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[2003] UKSSCSC CSDLA_629_2002 (14 March 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CSDLA/629/02

1. The decision of the Glasgow appeal tribunal (the tribunal) held on 1 May 2002 is erroneous in point of law. Accordingly, I set it aside and remit the case for rehearing by a differently constituted tribunal in accordance with guidance given below.

The main issue

2. The claimant, whose date of birth is 1 July 1968, was entitled to disability living allowance (DLA) at the higher rate of the mobility component (higher mobility) and the highest rate of the care component (highest care) from 17 September 2000 to 16 September 2001 and then made the renewal claim which is in issue in this appeal, effective from 17 September 2001. She has back and pelvis problems for which no specific diagnosis has yet been made but it is not disputed by the Secretary of State that she has the requisite disablement.
3. If it is reasonable and practicable for the claimant to use a commode downstairs during the day, as she has difficulty on the stairs and the only lavatory and bathroom are upstairs, the main question arising is whether help which is given to empty and clean the commode (on the assumption that the claimant is not able to do this herself because of disablement) is capable of constituting "attention…. in connection with …. bodily functions" within the meaning of s.72 of the Social Security Contributions and Benefits Act 1992?

Background

4. For the purposes of the renewal claim, on 10 May 2001 the claimant was examined by an examining medical practitioner (EMP). To the usual question about how far the claimant would be able to walk before the onset of severe discomfort, the EMP replied:-

"The client can walk up to about 130 metres with a halt in between – that is on level ground. There appears to be constant pain in the lower back but is made worse on walking and it brings on pain in the right leg."

5. The EMP said that it would take about 2½ minutes for that distance and emphasised that this estimate excluded a halt. He considered there was likely to be a halt of about 1 minute:-

"….which eases the pain in the lower back and right leg a little."

6. The EMP commented that she could use the stairs without someone's help "very slowly" and that a commode would be helpful downstairs. The home is spacious.
7. In a letter from the claimant's general practitioner (GP) dated 10 July 2001, he states:-

"Nevertheless the severe pain [the claimant] is experiencing is greatly affecting her quality of life. She can only walk less than 150 yards then has to stop because of severe discomfort and she finds she is unable to stand for any length of time. …."

8. In a report dated 20 November 2001 from the GP, commissioned by a tribunal in this case held on 15 November 2001, the GP said that she:

"Can walk 150 yds then has to stop – walks stooped and in pain, uses stick too. She walks slowly and cannot stand for very long e.g. in the kitchen, unable to cook etc."

9. On 21 May 2001, a decision maker (DM) had decided that the appellant is not entitled to any rate of DLA (mobility or care component) from and including 17 September 2001 and this was appealed to a tribunal. The appellant has been represented throughout the proceedings by a member of the local welfare rights service (the representative).

The tribunal hearing

10. The appellant attended with the representative. The representative submitted on her behalf that she remained entitled to higher mobility and highest care. No supervision needs were suggested, so that the focus was on the extent of the appellant's requirements for attention in connection with her bodily functions (attention needs).
11. The appellant said she would like to bath daily but this was too much hassle for her husband. She thought that she could put a commode in the press downstairs but not empty and clean it. She estimated that she used the toilet perhaps four times a day. The closing submission of the representative was to the effect that emptying and cleaning a commode constitutes attention.

Tribunal decision

12. The tribunal allowed the appeal to the extent of awarding the care component at the lower (sic) rate of care component from 17 September 2001 to 16 September 2004. It is clear that lowest rate care component was meant (lowest care) as the tribunal agreed that she reasonably required attention for a significant portion of the day with help to dress and to bathe.
13. In the tribunal's findings in fact, the only primary findings are these:-

"She suffers from back and pelvis pain.

She is able to walk at least 100 metres slowly before the onset of severe discomfort, slowly and with a halt to ease her pain.

