About this factsheet

This factsheet is part of our benefits range. It is written for deaf and hard of hearing adults aged 16 and over. The information applies to people who live in England, Scotland and Wales. Most of the information here will also apply to people in Northern Ireland, although the administration of benefits and the status of legal precedents is different in Northern Ireland.

In this factsheet, we tell you about challenging a decision about Disability Living Allowance (DLA) or Attendance Allowance (AA). Many deaf people have their claims for DLA or AA turned down when they first apply, but are successful when they challenge this decision.

The contents of this factsheet are as follows:

I am deaf. Will I find this factsheet useful?

This factsheet is written primarily for benefit advisers and representatives who help deaf people claim benefits.

But, yes, if you are a claimant and you want to know more about deafness and the law relating to DLA and AA, then you might find this factsheet useful.

We recommend that if you are making an appeal about your benefit, you get advice from the RNID Casework Service, a citizens advice bureau (CAB), law centre or welfare rights service. Some of these services may also offer to take on your case and represent you at an appeal hearing. All contact details of organisations that can help you are at the end of this factsheet.

Terms used in this factsheet

What are DLA and AA?

DLA and AA are social security benefits paid and administered by the Department for Work and Pensions (DWP). The offices that deal with DLA and AA are run by the Disability and Carers Service (DCS), which is part of the DWP. See our factsheets Disability Living Allowance (AA) and Attendance Allowance (AA) for information about how to apply for DLA or AA. The factsheets also explain the basic rules about how you qualify for benefit. Contact the RNID Information Line for copies.

DLA for children

The basic rules about care and mobility needs in DLA are similar for adults and children, but there are some extra tests that apply to children. If you are dealing with the DLA of a deaf child under 16 years, you should contact the National Deaf Children’s Society (NDCS) for more information.

How do the decision-making and appeals processes work?

The rules about DLA and AA, how decisions are made and how they can be challenged are set out in the law (see below for a short explanation of the law around DLA and AA).

The procedure for challenging a decision about your benefit is different for new claims and for existing awards. A decision may be revised or superseded. Both these terms mean a change in the decision, but in different circumstances. Usually, a decision about a new claim can be revised if you challenge it within the time limits. If your circumstances change after benefit is in payment, your award can be superseded. Your award can be superseded in certain other circumstances too (see "When will a decision be superseded?"). A decision-maker at the DWP can supersede or revise a decision if they think your benefit award is wrong, or you may ask for your benefit to be reconsidered.

You can also appeal against most decisions affecting your benefit. You can appeal against a new award of benefit, a refusal to award benefit or a refusal to change your current award of benefit. You must make an appeal within very strict time limits. An appeal is decided by an independent tribunal rather than a DWP decision-maker. You can attend a tribunal hearing in person.

What is the 'dispute period'?

If you disagree with a decision about your benefit, there is a one-month 'dispute period' during which you can challenge that decision. During this time you can:

The dispute period starts on the date the decision was made. This date will be on the letter notifying you of the decision. Because of the post, it may take up to a week for you to receive this letter.

The dispute period can be extended in certain circumstances:

Asking for a verbal explanation

You should contact the office that gave you the original decision. The telephone or textphone number will be in the decision notice. Asking for a verbal explanation is the fastest way of finding out the reasons behind the original decision. However, it is a good idea to ask for a written statement of reasons.

Asking for a written statement of reasons

Write to the office that made the decision. The address is in the decision notice. In practice, you should receive the written statement within 14 days, but it may well take longer. See above for how this affects the dispute period.

A written explanation of the decision should help you understand how the decision was reached. Finding out the reasons for the decision can help you see whether you think the decision was wrong – and, if so, why. For example, the decision-maker may have overestimated your lipreading ability, or they may have made a mistake about the law. However, you do not have to ask for a verbal explanation or written statement of reasons before asking for a decision to be revised. 

When may a decision be revised?

