Attendance allowances

The case of Julie's incapacity

Henry Hodge

J's current state is that she is almost totally blind, apart from some crude light perception. She is severely defective, unable to read or write and unable to attend to her own toilet purposes, her own washing or any of her own bodily functions. She is able to talk and to perform simple tasks with her left hand only. Her right hand is effectively useless, apart from crude holding movements. This combination of blindness, mental defect, and rightsided weakness has made her severely incapacitated and her mother requires to tend to all her bodily functions including toilet, dressing and eating during the morning and when she comes home from her special centre, which she attends daily.

So wrote a hospital doctor in support of Mrs Janette More's application for an attendance allowance on behalf of the thirteen-year-old daughter, Julie. But the Attendance Allowance Board refused an allowance, and the Mores continued their struggle to keep Julie as well and happy as possible on Mr More's wage as a lorry driver.

The attendance allowance was a radical, new, non-contributory benefit first paid in December 1971 for the very severely disabled. At last the Government recognised that many severely disabled people needing regular attention had no rights to claim against anybody for their disablement, yet still desperately needed financial help. The allowance is only given to the long-term disabled and applicants have to meet the qualifying conditions for six months before the claim. An applicant until recently had to be:

So severely disabled physically or mentally that he requires from another person, in connection with his bodily functions, frequent attention throughout the day and prolonged or repeated attention during the night.

Or So severely disabled physically or mentally that he requires continual supervision from another person in order to avoid substantial danger to himself or others.

Additionally, the attendance allowance cannot be awarded to children under two and will only be awarded to those between two and fifteen if they:

Require attention and supervision substantially in excess of that normally required by a child of the same age and sex.

The allowance is in many ways a success story. It was introduced in 1971

and immediately caught on. By October 1972, 82,000 people were in receipt of the attendance allowance. The anticipation of the Government was that about 50,000 people would be eligible, but it clearly hit on an area of unmet need. Pressure was built up for the allowance to be extended and the qualification conditions simplified. Peculiar discrepancies happened — some mongoloid children got the allowance, others with equal difficulties were refused. people could satisfy the day time requirement of need for attention in relation to bodily functions, but not at night. Or they needed supervision to avoid danger either during the day or at night rather than both.

In March of this year, the Government broadened the scope of the allowance, introducing a two-tier system. There is now an upper allowance, at the old rate of £5.40 a week, and a new lower allowance at the rate of £3.60. The conditions for the allowance have also been simplified although the six-month qualifying period remains. Basically there are four conditions which the severely disabled have to satisfy; a need for frequent attention to bodily functions, and for constant supervision to avoid danger, by day, and also by night. Applicants will receive a lower rate if they satisfy both one day time and one night time condition.

But it is in the adjudication of the right to the allowance and in the assessment of qualifications that major areas of injustice are occurring. Claimants apply on a three page form and are asked to read a leaflet NI 181 which tells the claimant, "Once the claim has been made there is nothing more to do. . . . The Department of Health and Social Security will arrange for the necessary medical examination to be carried out, usually by the disabled person' own doctor." The doctor examines the claimant and fills in a form. That form is considered by a doctor appointed by the Attendance Allowance Board. If the allowance is granted, then well and good. If it is refused, the claimant can ask for a review within three months. If he does so another doctor arrives and fills in a slightly different form. That form, the original form, the application form, together with any written observations from the claimant and together with any other letters, are then examined by the Attendance Allowance Board, which issues a written decision supposed to contain reasons for its decision. If the allowance is not granted, there is a further right of appeal, but on a point of law only, to the National Insurance Commissioners.

Julie has never had her case properly put to any of the bodies who have considered her claim, and this case illuminates many of the difficulties that clanmants face. The forms used by doctors to report to the Attendance Allowance Board contain twelve questions where a claim is being made for a child and nine for adults. One question reads, Does the claimant need someone nearby every night and every day? If yes, for about how long can he be left at a time? Please give full details.' This is the only question relating to the need for continual supervision. One NI Commissioner has remarked in an unreported attendance allowance case that "The report forms designed to direct the attention of doctors to the relevant considerations for satisfying the conditions prescribed by the Act are unfortunately inadequately framed and largely fail to deal with paragraph (b) (the continual supervision requirement)."

In Julie's case, despite the inadequacy of the questions, the doctor considering the review application said that though he accepted her need for some supervision by day and occasional supervision at night, he felt that she did not require continual supervision. But both the other doctors had reported Julie could only be left alone for very short intervals, one saying twenty minutes as a maximum.

Julie's case is being taken to the National Insurance Commissioners, as it seems clear that, at the least, the reasons given for rejecting her claim were inadequate. But what of the thousands of other cases where the allowance has been refused? Should they not be reviewed? And should not the whole system of awarding the allowance be changed? The doctors who decide on the awards of the allowance try their best. But, although their medical expertise is useful in reaching their decisions, they largely have to decide on whether the facts of a particular case fit the statutory conditions for the allowance. They are not trained to do this and appear not to be guided as to how they should do it. At the very least, they should give clear comprehensible reasons which show they have weighed up the evidence as judges are required to do. Above all, more justice would be achieved if in this, as in every other area of national insurance, each claimant were given an opportunity to present his case to some sort of Tribunal, when its merits were still under consideration.

Mr Hodge is a solicitor who works for the Child Poverty Action Group.