……"

14. In its reasons for decision, the tribunal said it rejected night needs because the appellant's evidence on this was inconsistent with her statement to the EMP. That conclusion has not been pursued on appeal and I deal no further with it. All matters are however open before the new tribunal.
15. On higher mobility the tribunal noted:-

"…..that in her most recent Claim Pack, she stated that she could walk 100 yards before the onset of severe discomfort. In the Report dated 10^th May 2001, the visiting Doctor also noted that [the claimant] had stated to him that she could walk 100 yards before the onset of severe discomfort. The said visiting Doctor was of the opinion that, albeit with one halt to ease the pain, [the claimant] could walk 130 metres slowly before the onset of severe discomfort. Her evidence at the Tribunal was that she could only walk a few yards from her sitting room to the start of the stairs before having to stop due to pain. This was not accepted as it is entirely inconsistent with the information in both the Claim Form and to the visiting Doctor. It was also inconsistent with the opinion of her own G.P. in his Report dated 20 November 2001, that she was able to walk 150 yards. Taken overall, it was decided that she is not able or virtually unable to walk…..."

16. On day attention needs, the tribunal said this:-

"From her evidence, it was identified that [the claimant] requires help to dress, and to bathe. She also spoke to having problems on stairs, but most of the time if she goes slowly and uses the banister, can cope. Although she can manage her own toilet needs, problems arise because her living area is downstairs, whilst her toilet is upstairs. She accepted that she has the space to accommodate a commode downstairs and could use one if she had it, but would have difficulty in cleaning it. Taken overall, it was not accepted that the attention she reasonably requires is frequent throughout the day, so she is not entitled to the middle rate of the Care Component."

Appeal to the Commissioner

17. The sole ground of appeal to the Commissioner by the representative was that the tribunal's findings and reasons on emptying and cleaning a commode were inadequate. In granting leave, I directed attention to Cockburn v Chief Adjudication Officer, R(A) 2/98, (Cockburn) in which it was held by the House of Lords that taking away and washing the claimant's dirty linen did not constitute the necessary attention in connection with bodily functions. I asked the Secretary of State to address whether emptying and cleaning a commode was or was not similar.
18. The written submission from the Secretary of State did not support the appeal and was in these terms:-

"Attention must be provided in the presence of the disabled person and will generally involve physical or personal contact. In Cockburn V (sic) Chief Adjudication Officer, R(A) 2/98 it was held that where a domestic task is closely associated with a bodily function and performed as part of a continuous single episode of attention in connection with that bodily function, the domestic task may form part of that episode of attention. However taking away and washing the dirty linen did not constitute the necessary attention in connection with the claimant's bodily functions.

I submit that in the instant case there is no bodily function with which the claimant requires assistance. The emptying or cleaning of the commode is not associated with any aid to the claimant's bodily functions. I submit that the act of cleaning the commode lacks the necessary personal contact with the claimant. It is therefore too remote from any bodily function to assist the claimant."

19. In response, the representative cited CA/168/1987 and reiterated that the argument that the claimant was unable to empty or clean a commode if she had to use one was not answered in the tribunal decision.

Oral Hearing

20. The case came before me at an oral hearing (granted by a Legal Officer to the Commissioners) on 12 March 2003. The claimant was represented by Mr Orr, a Welfare Rights Officer of Glasgow City Council. The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Crilley, Solicitor, of the Office of the Solicitor to the Advocate General. I am indebted to both for submissions which I found helpful.

Concession

21. The adequacy of the reasoning by the tribunal with respect to higher mobility was not initially raised by either party. I drew attention to my concerns in this respect and Mr Bartos (after a brief recess to take further instructions) was content to allow me to reach any decision I saw fit on this matter, without further submissions from him.
22. Evaluation of the evidence and determination of the merits is for the tribunal. It is entitled to adopt the conclusions of another, provided there is no irrational or improper approach and the reason it does so is adequately explained. I do not consider that the tribunal's assessment (see paragraph 15 above) of the content of what the EMP and the GP said about the quality of the appellant's walking (see paragraphs 4, 5 and 8 above) fairly reflects the views of the two doctors. The tribunal erred in law by inaccurate analysis of the evidence, and its decision must be set aside.
23. Further, Mr Bartos conceded that the tribunal erred in law through inadequacy of fact finding and reasons with respect to the care component. It was not enough for the tribunal simply to state:-

"…..most of the time if she goes slowly and uses the banister, she can cope".

