Encouraging thoughts

Issue 195 (December 2006)

Stewart Wright reports on the recent Tribunal of Commissioners' decision - CSDLA/133/2005 - which considered whether thinking is a bodily function and whether prompting and motivating can count as attention for AA and DLA purposes.

Facts

The appeal in CSDLA/133/2005 concerned a girl who was 8 years old at the time of her claim for disability living allowance (DLA). She was described by one consultant 'as having significant learning difficulties with prominent language processing disorder and associated behavioural problems'.

The appeal tribunal held she was not entitled to the care component of DLA. It noted that she received help to keep her motivated in respect of her lessons and to integrate socially with her classmates, but found that this did not constitute attention in connection with a bodily function because 'communication' and 'social integration' were activities rather than bodily functions. In so doing it purported to follow R(DLA) 3/03.

A further appeal was heard by a Tribunal of Commissioners (the Chief Commissioner, Judge Hickinbottom, Commissioner Angus and Deputy Commissioner Burns QC), which allowed the appeal.

Thinking

In the view of the Tribunal of Commissioners, functions of the brain can be bodily functions. That was put beyond doubt by Lord Slynn's speech in Cockburn v Chief Adjudication Officer (R(A) 2/98) where he referred to bodily functions covering the operation of the senses and the brain's instructions to other parts of the body. In any event, even without the benefit of this binding authority, the Tribunal of Commissioners considered the proposition to be clearly correct. A person's disability is defined in terms of her/his physical or mental power to do things (see paragraphs 34-35 of R(DLA) 3/06). Accordingly entitlement to the care component of DLA is not limited to some types of disability alone, and so disability related to a deficit in the functioning of the brain or mind was not to be excluded. Moreover, as the attention which is reasonably required must be related to the functional deficiency - because of the words 'in connection with' - the only reasonable construction of 'bodily functions' was that it includes functions of the brain.

Cases which had found to the contrary - such as CSDLA/867/1997 and CSDLA/860/2000 - should be treated as being wrongly decided.

Prompting and motivation

The Tribunal of Commissioners also accepted that prompting and motivating are capable of constituting attention in connection with an impaired bodily function. 'Attention' here, as the case law makes plain, is a personal service of an active nature which involves care, consideration and vigilance for the person attended: a service of a close and intimate nature. It was not helpful to add to this any further test of whether the personal service required was of a high degree. Whether the service needed meets the test of being sufficiently close and intimate is a matter of fact and degree, but the case law provides some guidance as to the proximity that will be sufficient - e.g., guiding a blind person (Mallinson) and providing interpreting by sign language (Fairey). Given that approach, prompting and motivation are capable of constituting attention.

The Commissioners cautioned that simple apathy will not be enough to qualify for DLA. But where a claimant suffers from a condition which has as a component a lack of motivation which exhortation from another is able to overcome, this is capable of constituting attention with bodily functions.

Scope of 'bodily functions'

The last issue the Tribunal of Commissioners addressed was whether 'communication' and 'social integration' could count as bodily functions. The appeal tribunal had said they were not because they were, instead, activities. An approach which focused bodily function on the particular actions of an organ of the body - and which at first blush might have supported the appeal tribunal's distinction between function and activity - was supported in some of the higher court case law.

However, that case law also referred to bodily functions as being the normal action of sets of organs of the body acting together, thus giving rise to a complex web of functionality which could amount to or involve a bodily function or functions. Accordingly, distinguishing between a bodily function (as the action of an organ of the body) and an activity was neither helpful nor determinative in all cases.

In some cases, for example where the disability is a limit on walking, it may not matter whether the bodily function is described as the movement of the legs (i.e., the action of an organ of the body) or walking (i.e., an activity). Both would have equal validity. However, in other cases addressing the bodily function or functions may require care - and in borderline cases may need the individual bodily function to be unbundled - because of the need to identify what attention is reasonably required in connection with the bodily function or functions. This may particularly be the case where an activity cannot itself properly be described as a bodily function (e.g., shopping and getting in and out of bed).

The reason why attention in connection with cooking and shopping does not count is not because both are activities rather than bodily functions in themselves, because properly analysed each activity involves the use of a number of bodily functions such as sight and movement of the limbs. Rather, any attention given does not count because it does not meet the intimate and personal test.

Applying these principles to communication and social integration, the Tribunal of Commissioners said that attention in connection with both could amount to attention in connection with a bodily function.

R(DLA) 3/03 did not hold that communication was incapable of amounting to a bodily function. Moreover, decisions which had held this, such as CSDLA/840/1997, CSDLA/832/1999 and CSDLA/860/2000, had misunderstood the correct approach and were wrongly decided. Cockburn had expressly said that communication was capable of being a bodily function, but even if it is unhelpful to consider it as a single 'bodily function' it is possible to unbundle the functions of individual organs which make up the activity of communication and identify which, if any, of those functions are deficient and reasonably require attention.

A similar approach must be taken to 'social integration'. For their own part, the Commissioners doubted whether put as widely as this it is a 'bodily function'. However, Cockburn suggests that some form of social interaction may amount to a complex bodily function. Even if that is the case, however, in some cases the functions may require 'unbundling' so that the nature and degree of attention reasonably required to address the relevant functional deficit can be assessed: but in all cases to qualify as 'attention' the activity will need to meet the test of being sufficiently close and intimate.


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