Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32

Case No A1/2002/0840

[2003] EWCA Civ 32

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

(APPEAL TRIBUNAL)

Venue Royal Courts of Justice

Date Friday 31 January 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE POTTER

LORD JUSTICE MANCE

MR JUSTICE SULLIVAN

Between

GREGORY RAMSDENAppellant

THE SECRETARY OF STATE FOR WORK AND PENSIONSRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Nicholas Blake QC and Ms Sally Robertson (instructed by French & Co) for Appellant

Ms Julie Anderson (instructed by The Solicitor for Dept of Work & Pensions) for the Respondent

Judgment

As Approved by the Court

Introduction

[1]This is an appeal from a decision of the Social Security Commissioner (“the Commissioner”) dated 16 November 2001 by which he upheld the decision of an Appeal Tribunal constituted under regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the Tribunal”) dated 31 July 2000 in respect of the claim of the appellant (“the applicant”) that he was entitled to the care component of a Disability Living Allowance (“DLA”) because he required frequent attention throughout the day in connection with his bodily functions so as to entitle him under s.72(1)(a)(i) of the Social Security (Contributions Benefits) Act 1992 (“the Act”). The Tribunal had in its turn upheld the ruling of an adjudication officer on 16 August 1999 that the applicant was not so entitled.

S.72 of the Act

[2]In so far as material, s.72 provides:

“72. The care component (1) Subject to the provisions of this Act, a person shall be entitled to the care component of a Disability Living Allowance for any period throughout which – (a) He is so severely disabled physically or mentally that (i) he requires in connection with his bodily functions attentions from another person for a significant portion of the day …; or (b) He is so severely disabled physically or mentally that, by day, he requires from another person – (i) frequent attention throughout the day in connection with his bodily functions … … (6) For the purposes of this section in its application to a person for any period in which he is under the age of 16 – (a) Sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and (b) Neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless – (i) he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or (ii) he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.” (a) He is so severely disabled physically or mentally that (i) he requires in connection with his bodily functions attentions from another person for a significant portion of the day …; or (b) He is so severely disabled physically or mentally that, by day, he requires from another person – (i) frequent attention throughout the day in connection with his bodily functions … … (a) Sub-paragraph (ii) of subsection (1)(a) above shall be omitted; and (b) Neither the condition mentioned in sub-paragraph (i) of that paragraph nor any of the conditions mentioned in subsection (1)(b) and (c) above shall be taken to be satisfied unless – (i) he has requirements of a description mentioned in subsection (1)(a), (b) or (c) above substantially in excess of the normal requirements of persons of his age; or (ii) he has substantial requirements of any such description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”

The Background Facts

[3]The applicant was born on 29 September 1987 and was almost 12 on 14 September 1999, the date as from which he applied for renewal of an award of DLA. He suffered from incontinence of the bowel as a result of spina bifida and subsequent corrective surgery. He also suffered a fractured femur on 14 May 1998 which impaired his mobility. For psychological reasons, the applicant did not use incontinence pads. Medical evidence from his general practitioner before the Tribunal made clear that due to lax muscles and poor sensation he was unaware of the need to defecate and, as a result, frequently soiled himself. Because of the applicants’ lack of awareness of his need to defecate and the extent to which he denies his problem for psychological reasons, there are occasions when the applicant’s accidents, as described by his mother to the Tribunal, can be ‘quite dramatic’, leading to soiling not only of his clothes but also of the floor, furniture and carpets nearby. His situation and the extent of the attention and cleaning necessary in relation to it was described to the Tribunal by his mother.

The Tribunal’s Decision

[4]Before the Tribunal, the applicant sought an award not only of the Care Component of DLA but also of the Mobility Component. The Tribunal held that, on the evidence before them, the applicant was insufficiently limited in his mobility to qualify for the latter. That aspect of the Tribunal’s decision was not appealed to the Commissioner.

[5]So far as the Care Component was concerned, the Tribunal held as follows:

“There is no dispute over the condition that leads to Gregory’s incontinence. The question for this tribunal is the extent to which attention is required from another person to deal with Gregory’s bodily functions, and secondly, as Gregory is under sixteen, whether that attention is either substantially in excess of the normal requirements of a person of his age, or which persons of his age and in normal health would not have. We find Mrs Ramsden to have been entirely honest in all her evidence to us today and we base our findings on that evidence. Gregory is generally able to clean himself and dress and undress and put his pants out for washing. Perhaps unsurprisingly for a 12 year-old boy he does not always wash himself thoroughly, but the main problem encountered by Mrs Ramsden is his denial that he needs attention and his refusal to wear any sort of incontinence pads. This leads to some extreme situations where it is necessary for him to get into the bath before being helped to undress, for his clothes to be removed carefully and to be rinsed and for him to be showered until he is clean. We find that those activities constitute reasonable attention in connection with his bodily functions and that persons of his age in normal health would not have that requirement. We exclude the subsequent laundry of his soiled clothes from consideration (Cockburn v Chief Adjudication Officer – House of Lords 21 May 1997). On Mrs Ramsden’s evidence, this attention is sometimes required in the morning when he gets up and most days when he gets in from school. He usually deals with himself when going to bed and just needs to change his pants. We think that on average this well-practised routine may require help for no more than 30 minutes at a time, and that once the initial stripping has been achieved and showering has commenced Gregory should now be able to finish the washing process quite satisfactorily by himself. This may be necessary once, or on some days twice in a day. Overall, therefore, we find that attention is not required for a significant portion of the day (whether during a single period or a number of periods). We therefore dismiss this appeal and confirm the decision of the Adjudication Officer.”

We therefore dismiss this appeal and confirm the decision of the Adjudication Officer.”

The Decision of the Commissioner

[6]The finding of the Tribunal that the applicant required attention once, and on some days, twice a day was not challenged on appeal to the Commissioner. Similarly, the applicant did not challenge the finding that the activities of placing him in a bath after he had soiled himself, removing his clothing and rinsing it, and then showering him until he was clean, took no more than 30 minutes on each occasion.

(a) (i), the Commissioner observed:

“4. … The tribunal decided that the activities described … took no more than 30 minutes on each occasion. Again, that finding of fact is not challenged on appeal. Having made those findings of fact, the tribunal was fully entitled to decide that the attention described was not required for a significant portion of the day (whether during a single period or a number of periods).”

[7]However, the applicant argued before the Commissioner that the Tribunal had taken an unduly narrow view of what amounted to personal care administered to Gregory in that it had left out of account a number of cleaning operations said by the applicant’s mother to be immediately necessary as a result of his condition such as cleaning the toilet and shower area, the immediate washing of towels, sheets and clothing (as opposed to simply rinsing clothes) and the necessity on occasion to clean the floor, carpet or furnishings. However, since these items were not mentioned by the Tribunal, it was to be inferred that they had simply been treated as, and excluded under the rubric of, ‘subsequent laundry of his soiled clothes’.

[8]In dealing with that aspect of the matter, the Commissioner stated as follows:

“5. The applicant’s representative submits that the tribunal should have taken into account the time which the applicant’s mother spent laundering the applicant’s soiled clothes and bedding, and in cleaning up carpets and furniture which the applicant might also soil when he had what his GP described as a ‘quite dramatic’ episode of faecal incontinence. It is clear from the tribunal’s reasons for its decision that it did take into account the time which the applicant’s mother spent rinsing his soiled clothes after they had been removed but it considered that it could not include anything beyond that such as laundry and the cleaning of carpets and furniture following the decision of the House of Lords in Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 (a case which also concerned incontinence). In my judgment, the tribunal was right to do so and its decision is not erroneous in that regard.”

[9]Finally, the Commissioner dealt with the submission for the applicant that he was entitled to the Care Component of DLA because he required frequent attention throughout the day by way of checking and attending to in connection with his incontinence: see s.72(1)(b)(i). The Commissioner stated:

“I have considered the documentary evidence before the tribunal and the oral evidence as recorded in the record of proceedings. There was no evidence before the tribunal to support the contention now advanced that the applicant required checking throughout the day in connection with his incontinence. On the facts found by the tribunal as to the other attention required by the applicant there was no evidence on which it could have decided that the applicant required frequent attention throughout the day in connection with his bodily functions.”

There is no appeal against this last aspect of the Commissioner’s decision.

Cockburn v Chief Adjudication Officer [1997] 1 WLR 799

[10]In Cockburn, the House of Lords was concerned with the definition and ambit of the word “attention” for the purposes of s.64(2)(a) of the Act which provides an attendance allowance for persons over 65 and similarly includes provision in respect of a person who requires ‘frequent attention throughout the day in connection with his bodily functions’: cf s.72 (1)(b)(i). The case concerned a lady who lived alone, was incontinent and suffered from severe arthritis which restricted the movement of her arms and legs. As a result she had to rely on her daughter to wash and dress her and to take away for washing the clothes and sheets soiled as a result of her incontinence. The Social Security Commissioner, upheld by the Court of Appeal, had held that any award of daytime attendance allowance must exclude the extra work involved in dealing with the laundry generated by the applicant’s incontinence, on the grounds that it was not capable of being regarded as “attention” provided in connection with a bodily function within the meaning of s.64(2)(a).