This did not sufficiently address her reasonable requirements for help on stairs. Further, insofar as provision of a commode downstairs was put forward as a reasonable and practicable alternative to avoid use of the stairs in the day, the tribunal failed to consider the specific submission on the claimant's ability to empty and clean the commode. I concur. The tribunal did not deal adequately with the above points. This is a second reason why the decision must be set aside.

24. However, Mr Bartos did not accept Mr Orr's suggestion that the tribunal should expressly have considered whether the claimant needed to bath during the day, perhaps to relieve pain. I agree with Mr Bartos that the tribunal did not err in this respect. The appellant was accompanied by an experienced representative who did not suggest at the hearing that bathing was required for these purposes. In such circumstances, a tribunal is entitled to assume that she does what is usual which is to combine bathing with dressing and undressing, in either the morning or the evening. If she uses a commode downstairs, washing her hands is certainly necessary but, although cooking was not put in issue at the tribunal hearing, she told the EMP how she prepared a cooked meal, so she has a kitchen and must have a sink. These matters may be addressed by the new tribunal if it wishes, but I am unable to accept that the tribunal went wrong by failing to ask questions and then to make findings on any hypothetical need to bathe more than once during the day. In the course of its inquisitorial duty, a tribunal is only expected to address plain and obvious points.

The arguments on the main issue

For the claimant

25. Mr Orr relied on three cases, CA/168/1987, CSDLA/44/02 (an earlier decision of my own) and Gregory Ramsden v. The Secretary of State for Work and Pensions, [2003] EWCA Civ 32 (Ramsden). He quoted extensively from them as the nub of his submission. I therefore find it convenient to do the same, particularly as Ramsden refers at length to the judgements in Cockburn which formed the basis of Mr Bartos' submission.
26. At paragraph 7 of CA/168/1987, the Commissioner took the view:-

"….She prefers to get to the toilet with the aid of her son, struggling up the stairs as best she can. He waits outside the door of the toilet and then helps her downstairs again. The decision of the DMP in relation to the commode discloses, in my view an error of law in that some of the most relevant considerations relating to it have not been set out and may not have been considered at all. For example, was there sufficient space for a commode in the room in which the claimant would sit during the day? Was there sufficient privacy for her to use a commode? Above all, who would empty the commode after it had been used by the claimant? Obviously it would have to be emptied soon after use and it seems equally obvious that the claimant, who walked with considerable difficulty using a stick, would not be able to empty the commode for herself. The need to empty the commode after use would, I consider, fall within the words, 'frequent attention throughout the day in connection with her bodily functions'. Emptying a commode, as well as doing any necessary disinfecting and cleaning-up, would be "in connection with her bodily functions". None of these matters were considered by the DMP and in failing to consider them he, in my view, erred in law."

27. I discussed the above case in CSDLA/44/02, at paragraphs 11 to 15:-

"11. If use of a commode remains an issue, then there is the important matter of emptying it. On the assumption that the claimant is not able to do this herself because of disablement, is help given to do it capable of constituting "attention in connection with bodily functions"? At minimum, to count as attention, there must be a service provided to the claimant of a personal and intimate nature. Some kinds of attention are closely connected with bodily functions and other kinds are too remote. There is always the dilemma of where and how to draw the line.

