Thinking is a function of the body

Issue 193 (August 2006)

A recent commissioner's decision has accepted that 'thinking' is a bodily function for the purposes of disability living allowance. Stewart Wright considers the decision and the case law which preceded it.

Introduction

The issue of whether thinking is a bodily function is one which has until recently only played a peripheral role, at best, in case law. For example, in CDLA/1148/1997 (No.2), (Bulletin 157, pp. 4-6), the Commissioner preferred to characterise the source of the claimant's need for attention as being 'a complete near paralysis of the will' rather than a dysfunction in her thinking processes.

Moreover, the debate amongst commissioners about whether assisting a deaf person with reading counts as attention in connection with her/his bodily functions has tended to focus on whether the attention is in connection with the person's cognitive functions or her/his hearing or reading (see Bulletin 162, p 6). Although determining whether such attention is reasonably required will depend upon an evaluation of the facts of each case, the clear authority on this issue would now seem to be that the attention here is in connection with the person's hearing or reading, which does count as a bodily function (see R(A)1/03, which disapproves CSDLA/867/1997 and other decisions on this point); thus sidestepping the issue of whether thinking or cognitive functions are themselves bodily functions. It was arguably implicit in all of those cases, however, that a distinction was drawn between physical functions of the body, such as hearing and seeing, which following R(A)1/03 are bodily functions, and mental functions of the body (most obviously, thinking), which were seen as not being bodily functions.

In some cases, the approach underpinning R(A)1/03 would suggest that directly confronting whether thinking is a bodily function may be unnecessary, as long as the impairment of thinking manifests itself as an impairment in a physical bodily function.

However, as the facts of CSDLA/860/2000 and CDLA/2974/2004 show, in some cases whether thinking itself is a bodily function may be a critical consideration.

CSDLA/860/2000

In this case, Commissioner May rejected the argument that thinking is a bodily function. The decision concerned a boy with Asperger's Syndrome. It seems not to have been disputed that this syndrome covers a malfunctioning of the brain; which in this case caused the claimant to have difficulty in communicating with others. Relying on his own decision in CSDLA/867/1997, the Commissioner held firstly that 'communication' in itself is not a bodily function. That aspect of his decision is arguably no longer correct given the stronger and contrary authority of R(A)1/03.

However, Commissioner May went on to hold, relying again on CSDLA/867/1997, where he had followed CA/22/1993, that:

cognitive functions are distinct and separate from bodily functions and do not fall within the attention conditions for [DLA].

CA/22/1993 had held that: (i) the phrase 'bodily functions' referred primarily to physical functions; and (ii) attention given in connection with cognitive functions is unrelated to physical functions, even though the brain is an organ of the body. This aspect of the decision in CSDLA/860/2000 was not the subject of any comment or disapproval in R(A)1/03, and so on the face of it remains authority for the proposition it contains.

CDLA/2974/2004

However, CSDLA/860/2000 was not followed by Commissioner Rowland in CDLA/2974/2004, where he concluded that mental functioning is a bodily function, and so attention in connection with that impaired function can count for DLA (and AA) purposes.

The claimant in CDLA/2974/2004 was a child aged under 16 who had been diagnosed as having Autistic Spectrum Disorder. He had problems interacting with other people, including obsessive behaviour, aggression and losing his train of thought. His mother frequently had to intervene in situations in which the child was dealing with other people.

Commissioner Rowland held that the help supplied in such situations was capable of counting as attention with bodily functions for the purpose of the care component. The Commissioner held that, 'bodily functions' includes those functions of the mind responsible for a person's social functioning and, in the light of Mallinson [1994] 2 All ER 295 and Fairey [1997] 3 All ER 844, if such functions of the mind are impaired by mental disablement, any consequential requirement for attention is 'in connection with his bodily functions'.

In the Commissioner's view, although CA/22/1993, CSA/389/1997, CSDLA/867/1997 and CSDLA/860/2000 had seemingly all arrived at a directly contrary view, he did not consider he should follow them. Critical to his reasoning here were two decisions, which had not been before the Commissioners in those cases, mainly because they had been decided at a later date.

Firstly, the Tribunal of Commissioners' decision in R(DLA)3/06. Given its binding view that the words 'physically or mentally' in section 72 of the Social Security Contributions Act 1992 are words of inclusion, and may be contrasted with section 73(1)(a) of the same Act where the focus is on physical disablement only, Commissioner Rowland had difficulty in seeing why mental disablement was covered by section 72 but yet if the function which was impaired was a mental (as opposed to physical) function then attention reasonably required to address that (mental) impairment could not be taken into account.

Secondly, the decision of the House of Lords in Regina v Ireland [1998] A.C. 147 (a criminal case), in which it was decided that 'actual bodily harm' could include neurotic disorder or other recognisable psychiatric illness. Although Ireland may only have interpreted bodily functions as encompassing a limited range of mental functions on the facts of that case, Commissioner Rowland saw no reason for limiting the mental functions which 'bodily' could cover in the context of DLA, particularly given the decision in R(DLA)3/06.

