These two decisions were cited with approval by Nicholls L J in giving the judgment of the Court of Appeal in Moran v Secretary of State for Social Services. The question in Moran's case, which also involved an epileptic, was whether a person who requires assistance in the event of an attack could be said to require continual supervision between attacks. Not surprisingly, the answer was yes. It was not suggested that the assistance given during an attack was other than "supervision" within the meaning of section 35 (1)(a)(ii).

On which side of the line does the present case come? Mr Drabble urges us to hold that guiding the blind involves active intervention all the time, and should therefore be classed as attention, rather than supervision. Supervision is, he says, passive by nature, such as the supervision which parents provide for their children. But the concept of supervision is not confined to the nursery or the sick room. Young children may also require supervision in the street or when crossing a busy road, in case they get run over. So may the blind. The dangers for the blind are greater, since they may also walk into stationary obstacles, as happened most unfortunately to Mr Mallinson in the present case. But the service provided is essentially the same in both cases and both are correctly described as supervision. Mann L J and Nolan L J regarded the distinction between attention and supervision as unrealistic. But the distinction is embedded in the section itself. Of course there may be cases which could fall on either side of the line. But such cases should be left to be decided by the delegated medical practitioner as a question of fact. Mr Drabble has failed to persuade me that the delegated medical practitioner erred in law when he found, as he did in paragraph 11, that what Mr Mallinson required was supervision when he was out in traffic, or in unfamiliar surroundings. It was a view that he was entitled to take. If that is right, then Mr Drabble concedes that Mr Mallinson cannot qualify under this head, since the supervision required was not continual throughout the day.

I turn to the second half of the argument, which assumes that what Mr Mallinson requires when walking in unfamiliar surroundings is attention, and not supervision. The question turns on the delegated medical practitioner's finding in paragraph 6. Mr Drabble submits that Mr Mallinson requires attention in connection with his bodily function of walking, even though he only requires that attention when walking in unfamiliar surroundings, and that the delegated medical practitioner was wrong in law to find otherwise. The meaning of "bodily function" has been considered in two cases, in both of which it was argued that cooking for a disabled person was attention which he required in connection with his bodily functions.

The first of these cases was R v National Insurance Commissioner Ex parte Secretary of State for Social Services (1981) 1 W L R 1017, commonly known as Packer's case. Forbes J at first instance, appears to have held that bodily functions included "every mode of action of which the fit body is capable at the dictate of the normal brain". Since the intention of the section was to help maintain a particular quality of life, cooking was itself to be regarded as a bodily function. This was clearly far too wide. The Secretary of State appealed and his appeal was allowed. The Court of Appeal held that the relevant bodily function was not cooking, but eating; and that while cutting up food for a person was sufficiently closely connected with the bodily function of eating to come within the section, cooking was not. Lord Denning said at p.1022: "Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in and out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself." A little later he said: "I would hold that ordinary domestic duties such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as 'attention... in connection with (the) bodily functions' of the disabled person. But that duties that are out of the ordinary - doing for the disabled person what a normal person would do for himself - such as cutting up food, lifting the cup to the mouth, helping to dress and undress or at the toilet - all do qualify as 'attention.... in connection with (the) bodily functions' of the disabled person." Lord Denning pointed out that the section had to be applied day in and day out by delegated medical practitioners all over the country. The section should, so far as possible, be applied uniformly. Dunn L J added that, if the claimant's construction were correct, it would be necessary for the delegated medical practitioner to ascertain in each case whether the claimant usually cooked for himself, because, if he did not, the attention would not be required because of his disability.

The second case was Woodling v The Secretary of State for Social Services (1984) 1 W L R 348. The appellant in that case argued that Packer's case had been wrongly decided. The appeal was dismissed. Lord Bridge said at p.352: "It is clear that the policy underlying section 35 of the Act stop short of providing an attendance allowance for all who are incapable of looking after themselves without some outside help even if that help is frequently required. Very large areas of domestic work in respect of which the disabled are necessarily dependent on others are deliberately excluded. If cooking is the one domestic chore which qualifies, it is, in a sense, the odd man out." Lord Bridge went on to emphasise three points: "First the disablement must be severe. Secondly, the phrase 'bodily functions' is a restricted and precise one, narrower than, for example, 'bodily needs'. Thirdly the phrase 'attention .... in connection with ... bodily functions', which must, I think, be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention."   Lord Bridge quoted a sentence from a decision of Mr Commissioner Monroe (60/74) as follows: "I consider that the words of the section refer to a person who needs the relevant degree of attention in connection with the performance of his bodily functions and that they are directed primarily to those functions which the fit man normally performs for himself." Lord Bridge concluded: "This criterion has the great merit of being clear and easily applied. I would find it very difficult to formulate any alternative criterion which would not give rise to difficulties in practice. This is not an additional reason for construing the section in the restricted rather than the broad sense. It is perhaps an additional ground for satisfaction in reaching the conclusion that the restricted construction is the correct one."