12. In Cockburn v. Chief Adjudication Officer (Cockburn), R(A)2/98 a majority of the House of Lords held that taking away and washing the dirty linen caused by the claimant's urinary incontinence did not constitute the necessary attention in connection with her bodily functions. However, in the view of a different majority in Cockburn on this point, changing of soiled bed linen which might be achieved without physical contact between the claimant and the person providing the service could suffice as sufficiently close and intimate. According to Lord Goff of Chieveley and Lord Mustill, even immediately rinsing out the soiled clothing so removed, where the claimant is too disabled to do this herself, can qualify as the relevant attention. Lord Slynn of Hadley, dissenting, would have gone even further.

13. It is clear from the overall tenor of the majority of the speeches in Cockburn and in the Secretary of State for Social Security v. Fairey, decided by the House of Lords at the same time, that the test of attention "in connection with" a bodily function is satisfied if the assistance is a close and intimate act that either must be carried out in the claimant's presence or is so very closely associated with such an act in time and place as to be, in effect, part and parcel of the required close and personal service necessarily carried out in the claimant's presence.

14. It does not seem to me obvious, as it apparently did to the Commissioner in CA/168/87, that a commode has to be emptied soon after use. However, different considerations might apply during the day or if faeces are passed. During the night hours, it seems unnecessary that the commode be immediately emptied but rather that such emptying can be left until the start of the next day. In such circumstances, emptying the commode and then cleaning and disinfecting it would be analogous to taking away and washing the dirty linen in the Cockburn case, and therefore not such as to constitute the necessary attention in connection with her bodily functions. However, what is reasonable is for the expertise of a tribunal. Is emptying a commode as necessary for a claimant's comfort and hygiene as removing soiled or wet bedlinen or night clothes, so that it is sufficiently connected with her bodily function of urinating? If it is reasonable to leave emptying the commode till the next day then, like the laundry, it does not count.

15. The tribunal therefore erred in failing to make adequate primary findings of fact about the claimant's capabilities with respect to her asserted night needs. However, its basic premise, that use of a commode subject to considerations of privacy and space may be reasonably expected, was right. If another has to help empty the commode, this is attention in connection with her bodily function of urinating only if it is unreasonable not to do so immediately thereafter."

28. Unsurprisingly, Mr Orr placed most emphasis on the Court of Appeal decision in Ramsden, in particular how it applied Cockburn. Sullivan J and Mance LJ agreed with the judgement of Lord Justice Potter. The case concerned a 12 year old boy with incontinence of the bowel who for psychological reasons does not wear pads. This led to soiling not only of his clothes but also of the floor, furniture and carpets nearby. The issue (see paragraph 7) was whether:-

"….a number of cleaning operations said by the applicant's mother to be immediately necessary as a result of his condition such as cleaning the toilet and shower area, the immediate washing of towels, sheets and clothing (as opposed to simply rinsing clothes) and the necessity on occasion to clean the floor, carpet or furnishings… had simply been treated as, and excluded under the rubric of, 'subsequent laundry of his soiled clothes'."

29. Potter LJ closely analysed the judgements in the House of Lords in Cockburn. At paragraphs 10 to 19 of Ramsden, he said:-

"10. In Cockburn, the House of Lords was concerned with the definition and ambit of the word "attention" for the purposes of s.64(2)(a) of the Act which provides an attendance allowance for persons over 65 and similarly includes provision in respect of a person who requires 'frequent attention throughout the day in connection with his bodily functions': cuff s.72 (1)(b)(i). The case concerned a lady who lived alone, was incontinent and suffered from severe arthritis which restricted the movement of her arms and legs. As a result she had to rely on her daughter to wash and dress her and to take away for washing the clothes and sheets soiled as a result of her incontinence. The Social Security Commissioner, upheld by the Court of Appeal, had held that any award of daytime attendance allowance must exclude the extra work involved in dealing with the laundry generated by the applicant's incontinence, on the grounds that it was not capable of being regarded as "attention" provided in connection with a bodily function within the meaning of s.64(2)(a).

