Cockburn v Chief Adjudication Officer (Secretary of State for Social Security v Fairey)

For attendance allowance and the care component of disability living allowance, bodily functions include the operation of the senses, including hearing. Sign-language interpretation may constitute attention connected with hearing because it provides an alternative means of fulfilling that function. Attention is reasonably required where it enables a severely disabled person, so far as reasonably possible, to live a normal life. This may include a reasonable level of social activity.

Attention must nevertheless be a close and personal service directed to the claimant. Activities ordinarily performed away from the claimant, such as laundering soiled clothes and bedlinen elsewhere, are too remote. Changing clothes or bedlinen, rinsing them as part of the same operation, and brief incidental absences may qualify.

These conjoined appeals concerned statutory allowances for severely disabled people under the Social Security Contributions and Benefits Act 1992.

Miss Fairey, who was profoundly deaf, sought to count sign-language interpretation enabling a reasonable level of social activity as attention connected with her bodily functions. A Social Security Commissioner accepted that such attention was capable of qualifying and remitted the factual assessment. The Court of Appeal, by a majority, dismissed the Secretary of State’s appeal.

Mrs Cockburn suffered from severe arthritis and incontinence. A Disability Appeal Tribunal awarded attendance allowance after counting the washing generated by her incontinence. A Commissioner reversed that decision and remitted the claim. The Court of Appeal dismissed Mrs Cockburn’s appeal.

The House had to decide whether interpretation for social activity was reasonably required attention connected with hearing and whether laundering soiled clothes and bedlinen away from an incontinent claimant amounted to attention connected with bodily functions.

1. Both appeals dismissed. The House unanimously dismissed the Secretary of State’s appeal in Miss Fairey’s case. By a majority of four to one, it also dismissed Mrs Cockburn’s appeal. Lord Slynn of Hadley dissented on the latter appeal.

2. Per Lord Slynn, with whose reasons all the Law Lords agreed in Miss Fairey’s case, bodily functions include the operation of the senses. Hearing is therefore a bodily function. The inability to hear is the corresponding disability, while restricted speech may be a further consequence. The majority reasoning in Mallinson was binding and supported this conclusion.

3. Per Lord Slynn, sign-language interpretation is capable of being attention connected with hearing. It provides an alternative means by which messages normally received through hearing reach the brain. Its active, close and personal qualities bring it within section 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992.

4. Per Lord Slynn, the statutory criterion is whether attention is reasonably required to enable a severely disabled person, so far as reasonably possible, to live a normal life. It is not confined to activities essential to maintaining life. Normal life may include social, recreational and cultural activities. The amount and frequency of attention reasonably required remain questions of fact for the statutory decision-maker.

5. In Mrs Cockburn’s case, Lord Mustill concluded that the day attendance condition requires the relevant activities to be performed while the provider is attending upon the claimant, ordinarily in the claimant’s presence. Lord Goff agreed and added that the service must be sufficiently personal. Lord Hope considered off-site laundry too remote from bodily functions and insufficiently physically intimate. Lord Clyde likewise treated it as attention to the linen rather than attention to the claimant.

6. The majority accepted that direct help after incontinence may qualify. This includes cleaning the claimant, changing clothes or bedlinen, remaking the bed, and rinsing soiled items as part of the same operation. Presence is not absolute: brief absences and incidental activities outside the claimant’s immediate presence may form part of qualifying attention. Taking laundry away for washing elsewhere does not.

7. Lord Slynn dissented in Mrs Cockburn’s case. He considered that abnormally generated laundry could form part of the overall care required because of malfunctioning bodily organs and would have restored the tribunal’s award.

1. House of Lords: Dismissed the Secretary of State’s appeal in Miss Fairey’s case unanimously. Dismissed Mrs Cockburn’s appeal by a majority of four to one.

2. Court of Appeal: By a majority, dismissed the Secretary of State’s appeal in Miss Fairey’s case. It also dismissed Mrs Cockburn’s appeal from the Commissioner’s decision.

3. Social Security Commissioner: In Miss Fairey’s case, held that interpretation enabling a reasonable level of social activity was capable of being reasonably required attention and referred the factual assessment to the adjudication officer. In Mrs Cockburn’s case, allowed the adjudication officer’s appeal and remitted the claim to another tribunal.

4. Disability Appeal Tribunal: Allowed Mrs Cockburn’s appeal and awarded attendance allowance after treating the additional washing generated by her incontinence as attention connected with bodily functions.