It will be noticed that Lord Bridge in Re Woodling and Lord Denning and Dunn L J in Packer's case all stressed the need for a test which can be easily and uniformly applied. I return to the facts of the present case. Mr Drabble argued that the relevant bodily function was walking. It was common ground that Mr Mallinson can walk without assistance. That was the finding of the examining medical officer. So if walking per se is the relevant bodily function, Mr Mallinson requires no attention. But Mr Drabble submits that walking as a bodily function includes walking in unfamiliar surroundings. If so, then walking in unfamiliar surroundings can be aggregated with cutting up food and getting in and out of the bath. By failing to take account of Mr Mallinson's need to walk in unfamiliar surroundings, the delegated medical practitioner erred in law. I regret that I cannot agree.

The distinction between "walking" and "walking in unfamiliar surroundings" may seem a narrow one. But it is typical of the sort of distinction which Lord Bridge had in mind when he said that bodily functions is a restricted and precise phrase narrower than, for example, bodily needs. The point can be illustrated by referring again to the list of functions set out in Form DS4. The list does not, of course, have statutory force. But it is a helpful pointer, nonetheless, and seems to be based at least in part on Lord Denning's judgment in Packer's case. One of the functions is "rise from the usual chair." A disabled person who is so crippled with arthritis that he cannot rise from his usual chair without assistance would in that respect require attention in connection with his bodily functions. But suppose he could rise from his usual chair, but could not rise, for example from a deckchair? Could rising from a deckchair be regarded as a separate bodily function? Clearly not. As Dunn L J and O'Connor L J both said in Packer's case, the line has got to be drawn somewhere. The same applies to "walking in unfamiliar surroundings." It is much too vague and imprecise to count as a separate bodily function. It would mean that the examining medical officer would have to inquire how often the disabled person needed to walk in unfamiliar surroundings, and for what purpose. Fine distinctions would spring up between one case and another, and the delegated medical practitioner's task would never be done. In my opinion Ralph Gibson L J was right to hold that walking in unfamiliar circumstances is not a bodily function (apart from getting in and out of bed and cutting up food) is walking. No doubt Mr Mallinson's enjoyment of that function is limited. But the function itself is unimpaired. The delegated medical practitioner was entitled to take the view that Mr Mallinson can walk without assistance . I can find no error of law in paragraph 6 of his decision.

Lastly, I should mention again the alternative argument which failed in the court below. As Ralph Gibson L J pointed out in the Court of Appeal, the case has been fought all the way up on the basis that the relevant bodily function is walking. I should be very reluctant at this stage to accept an argument that the relevant bodily function is seeing, or a combination of the two. Blindness is, of course, the disability from which Mr Mallinson suffers. But it is not enough that he requires attention by reason of that disability. He must require attention in connection with some bodily function. Is seeing then a bodily function? In one sense it is. Thus Lord Denning included breathing, hearing and seeing in his list of bodily functions in Packer's case, as well as the more obvious bodily functions such as eating and drinking. But I have some difficulty in regarding hearing and seeing as bodily functions within the meaning of the section. It will be remembered that Mr Commissioner Monroe's test, expressly approved by the House of Lords in Re Woodling refers to functions which a fit man normally performs for himself. It would not be right to attach too much importance to a single word. But whereas eating, drinking, walking and washing, to take a few examples, are all bodily functions which a fit man performs for himself, it would not be a normal use of language to say that seeing is a function which a fit man performs. So even if the case had been fought on the basis that the relevant bodily function is seeing and not walking, I do not think Mr Mallinson's chances of success would have been any greater. If you were to ask a blind man's guide what his purpose was he would reply "I am helping him walk because he cannot see;" he would not say "I am helping him see to walk"; For all the above reasons I would dismiss this appeal.  

Last updated May 9, 2008

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