Secretary of State for Work and Pensions v Batty [2005] EWCA Civ 1746

Case No C3/2005/0936[2005] EWCA Civ 1746
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(COMMISSIONER DAVID WILLIAMS)
Venue Royal Courts of JusticeDate Tuesday, 13th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE LATHAM
LORD JUSTICE GAGE
Between
SECRETARY OF STATE FOR WORK AND PENSIONSAppellant-v-
Between
JUNE BATTYRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MARTIN CHAMBERLAIN (instructed by Office of the Solicitor, Litigation Division, New Court, Room 516, 48 Carey Street, London WC2A 2LS ) appeared for AppellantMR DANIEL KOLINSKY (instructed by Messrs Davies Gore Lomax, 63 Great George Street, Leeds, LS1 3BB) appeared for Respondent
J U D G M E N T

LORD JUSTICE LATHAM:

[1]The respondent, who was born on 17th June 1930, is seriously disabled by reason of arthritis in her back and her knees. She is unable to stand upright; her back is fixed at about forty degrees. The arthritis in her knees is such as to prevent her from being able to walk any distance, even with the help of a stick or sticks. She requires a wheelchair or her scooter whenever she is outside her home.[2]On 5th August 2003, she claimed an attendance allowance pursuant to Section 64 of the Social Security Contributions and Benefits Act 1992 ("the Act"), which provides:
"(1) A person shall be entitled to an attendance allowance if he is aged 65 or over, he is not entitled to the care component of the disability living allowance and he satisfies either-- (a) the condition specified in subsection (2) below ("the day attendance condition")..." "and prescribed conditions as to residence in Great Britain. "(2) A person satisfies the day attendance condition if he is so severely disabled physically or mentally that, by day, he requires from another person -- "(a) frequent attention throughout the day in connection with his bodily functions..."
[3]The Secretary of State refused her application and, on 1st April 2004, her appeal to the Appeals Tribunal was likewise refused. She appealed to the Social Security Commission, who allowed her appeal on 15th December 2004. The appellant appeals that decision to this court by permission of the Commissioner, granted on 16th March 2005.[4]There are two grounds of appeal:
"The Secretary of State submits that the Commissioner erred in law in: (a) holding - contrary to established authority - that help in carrying (as opposed to drinking) hot drinks was capable of constituting a 'attention ... in connection with ... bodily functions' ... and (b) concluding - without evidence as to whether, without such help, the claimant could reasonably have access to hot drinks by other means (e.g. a thermos flask) - that the claimant 'requires' such help..."
[5]The ground of appeal which the commission considered to be of importance was (a). He made the point that not only was this ground of significance in relation to claims made under Section 64 of the Act but also claims under Section 72 of the Act, which uses identical formulation for the purposes of determining the care component of a Disability Living Allowance. In order to understand that ground of appeal, it is necessary to consider the decisions of the Appeal Tribunal as well as the conclusions of the Commissioner. The statement of reasons for the decision by the Appeal Tribunal was in the following relevant terms:
"2. Mrs Batty suffers from severe arthritis and also hypertension. Her condition was such that she has to rely on a wheelchair outside her home for any other than very short distances, and she has restricted movement in her arms. Unfortunately, because of her age, she is not eligible to apply for Disability Living Allowance mobility component and is restricted to Attendance Allowance, which only takes her mobility problems into account in a limited fashion, and for which a higher test for her care needs applies." "4. Mrs Batty was born on 17 June 1930 and impressed the Tribunal as an indomitable and spirited lady who managed her disability well; she said she would not give into it. The examining medical practicioner stated that she cannot straighten her back and that she walks bent forward 40 degrees. She has a wheelchair but also uses a scooter to go to the shops, and still has a part-time job and was able to drive to work, getting the short distance to her desk, which she would not leave, apart from going to the toilet (a few paces away) which she managed with difficulty but without help. She brought her lunch in sandwich form. "5. The help that we found that she normally needed daily was: A) to fix her bra on and to put her tights on in the morning, and undressing at night; B) help to get in and out of the bath or shower; C) preparation of meals. "6. In all other respects the evidence showed that she is normally self-sufficient, as far as her bodily functions are concerned, but she is dependent on her husband for household tasks such as cleaning and also lifting her scooter into the car when it is necessary. Unfortunately, these needs do not fall to be taken into consideration in meeting the eligibility criteria for Attendance Allowance. "7. She is used to having drinks brought to her throughout the day by her husband or workmates, but we did not find that this help was in connection with her bodily function and, therefore, could not count these acts of assistance to her towards the test for lower rate Attendance Allowance, which requires 'frequent' attention throughout the day in connection with bodily functions.' If such assistance could be counted then we judge that Mrs Batty would be entitled to an award at the lower rate because of the frequency of the assistance required and afforded throughout the day..."