[11]In that case their Lordships were concerned with the decision of a Disability Appeal Tribunal which had stated its reasoning as follows:

“Incontinence is a bodily function and this incontinence generates extra washing. Mrs Cockburn cannot do the extra washing which is in connection with a bodily function. Consequently, Mrs Cockburn is entitled to attendance allowance.”

[12]The Commissioner had allowed an appeal against the tribunal’s decision on the basis that the proper test was whether the daughter’s washing of the additional laundry arising from Mrs Cockburn’s incontinence was a “necessary chore of the kind which is normally done without personal or intimate connection with the applicant, or was something which, although normally done for a person for his own benefit, had to be done by some other person by reason of the applicant’s disability”. In upholding the Commissioner’s decision, the majority of their Lordships approved and expanded upon the observations of Dunn LJ in R v National Insurance Commissioner, ex parte Secretary of State for Social Services

[1981] 1 WLR 1017

that:

“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.”

[13]In Cockburn, Lord Hope of Craighead put it in this way at 822f-823d:

“In In re Woodling [1984] 1 WLR 348, 352-353 Lord Bridge went on to say: “At the end of the day I doubt if 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 LJ [1981] 1 WLR 1017, 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”

. 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.” Earlier in his speech in In re Woodling

[1984] 1 WLR 348

, 352d, Lord Bridge pointed out that the policy underlining section 35 of the Social Security Act 1975, of which section 64 of the Act of 1992 is a re-enactment, had stopped 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. So, large areas of domestic work in respect of which the disabled are necessarily dependent on others are deliberately excluded. I agree with that analysis and I regard it as decisive of the issue which is before us in this case. In my opinion it is not enough to ask whether the act in question is done with the aim of keeping the disabled person clean and comfortable and in decent conditions. No doubt an act of that kind is of help to the disabled person, especially if – as in this case – the disabled person cannot perform that act for herself. The care, consideration and vigilance which the act involves may indeed be of such a degree and involve such devotion to duty as to amount to attention, rather than mere assistance within the meaning which Dunn LJ gave to that word. But it must also be “in connection with” the bodily functions of the person concerned. As Mr Commissioner Monroe put it in the passage which was quoted with approval by Lord Bridge in In re Woodling

[1984] 1 WLR 348

, 352-353, the words of the section are directed primarily to those functions which a fit person normally performs for himself. The close connection which requires to be shown between the act and the bodily function will not in all cases depend on physical contact but, as Lord Bridge himself said, “a high degree of physical intimacy is required”.” Later, in relation to the particular facts in Cockburn, Lord Hope observed at 823g-h:

“ … the fundamental problem which affects this part of her claim … is that the help which she receives is not designed to assist her in the performance of her bodily functions. The washing is done, not in her presence, but elsewhere. The best that can be said is that the need for it is a consequence of her incontinence, but that is not enough to satisfy the terms of the statute in the light of the policy which Lord Bridge of Harwich has described.” “At the end of the day I doubt if 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 LJ [1981] 1 WLR 1017, 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”

. 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.”

[14]Agreeing with Lord Hope, Lord Clyde added at 824d-f:

“Here again I would stress that the attention which is desiderated in connection with the bodily function must be some close and intimate service to the person or claimant. The service is narrower than that of assistance. Assistance would cover activities for the person. Attention implies services done to the person. The personal nature of what is comprised in attention prompts the observation made by Dunn LJ in the passage in his judgment in Packer’s case [1981] 1 WLR 1017, 1023F that the attention must be a service involving personal contact carried out in the presence of the disabled person. But that should not be understood as being so absolute a requirement as to exclude the changing of bedlinen which might be achieved without physical contact between the claimant and the person providing the service. Nor should it be understood to exclude an incidental activity which might occur outwith the presence of the claimant during the course of what is otherwise an attention given to and in the presence of the claimant. But the laundry work in the present case seems me to fall outwith a service which is directed at the person of the claimant. It involves attention to the linen rather than attention to the claimant.”

[15]In relation to the ambit of, and policy underlying, the phrase “attention … in connection with [the applicant’s] bodily functions”, Lord Mustill stated as follows at 805a-c:

“ … I cannot escape the conclusion that all the activities comprising the ‘day attendance condition’ must be performed while the other person is in attendance on the applicant: ie in his or her presence. I feel obliged to hold that any other conclusion would shift into this tightly constrained non-contributory benefit elements of need which perhaps ought to be catered for in a properly ordered society but which do not properly belong to this particular form of social support. The courts must, I believe, bear in mind that the entire shape of the social services legislation represents a strategy about the deployment of limited funds, and that to overstrain one element of the legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme.”

