Summary
This decision overturns CA/2034/2004 where the commissioner decided that help with getting drinks which were carried to the claimant could count as attention in connection with bodily functions.
CA/2034/2004 focused on a case where the claimant could make drinks but not carry them. The Commissioner did not consider that the law was so strict as to limit the attention needs in such a situation to the physical act of lifting a pre-positioned and pre-filled cup or glass to their lips. They also pointed out that drinks, unlike meals, cannot be limited to a once daily preparation, and if the claimant reasonably required several (possibly hot) drinks a day, then any attention necessary to ensure that they were able to consume the drinks would be relevant.
The Secretary of State had appealed against this decision, the key argument being that help in carrying (as opposed to drinking) hot drinks did not count as attention.
The Court of Appeal considered previous case law when deciding what constituted attention. Paragraph 17 contains a summary of the arguments.
“17. It seems to me that those decisions of the House of Lords establish clearly the following propositions which are relevant to the present case. Firstly, the phrase "requires from another person frequent attention in connection with his bodily functions" is to be read as a whole. The word "attention" and "functions" give colour to each other and denote a special and personal requirement created by the disability beyond the normal run of domestic assistance. I take that to be the distinction intending by Lord Denning in Packer [R v NI Commissioner ex parte the Secretary of State for Social Services (1981) - published as an appendix to R(A)2/80], to which I have referred in the citation above. Secondly, "attention" in this context must be something more than personal service and involves care, consideration and vigilance for the person being attended. It is service of a close and intimate nature. I take that from the judgment of Dunn LJ in Packer, Lord Bridge in Woodling [v Secretary of State for Social Services (1984)], Lord Woolf in Mallinson [v Secretary of State for Social Security (1994) - reported in R(A)3/94] and Lord Goff and Lord Clyde in Cockburn . Thirdly, the word "functions" is narrower than "needs" and refers generally to the normal physiological actions which a fit person normally performs for himself. That is taken from the decision of Mr Commissioner Monroe, cited with approval in Packer's case by Dunn LJ, approved by Lord Bridge in Woodling and Lord Woolf in Mallinson and Lord Hope in Cockburn [ v CAO (1996) - reported in R(A)2/98].”
The bodily function in question was drinking but the assistance that the claimant had was only in connection with the transportation of drinks.
“That assistance has none of the characteristics of service of a close and intimate character, which is the clear theme running through the decisions to which I have referred.”
The Commissioner's decision was therefore overturned and the Secretary of State’s appeal allowed.
More information
- ca/2034/2004 - reported as r(a)1/06
- secretary of state for work and pensions v june batty - judgement
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