[6]On her appeal to the Commissioner, it was urged that the Tribunal had erred in law in ignoring her need for drinks to be brought to her and generally in relation to the way in which the Tribunal had assessed her disability. The Commissioner considered that the Tribunal had failed to give adequate reasons for rejecting the evidence of the examining medical practicioner to set aside the decision. He then exercised his powers under Section 14(8) of the Social Security Act 1998 to determine himself the issue which he has identified as justifying the appeal to this court. He did so in the following terms:
"I heard full argument about whether drinking and being provided with drinks constitutes a proper element of attention. It was common ground that help with drinking itself would constitute required attention. And drinks, unlike meals, cannot be limited to preparing just one hot meal a day. If the claimant reasonably required several drinks -- perhaps several hot drinks -- a day, then any attention necessary to ensure she was able to consume those drinks would be relevant. How far will such attention go beyond helping her lift a pre-filled cup or glass to her lips? I reject the view of the Secretary of State that attention can be considered only in so far as it is with the actual act of drinking. In my view, that -- like the frequency with which cold or hot drinks are needed -- is a question of fact in each case." "
In this case it is common ground the claimant is unable to stand up straight or straighten one of her knees. She walks only with a limp and with the use of a walking stick and any available grab bars. How can someone carry a drink in such a condition? The evidence was that the claimant could not. And how can she get her drink from the tap, bottle or kettle into a cup, glass or container and then to a location so that she can drink it (which presumably involved her sitting down)? That question was not fully explored, but is relevant to this claimant's reasonable attention needs. Her evidence was that she could, but did not, make a hot drink, but could not carry it. But the evidence of the examining medical practitioner was that while she could use taps she could not use a cooker or cope with hot pans. In my view, taking all this together there is evidence that the claimant reasonably needed some help with her drinks, if only to get them to a position where she was able safely to drink them, and that such help would be reasonably required on a number of occasions in any day. I do not think that the law is so strict as to limit the attention needs for a person such as the claimant to the physical act of lifting a pre-positioned and pre-filled cup or glass to the lips. The claimant's representatives rightly reminded me of the well-known caselaw about 'the yardstick of a "normal life"' and the test of immediacy used in Cockburn ([RA]2/98). I do not need to repeat those citations. Even quite disabled people can normally get themselves drinks without difficulty if they are mobile. The claimant is severely limited in her ability to do that. The help she reasonably needs so that she has her drinks available as others would is within the test of what is reasonably required for her personal care. While that does not extend so far as to include all the aspects of preparing drinks by what might be termed 'room service' or 'desk service', it is a factor in evaluating what she reasonably needs. "13. I accept from the examining medical practitioner (and the decision of the Secretary of State) that during the day the claimant reasonably requires help getting into and out of bed, with washing and bathing, with using any stairs, with dressing and undressing. She also reasonably needs some help with getting drinks (and I assume from the same arguments food) into a cup or container and a position where she can drink it, and with picking things up and with carrying things. There is also evidence that sometimes she has to use a wheelchair. At night there is evidence that she may need help getting out of bed to go to the toilet sometimes. "14. I agree with the Secretary of State and the tribunal that the help she needs, and gets, with cooking, shopping, cleaning and general household duties is not relevant. Nor does help with her scooter or getting her to her part time job count. But the fact that she is able to carry out some part time work despite her disabilities does not negate any reasonable requirements she has throughout the day. Rather, it is the help she reasonably needs when working that is the issue. "Drawing my own conclusions about the limitations that the accepted severe disablements of the claimant would impose upon her physical activities in the light of all the evidence, I am of the view that on the balance of probabilities she reasonably required frequent help throughout the day with her personal care. This help was not needed only in the morning and evening but during the day as well. I do not agree with the Secretary of State's view that there are long periods during the day when she does not reasonably require any help."