[16]Despite the requirement for performance of the relevant service or task in the presence of the applicant, it is plain that Lord Mustill considered that such a requirement called for a degree of latitude in its application. At 804b et seq, he approached the problem in that case in stages. He first concluded that incontinence was plainly a “bodily function” and that, if another person is required to attend in the lavatory to help or ease evacuation, that was plainly “in connection with” the bodily function. He went on to conclude that if an applicant is incontinent when dressed or in bed, then help with the task of changing clothes, bedclothes, nightwear and similar tasks is, similarly, help given in connection with a bodily function/malfunction. As a final step he added at 804e-f:

“(4) I would go one step further still. If the other person, having come in to strip the bed etc, had stayed to rinse the linen and hang it up to dry I believe that this, too, would have fallen within the section. Relying on earlier authority the Secretary of State describes laundry as a “household chore”, and so it usually is. But I believe that this is too mechanical an application of the refined and substantial jurisprudence which has built up around the few words of section 64(2)(a). There are cases where it is better to concentrate on the words themselves, in the context of the actual dispute. In my opinion this is one. I see here a sufficient continuity between the applicant’s incontinence and the presence of the other person to deal with the consequences on the spot to satisfy the section. If the other person had been asked why she spent an hour or so in the flat she would say that she had gone to help out the applicant’s bladder problem.”

Lord Mustill then went on to hold that, because the case advanced by the applicant concentrated on the work of laundering and not on the visit itself, and because such work was not done in the presence of the applicant, s.64 was not satisfied.

[17]Lord Goff of Chieveley also based his decision upon the fact that the laundry services were not performed in the presence of the applicant but later and elsewhere. Lord Goff considered that: “Having regard to the section and the purpose which it is intended to fulfil, the activities must be performed while in attendance on the applicant, ie in the applicant’s presence.” (801g)

[18]Like Lord Mustill, Lord Goff was of the opinion that: “Obviously, the requirement of presence has not to be applied too strictly, because attention of this kind may inevitably involve brief absences from the dependent person; but it marks a characteristic of the attention which is required, and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention.” (801h-802a) He continued: “But, though performance of the relevant activity away from the applicant excludes it from the ambit of the section, the mere fact that it is performed in the applicant’s presence is not of itself a qualification. Only if the attention is “frequent attention throughout the day in connection with [the applicant’s] bodily functions” does it qualify.” (802b)

[19]In this respect he stated: “Take the case of a lady who, because of her arthritis, is unable to get to the lavatory by herself. As a result, she may need help to get to the lavatory; or alternatively, if she has an accident because she cannot get to the lavatory in time, she may need help in cleaning up afterwards. I would regard these as cases in which, by reason of her disability, ie arthritis, she needs attention in connection with her bodily function of urinating, this being a bodily function which a fit person (one who does not suffer from arthritis) can perform without assistance.” (802d) Lord Goff concluded: “In my opinion, in the case of an unfortunate woman who, because of her arthritis cannot cope with her incontinence, the services of changing her clothes or her bedlinen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to fall within the section. But taking her laundry away to be washed transcends personal attention of that kind; and it follows that, as I have said, Mrs Cockburn’s appeal must be dismissed.” (802f-g)

The Grounds of Appeal

[20]The grounds of appeal are that the Commissioner misdirected himself as to the scope and/or nature of the circumstances to be taken into consideration when considering whether there was a requirement for attention in connection with bodily functions under s.72(1)(a)(i) (“ … for a significant portion of the day”). It is said that he took too limited a view of the circumstances in which it was proper to find that such attention was required. It is complained that the Commissioner should have taken, but did not take, account of three relevant aspects of the evidence of the applicant’s mother, namely(1) the necessity (and the time required) immediately to wash clothing which the applicant soiled by faecal incontinence, being the necessary equivalent of ‘rinsing out’ in connection with urinary incontinence: see Cockburn’s case;

(2) the need (and the time required) to remove faeces from, rinse out and wash towels and bedding soiled by faecal incontinence; and

(3) the need (and the time required) to clean up the applicant’s faeces from furniture, carpets and other surfaces.

[21]For the purposes of the appeal, the applicant’s skeleton argument dubs the three areas of complaint as respectively “the clothing issue”, “the bedding issue”, and “the surfaces issue”. It is asserted and, indeed, it is clear that in writing, supplemented orally before the Tribunal, the applicant provided evidence on all three aspects. However, complaint is made that the three aspects were not separately considered; the tribunal simply found (briefly) that the “removal and rinsing of clothes” following incidents of the applicant’s incontinence were activities which constituted reasonable attention in connection with his bodily functions, and went on to state that “subsequent laundering of his soiled clothes” was excluded, pursuant to the decision in Cockburn.