R(DLA) 3/03, which concerned a claimant with Asperger's Syndrome, was not contrary authority, as it had found against the claimant on the facts of the case, that is because in fact the claimant did not require the requisite amount of attention, rather than because help with mental functioning could not count.

The Commissioner did point out, however, that, although R(DLA) 3/06 establishes that a medical diagnosis is not strictly necessary for disablement to be present, in cases involving help with mental functioning, 'in the absence of such a diagnosis, the claimant may have grave difficulties in showing that he is disabled'.

CSDLA/860/2000 or CDLA/2974/2004

Which of CSDLA/860/2000 or CDLA/2974/2004 should be preferred and followed by decision makers and tribunals?

Both decisions are, as yet, unreported, so neither has more status on that basis. However, it is strongly arguable that as matter of precedent CDLA/2974/2004 is the stronger authority (and so should be the decision which is followed) as it has considered CSDLA/860/2000 and given reasons for not following it: see R(IS)13/01. Moreover, the thinking underpinning CSDLA/860/200 is arguably inconsistent with Ireland, which itself may be said to be supported by another decision of the House of Lords in Morris v KLM [2002] UKHL 7, [2002] 2 All ER 565 (albeit, there the court was concerned with the meaning of bodily injury).

Wider considerations also provide an arguable basis for saying that CDLA/2974/2004 should be preferred to CSDLA/860/2000.

Firstly, even before CDLA/2974/204 was decided there was a body of commissioner case law. which more naturally sat with its analysis than that in CSDLA/860/2000. For example, the notion of a person's 'will' in CDLA/1148/1997 (No.2) is more closely allied to the cognitive arena than the physical. Moreover, in CDLA/5399/1998, the Deputy Commissioner took the view that cognition is an integral part of most bodily functions. Perhaps most importantly, in CDLA/101/1997, a case involving a person with dyslexia, and in which the adjudication officer had submitted that helping a person to interpret written material may be attention in connection with the impaired bodily function of cognition, the Commissioner said:

[w]hether reading is a bodily function or whether…the relevant function is cognition seems to me to be a distinction without much difference . . . . Reading . . . is the end product of the bodily function of brain activity or cognition just as dressing might be said to be the end product of brain activity and movement of the limbs. So I am not bothered by whether the correct word is reading or cognition. Either way . . . a bodily function is involved . . . .

Secondly, building on R(DLA)3/06, there is perhaps the trite point that the mental must contain within it thought processes and cognitive processes, and the mental as well as the physical is part of the body. Moreover, given the view of the House of Lords in Fairey that disability and bodily functions are linked and it is not possible to treat them as wholly separate, it is difficult to see why the bodily functions in question must be confined to physical functions (a view shared in CDLA/2974/2004).

Thirdly, two higher court authorities point to 'thinking' being a bodily function. The first is the decision of the Court of Appeal in Packer [1981] 1 WLR 1017. There Lord Denning MR stated:

'Bodily functions' include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out 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.

Adopting this definition, it is difficult to see why thinking should not fall within this list. Moreover, thinking is something which an ordinary person without a mental disablement would do for her/himself.

Lord Justice Dunn in the same case said:

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.

It is again difficult to see why the brain is not an organ of the body, and if attention is required to enable that organ to work normally then it must fall within the statutory definition.

The second decision is the decision of the House of Lords in Fairey. Lord Slynn said:

Although movement of the limbs (including their use for walking and running) is a bodily function, so also in my view is the operation of the senses. The reception of sound, its communication to the brain, and the brain's 'instructions' to the limbs or other parts of the body to act or refrain from acting are all as much bodily functions as the movement of the limbs and the actions of the digestive or excretory organs.

Arguably this is saying that the operation of the brain is a bodily function. The brain's 'instructions' to the limbs (which can only be seen as an aspect of cognition or thinking) are as much bodily functions as the movement of the limbs themselves. Such an approach is contrary to the approach of the Commissioner in CSDLA/867/1997, which sought to separate out cognition (which did not qualify) from hearing (which would have qualified). On Lord Slynn's test, each is a bodily function.

Conclusion

CDLA/2974/2004 is a welcome decision as it enables claimants who need attention to help them think straight or interact verbally with others to have that help taken into account, whereas even under the R(A)1/03 test such help may not have qualified as no physical function of the body may have been impaired.

However, that does not mean that all claims from people whose thinking may be said to be disordered or impaired will succeed. The claimant must still be disabled, albeit in the functional R(DLA)3/06 sense, and CDLA/2974/2004 makes plain that in these types of cases medical evidence may be required to substantiate a claim of disability. Moreover, the attention given (to assist to counteract the impairment of thinking) must be close and intimate. It must also be reasonably required. Related perhaps to this last requirement, it is only attention in connection with the functions of the mind which are responsible for a person's social functioning that CDLA/2974/2004 brings into account. Lastly, in order for the claim to succeed on impaired thinking alone under the attention in connection with bodily functions test, such attention will either have to be for a significant portion of the day or be frequent throughout the day.


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