11. In that case their Lordships were concerned with the decision of a Disability Appeal Tribunal which had stated its reasoning as follows:

"Incontinence is a bodily function and this incontinence generates extra washing. Mrs Cockburn cannot do the extra washing which is in connection with a bodily function. Consequently, Mrs Cockburn is entitled to attendance allowance."

12. The Commissioner had allowed an appeal against the tribunal's decision on the basis that the proper test was whether the daughter's washing of the additional laundry arising from Mrs Cockburn's incontinence was a "necessary chore of the kind which is normally done without personal or intimate connection with the applicant, or was something which, although normally done for a person for his own benefit, had to be done by some other person by reason of the applicant's disability". In upholding the Commissioner's decision, the majority of their Lordships approved and expanded upon the observations of Dunn LJ in R v National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 WLR 1017 that:

"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."

13. In Cockburn, Lord Hope of Craighead put it in this way at 822f-823d:

"In re Woodling [1984] 1 WLR 348, 352-353 Lord Bridge went on to say:

"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 [1981] 1 WLR 1017, 1025:

"I consider that the words of the section refer 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. I would find it very difficult to formulate any alternative criterion which would not give rise to difficulties in practice."

Earlier in his speech in re Woodling [1984] 1 WLR 348, 352d, Lord Bridge pointed out that the policy underlining section 35 of the Social Security Act 1975, of which section 64 of the Act of 1992 is a re-enactment, had stopped 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. So, large areas of domestic work in respect of which the disabled are necessarily dependent on others are deliberately excluded. I agree with that analysis and I regard it as decisive of the issue which is before us in this case.

In my opinion it is not enough to ask whether the act in question is done with the aim of keeping the disabled person clean and comfortable and in decent conditions. No doubt an act of that kind is of help to the disabled person, especially if – as in this case – the disabled person cannot perform that act for herself. The care, consideration and vigilance which the act involves may indeed be of such a degree and involve such devotion to duty as to amount to attention, rather than mere assistance within the meaning which Dunn LJ gave to that word. But it must also be "in connection with" the bodily functions of the person concerned. As Mr Commissioner Monroe put it in the passage which was quoted with approval by Lord Bridge in re Woodling [1984] 1 WLR 348, 352-353, the words of the section are directed primarily to those functions which a fit person normally performs for himself. The close connection which requires to be shown between the act and the bodily function will not in all cases depend on physical contact but, as Lord Bridge himself said, "a high degree of physical intimacy is required"."

Later, in relation to the particular facts in Cockburn, Lord Hope observed at 823g-h:

" … the fundamental problem which affects this part of her claim … is that the help which she receives is not designed to assist her in the performance of her bodily functions. The washing is done, not in her presence, but elsewhere. The best that can be said is that the need for it is a consequence of her incontinence, but that is not enough to satisfy the terms of the statute in the light of the policy which Lord Bridge of Harwich has described."

14. Agreeing with Lord Hope, Lord Clyde added at 824d-f:

"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 or claimant. The service is narrower than that of assistance. Assistance would cover activities 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. But that should not be understood as being so absolute a requirement as to exclude the changing of bed linen which might be achieved without physical contact between the claimant and the person providing the service. Nor should it be understood to exclude an incidental activity which might occur outwith the presence of the claimant during the course of what is otherwise an attention given to and in the presence of the claimant. But the laundry work in the present case seems me to fall outwith a service which is directed at the person of the claimant. It involves attention to the linen rather than attention to the claimant."

15. In relation to the ambit of, and policy underlying, the phrase "attention … in connection with [the applicant's] bodily functions", Lord Mustill stated as follows at 805a-c:

" … I cannot escape the conclusion that all the activities comprising the 'day attendance condition' must be performed while the other person is in attendance on the applicant: ie in his or her presence. I feel obliged to hold that any other conclusion would shift into this tightly constrained non-contributory benefit elements of need which perhaps ought to be catered for in a properly ordered society but which do not properly belong to this particular form of social support. The courts must, I believe, bear in mind that the entire shape of the social services legislation represents a strategy about the deployment of limited funds, and that to overstrain one element of the legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme."