[22]When opening the appeal, Mr Blake QC for the applicant submitted that the omission of the Tribunal to refer to or assess the wider effects of the applicant’s incontinence and the nature and content of the tasks required to deal with those effects, indicates either that the Tribunal failed to take them into account, or that the Tribunal applied the principles set out in Cockburn too narrowly by excluding them. In reply, he opted for the latter alternative. Mr Blake submitted that, in dealing only with the clothing issue, and failing to deal with the bedding and surfaces issues, the decision of the Tribunal was defective and the Commissioner was not in a position to uphold it. In applying Cockburn, the Tribunal and the Commissioner simplistically transposed observations appropriate to a case of urinary incontinence in a bed-ridden old lady, to the services provided by the applicant’s mother to relieve a case of faecal incontinence in an active schoolboy, without addressing the question whether, or to what extent, the nature and incidence of the applicant’s condition was such that tasks necessarily performed for him in respect of clothing, bedding, and furnishings did, in the circumstances, qualify as ‘attention throughout the day in connection with his bodily functions’.

[23]Descending to the particular, Mr Blake submits that it is plain, and indeed it is not in dispute, that ensuring that faeces are deposited in the intended receptacle, or otherwise disposed of acceptably, is a normal part of the function of defecation which non-disabled persons would expect to perform for themselves. He says it is also clear that, if the faeces are deposited elsewhere, whether on or around the lavatory, on other surfaces, or on clothes or bedding, the cleaning up of such deposits properly comes within the scope of “cleaning up afterwards” (cf per Lord Goff in Cockburn at 802d).

[24]Equally, submits Mr Blake, if the applicant’s mother, in dealing with an incident of faecal incontinence has also to clear up fresh faeces from the surface of a chair, from the bathroom floor, from a towel or a toilet seat, there is a sufficiently immediate connection between the applicant’s incontinence and the presence of another person dealing with the consequences on the spot to satisfy the test. In the interests of hygiene, if no more, faecal matter should be cleared up at once and not left to lie where it falls.

[25]Thus, in failing to advert to these matters and take them into account, the Tribunal misdirected themselves upon the bedding and surfaces issues.

[26]Finally, Mr Blake also challenges the way in which the Tribunal dealt with the clothing issue. He accepts and adopts the Tribunal’s view that “rinsing out” the applicant’s clothes fell within the section. This was no doubt upon the basis of Lord Mustill’s expression of view that, if a person who came to strip the bed, of someone who was incontinent of urine, stayed to rinse the linen and hang it up to dry, this would fall within the section. Mr Blake suggests that Lord Mustill had in mind the removal of the immediate staining effects of the urine, so that thorough laundering could take place subsequently and elsewhere. (This later process, Mr Blake accepts would not, on the Cockburn test, be included in “attention”). He submits that removal of faeces and the soiling and staining consequent thereon is equally an immediate and necessary requirement and that, if the faecal soiling is such that it can only be sufficiently removed if sheets or towels are washed thoroughly on the spot, then even that process of ‘laundering’ may fall within the test.

[27]Thus, Mr Blake submits, the clothing/bedding/surfaces issues all required, but did not receive, proper consideration before conclusions could be reached about the length of the period of attention required for the purposes of the “significant portion of the day” test arising under s.72(1)(a)(i).

[28]In this connection, Mr Blake submits that, albeit the time taken in the cleaning-up tasks may not have been large, it may well have been critical to the Tribunal’s overall finding that attention was not required for a significant portion of the day. He submits that the Tribunal’s finding that the attention required was for up to 30 minutes once or twice a day must have rendered the decision a ‘borderline’ one, given, as he submits, that a regular requirement for attention of one hour a day would on any reasonable view amount to a significant proportion of the day.

The Respondent’s Submissions

[29]In relation to the three issues raised in the grounds of appeal, Miss Anderson for the Secretary of State takes the point that it does not seem that it was ever submitted to the Tribunal that cleaning of the house, (in the sense of carpets, furniture or other surfaces), as distinct from clothing and bedding, could constitute attention required by the applicant in connection with his bodily functions. That being so, Miss Anderson submits that there was no reason why the Tribunal should have taken the point of its own motion.

[30]I propose to deal with that point at once, as it does not seem to me to be well-founded. It was plainly the applicant’s case before the Tribunal that the application had been made and the appeal was being advanced on the basis that all the attention particularised as necessary in connection with the applicant’s faecal incontinence was being relied on as entitling the applicant to the care component. Furthermore, a letter from the applicant’s doctor placed before the Tribunal dealt with the lack of awareness in the applicant of his need to defecate and stated that “as a result [he] frequently has accidents which can be quite dramatic, with soiling of not only his clothes but also chairs, carpets, beds and furniture”.