You can ask for a revision by telephone, textphone, fax or letter to the office that made the decision. You must apply within the time limit (see dispute period). When the revision has taken place, you will be sent the new decision in writing. If you are unhappy with the new decision, you have one month from the date of the new decision to appeal to an independent tribunal.
A revised decision will take effect from the date of the original decision (so if it was a new claim, your benefit will be backdated to the original date of claim).
You do not have to show any special grounds to ask for a decision to be revised in the dispute period – you only have to say that you disagree with the decision and the DWP will have to look at it again. However, it is best to explain why you disagree with the decision.

The revision process can be much quicker than going to appeal, but some DWP decision-makers may not be very deaf-aware. If the revision does not overturn the decision, you can still appeal to an independent tribunal.

A revision is more likely to be successful if you are able to give the decision-maker some new evidence they have not already considered. For example, they may not know if you need a BSL interpreter at college or at work. An appeal is often a better way of overturning a decision when the facts are not disputed but the issue is how you cope with your communication needs. You will have a chance to attend the hearing and explain how often you need help to communicate. Also, it will be a much fuller examination of your case and at least one tribunal member will have experience of disability issues.

When may a decision be superseded?

In general, a decision can be superseded if it needs to be changed after the dispute period is over. You can ask for a supersession at any time if:

If you already receive DLA or AA and you want it to be increased you can ask for your award to be superseded. You should contact the Disability Benefits Unit in Blackpool by telephone, textphone, fax or letter.

You will need to show grounds (a good reason) for the award to be superseded and looked at again. Usually, the grounds will be that your care, mobility or communication needs have changed. If the DWP decision-maker thinks there are no grounds for supersession, they may refuse to carry out a supersession. They must send you a decision that explains that they are refusing to do a supersession. You have the right to apply for either a revision or an appeal against this decision.

The DWP say they aim to give a decision on a change of circumstances within 11 weeks, but they may take longer. If you still disagree with the new decision, you have one month from the date of the new decision to apply for either a revision or an appeal. A superseded decision normally takes effect from the date the supersession request was made.

In certain circumstances, there are some extra rules about when a superseded decision takes effect:

How do I appeal?

You have the right to appeal to an independent tribunal if:

You can make an appeal without first asking for a verbal or written explanation or a revision. The normal time limit for appealing against a decision is one month, but this can be extended by up to one year in exceptional circumstances (see "What is the 'dispute period'?").

You must make an appeal in writing. There is a special form for making an appeal contained in the DWP leaflet GL24 If you think the decision is wrong. Contact the Disability Benefits Helpline for a copy. You can also download the leaflet from the DWP website (external link, opens new browser window).

On your appeal request you must:

Send your appeal request to the office that made the decision. When an appeal is made, a decision-maker at the DWP should look closely at the decision and your appeal letter, and consider whether the decision should be changed. They may contact you for further information at this stage. If, based on the information they have, they are able to revise the decision they should do so at the earliest possible stage. This can save the time and inconvenience of an unnecessary appeal hearing.

The Tribunals Service

If the DWP do not think the decision should be changed they will prepare an appeal submission and schedule of evidence. They will send a copy to you and a copy to the Tribunals Service, which is responsible for arranging the hearing. The Tribunals Service is completely independent of the DWP. The Department of Constitutional Affairs has responsibility for providing administrative support to the Tribunals Service.

The Tribunals Service deals with social security and child support appeals, as well as most of the other sorts of tribunals (including employment, mental health, immigration and income tax tribunals). You can find more information on the range of tribunals at the Tribunals Service website (external link, opens new browser window).

Once your appeal has been registered, the Tribunals Service will send you an enquiry form called a TAS1. This collects information to help them organise a suitable hearing for you. The form asks:

Can communication support be arranged for the appeal hearing?

You have the right to professional communication support such as an interpreter, lipspeaker or speech-to-text reporter at the hearing. You should specify on form TAS1 what type of communication support you need. If you arrive at the hearing and there is no communication support, you should insist that the tribunal takes place on another day when support is available.

