“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 some service involving personal contact carried out in the presence of the disabled person.”
“The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision ”
“ It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look at examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved, admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament”
“8. Further, the proposition the Commissioner appears to have endorsed by reference to CDLA/1420/204 is not one I can accept. It does not seem to me that interpretation of writing has anything to do with the bodily function of seeing. I can, for example, see Japanese or Arabic script but I cannot interpret it because I have never learned it. Every child initially can see writing but cannot interpret it. The interpretation is learned through education. For someone with dyslexia the education process is more complex and difficult but it is simply education nonetheless. Thus the premise on which both Commissioners proceeded is flawed. 9. I should perhaps add that in my view educational provision in school is on any view outwith the scope of the statutory provisions. The cost of disability living allowance is derived from public funds as is the educational provision that the claimant enjoys. The cost of such educational provision will encompass such special measures as are needed to meet the educational requirements of the claimant. To encompass educational provision within the scope of the attention would, in these circumstances, result in the public purse paying twice for the same thing. That cannot be what Parliament intended. Disability living allowance is not a form of publicly funded compensation for being disabled. It is a recognition of the additional cost of care for those who are disabled. When taken in that context it can be seen that additional educational requirements for the purpose of learning to read and write are of an entirely different nature to attention in connection with an impaired bodily function. It fortifies the view which I have taken in paragraph 8. ”
“12. It is apparent from these findings that if nursing care was not included within the claimant's reasonable requirement for attention the claimant could not be said to satisfy the conditions for the allowance. Even if it was included it would seem to me that the extent of that care could properly be said to be outwith the parameters of a requirement for a significant portion of the day, particularly after the care was reduced to four times per week. However the crucial finding is that contained in paragraph 19 which excludes the care given by the District Nurse from being within the attention required though the tribunal did not dispute the requirement for such care. 13. There is I think a significant difference between a close personal service which substitutes for what a bloody function would do if it were not totally or partially impaired and specialised medical treatment required in order to heal the underlying condition. The findings of fact do not disclose that the claimant is physically incapable of reaching the ulcers on his legs in order to dress them. In fact the physical restrictions found by the tribunal only prevent him from attending to his feet and putting on his socks and shoes. What he is receiving from the District Nurse is, as the tribunal found, treatment which involves skilled medical care which it is nowhere suggested the claimant or his sister, who gives him regular help and support, have the requisite medical skills to carry out. Thus, although the tribunal have not set out why nursing care is not encompassed within the parameters of the regulations I consider that they reached the correct conclusion thereon and did not err in law in doing so. I do not accept as submitted by the Secretary of State that express statutory provision is required for the purposes of "the exclusion" of what he calls "the double provision of State assistance for the same contingency". The examples he gives to support that proposition do not assist his argument. Regulations 8 and 9 of theSocial Security Disability Living Allowed Regulations 1991 are concerned with the payability of the allowance not entitlement to it. Thus the provisions are related to persons who satisfy the attention and supervision conditions for the allowance and are entitled to it but who by virtue of being hospitalised or in a care home with support from public funds, are not to be paid it. The provisions contained in Regulations 7, relating to Renal Dialysis, are ones whereby the requirements of section 72 (1)(b) and (c) of the Social Security Contributions and Benefit act are treated as being satisfied if certain circumstances apply. These provisions are specifically related to renal dialysis and cannot be used to support the proposition advanced by the Secretary of State. They bring a claimant within the compass of the allowance in certain circumstances when due to the conditions for it he otherwise would not. 14. I consider contrary to what is said in paragraph 6 (5) of the Secretary of State’s submission that there is a substantial difference between skilled medical care provided for the claimant at his home and attention provided by others, which I sought to explain in paragraph 13, is entirely different nature. The first is a service provided under the National Health Service through public funds. The second may give rise to an entitlement to the benefit on the basis of being sufficient on its own or with other requirements to satisfy the attention condition of the allowance. I consider that it would be wrong for the statutory intention of the allowance to be construed in such a way that double provision were made. In these circumstances I am not satisfied that the Secretary of State has demonstrated any error in law on the part of the tribunal.”
“ 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 ”
“16. As it happened, almost immediately thereafter another Commissioner gave a decision in CDLA/3204/2006, a case also involving a girl with dyslexia, in which he also considered what I may call the ‘traditional’ approach of describing dyslexia as linked to the bodily function of seeing, identifying four stages in the process of seeing, of which the last, that of interpretation, may be appropriate to dyslexia – that is, the dyslexic person sees, but cannot interpret, the information. He said: “16. It is usual to identify the bodily function as that of seeing, sight or vision: see Mr Commissioner Mesher in CDLA/1420/2004 at paragraph 11. We speak of seeing as a composite activity. I say that I can ‘see’ what is on the computer screen as I type this decision. Everyone understands what that means, but it consists of a number of separate but related stages. My seeing the screen can be analysed into at least four stages; an impairment and a resulting disablement can occur at any of these stages. First, there is the reception stage. The light rays from the screen must penetrate into my eye and reach the retina. The light may be prevented from penetrating my eye, for example by a cataract. Or it may be prevented from focusing on my retina, for example by degeneration of the macula. Second, there is the transmission stage. The information received at the retina must be transmitted to my brain along the optic nerve. This may be disrupted, for example by damage to the nerve caused by glaucoma. Third, there is the construction stage. The information received by my brain has to be interpreted in order to create the image that I am seeing. As I understand it, sight always involves this interpretative process; the light rays detected by the retina always require the brain to interpret them to create the image that we see. The optic nerve does not simply transmit an image. It transmits information from which an image is constructed by the brain. Fourth, there is the interpretation stage. Once the information has registered as an image, the brain has to use that image. It cannot do so unless it can recognise the images as words with meanings individually and in the context of sentences. No doubt, this process of seeing the computer screen could be further subdivided. I may also have distinguished between stages that are not severable. For example, the processes of construction and interpretation may be more interwoven than my analysis allows. 17. I believe that dyslexia operates at the fourth stage, although this must be subject to any evidence before the tribunal and the knowledge of the tribunal’s medically qualified panel member. I do not consider that it matters whether this is considered as part of the bodily function of seeing or part of the bodily function of the brain. What matters is substance, not labels. The tribunal must identify a bodily function in connection with which the claimant receives assistance through special attention at school, her attendance at the Dyslexia Institute, from her mother at home and anything else that the tribunal identifies from the evidence. The use of labels must not mislead the tribunal in that task ”