[31]As to the clothes and bedding issues, Miss Anderson submits that, whereas it is explicit in the Tribunal’s decision that the changing and rinsing of soiled clothes did fall within s.72, it is, equally, implicit that the Tribunal was excluding any subsequent cleaning or laundry of soiled items on the basis of the decision in Cockburn, such activity being a consequence of the incontinence but not amounting to attention in connection with the bodily (mis)function itself. In this connection she submits that the Tribunal rightly read Cockburn as indicating that domestic work, such as laundry and the cleaning of the house, is excluded from the terms and purposes of the statutory scheme and that the fact that the necessity for such work may arise from the applicant’s incontinence and/or that the work is done “with the aim of keeping the disabled person clean and comfortable and in decent conditions” is not sufficient to include it: see per Lord Hope at p.823b.

[32]Thus, Miss Anderson submits that, on the basis of the observations in Cockburn, prima facie at least, cleaning of the house and laundering items following incontinence does not amount to attendance on the applicant because it does not involve the presence of the applicant and is not a “close and intimate” service to him. Put another way, it does not constitute attention paid to the applicant but is attention directed at the items or areas cleaned or laundered.

[33]Finally, Miss Anderson submits that, on a careful reading of the evidence before the Tribunal, it is clear that the time which the Tribunal found was spent giving attention to the applicant’s needs was in fact a proper reflection of the time estimates given by the applicant’s mother including any time spent on cleaning up after the applicant’s ‘dramatic’ incidents. On that basis, Miss Anderson submits that the finding of the Tribunal that the ‘significant portion of the day’ test was not satisfied is not open to realistic challenge.

Application of the ‘Cockburn’ Test

[34]Taking the Tribunal’s decision on its own and at face value, it is by no means clear whether it overlooked (because it did not mention) the evidence of the applicant’s mother as to the degree of cleaning up necessary following the applicant’s incidents of incontinence, or whether, with such evidence in mind, it read the decision in Cockburn as requiring the exclusion of any ‘cleaning up’ activity beyond the immediate rinsing of the applicant’s soiled clothes. The latter seems more likely. That is certainly the way in which the Commissioner read the Tribunal’s decision and the basis upon which Mr Blake finally put his case. I therefore approach the appeal on that basis.

[35]That being so, I accept, as Mr Blake has submitted, that the formulaic approach apparently adopted by the Tribunal, was incorrect. The case of Cockburn, while plainly drawing a distinction between(a) attention required (ie acts done to assist the applicant) in connection with the applicant’s bodily functions and

(b) subsequent washing or cleaning done elsewhere in consequence of the applicant’s incontinence (see per Lord Hope at paragraph 13 above), nonetheless recognised the requirement for a degree of flexibility and/or the existence of a grey area in respect of the attention given. Thus, while such attention could not extend to the removal of bed linen for laundering later, it might nonetheless include certain acts such as the changing and immediate rinsing of bed linen soiled with urine which, in the strict sense, was neither assistance with a bodily function, nor necessarily effected in the immediate presence of the applicant (see per Lord Clyde at paragraph 14 above).

[36]This grey area was the subject of examination and example in the speech of Lord Mustill who rejected “too mechanical an application” of the appropriate test in the context of the dispute. He preferred to focus upon the link between the applicant’s incontinence and the presence of the helper there “to deal with the consequences” on the spot. Lord Goff was plainly of the same mind, specifically referring to the case of an incontinent applicant having an accident because he/she could not get to the lavatory in time and who “may need help in clearing up afterwards”. Lord Goff regarded the service of changing clothes and bed linen, as well as the rinsing out of soiled clothing removed from the applicant as sufficiently personal services to fall within the section. Lord Slynn of Hadley had no doubt that the washing of clothes and bedclothes soiled with excretion fell within the ambit of attention in connection with the bodily functions of the applicant. However, his was a dissenting speech and the wide interpretation which he adopted was plainly at odds with the view of the majority.

[37]I do not consider that the decision in Cockburn amounts to a formula or litmus test which can be applied as a matter of rote to a case of this kind. Whilst the decision makes clear that the laundering of bedclothes or of clothes, soiled by incontinence but taken away for laundering out of the presence of an applicant unable to do it for him or herself, cannot qualify as attention under s.64, and hence (by analogy) under s.72, it equally recognises that certain acts of attendance performed by way of immediate and essential ‘cleaning-up’ after an incident of incontinence may qualify as such attendance. Within the constraints of the requirement that such cleaning-up should take place in the presence or the vicinity of the applicant, I consider that steps taken for the immediate removal of soiling from clothes, bed linen or adjacent surfaces are apt to qualify under this head. In a case of faecal incontinence which results in the soiling of clothes, towels or bed linen, or the dropping or smearing of faeces on carpets or furniture, it is at the very least in the interests of hygiene that such occurrences be rectified immediately as part and parcel of the cleaning-up operation necessary following the incident of incontinence giving rise to such soiling. If that is done, then, even if the operation concerned is one of thorough washing rather than merely ‘rinsing’, the criteria of immediacy and intimacy are sufficiently satisfied and the time spent in cleaning-up should be taken into account when assessing whether or not the attention given amounts to a significant portion of the day.