16. Despite the requirement for performance of the relevant service or task in the presence of the applicant, it is plain that Lord Mustill considered that such a requirement called for a degree of latitude in its application. At 804b et seq, he approached the problem in that case in stages. He first concluded that incontinence was plainly a "bodily function" and that, if another person is required to attend in the lavatory to help or ease evacuation, that was plainly "in connection with" the bodily function. He went on to conclude that if an applicant is incontinent when dressed or in bed, then help with the task of changing clothes, bedclothes, nightwear and similar tasks is, similarly, help given in connection with a bodily function/malfunction. As a final step he added at 804e-f:

"(4) I would go one step further still. If the other person, having come in to strip the bed etc, had stayed to rinse the linen and hang it up to dry I believe that this, too, would have fallen within the section. Relying on earlier authority the Secretary of State describes laundry as a "household chore", and so it usually is. But I believe that this is too mechanical an application of the refined and substantial jurisprudence which has built up around the few words of section 64(2)(a). There are cases where it is better to concentrate on the words themselves, in the context of the actual dispute. In my opinion this is one. I see here a sufficient continuity between the applicant's incontinence and the presence of the other person to deal with the consequences on the spot to satisfy the section. If the other person had been asked why she spent an hour or so in the flat she would say that she had gone to help out the applicant's bladder problem."

Lord Mustill then went on to hold that, because the case advanced by the applicant concentrated on the work of laundering and not on the visit itself, and because such work was not done in the presence of the applicant, s.64 was not satisfied.

17. Lord Goff of Chieveley also based his decision upon the fact that the laundry services were not performed in the presence of the applicant but later and elsewhere. Lord Goff considered that:

"Having regard to the section and the purpose which it is intended to fulfil, the activities must be performed while in attendance on the applicant, ie in the applicant's presence." (801g)

18. Like Lord Mustill, Lord Goff was of the opinion that:

"Obviously, the requirement of presence has not to be applied too strictly, because attention of this kind may inevitably involve brief absences from the dependent person; but it marks a characteristic of the attention which is required, and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention." (801h-802a)

He continued:

"But, though performance of the relevant activity away from the applicant excludes it from the ambit of the section, the mere fact that it is performed in the applicant's presence is not of itself a qualification. Only if the attention is "frequent attention throughout the day in connection with [the applicant's] bodily functions" does it qualify." (802b)

19. In this respect he stated:

"Take the case of a lady who, because of her arthritis, is unable to get to the lavatory by herself. As a result, she may need help to get to the lavatory; or alternatively, if she has an accident because she cannot get to the lavatory in time, she may need help in cleaning up afterwards. I would regard these as cases in which, by reason of her disability, ie arthritis, she needs attention in connection with her bodily function of urinating, this being a bodily function which a fit person (one who does not suffer from arthritis) can perform without assistance." (802d)

Lord Goff concluded:

"In my opinion, in the case of an unfortunate woman who, because of her arthritis cannot cope with her incontinence, the services of changing her clothes or her bed linen and remaking her bed, even (as part of the same operation) rinsing out the soiled clothing removed from her, are sufficiently personal to fall within the section. But taking her laundry away to be washed transcends personal attention of that kind; and it follows that, as I have said, Mrs Cockburn's appeal must be dismissed." (802f-g)".

30. In paragraphs 35 to 37 of Ramsden Lord Justice Potter applied the Cockburn test to the facts of the case before him. He opined:

"35. ……the formulaic approach apparently adopted by the Tribunal, was incorrect. The case of Cockburn, while plainly drawing a distinction between (a) attention required (ie acts done to assist the applicant) in connection with the applicant's bodily functions and (b) subsequent washing or cleaning done elsewhere in consequence of the applicant's incontinence (see per Lord Hope at paragraph 13 above), nonetheless recognised the requirement for a degree of flexibility and/or the existence of a grey area in respect of the attention given. Thus, while such attention could not extend to the removal of bed linen for laundering later, it might nonetheless include certain acts such as the changing and immediate rinsing of bed linen soiled with urine which, in the strict sense, was neither assistance with a bodily function, nor necessarily effected in the immediate presence of the applicant (see per Lord Clyde at paragraph 14 above).