What is the schedule of evidence?

You should receive the schedule of evidence at the same time as the TAS1. It will contain all the information about your appeal, including copies of claim forms, your appeal request, doctors' reports and any advice the decision-maker has received from DWP medical services. The decision-maker will also include their submission – this should set out the facts of your case, explain why the DWP made their decision and also explain why they have refused to change the decision. You should read this submission carefully. If there are any mistakes in the submission, write to the Tribunals Service straight away. They will add any extra information you supply to the schedule of evidence and make sure that the tribunal and the DWP get copies of it.

You can send in more information to support your case at any time before the hearing. This could be a supporting letter from a doctor, social worker, carer, audiologist, hearing therapist or someone similar who knows about your communication needs. If the appeal papers contain a medical report that does not support your case, you should try to get evidence from another medical professional that is more helpful. Sometimes an examining doctor sent by the DWP does not do a full examination or makes assumptions that cannot be justified. You may be able to get more accurate evidence from a doctor or medical professional who knows your case well. It is important that any extra evidence you get concentrates on your communication needs and the help you need because of your deafness.

If you take new evidence along on the day, the tribunal may be quite happy to look at it, but if the new evidence is long or complex they might decide to adjourn your hearing for a later date. 

What happens at the appeal hearing?

You should get at least 14 days notice of an oral hearing. When you arrive at the venue you will be greeted by a clerk who will explain what will happen during the hearing. They will also arrange to pay any expenses or fares you have had to pay. If you have asked for a lipreader or BSL interpreter for the hearing, you should have a chance to speak to them before the hearing starts.

Most appeals about DLA or AA are heard by a tribunal of three people:

If your appeal is not about a disability issue – for example, whether DLA can be paid in a care home, or whether you meet the residence conditions to receive benefit – it can be heard by a one person tribunal.

A presenting officer from the DWP may also attend the hearing, although this doesn't happen as often as it used to. They are there to help the tribunal, and explain DWP procedures. A tribunal hearing is not like an adversarial court of law, with a defence and a prosecution case. Sometimes a presenting officer may agree with an award of benefit after hearing evidence at the hearing. Appeal tribunals have an 'inquisitorial' function. This means that they can investigate or explore how your deafness affects you. There are no rules about the order of proceedings. A tribunal chairperson can conduct the hearing as they choose. But whatever the style of the individual chairperson, you should get the opportunity to explain your case during the hearing. The chairperson should also make sure that you understand what is going on at all times.

The tribunal is not allowed to conduct any medical examinations or physical tests. If, for example, there is any doubt about your level of hearing loss, the tribunal should adjourn (meet on another day) until after a hearing test has been arranged. The tribunal can only look at your circumstances at the time of the decision you are appealing against. Any changes that have taken place since that date cannot be taken into account.

Preparing for an appeal

It is very important that you prepare well for the hearing. You should think carefully about your case and be ready to explain why you qualify for benefit. An adviser or representative can help you prepare a submission that puts your case in writing. Your submission can include relevant examples of DLA or AA case law.

After the appeal

At the end of the hearing, the tribunal will ask you and the DWP presenting officer (if present) to leave the room and they will consider their decision. The tribunal will normally give you their decision on the day of the hearing. You will also be given a short written notification. Sometimes the tribunal may not give you the decision on the day, but they should post the decision to you as soon as possible.

If you disagree with the tribunal's decision you may be able to appeal to the Social Security Commissioners. You have to ask for leave (permission) to appeal and you will only get leave if you can show the tribunal's decision contains an error of law.

Examples of error of law include:

If there was some sort of breach of the rules of natural justice this could also be an error of law. But if it was a clear breach of natural justice it may be possible to apply to have the decision set aside by the Tribunals Service district chair without going to the Commissioners.

If you are considering seeking leave to appeal you should ask for:

You must request the statement of reasons and record of proceedings within one month of the date of the hearing (or one month after the decision of the tribunal was posted to you). Write to the Tribunals Service to request these. Once you receive them you have one month to make your request for leave to appeal. The month starts from the date the statement of reasons was sent to you. This is the date on the cover letter sent with the statement of reasons. This deadline can be extended for up to a further 12 months in exceptional cases.