A ‘Significant Portion’ of the Day

[38]As already indicated, we have heard rival submissions, based on an examination of the evidence, as to whether, had the Tribunal properly applied the Cockburn test, it would have made any difference to the Tribunal’s finding that attention was not required for a significant portion of the day. In this respect, Mr Blake submits that if, as he contends, the attention, properly assessed, was at or about the level of one hour a day then, on any view, that would amount to a ‘significant portion’ of the day. In that respect he argued that the only sensible way in which to define or explore the meaning of ‘significant’ was by equating it with the phrase ‘not insignificant’, and that on that approach it was plain that attention to the incontinence of the applicant for one hour a day or thereabouts was ‘significant’ so far as his mother or any carer was concerned.

[39]I do not find such a method of definition of real assistance. If resort is to be had to the dictionary, the words of definition which precede Mr Blake’s’ formula in the Concise Oxford Dictionary are:

‘of considerable amount or effect or importance’

. Those words seem to me to provide a more helpful guide to the meaning of the word ‘significant’ in this context. It is clear to me that, when the word significant is applied to a part or portion of a day, its size or significance requires to be assessed as a percentage of the day as a whole. In this context, the word ‘day’ is used in contrast to the word ‘night’ (see s.72(1)(c)). It does not mean the period between sunrise and sunset but the period when, in accordance with the domestic routine of the household in which the disabled person lives, the household becomes active in the morning until it closes down for the night: (cf R v National Insurance Commissioner, ex parte Secretary of State for Social Services

[1974] 1 WLR 1290

). In those circumstances the assessment of the Tribunal as to whether or not the time spent in attention to the bodily functions of the applicant constitutes a significant portion of the day, depends principally upon the mathematical exercise to which I have referred. However, it is also likely to be affected by the total time available in the day, by the extent to which the relevant tasks become a matter of routine, and the concentration and intensity of the activity comprised in those tasks. Thus, while in broad terms it seems to me that a period of one hour, made up of two half-hour periods concentrated activity, would reasonably be regarded as a significant portion of a day, in different circumstances there may well be room for a different view.

[40]Following the conclusion of the argument, we have had drawn to our attention a decision of Mr W M Walker, Social Security Commissioner in the Disability Appeal Tribunal in Glasgow, CSDLA/29/94 (Starred Commissioner’s Decision No 14/95). In paragraph 8 of that decision the Commissioner stated as follows:

“I accept Miss Dunlop’s submission that the whole, or at least the main part, of section 72 … prescribing tests for qualification for the care component are time related, one way or another. I also accept her submission that the use of the word ‘portion’ tends to indicate an assessment by percentage or fraction rather than a totalling up of bits of time which might be more appropriately covered by the word ‘period’. The words in parenthesis in section 72(1)(a)(i), that the portion must be assessed ‘whether during a single period or a number of periods’, seem to support that view. The length of the individual periods must be assessed and then the total found on a general percentage or fraction basis. That does not mean that the new Tribunal will have to assess the precise times involved. The claimant’s case, as I understand it, and which may not have been fully assessed or appreciated by the Tribunal, was that he required attention in connection with his bodily functions when dressing, possibly undressing, when at the toilet and when feeding. Each of these may well have required relatively short periods of attention but the Tribunal will require to get some sort of idea of how long each would normally take and how often it would be required on an average day. They will then have to make a broad determination, recorded again as a finding, of the percentage or fraction of the normal day for this household that total involved. Whether that is then ‘significant’ is something which will have to be determined by the application of commonsense and the normal understanding of the word. I am aware that in CDLA/58/93 there is some acceptance of the possibility that one hour, in total, may be ‘significant’. The Commissioner in that case did not dissent from some such proposition. I am not so sure that the matter can be so qualified. As it seems to me, attention for a lesser period may be ‘significant’ depending upon the circumstances. Thus if it consists of many short periods of attention, the total significance in time terms may be greater. The attention must be ‘for a significant portion of the day’ and the preposition ‘for’ seems to me to open up to consideration the position of the attender. If for that individual to provide the attention necessary on a considerable number of small occasions produces other disruption to his or her own affairs then that may elevate those periods from relative insignificance to an overall and collective significance. Finally, I should add that I do not wish to imply that what is assessed as being the attention required has to be found to be ‘insignificant’ to avoid being categorised as ‘significant’.”

I understand that, being contained within a starred decision, that passage is one to which the attention of Tribunals is directed when coming to decisions in cases of this kind. I would not wish to qualify or detract from the guidance thereby afforded.

