Gary Vaux is head of money advice, Hertfordshire
Council. He is unable to answer queries by post or telephone. If
you have a question to be answered please write to him c/o
Successfully claiming disability benefits such as attendance
allowance or disability living allowance often seems a lottery. The
guidance notes to the claim form tell the claimant what the social
security official who adjudicates on their claim is looking for but
not the exact meaning of the words used in the criteria.
For example, applicants have to show they “require frequent
attention throughout the day in connection with their bodily
functions, or continual supervision to avoid substantial danger to
themselves or others”.
To get the highest rate of allowance, they also have to show that,
at night-time, they need “prolonged or repeated attention in
connection with their bodily functions, or someone to be awake for
a prolonged period or at frequent intervals for the purpose of
watching over them in order to avoid substantial danger to
themselves or others.”
Filling in the claim form is hard enough without clients having to
meet criteria that only social security staff completely
understand. But because every one of those individual words in the
phrases given above has been argued over by claimants and their
representatives, they have clear and legally supported definitions.
So when you next fill in a claim form, use these definitions when
describing what help a claimant needs. The words in brackets are
references to social security case law.
- “Require”. Attention or supervision must be required but not
necessarily provided (R(A)/1/73). Attention must be reasonably
rather than medically required (R(A)/3/86). A severely disabled
person is not to be confined to doing only what a severely disabled
person can do and only given such attention as keeps them alive
(Secretary of State for Social Security v Fairey).
- “Frequent”. Several times, not just once or twice
- “Attention”. The attention is in connection with the bodily
function if it provides a substitute solution for an impaired
bodily function. Must involve contact, but not necessarily physical
– it can be established by the spoken word (Mallinson v Secretary
of State for Social Security).
- “Throughout the day”. Does not mean continually but at
intervals, even if irregular (CA 281/1989).
- “Bodily functions”. Include breathing, hearing, seeing, eating,
drinking, walking, sitting, sleeping, getting into or out of bed,
dressing, undressing, eliminating waste products, and so on. If,
for example, a blind claimant does their own shopping and needs
someone to act as a guide, this is attention with the bodily
function of seeing (Mallinson again).
- “Continual”. Not non-stop (R(A)2/75).
- “Supervision”. Can be precautionary or anticipatory; does not
have to be active (Moran v Secretary of State for Social Services).
Does not have to eliminate danger, just reduce real risk of harm
- “Substantial danger”. Danger to the claimant or another must
result from the claimant’s condition. Frequency is immaterial, but
must not be so improbable that it can be disregarded
- “Prolonged”. At least 20 minutes (CA/271/88).
- “Repeated”. More than once (CDLA/3360/95 and R(A)/2/80).
- “Frequent intervals”. Not defined but more than