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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Advocate General For Scotland [2000] ScotCS 155 (9 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/155.html Cite as: [2000] ScotCS 155, 2001 SCLR 11 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Caplan Lord Milligan
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X131/99 OPINION OF THE COURT delivered by LORD MILLIGAN in APPEAL under Section 24 of the Social Security Administration Act 1992 by MARGARET STEWART, on behalf of ISAAC McPHEE Appellant; against THE ADVOCATE GENERAL FOR SCOTLAND Respondent: _______ |
Act: J.J. Mitchell, Q.C., Collins; Brodies, W.S. (Appellant)
Alt: Dewar; H. Macdiarmid (Respondent)
30 May 2000
[1] This is an appeal by Margaret Stewart, as appointee of her son Isaac, who was born on 26 July 1987. On 8 May 1996, she applied on his behalf for a Disability Living Allowance, the disability being described as "Chronic Asthmatic - Bed Wetter". The present appeal relates to refusal of the care component of the application so far as attention at night is concerned. In particular it concerns the appointee's actings in dealing with Isaac's bed wetting at night. The requirements for qualification for the component mentioned, so far as material to his application, are specified in section 72(1) of the Social Security and Contributions and Benefits Act 1992, which provides:
"Subject to the provisions of this Act a person shall be entitled to the care component of a Disability Living Allowance for any period throughout which .... (c) he is so severely disabled physically or mentally that, at night - (i) he requires from another person prolonged or repeated attention in connection with his bodily functions ....".
The present appeal is concerned, and solely concerned, with the meaning of "attention in connection with his bodily functions". In particular it is not concerned with what is required either by way of disablement or to qualify attention as prolonged and repeated in terms of the statutory provisions concerned. For present purposes we simply assume that these requirements were met. The phrase with which this appeal is concerned was first put in issue in the case by the Commissioner, who allowed the appeal made to him on other grounds but refused the application expressly because there was no "attention in connection with his bodily functions" on the Tribunal's findings in fact. The terms of the Tribunal's findings in fact were:-
"The appointee claimed DLA for Isaac on 8.5.96.
Isaac suffers from asthma and enuresis.
Isaac has no mobility needs.
Isaac has becotide - 2 puffs 4 times a day, bricanyl - 4 times a day and occasionally 6 times a day and slofylin - in the morning and in the evening.
Isaac cannot push down and inhale at the same time and so his mother always attends to the administration of the becotide.
Isaac's mother would not leave him in the bath.
It takes 5 minutes each time for the administration for the inhalers and medication.
Isaac wets the bed 5-7 nights in the week.
Once or twice in the week Isaac will wet twice in the night.
[2] Isaac's mother takes 20 minutes to attend to him when he wets the bed".
The Commissioner's decision, so far as relating to the sole matter with which we are concerned, was in the following terms:-
"17. However I consider that even if the tribunal's failure to establish whether the claimant suffered from a disablement caused by a recognised physical or mental condition was in error, if it is for the sake of argument accepted as such, their treatment of the night time attention conditions in respect of attention required in connection with bodily functions is seriously defective. They have not identified any bodily function which was impaired. If it can be inferred that the claimant's impairment was related to urinating, which realistically I think it can it is not at all clear upon what basis the tribunal found that he reasonably required attention in connection with that bodily function. In paragraph 11 of CSDLA/296/98 I said:-
'11. The tribunal also find that the claimant required repeated attention during the night with the bodily function of urinating. The evidence in this case in my view does not disclose that the claimant required attention in connection with urinating rather it was service in respect of the consequence of urinating which he received namely the changing of pyjamas and sheets. I refer in that connection to finding in fact 7'.
The situation is not dissimilar in the present case in relation to the findings in fact made by the tribunal.
I went on to say in CSDLA/296/98:-
'12. In the case of Cockburn v The Chief Adjudication Officer a judgment of the House of Lords was focused by Lord Hope of Craighead where he noted:-
"There are two bodily functions involved in Mrs Cockburn's case. The first is that of urinating. Her disability in regard to that function is her incontinence. But she does not require assistance in the performance of the function or urinating. Her problem is that she cannot cope with the consequences of her incontinence due to her arthritis. The assistance which she requires is in connection with the other bodily function, which is that of moving her limbs."
The situation is not dissimilar in the present case where there is no assistance which can be given to the claimant in the performance of the bodily function of urinating. Even if the enuresis had in itself been found to be a physical or mental disablement or the consequence of such as Lord Slynn said in his speech in Cockburn in respect of the requirement for attention in connection with bodily functions impaired by disablement:-
"The attention is provided by removing or reducing disability to enable the bodily function to operate or in some cases to provide a substitute for it."
That was not the service provided to the claimant when he involuntarily urinated while in bed'.
18. Mr Marshall on behalf of the claimant accepted on the authority of Cockburn the parameters placed upon the conditions and in particular the quotation from Lord Slynn quoted by me in paragraph 12 of CSDLA/296/98. He did however submit that in respect of the word 'operate' used by Lord Slynn this meant operation in a normally socially accepted manner which included such matters as washing the claimant and changing the bed clothes. However I am not satisfied that that is what was intended by Lord Slynn in his speech. It is quite clear that no attention for the bodily function of urinating was given by washing the claimant or removing, washing and replacing the bed clothes. It is thus clear to me that even in enuresis for the sake of argument was accepted as a physical or mental disablement that would be insufficient to bring him within the statutory parameters. Thus in apparently accepting that the claimant had requirements in connection with his bodily functions, which by inference was urinating they have erred in law and their decision must be set aside."