[41]It is not apparent whether the Tribunal in this case did or did not have that guidance in mind. They may well have done. Nonetheless, as submitted by Mr Blake, this was a ‘borderline’ case in relation to which it seems that the Tribunal incorrectly applied too rigid a test. Had the Tribunal applied the case of Cockburn in the more flexible manner which I have indicated was appropriate, it might well have come to a different conclusion.

Conclusion

[42]In those circumstances I would allow the appeal from the decision of the Commissioner and remit the appeal of the applicant from the decision of the adjudication officer to the Appeal Tribunal for rehearing before a differently constituted tribunal.

[43]I concur in the conclusion that this appeal should be allowed, and that the applicant’s appeal from the decision of the adjudication officer should be remitted to a differently constituted Disability Appeal Tribunal for rehearing. However, I do so on grounds which differ somewhat from those set out in Lord Justice Potter’s judgment, which I have had the benefit of reading in draft.

[44]The Disability Appeal Tribunal’s reasoning leaves me uncertain as to the factual basis upon which the Tribunal decided the matter. It did not expressly mention the need for any cleaning up beyond(a) the immediate rinsing of the applicant’s soiled clothes (which it took into account in its conclusion that attention was required for “no more than 30 minutes at a time”, once or on some days twice in a day) and

(b) “the subsequent laundry of his soiled clothes” (which it excluded, following Cockburn v Chief Adjudication Officer

[1997] 1 WLR 799

). It accepted Mrs Ramsden’s evidence, and based its findings on that.

[45]In these circumstances, it is of some interest to look at the case as Mrs Ramsden put it forward in writing as well as at the summary of such oral elaboration as she made of it before the Tribunal. In her written account of the applicant’s needs, Mrs Ramsden at some points described a 30 minute period for which the applicant needed attention at least once a day as including cleaning in the toilet and shower area: see e.g. her completion on 7th May 1999 of Part 1 of the form headed “More about how your illness or disability affects you” (Bundle pages 48-49). In Part 3 of the same form, however, at page B56, she gave a twice daily estimate of 30 minutes for cleaning of the toilet, shower area, towels, flannels, seating and clothing” plus occasional (approximately once weekly) sluicing and laundering of bed linen as assistance which the applicant required “as well as needing assistance with personal care due to incontinence”; and, in a letter to the Benefits Agency dated 16th October 1999, she wrote to clarify that her estimation in Part 3 was additional to the physical assistance given to Gregory. The brief note of her oral evidence said that, on a normal school day, she helped him in the morning and evening:

“The best thing was just to get him in the bath, because it goes all over carpet. Also needs to use toilet. It just goes everywhere. I sluice the clothes and bedding. We get on with it.”

Later, she explained that the evening exercise of showering him (no doubt in the bath) after taking his clothes off “takes about 20 minutes a time”.

[46]In these circumstances, the Tribunal’s reasoning was to my mind deficient in failing expressly to mention the necessary cleaning of the toilet and shower area and in leaving it unclear whether or not it had included the time required for that in the period of “no more than 30 minutes at a time” for which it found that the applicant required attention morning and evening. There are three possibilities. First, it is to my mind quite possible that the Tribunal did conclude that the whole cleaning up exercise, including both cleaning the applicant’s person and cleaning his environment took no more than 30 minutes each morning and evening. Second, it may be that it disregarded the cleaning of the environment, because of its reading of Cockburn. This was the interpretation placed on the Tribunal’s decision by the Commissioner, but he was in no better position than we are to know or understand the Tribunal’s inadequately explained reasoning for its decision. Third, it may be that the Tribunal simply failed to address, even in its own mind, the need for cleaning up of the immediate environment, consisting in particular of the toilet and shower, but also sometimes it appears other areas, such as carpets.

[47]Unlike my Lord, in paragraph 34 of his judgment, I find myself unable to approach the matter with any confidence on any one of these bases. But since the second and third are among the possibilities which exist and since I agree that Cockburn is not to be read as excluding the cleaning up of the applicant’s immediate environment which was on its face obviously necessary in the interests of hygiene if the applicant was to continue to live there, the Tribunal’s decision was, at the least, inadequately reasoned and cannot in my judgment stand. There will have to be a rehearing, at which on any view all relevant matters of fact will be open for consideration, and their significance open for appraisal, by a differently constituted Appeal Tribunal, in accordance with the legal principles indicated in Potter LJ’s judgment.

[48]I agree that the appeal should be allowed for the reasons given by My Lord, Lord Justice Potter.

Order

Appeal allowed with costs (to be assessed); appeal remitted to differently constituted tribunal for rehearing; detailed assessment of publicly funded costs. (Order does not form part of the approved judgment)