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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CSA_993_2002 (21 July 2003) URL: http://www.bailii.org/uk/cases/UKSSCSC/2003/CSA_993_2002.html Cite as: [2003] UKSSCSC CSA_993_2002 |
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[2003] UKSSCSC CSA_993_2002 (21 July 2003)
DECISION OF SOCIAL SECURITY COMMISSIONER
Case Reference: CSA 993 2002
The main issue
"She described other help required, such as locking doors, carrying food from room to room and carrying shopping, none of which the Tribunal found to be in respect of bodily functions."
Background
"In this case the tribunal accept that help with bathing is something the claimant needs help with but of course bathing is not a bodily function. The help is given with movement of the limbs etc they are the bodily functions.
What the tribunal should have done is make findings as to whether or not carrying food in the house was sufficiently personal to qualify rather than saying that carrying was not a bodily function. If it is reasonable for the claimant to carry food then the bodily actions that make up carrying are bodily functions just as much as those which would enable a claimant to get in and out of the bath.
Having wrongly excluded a number of activities on this basis the tribunal cannot have come to a correct conclusion in respect of frequency etc."
Statutory provisions
"(2) … is so severely disabled physically or mentally that, by day, he requires from another person either –
(a) frequent attention throughout the day in connection with his bodily functions,
or
(b) … "
" … cannot prepare a cooked main meal for himself if he has the ingredients."
Oral hearing
My conclusion and reasons
Credibility
"She described in oral evidence receiving repeated assistance with regard to dressing, undressing and bathing, describing being helped to dress in the morning, undressed and helped to bathe and dress again at lunchtime, and her hair being washed separately. This appeared to the Tribunal inherently improbable as these activities might be reasonably combined."
Allowing challenge
"She had stated as a supplementary point that the number of times the help was needed varied depending on whether she needed to change to go out, but the Tribunal found the Appellant might reasonably anticipate outings and arrange to be helped to dress appropriately and found this attention to be required twice a day only."
Adequacy of facts and reasons.
" …all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."
Attention … in connection with [her] bodily functions
(a) The claimant must be so severely disabled physically or mentally that the appropriate attention needs arise.
(b) The claimant's physical or mental disablement must impair the exercise of a bodily function. "… [T]he word 'functions' … connotes the normal actions of any organs or set of organs of the body … ." (see Dunn L. J. in Packer). Thus it is now recognised that activities such as dressing and undressing, bathing, getting in and out of bed are not in themselves bodily functions but the result of the use of such. The bodily function impaired is to be identified (Mallinson).
(c) "Attention in connection with" is a narrower concept than "assistance with respect to". What is required relating to a bodily function must be service of a close and intimate nature. The result of Packer and Woodling is that domestic chores, such as cooking, preparing food, which are carried out by a helper for the claimant, do not constitute attention in connection with bodily functions because the essential physical intimacy is lacking. Although physical contact is not required (Fairey), the claimant must be present while the help is being given if he or she is to obtain benefit from it or there is an immediate link with the claimant's necessary presence (Cockburn).
(d) The service of close personal contact or intimacy must be reasonably required (Mallinson).
(e) The activity for which such assistance is required must be part of normal life (Fairey).
If any of the above is not demonstrated, it will be unnecessary to consider the remaining criteria.
"It is the kind of task which, when several people are living together in the same family, can be done by one person for the rest of the household, the other members of which need not be present while it is being done although it is done for their benefit. It is too remote from the bodily functions which each fit member of the household normally performs for himself." (Lord Hope of Craighead in Cockburn/Fairey).
Summary
(signed)
L T PARKER
Commissioner
Date: 21 July 2003