[7]The first question for us to determine on this appeal is its scope. It was submitted on behalf of the respondent that we could only interfere with the Commissioner's decision if it was outside the limits within which there can be reasonable disagreement, in effect, if we considered that it was perverse. He supported that argument by referring us to the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, where Lord Hoffmann, in paragraphs 18, 19 and 20, dealt with the scope of an appeal in a case involving questions arising under Section 72 of the Act. That section has in fact been the subject of amendment and the consequence is that part of the issue to be determined, pursuant to the provisions of that section, is the question of whether or not a person was so severely disabled, physically or mentally, that he could not prepare or cook a main meal for himself if he has the ingrediants for the relevant periods. In his speech, Lord Hoffmann made it plain that the terms of that section meant that the court had to consider, in effect, a hypothetical question and, in doing so, come to a judgment. In that context, he said as follows:
"20. In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way..."
[8]That is undoubtedly helpful in determining the approach to an issue such as that raised in that case, which, as Lord Hoffmann identified, was one which related to an exercise of judgment. But that is not the context with which we are concerned. We are concerned with a statutory provision identifying a particular entitlement by reference to clear criteria. The very section that we are concerned with was the subject of an appeal to the House of Lords: Mallinson v Secretary of State for Social Security [1994] 1 WLR 631. In relation to a similar argument which had been addressed to the house, Lord Woolf said, having referred to a citation from R v Hillingdon London Borough, ex parte Puhlhofer [1986] AC 484, the following at 625H:
"This is a statutory appeal on a point of law. The court on such an appeal does not have the residual discretion which it has on an application for judicial review to limit the circumstances in which it grants leave or relief. It is contended on Mr Mallinson's behalf that there have been errors made in the adjudication of his claim for attendance allowance in that what in law constitutes attention in connection with bodily functions has been treated as supervision. If he is right as to this, then this constituted an error of law which on appeal the courts are required to rectify. Other issues in other circumstances, for example, as to whether acts which are attention constitute frequent attention, will normally be questions of fact and therefore findings which cannot be disturbed on appeal."
It seems to me that our approach to this appeal must be to apply the same test as that indicated by Lord Woolf, namely to ask the question as to whether or not there has in fact been an error of law.[9]The appellant's argument, essentially, is this: that the authorities make it plain that the question of whether or not any given circumstances amount to a requirement by a person for frequent attention from another person throughout the day in connection with his bodily functions is a matter which is clearly circumscribed by the two words "attention" and "functions", which are intended to restrict the assistance which can be given to disabled people under this particular provision, to those which are, in effect, intimately connected with their physiological functions and goes no further. He submits that the question can be put in this way: is what is provided in the particular case some sort of assistance which it would be abnormal for a fit person to require in carrying out his ordinary bodily functions? He submits that the authorities make it quite plain that the particular characteristic which helps to determine the extent to which assistance fits within that category is that the assistance can properly be described as being of a close and intimate nature.[10]On the other hand, on behalf of the respondent Mr Kolinsky submits that the Commissioner was perfectly entitled to come to the conclusion on the facts that he had found that the provision of the assistance which he identified, which is the carrying of the drinks to the respondent when she was working during the course of a working day, was assistance which was essentially necessary to enable her to carry out the bodily function of drinking; it was a necessary precursor of her ability to drink and therefore had a sufficiently close connection with the bodily function as to meet the statutory criteria.