e-mail Paul Lewis on paul@deadline.demon.co.uk
WAITING
The judgement has been a long time coming. It was November 1988 when Rebecca Halliday - then aged 14 - first applied for extra money to help with her care. Rebecca was born deaf and needed frequent help from someone else to get about and communicate in a world of hearing people. Naturally, her mother was the one who did these things for her and she helped Rebecca to apply for disability living allowance. To get it you have to show that you need frequent attention throughout the day from someone else with your bodily functions. To her mother it was a simple case - Rebecca needed at least as much care and attention from her during the day as many more obviously disabled young people. But the Department of Social Security said that 'bodily functions' meant things like dressing, eating and using the toilet - which Rebecca of course could do - but did not include help to travel to school or go out. Benefit was refused.
But Rebecca and her mother were not easily put off. They appealed, lost, appealed again and won. Then the Department of Social Security tried to get the decision overturned in the Court of Appeal. It lost but pursued the case to the highest court in Britain – the House of Lords. Finally on May 21, nearly nine years after that first claim, five Law Lords donned their wigs and decided what a handful of common words like 'attention' and 'bodily function' meant.
And what a dramatic effect their judgement will have. Rebecca won. And although she is only 22 years old, most of the people who will benefit from the judgement are pensioners simply because most disabled people are in their later years of life. Some estimates suggest that a quarter of a million more people will be able to claim help with the extra costs of being disabled.
THE JUDGEMENT
Some of the judgement may sound familiar to regular readers of Saga Magazine. In 1994 we reported on another case in which the Lords declared that 'bodily functions' included walking and they extended disability living allowance to many blind people who needed guidance when they walked about. But that judgement left open the important question of which activities were essential. In other words, would help walking to the cinema count equally with help walking to the doctors? Would getting someone to read you a novel be as important as reading a letter from the bank? The new judgement makes it clear that social and leisure activities are as important as keeping body and soul together and that any help needed by a disabled person to lead as normal a life as their disability will allow, can count towards getting disability living allowance. Here is how Lord Justice Slynn explained it.
"...I reject the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test, in my view, is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life. He is not to be confined to doing only the things which totally deaf (or blind) people can do and provided with only such attention as keeps him alive...In my opinion the yardstick of a 'normal life' is important; it is a better approach than adopting the test of whether something is 'essential' or 'desirable'. Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of a normal life. It is not in any way unreasonable that the severely disabled person should wish to be involved in them despite his disability."
GETTING BENEFIT
The result is that disabled people who need help to get about, to visit friends, to shop, to attend job interviews, to go out on trips will find it much easier to disability living allowance or attendance allowance. Most people who will qualify for these allowances will need help with a mixture of things, some of them personal such as eating, using the toilet, and dressing, some of them social, such as visiting friends or watching the television. But the important thing now is that they can add up all the time when they need someone else to help them do any of those things. And if the total amount of attention needed during every day is 'frequent' then they should be entitled to the allowance.
The benefit they get will depend on their age. People under 65 should claim the middle rate of the care component of disability living allowance. Those aged 65 or more should claim the lower rate of attendance allowance. The rules for both benefits are the same and, although Rebecca Halliday was young and claiming disability living allowance, the judgement applies equally to attendance allowance. The rates of both benefits are the same - £33.10 a week.
HOW TO CLAIM
A lot of the younger people affected by the judgement will already be getting some disability living allowance. The lower rate of the care component is £13.15 a week and many blind and deaf people already get it. They should now ask for that benefit to be reviewed in the light of the Halliday judgement and raised to the middle rate of £33.10 a week. They should also get a hefty back payment. The Benefits Agency may try to restrict backdating the benefit and say it cannot be paid for any time before May 21 1997 when the Lords made their judgement. But that is wrong. For complicated legal reasons, the allowance can be backdated at least to April 21 1994 and possibly earlier. And that could mean nearly £5000 in back pay.
People aged 65 or more cannot claim disability living allowance and cannot get the £13.15 rate of benefit. So most of the older people who can now claim will simply have to put in a fresh claim for attendance allowance. That will, unfortunately, not normally be backdated before the date of the claim. The same will apply to younger people who do not get the lower rate of disability living allowance.
People who have made a claim in the past and had it rejected may be able get the benefit backdated but this is an even more complicated area of law and they should put in a claim first and then seek advice from a Citizens Advice Bureau or other advice agency about getting it backdated.
INCONTINENCE
Some degree of bladder trouble is very common among older people - and some younger ones. It's an embarrassing condition and not one that people like talking about. But the Lords also decided that help with incontinence can also be a way to qualify for attendance allowance. The case was brought by a Mrs Cockburn. Aged 71, she suffers from urinary incontinence and has severe arthritis which prevents her from dealing with her own laundry. Her daughter visits frequently to help her with the extra work that her condition causes. The question the Law Lords were considering was whether taking away her soiled bed linen and clothing and washing it was 'attention' to the mother's condition. They decided it was not and Mrs Cockburn lost her case.
However, the reason they had come to this conclusion was because the laundry had been taken away to be washed somewhere else. And they said that in other circumstances the help given to someone who is incontinent can count towards qualifying for attendance allowance. In particular, helping them get to the lavatory, changing their clothes or bedclothes, rinsing the linen and hanging it up to dry all count as attention. But taking it away to wash it does not.
The result is that many more older people who have trouble with their bladder and who need help in dealing with the consequences, may be able to get attendance allowance. Anyone in this position should apply at once.
And do remember that attendance allowance and disability living allowance are given on the grounds that the person claiming NEEDS help regardless of whether they actually GET that help or not. In fact Mrs Cockburn did successfully get attendance allowance before the judgement on the grounds that she did need frequent help throughout the day because of her various disabilities.
FURTHER HELP
Your local Citizens Advice Bureau will be able to help with advice or information on making a claim for attendance allowance or disability living allowance. The address will be in the phone book. People with bad vision should contact the Royal National Institute for the Blind on 0345 666699. And those with hearing difficulties can contact the Royal National Institute for Deaf People on 0171 296 8000 or on minicom 0171 296 8001 or write to them at 19-23 Featherstone Street, London EC1Y 8SL. The Disability Alliance is on 0171 247 8763.
July 1997
e-mail Paul Lewis on paul@deadline.demon.co.uk