Secretary of State for Work and Pensions v Batty

For attendance allowance, the statutory requirement for frequent attention in connection with bodily functions is a single, constrained test. Attention means care, consideration and vigilance of a close and intimate nature directed to the disabled person. Bodily functions generally mean physiological actions which a fit person normally performs for himself. Ordinary domestic assistance is excluded. The claimant’s requirement must be assessed by what is reasonably required, but a statutory appeal on a point of law permits correction of legal error. Carrying a drink to a place where it can be consumed is transportation, not close and intimate attention to drinking. The classification of that activity is a question of law, although reasonable need and frequency remain matters for factual determination.

June Batty, who was over 65 and seriously disabled by arthritis, claimed attendance allowance under section 64 of the Social Security Contributions and Benefits Act 1992. An Appeal Tribunal refused her claim. The Social Security Commissioner allowed her appeal, set aside the tribunal’s decision and determined that she reasonably required frequent help, including assistance in getting drinks to a place where she could consume them.

The Secretary of State appealed on the legal question whether carrying drinks constituted attention in connection with a bodily function, and on whether the assistance was required when other means of obtaining drinks might have been available.

Disposition. Latham LJ gave the leading judgment, with Gage and Mummery LJJ agreeing. The appeal was allowed and the matter was remitted to the Appeal Tribunal at Stockport.

1. Scope of the appeal. The restricted approach discussed in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 was distinguished. That case concerned an imprecise standard requiring an evaluative judgment. The present appeal concerned clear statutory criteria. Under Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, a statutory appeal on a point of law requires the court to correct an error of law, without the residual restraint applicable on judicial review.
2. The statutory test. The word required in section 64 of the Social Security Contributions and Benefits Act 1992 means reasonably requires, following R v Secretary of State for Social Services ex parte Connolly [1986] 1 WLR 421. The phrase concerning frequent attention and bodily functions must be read as a whole. Attention denotes care, consideration and vigilance of a close and intimate nature. Bodily functions are generally physiological actions which a fit person normally performs for himself. The Court relied on Packer’s case, Re Woodling and Cockburn v Chief Adjudication Office [1997] 1 WLR 799.
3. Application. The Commissioner had found no more than that Mrs Batty could not carry drinks from where they were prepared or obtained to where she intended to drink them. That transportation lacked the required close and intimate character and therefore could not constitute attention in connection with drinking. Gage LJ additionally regarded this classification as a pure question of law and observed that inability to carry a drink did not establish inability to drink without assistance.
4. Remittal. Because the Commissioner had set aside the tribunal’s decision for inadequate reasoning, the factual issues had to be reconsidered. The tribunal was to address all requirements of section 64, including whether the claimant reasonably required the relevant attention. A Legal Services Commission funding assessment was ordered in relation to the respondent’s costs.

• Court of Appeal (Civil Division): On [2005] EWCA Civ 1746, allowed the Secretary of State’s appeal and remitted the matter to the Appeal Tribunal at Stockport.
• Social Security Commissioner: On 15 December 2004, allowed Mrs Batty’s appeal, set aside the Appeal Tribunal’s decision and determined the issue himself.
• Appeal Tribunal: On 1 April 2004, refused Mrs Batty’s attendance allowance appeal.