[11]It is necessary, in order to determine the validity of the arguments that we have heard, to look at the authorities with which we have been provided which deal with this very phrase, albeit the early cases were in relation to precursor acts to the Act with which we are concerned -- nonetheless, the wording has remained the same. The first point, which is one about which there is no controversy, is that the section talks about the attention being "required". It is accepted that, in applying that word, the court should in fact apply the concept of "reasonably requires" rather than simply "requires". That was the judgment of Slade LJ in R v Secretary of State for Social Services ex parte Connolly [1986] 1 WLR 421, which is a proposition which has not been doubted in any subsequent authority. The phrase "in connection with his bodily functions" has troubled the courts on a number of previous occasions. The Commissioner's reference to the case of Cockburn is to Cockburn v Chief Adjudication Office [1997] 1 WLR 799, which is the last of a trio of decisions of the House of Lords on the meaning and application of this phrase and which all refer back to a decision of this court in relation the predecessor legislation in R v National Insurance Commissioner ex parte Secretary of State for Social Services [1981] 1 WLR 1017, which is commonly known as Packer's case.[12]In that case, the question under consideration was whether or not the fact that an applicant for attendance allowance, who required meals cooked for her, could be taken into account in assessing the need for attention in connection with bodily functions. The Commissioner, in that case, had determined that it could. Forbes J dismissed the Secretary of State's application for certiorari.[13]This court allowed the Secretary of State's appeal. The leading judgment was given by Lord Denning MR. The relevant passage from his judgment is at page 1022B:
"In order to get the allowance, the 'attention' must be required 'frequently throughout the day' or 'prolonged or repeated' during the night. 'Frequently' connotes several times - not once or twice. 'Prolonged' means some little time. 'Repeated' means more than once at any rate'. "
'Attention' is different from 'activity' or 'attendance'. It connotes something personal to the disabled person. "'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or our of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself. But they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties: or generally which one of the household normally does for the rest of the family. " It is the words 'in connection with' which give rise to the difficulty. They are very uncertain. Some kinds of attention are closely connected with 'his bodily functions'; other kinds are too remote. It is a question of degree upon which different minds may reach different conclusions. As Terence said long ago:
'Quot homines tot sententia: suo quoique mos', which may be translated: '
So many men, so many opinions; his own a law to each'. In the very question before us, I might say:
'So many Commissioners, so many opinions: his own a law to each'. "Such a situation should not be allowed to continue. These provisions have to be applied, day in and day out, by delegated medical practitioners all over the country. They should be applied uniformly. Else there will many complaints. "Why should she get it and not me?'
To dispel these complaints - as far as possible - I think the courts should lay down rules for guidance. I would hold that ordinary domestic duties such as shopping, cooking meals, making tea or coffee, laying the table or the tray, carrying it into the room, making the bed or filling the hot water bottle, do not qualify as 'attention in connection with the bodily functions' of the disabled person. But that duties that are out of the ordinary - doing for the disabled person what a normal person would do for himself - such as cutting up food, lifting the cup to the mouth, helping to dress and undress or at the toilet - all do qualify as 'attention in connection with the bodily functions' of the disabled person." Dunn LJ, at page 1023E said as follows:
"I look first at the section without regard to authority. To my mind the word 'functions' in its physiological or bodily sense connotes the normal actions of any organs or set of organs of the body, and so the attention must be in connection with such normal actions. 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 to my mind some service involving personal contact carried out in the presence of the disabled person."
Later in his judgment, at page 1023, Dunn LJ cited from a decision of a Commissioner, Mr Monroe, in an earlier case, which he considered contained a helpful citation in the following terms:
"'I consider that the words of the section referred 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.'"