36. This grey area was the subject of examination and example in the speech of Lord Mustill who rejected "too mechanical an application" of the appropriate test in the context of the dispute. He preferred to focus upon the link between the applicant's incontinence and the presence of the helper there "to deal with the consequences" on the spot. Lord Goff was plainly of the same mind, specifically referring to the case of an incontinent applicant having an accident because he/she could not get to the lavatory in time and who "may need help in clearing (sic) up afterwards". Lord Goff regarded the service of changing clothes and bed linen, as well as the rinsing out of soiled clothing removed from the applicant as sufficiently personal services to fall within the section. Lord Slynn of Hadley had no doubt that the washing of clothes and bedclothes soiled with excretion fell within the ambit of attention in connection with the bodily functions of the applicant. However, his was a dissenting speech and the wide interpretation which he adopted was plainly at odds with the view of the majority.

37. I do not consider that the decision in Cockburn amounts to a formula or litmus test which can be applied as a matter of rote to a case of this kind. Whilst the decision makes clear that the laundering of bedclothes or of clothes, soiled by incontinence but taken away for laundering out of the presence of an applicant unable to do it for him or herself, cannot qualify as attention under s.64, and hence (by analogy) under s.72, it equally recognises that certain acts of attendance performed by way of immediate and essential 'cleaning-up' after an incident of incontinence may qualify as such attendance. Within the constraints of the requirement that such cleaning-up should take place in the presence or the vicinity of the applicant, I consider that steps taken for the immediate removal of soiling from clothes, bed linen or adjacent surfaces are apt to qualify under this head. In a case of faecal incontinence which results in the soiling of clothes, towels or bed linen, or the dropping or smearing of faeces on carpets or furniture, it is at the very least in the interests of hygiene that such occurrences be rectified immediately as part and parcel of the cleaning-up operation necessary following the incident of incontinence giving rise to such soiling. If that is done, then, even if the operation concerned is one of thorough washing rather than merely 'rinsing', the criteria of immediacy and intimacy are sufficiently satisfied and the time spent in cleaning-up should be taken into account when assessing whether or not the attention given amounts to a significant portion of the day."

(In paragraph 36, when quoting Lord Goff, it is apparent that the word should be 'cleaning' not 'clearing'.)

31. Mr Orr submitted that removing one's own bodily waste is something that everyone does for him or herself. If a claimant could not empty and clean a commode herself, then help to do so was closer to the removal of soil from clothes, bed linen, towels and adjacent surfaces than to the taking away of laundry from her mother's flat and washing it by the daughter in the Cockburn case.

For the respondent

32. Mr Bartos stressed the requirement in the above speeches in the House of Lords in Cockburn that "attention in connection with bodily functions" must include a service to the claimant carried out in the presence of the claimant and necessitating a degree of physical intimacy. Neither CA/168/87 nor CSDLA/44/02 nor the tribunal adequately identified the bodily function in issue. In a decision of the House of Lords, Mallinson v. Secretary of State, R(A) 3/94 (Mallinson), Lord Woolf had stressed that one of the four necessary questions is:-

"What bodily function does [the disability] impair?"

The claimant is not incontinent and therefore the bodily function is movement of her limbs.

33. Ramsden is materially different from the current appeal because it involved unpredictable faecal incontinence which resulted in a distasteful mess made initially in the presence of the claimant. He therefore required immediate cleaning up. At best, this appellant has a requirement for someone to take the commode upstairs to the bathroom and there to empty and clean it. This has no connection with the impaired bodily function of the use of her lower limbs. In any event, if there is any inconsistency, the decision of Cockburn is to be preferred to that of Ramsden because the former is a decision of the House of Lords. Mr Bartos thus submitted that any use of a commode did not amount to attention in connection with bodily functions, and I should substitute a decision to the same effect on care as that of the tribunal.