To apply for leave, write to the tribunal chairman at the Tribunals Service, enclosing a copy of the statement of reasons and record of proceedings, and explain where you think the tribunal has made an error of law. If the tribunal chairman refuses leave you have another month to request leave directly from the Social Security Commissioners' office. It is also possible for the DWP to seek leave to appeal to the Commissioners if they think the decision is wrong.

If you are successful in your appeal to the Commissioners, the disputed decision will be set aside. Your case will then normally go back to another tribunal for a re-hearing.

You should seek advice from a welfare benefits specialist if your case is going to the Commissioners.

What is the legal background of DLA?

This is a brief explanation of the relevant law governing DLA. All the rules and regulations regarding benefits are set out in legislation – who can qualify, how to claim, how much is paid.

Where does the law come from?

Acts are passed by parliament. They provide the framework of the rules regarding all benefits. Regulations are also passed by parliament. Where an act may make general rules or provisions, the regulation provides the detailed rules for each benefit and detailed procedures for decision-making.

The rules for DLA are in sections 71-76 of the Social Security Contributions & Benefits Act 1992 and The Social Security (Disability Living Allowance) Regulations 1991. The rules for AA are in sections 64-67 of the Social Security Contributions & Benefits Act 1992 and the Social Security (Attendance Allowance) Regulations 1991. 

The basic rules for decision-making and appeals are in the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The 'blue volumes'

The 'blue volumes' or The Law Relating to Social Security are a series of ring binders (in 12 volumes) containing all the legislation relating to benefits in its amended form. A law library may have these volumes, but you should make sure that they are regularly updated. The blue volumes are also available online - this should always be the most up-to-date source.

Case law

Many of the principles about the disability conditions for DLA and AA (what constitutes a care need and how different disabilities should be assessed) are derived from case law. Case law describes law that is based on decisions on previous cases. These decisions clarify or interpret the meaning of the legislation. Case law can be just as important as acts and regulations.

Commissioners' decisions

Commissioners' decisions are the most common form of social security case law. Social Security Commissioners hear appeals against the decisions of appeal tribunals.

Commissioners' decisions are binding on decision-makers and tribunals. All commissioners' decisions have equal authority even if there is a conflict between their individual interpretations of the law.

Some decisions of general application or interest are reported. A reported decision will be given more weight than an unreported one, and a decision of a Tribunal of Commissioners (three Commissioners sitting together) should be followed in preference to a single Commissioner. There is no obligation to prefer an earlier decision to a more recent one, or vice versa. Commissioners' decisions are identified by case reference number.

How to identify commissioners' decisions

Commissioners' decisions are identified by their case number. For example, CA/20/1998 was the 20th AA case received in 1988. The initial after the C gives the benefit involved:

Decisions made in Scotland have the same weight as those made in England and Wales but are identified with an S, for example, CSDLA/29/1994. Northern Ireland decisions do not set precedent in Great Britain but may be persuasive case law.

When a decision is reported it is given a new number. For example: R(DLA) 2/02 was the second DLA decision reported in 2002. It was previously known as CDLA/3433/1999.

Decisions of other courts

Sometimes benefits cases can be heard by other courts. An appeal against a commissioners' decision can be made to the Court of Appeal, and from there a further appeal can go to the House of Lords. Alternatively, a client could take a judicial review of a DWP decision. Court decisions are binding on appeal tribunals. Court decisions are usually identified by the name of the person making the appeal.

Nelligan's Digest is a summary of reported commissioners' decisions published by the DWP. It does not contain complete decisions, but it is useful to trace the development of case law in certain subject areas.

Guidance and directions

The DWP sometimes sets out extra guidance for its decision-makers, explaining how they should interpret the rules on different benefits. Decision-makers should take account of guidance but it is not legally binding, and it would not normally be quoted in appeal submissions.