O'Connor LJ delivered a concurring judgment, at the end of which he gave us as example of activities of assistance which could qualify: the cutting up of food for a person and feeding it to that person.[14]The House of Lords, two and a half years later, was asked to consider that decision of this court in an appeal from Woolf J in a case which raised substantially the same point and, because the issue had to be determined by this court, it progressed in accordance with what is known as the "leap-frog procedure" directly from here to the House of Lords. There was only one speech given, that of Lord Bridge. He, having related the facts and indicated that there had been a considerable controversy for some time over the scope of this particular provision, said:
"The point of construction is a short one, a difficult one and, as the history of controversy about it has shown, a point on which different minds can fairly take different views. It is largely a matter of impression and does not admit to elaborate argument or analysis. "
First, it is clear that the policy underlying section 35 of the Act [that is the predecessor to that Act with which we are concerned] stops 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. Very large areas of domestic work in respect of which the disabled are necessarily dependent on others is deliberately excluded. If cooking is the one domestic chore with qualifies, it is, in a sense, the odd man out. "Again, it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution. "The language of the section should, I think, be considered as a whole, and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word or phrase separately. The totality of the language to be construed reads:
"'A person... is so severely disabled physically or mentally that, by day, he requires from another person... frequent attention throughout the day in connection with his bodily functions...' "
At first blush, this language does not to my mind fit the person whose physical disablement only prevents him from preparing his own meals. "If I have to break down and attempt to analyse the language, I would emphasise three points. First, the disablement must be severe. Secondly, the phrase 'bodily functions' is a restricted and precise one, narrower than, for example, 'bodily needs.' Thirdly, the phrase 'attention' ... in connection with bodily functions,' which must, I think be read as a whole, connotes a high degree of physical intimacy between the person giving and the person receiving the attention. I would add that I fully agree with the observations of Dunn LJ in Packer's case [1981] 1 WLR 1017 at p.1023 in the paragraph between letters E and G. "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 at p.1025:
"'I consider that the words of the section referred 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."[15]The matter then came before the House of Lords again in Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, when the issue was a different one, namely the extent to which existance required by the claimant, who was blind, while walking out of doors and out of familiar surroundings, was attention in connection with his bodily functions. Because it is not a similar factual situation, it is not necessary to go into detail in relation to the judgments. It is, however, important to note that, in the main speech given by Lord Woolf, to which I have already referred in another context in this judgment, Lord Woolf recited the citation, which I have given above, from the judgment of Lord Denning in Packer's case without in any sense indicating any disagreement with it and stating that, in his view, Lord Denning had correctly focused on the close connection required between the activity of the body function if it is to qualify as meeting the criteria required by the section. He then cited the passage from Dunn LJ's judgment, at page 1003, with express approval save of the caveat that, in so far as Dunn LJ had referred to personal contact, Lord Woolf considered that that need not necessarily be physical contact. He then referred to the speech of Lord Bridge in Re Woodling [1984] 1 WLR 348, which I have already cited, and made it plain that that was an authoritative exposition of the law in relation to the application of this section.[16]The final case in the trio is Cockburn v Chief Adjudication Officer [1997] 1 WLR 799. Again, the facts there were significantly different and related to the question as to whether or not the requirement for somebody to help an incontinent person with their laundry met the requirements of, in that case, Section 72 of the Act. The first speech was given by Lord Goff. The important short passage in that speech, for the purposes of this case, is that at page 801, where he expressly approved of the requirement of "a degree of physical intimacy" referred to by Dunn LJ in his judgment in Packer's case. Lord Hope, at page 822, cited from Lord Bridge's speech in Re Woodling in which Lord Bridge had approved the judgment of Dunn LJ and himself, on page 823, expressly approved that same passage and also a passage cited by Dunn LJ in the decision of Mr Commissioner Monroe. Lord Clyde, in his speech at page 824, also approved the same passage in the following words:
"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 of the claimant. The service is narrower than that of assistance. Assistance would cover activities done 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."
