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

The House considered the meaning of the phrases "bodily functions" and "attention . . . in connection with [a claimant's] bodily functions" in section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 (and the comparable provisions in Part III of the Act governing the care component of disability living allowance). The court reaffirmed that "bodily functions" is not limited to intimate acts of excretion or feeding but can include the operation of the senses (for example hearing and seeing) and other functions recognised in the authorities.

The court held that attention may comprise personal, active and caring services and that such attention need not always involve physical contact, but must be attention given "in connection with" a bodily function and ordinarily be of a character and closeness directed at the person requiring care. Whether particular activities qualify depends on their connection to the bodily function, the degree of personal intimacy, the frequency required and the factual matrix.

Applying those principles, the House concluded that services of an interpreter (to enable a profoundly deaf person to communicate and take part in a reasonable level of social activity) can amount to attention in connection with the bodily function of hearing and therefore may qualify for allowance. By contrast, the majority held that taking soiled clothes away to be laundered away from the claimant (even when caused by incontinence) is ordinarily not the kind of personal attention in connection with bodily functions required by section 64(2)(a); the cleaning of the person and changing soiled garments and bedding in the claimant's presence may qualify, but laundry done elsewhere is usually too remote.

Background and parties:

• The House heard two linked appeals. In Cockburn the appellant (Mrs Cockburn) claimed attendance allowance under section 64(2)(a) of the Social Security Contributions and Benefits Act 1992 on the basis that her incontinence and limited mobility produced an amount of soiled laundry handled by her daughter which, it was said, should be treated as "frequent attention . . . in connection with [her] bodily functions".
• In Secretary of State for Social Security v Fairey (aka Halliday) the appellant (the Secretary of State) appealed against a decision of a Commissioner and the Court of Appeal concerning entitlement under the care component provisions of the disability living allowance for a profoundly deaf claimant (Miss Fairey). The issue was whether interpreter services to enable a reasonable level of social activity could be aggregated as "attention in connection with [her] bodily functions" (here, hearing/communication).

Procedural history:

• Both matters had passed through delegated medical practitioner decisions and Commissioners, and the Court of Appeal before reaching the House of Lords. Details of the intermediate citations are set out in the judgment text.

Issues framed by the court:

1. What is the scope of "bodily functions" for the purposes of the statutory provisions (section 64(2)(a) and comparable disability living allowance care component provisions)?
2. What is the meaning of "attention . . . in connection with [a claimant's] bodily functions" and does it require physical presence or physical contact?
3. Can activities directed at enabling a reasonable level of social activity (for example interpreter services) be "attention" within the statute?
4. Can laundry generated by incontinence but laundered away from the claimant qualify as "attention" in connection with bodily functions?

Court reasoning and conclusions:

• The House reviewed and followed prior authority (notably Packer; In re Woodling; Mallinson) and treated "bodily functions" broadly enough to include the senses (hearing and seeing) and other normal physiological actions. The court rejected an overly narrow reading that would confine the phrase to purely intimate corporeal acts.
• "Attention" must have personal, caring and active qualities; it need not always involve physical contact, but it must be closely connected with the bodily function and ordinarily be rendered in the claimant's presence (though brief absences may be compatible with continuous attention).
• On those principles, the House held that (i) interpreter services can constitute attention in connection with hearing/communication and may be reasonably required to enable a claimant to lead as normal a life as possible, including a reasonable level of social activity; and (ii) while changing and washing an incontinent person's body, clothes and bedding in the claimant's presence is capable of constituting attention, taking soiled laundry away to be laundered elsewhere is normally too remote to qualify.

Relief sought:

• Each appellant sought to overturn earlier adverse decisions on entitlement to statutory allowances; the House resolved the statutory interpretation questions and remitted factual questions of frequency and degree to the decision-makers where appropriate.

This was an appellate hearing of two linked appeals. The House held (1) that services of an interpreter so as to enable a profoundly deaf person to participate in a reasonable level of social activity can amount to "attention . . . in connection with [the claimant's] bodily functions" (the bodily function being hearing/communication) and accordingly dismissed the Secretary of State's appeal in Miss Fairey's case; and (2) that, on the ordinary meaning and purpose of section 64(2)(a), laundry taken away from an incontinent person to be laundered elsewhere is generally too remote to qualify as the "frequent attention throughout the day in connection with [her] bodily functions" required for an attendance allowance, and accordingly the appeal of Mrs Cockburn was dismissed by the majority. The House explained that attention must be personal, closely connected to the bodily function and ordinarily rendered in the claimant's presence, and that whether particular acts meet the statutory test is a question of fact for the adjudicating authorities.

Appeals to the House of Lords from decisions by Social Security Commissioners / Disability Appeal Tribunals and the Court of Appeal arising from delegated medical practitioner/adjudication officer refusals. The Secretary of State appealed in the Fairey matter and Mrs Cockburn appealed in her matter; the appeals reached the House of Lords as reported at [1997] UKHL 18.