In DLA and AA cases decision-makers often refer to guidance called the Disability Handbook (compiled by DWP Medical Services) to help them understand the effects of a range of medical conditions. This has not been updated for some time and is generally considered to be incomplete and out of date. The DWP is undertaking work to review and improve the guidance. This may help to make decision-making more consistent.

What case law is there regarding deafness in DLA and AA?

DLA care component and AA

If you are claiming DLA solely on the basis of your deafness, and you are severely or profoundly deaf, you ought to qualify for the lower or middle rate of DLA care component. If you are over 65 you have to claim AA instead of DLA. Lower rate AA is the equivalent of middle rate DLA care. There is no equivalent in AA of the DLA lower rate care component, so it is harder for deaf people aged 65 and over to qualify for AA.

You qualify for DLA care component (or AA if you are over 65) if you are;
"so severely disabled mentally or physically ..." that you require from another person "...attention in connection with [your] bodily functions" (s64 and s72 Social Security Contributions & Benefits Act 1992).

The rate of DLA care component or AA you get depends on the amount of attention you need during the day:

To qualify for the highest rate of DLA care component or higher rate AA, you have to require attention both by day and by night. If your only disability is your deafness you are unlikely to have enough care needs by night to qualify for any higher rates.

It is also possible to qualify for AA or DLA care component if you need;
"continual supervision throughout the day" (s64(2)(b) and s72(1)(b)(ii) Social Security Contributions & Benefits Act 1992).

A deaf person is unlikely to qualify for AA or DLA care component through the 'supervision' conditions because of their deafness. Although a deaf person may need supervision in certain situations – for example, because they cannot hear traffic approaching – this is unlikely to be required 'continually' throughout the day, so would not qualify for the care component.

If you are under 65 and you need guidance or supervision out of doors you may qualify for the DLA lower rate mobility component.

Bodily functions

"Bodily functions" are not defined in legislation, but there is some helpful case law;
"Bodily functions include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products [going to the toilet]... they do not include cooking, shopping or any other ... domestic duties" (Lord Denning in R v National Insurance Commissioner, ex parte Secretary of State for Social Services, 1981, reported as R(A)2/80, also known as Packer).

In R(DLA) 1/07, a Tribunal of Commissioners decided that communication is not itself a bodily function but an activity involving a number of separate bodily functions, such as hearing, seeing, speaking and movement. The Commissioners stated, "In a case where the claimant's claim for benefit is based upon difficulties with communicating, it will be possible to look at the particular functional aspects that are deficient in his or her case, in order to properly assess the attention that will be reasonably required in respect of those deficiencies".

Help with communication is therefore attention in connection with certain bodily functions. It is therefore important to identify the relevant bodily functions that underlie an individual's communication difficulties. In all appeals for deaf claimants this would include hearing. It may also include speech, depending on whether the individual has difficulties with their speech. 

Attention in connection with bodily functions

Lord Justice Dunn, also in the Packer case, said:
"the word 'attention' itself … suggests a service of a close and intimate nature. And the phrase 'attention … in connection with … bodily functions' involves some service involving personal contact carried out in the presence of the disabled person".

The House of Lords, in the case of a blind man, decided:
"the fact that your disability is so severe that you are incapable of exercising a bodily function does not mean that the attention you receive is not in connection with that bodily function. The attention is in connection with the bodily function if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired" (Mallinson v Secretary of State for Social Security, 1994).

Although no amount of attention could enable him to see, a guide provides attention by 'acting as the eyes' of the blind man. This approach also applies to deaf people. In the case of Rebecca Halliday, a deaf sign language user, the House of Lords ruled:
"providing interpretation by sign language … has sufficiently 'the active and the close, caring, personal qualities referred to in the authorities' … as to constitute attention" (Secretary of State v Fairey [aka Halliday], 1997).

The service does not have to be provided by a professional interpreter. Informal interpreting provided by friends, family or work colleagues can also count as attention.