[3] Mr Mitchell, for the appellant, submitted that the Commissioner had erred in law in his decision on the point now in issue. In particular, the Commissioner sought as the basis for his decision to found on a passage in the speech of Lord Hope of Craighead in the case of Cockburn v Chief Adjudication Officer and another [1997] 1 WLR 799 (H.L.)), overlooking the fact that the other four judges in the case adopted a different and wider approach than that of Lord Hope in the passage founded upon by the Commissioner. Furthermore, the Commissioner wrongly attributed as relating to the case of Cockburn a passage in Lord Slynn's speech which related to a deafness case which the House heard at the same time as the case of Cockburn. In the result, Mr Dewar, for the respondent, stated that he could not challenge what Mr Mitchell submitted about the Commissioner misdirecting himself in relation to the case of Cockburn and he conceded that the Commissioner had erred in law and that the appeal should be allowed and the case remitted to the Tribunal for a rehearing of the application. In this situation, our Opinion on the matter can be stated more shortly than would otherwise be appropriate.
[4] The facts in the case of Cockburn were clearly very different to those in the present case. The Cockburn case involved an applicant who lived on her own and whose daughter came in weekly to take away for laundering by her clothes and bed linen soiled as a result of the applicant's incontinence which accompanied her severe arthritis. The present case involves an asthmatic child, 8 years old at the time of the application, for whom his mother "takes 20 minutes to attend to him when he wets the bed" on average about once a night. The exact nature of what she does can only be guessed at having regard to the lack of specification in the findings in fact. While the two cases are very different on their facts, whatever precisely the appointee does, some of the observations made in the speeches in the Cockburn case are clearly supportive of the present appeal. Under reference to the observations of Dunn L.J. in R. v. National Insurance Commissioners, ex parte Secretary of State for Social Services [1981] W.L.R. 1017 at page 1023, all of their Lordships accepted that activities which constitute "attention" will involve a degree of intimacy and will often take place in the person's presence although that requirement need not be strictly applied. Thus, Lord Goff said (at page 802),
"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".
He distinguished the taking away of laundry to be washed as transcending personal attention of that kind. Lord Mustill (at page 804), after dealing with cases involving accompanying a claimant to the lavatory, said,
"Assume now that the applicant does not manage to get to the lavatory in time and needs help to change his or her clothes and put things straight. I think it quite a small step to say that here the help is given in connection with a bodily malfunction which, as I have said, I would equate with a bodily function. And if this is right the same must be the case with the changing of bedclothes and nightwear and other tasks. ... 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..... 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 with the applicant's bladder problem".
Lord Slynn, who dissented in the result of the Cockburn case, which involved refusal of the applicant's appeal, said (at page 818),
"In considering these cases it is important to bear in mind that the 'care component' of the attendance allowance is concerned with 'care' and with 'attention'. The question in each case is whether the particular activities said to be 'attention' is reasonably required by the individual because of the severe disability affecting the relevant bodily function and is reasonably required in connection with that function. This question must be considered as a whole and I do not think that it helps to adopt particular categories which cannot ever be capable of constituting 'attention' ..... I do not think that attention necessarily involves physical contact. In particular, in a case like the present, the attention may involve acts of physical contact and acts where there is no physical contact. Preparing a warm sponge and soap and rinsing the sponge afterwards is as much a part of attention as the physical contact involved in cleaning the body. So, equally, I do not think that removing soiled, and providing clean, clothes and bedclothes, though in both cases it may begin by physical contact with the person involved, ceases to be capable of being attention because the cleaning of the clothes does not involve physical contact".
Lord Clyde (at page 823) said,
"She does not require attention in connection with the performance of the bodily function of urinating, but the fact that she is incontinent of urine increases her need for attention in connection with the other bodily functions which I have described".
The passage in the speech of Lord Hope referred to in paragraph 17 of the Commissioner's decision thus stands alone in support of the Commissioner's decision so far as the speeches in the Cockburn case are concerned. In particular the speeches of the other judges provide no support for the contention that the fact that Mrs Cockburn's problem was that she could not cope with the consequences of her incontinence due to her arthritis was in itself fatal to her case. Nor do they support Lord Hope's view that the assistance requires to be "in the performance of" the function of urinating.
[5] In our opinion, therefore, the Commissioner was clearly wrong in excluding as irrelevant as a matter of law attention provided following upon completion of the bodily function of urinating simply because the attention did not assist in the actual bodily function of urinating. We agree with the observations of Lord Goff, Lord Mustill, Lord Slynn and Lord Clyde in their speeches in the Cockburn case in the passages which we have quoted. Whether attention provided following completion of the bodily function of urinating will qualify as relevant in any particular case is a matter for consideration of the circumstances of the case under reference to the statutory requirements as a whole. The Cockburn case illustrates this point. The requirement for considering the whole circumstances of the case under reference to the statutory requirements as a whole thus applies to the rehearing of this case by the Tribunal. Our decision is not dependent on the possible relevance of attention assisting in the bodily function of sleep, a suggestion introduced into this case by Mr Mitchell in the course of his submissions but it is, of course, open for any such possible specific additional consideration to be introduced at the rehearing. On the whole matter, we sustain the appeal and remit the case to the Tribunal for rehearing.