[17]It seems to me that those decisions of the House of Lords establish clearly the following propositions which are relevant to the present case. Firstly, the phrase "requires from another person frequent attention in connection with his bodily functions" is to be read as a whole. The word "attention" and "functions" give colour to each other and denote a special and personal requirement created by the disability beyond the normal run of domestic assistance. I take that to be the distinction intending by Lord Denning in Packer, to which I have referred in the citation above. Secondly, "attention" in this context must be something more than personal service and involves care, consideration and vigilance for the person being attended. It is service of a close and intimate nature. I take that from the judgment of Dunn LJ in Packer, Lord Bridge in Woodling, Lord Woolf in Mallinson and Lord Goff and Lord Clyde in Cockburn. Thirdly, the word "functions" is narrower than "needs" and refers generally to the normal physiological actions which a fit person normally performs for himself. That is taken from the decision of Mr Commissioner Monroe, cited with approval in Packer's case by Dunn LJ, approved by Lord Bridge in Woodling and Lord Woolf in Mallinson and Lord Hope in Cockburn.[18]Applying those propositions to this case, it is necessary to look with some care at the facts found by the Commissioner. Valiantly though he strove to do so, Mr Kolinsky has not persuaded me that the Commissioner either has found or was entitled to find on the material before him any more than that the respondent's disability resulted in her being unable to carry drinks to where she could drink them. It is common ground that the function in question is drinking. The assistance that she had was simply the transportation of the drinks from wherever they have been made or obtained to where she worked or intended to drink them. That assistance has none of the characteristics of service of a close and intimate character, which is the clear theme running through the decisions to which I have referred. In those circumstances, the Commissioner's decision on this issue cannot stand and I would allow the appeal accordingly.[19]The Commissioner's decision however to set aside the decision of the Tribunal on the basis that it had inadequately reasoned its decision on the facts means that the matter must now be remitted to the Tribunal for the Tribunal to deal with the facts of the case again. In doing so, it will be necessary for it to consider all the necessary ingrediants of Section 64, which will include the matter raised in the second ground of appeal to this court relating to the need for the attention to be "required", which will entitle the Secretary of State to put forward any arguments that he wishes in relation to that issue on the facts.[20]For the reasons that I have given, accordingly I would allow the appeal and remit the matter to the Tribunal.

LORD JUSTICE GAGE: I agree. No-one reading the papers in this appeal could have anything other than the greatest sympathy for Mrs Batty, suffering as she does from a number of disabling infirmities. She clearly deals with those in a robust and uncomplaining way. The question, however, is whether those infirmities amount to a condition which requires frequent attention throughout the day in connection with a bodily function, namely drinking. There is no dispute that the inability to drink without help does qualify for attendance allowance because it is a bodily function which reasonably requires attention. However, in my judgment, the evidence in this matter did not show that Mrs Batty could not drink without assistance. What it did show was that she could not carry a drink from the place where it was prepared to a place where she could drink it.

[22]In my judgment, the issue falls to be decided on the meaning of the word "attention" as interpreted by the relevant authorities. We have been referred to a number of authorities which have sought to explain the meaning to be attached to this word. Although the statutory tests which need to be applied in considering what condition may qualify for an attendance allowance have met with different nuances of interpretation, the interpretation of the word "attention" has, in my judgment, remained constant throughout all the relevant authorities. To my mind, it is best described by Dunn LJ in Packer's Case in the passage to which my Lord, Lord Justice Latham, has referred. This passage, as he has pointed out, was approved by the House of Lords in Mallinson v Secretary of State for Social Security, see in particular the speech of Lord Woolf.[23]For my part, I accept that the various statutory tests are not to applied in a formulaic way. But, in my judgment, on the particular issue in this case, the question of whether or not carrying a cup or glass to a place where Mrs Batty can drink the contents is capable to amounting to "attention" is a pure question of law. In my judgment, it does not have the characteristics required of a close and intimate service for the carrying out of the bodily function of drinking or, as Lord Bridge described it in Re Woodling, it has none of the high degree of physical intimacy between the person giving, and Mrs Batty receiving, the "attention".[24]For those reasons, and the reasons given by my Lord, I too would allow the appeal and make the order which he proposes.

LORD JUSTICE MUMMERY: For the reasons given by my Lords, I agree that the Commissioner erred in law and that this appeal should therefore be allowed.

Order

Appeal allowed, with the matter remitted to the Appeal Tribunal at Stockport. Order for a Legal Services Commission funding assessment of the respondent's costs given.