Ramsden v Secretary of State for Work and Pensions

For the care component of Disability Living Allowance under the Social Security (Contributions Benefits) Act 1992, immediate and essential cleaning-up after incontinence may constitute attention in connection with bodily functions. It may include removing soiling from clothing, bed linen, towels or adjacent surfaces, and thorough washing, if done in the claimant’s presence or vicinity. Laundry performed later and elsewhere remains outside the concept. The assessment is fact-sensitive, not a mechanical formula. A significant portion of the day is assessed by reference to the active household day, its proportion, routine, concentration and intensity, and disruption caused to the carer. Failure to address relevant evidence or application of an overly rigid test requires remission.

Gregory Ramsden, nearly 12, had bowel incontinence caused by spina bifida. He claimed renewal of the care component of Disability Living Allowance under section 72(1)(a)(i) of the Social Security (Contributions Benefits) Act 1992. An Appeal Tribunal found that personal attention was required once, and on some days twice, for no more than 30 minutes at a time. It excluded subsequent laundry by reference to Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 and dismissed the appeal.

The Social Security Commissioner upheld that decision on 16 November 2001. The appeal concerned whether cleaning clothing, bedding, towels, carpets, furniture and other immediately soiled surfaces had been wrongly excluded, and whether the resulting attention could amount to a significant portion of the day.

The appeal was allowed unanimously and the matter was remitted to a differently constituted tribunal for rehearing.

1. Meaning of attention. Potter LJ held that Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 did not establish a formula or litmus test. It distinguished personal attention directed to the claimant from later household laundry performed elsewhere. However, it recognised a flexible area covering immediate and essential cleaning-up after an incontinence incident.
2. Immediate cleaning-up. Subject to the requirement of presence or vicinity, the immediate removal of soiling from clothes, bed linen, towels or adjacent surfaces may qualify as attention in connection with bodily functions. The fact that thorough washing, rather than simple rinsing, is required does not automatically exclude the activity. Lord Slynn’s wider approach in Cockburn was dissenting and did not represent the majority view.
3. Significant portion of the day. The assessment under section 72(1)(a)(i) of the Social Security (Contributions Benefits) Act 1992 is principally a percentage or fraction of the active household day, not a question whether the period is merely more than insignificant. The tribunal should consider the total available time, the routine, concentration and intensity of the activity, and the frequency and disruption caused by short periods of attention. One hour in two concentrated half-hour periods would ordinarily be significant, but no fixed threshold applies.
4. Reasons and disposal. The tribunal had apparently applied an unduly rigid reading of Cockburn and failed to make clear whether relevant cleaning evidence had been included. Mance LJ agreed that the reasoning was at least inadequate because it was unclear whether cleaning the immediate environment had been considered. Sullivan J agreed with Potter LJ. The appeal was allowed with costs, and the claim was remitted for rehearing before a differently constituted tribunal.

• Court of Appeal (Civil Division) allowed the appeal and remitted it for rehearing before a differently constituted tribunal.
• Social Security Commissioner (16 November 2001) upheld the Appeal Tribunal’s decision.
• Appeal Tribunal (31 July 2000), constituted under regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, upheld the adjudication officer’s decision and dismissed the appeal.
• Adjudication officer (16 August 1999) decided that the claimant was not entitled to the care component.