My conclusion and reasons

34. I do not regard Ramsden as inconsistent with Cockburn. Ramsden rightly points out that Cockburn accepted the need for a degree of flexibility so that attention may include acts which were neither technically "assistance with a bodily function, nor necessarily effected in the immediate presence of the applicant" (see paragraph 35 of Ramsden).
35. In Cockburn, it is by no means clear that the claimant was actually incontinent in the sense of lacking control of her bladder. In any event, both Lord Goff and Lord Mustill describe help given to one who, because of arthritis, is unable to get to the lavatory by herself or quickly enough, as attention in connection with the bodily function of urination. If she was not disabled by arthritis, she could perform the "business of urination" without assistance. I accordingly disagree with Mr Bartos that the bodily function in issue is movement of the limbs in this case and repeat my view in CSDLA/44/02 that the help given is in connection with the bodily function of urinating. Having regard to Ramsden, I also confirm what I set out in CSDLA/44/02 at paragraph 13 of that decision (see now paragraph 27 above) as my understanding of the test following Cockburn.
36. At paragraph 37 of Ramsden, Potter LJ stresses "presence or vicinity of the applicant" and "immediate removal of soiling etc". Once himself made clean, the claimant in Ramsden could be in another room (and is likely to be so as he is not a bed-ridden claimant as in Cockburn) while his mother cleaned up the environment and washed out clothes, towels and bed linen, having first removed the faeces. That here emptying and cleaning of the commode would be done in the bathroom outwith the claimant's presence is not I think decisive. As Mr Orr put it, "does it make a difference if she has an en-suite bathroom?" In my opinion, it is enough that it is usual and practicable to carry out the tasks within the domestic accommodation where the claimant lives.
37. There is also the sufficient intimacy and close and personal service necessary in such circumstances. I accept that when camping, for example, one member of a family may empty the unit's waste. But in ordinary living, each person disposes of his or her own bodily excretions. Emptying out another's personal waste and then disinfecting the receptacle has, in my view, the necessary degree of physical intimacy required. However, as I said in CSDLA/44/02, what is put forward as an act in connection with bodily functions must have an essential quality of "immediacy" with that bodily function. Therefore, the only emptying and/or cleaning of a commode which can count is what must reasonably be done immediately for the purposes of hygiene. It then has a sufficient connection with the claimant's action of urinating or defecating following which she would normally get rid of her own waste.
38. Where faeces were smeared over surrounding areas, Potter LJ clearly considered that it was obvious that in the interests of hygiene this should be cleaned up immediately. I am able to take no such view in respect of emptying a commode. Neither representative could help me with the practical matter of what kind of commode is typical of one currently supplied by a local authority. Presumably it has a lid. Does it contain chemicals, so that solid waste dissolves? So far as volume is concerned, how soon must it be emptied? I therefore consider that these matters must be for the fact finding and expertise of a tribunal.
39. Having heard oral argument today though, I remain convinced that as set out at paragraph 15 of CSDLA/44/02:-

"If another has to help empty the commode, this is attention in connection with her bodily function of urinating only if it is unreasonable not to do so immediately thereafter."

I would add only that an additional relevant bodily function is that of defecating and further that cleaning a commode is also relevant. Presumably emptying and cleaning are sensibly performed as part of the same operation but it is for a tribunal to determine, provided immediately required, how often each activity is needed and for how long.

Summary

40. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that it will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, but in accordance with the guidance on use of a commode as set out above and in CSDLA/44/02, and the determination of the claimant's case on the merits is entirely for the new tribunal. Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.

(Signed)

L T PARKER

Commissioner

Date: 14 March 2003