Attention 'reasonably required'

A DLA decision-maker should consider what attention you 'reasonably require', not just what is medically necessary (R v Social Security Commissioner ex parte Connolly, 1986, reported as R(A)3/86). It does not matter whether you actually receive any attention, it is what you require that counts. However, the fact that attention is actually provided "is strong evidence that it was required" (R(A)1/73).

In the Fairey case, the House of Lords decided that sign language interpreting to enable a deaf person to take part in social activities was 'reasonably required' attention. Lord Slynn held:
"the test … is whether the attention is reasonably required to enable the severely disabled person, as far as reasonably possible, to live a normal life … Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life".

Decision-makers and tribunals should apply their judgement in each individual case when deciding what counts as reasonable. As Lord Slynn put it: "what is reasonable depends on the age, sex, interests of the applicant and other circumstances".

If you have been awarded lower rate DLA care component and you want to ask for middle rate you will often need to explain the sort of activities you would like to carry out if you had more communication support. These could include work, education, undertaking a hobby or attending social events. Any help or attention you need to do these activities should be included in your care needs. If you can show that you reasonably require this sort of help 'frequently throughout the day' you should qualify for AA or middle rate care.  However, to get an increase from the lower to the middle rate of the DLA care component, you also need to show that there are grounds for the award to be superseded.

'Significant portion of the day'

This condition applies to low rate DLA care. You have to show for how long you need attention. When DLA was introduced, the government suggested that the term "significant portion of the day" should be taken to mean "an hour or thereabouts" (Hansard Lords Debates, 25 March 1991, col 884). The law states that a significant portion may comprise "a single period or a number of periods" (s72(1)(a)(i) Social Security Contributions and Benefits Act 1992). A commissioner has said that tribunals do not need to measure exactly how much time each bit of attention takes, but they should "make a broad determination … of the percentage or fraction of the normal day … that total involved" (CSDLA/29/1994).

'Frequently throughout the day'

The meaning of the phrase 'frequently throughout the day' has been the subject of a large amount of case law. The most recent reported decision is R(DLA)5/05. Judge Hickinbottom held that 'frequent' depends on a number of factors, the most important being the number of occasions something occurs and the pattern of occurrences – that is, the time period over which they occur. The nature of occurrences themselves is also relevant. 

In general, you need to show that you need some help in the morning, some during the afternoon and some in the evening. You might need quite a bit of help a few times a day, or just a few minutes help many times a day.  

Keep a 'care diary'

To qualify for AA or middle rate DLA care it is important to show how often you need attention. A care diary can be a useful way to give a picture of the sort of help you need and how often you need it. Keep a diary for a week or so, and list all the times when you need communication support. This could be when you are shopping, at work or at college, and when you are socialising or taking part in leisure activities. Read our factsheet Disability Living Allowance (DLA) for more detailed examples of communication support needs.  

Help with reading and writing

In some cases, explaining written English to a prelingually deaf person – that is, someone who was born deaf or became deaf before they learned a spoken language – can count as attention with a bodily function. In the case of a deaf person who had "difficulty in understanding written English so that on occasions he required assistance with reading and writing", Commissioner Sanders decided: "the claimant was entitled to have such assistance taken into account because the need arose out of the impaired bodily function of hearing" (CDLA/16668/1996). See also CSA/721/2000 which confirms that help with reading and writing can count for prelingually deaf people whose first language is BSL.

R(DLA) 2/02 (paragraph 33) also supports this view. Commissioner Levenson considered that the interpretation of the written word is related to the bodily function of hearing as well as cognitive functions, where the difficulty with literacy arises from prelingual deafness. He considered that there was no significant difference between the interpretation of the written word and what happens with interpreting speech.

Aids, adaptations and special equipment

The law says that you must need attention 'from another person'. So the help you require from interpreters, lipspeakers and speech-to-text reporters can be included as your care needs. However, if your need for communication support can be met by a communication aid or a piece of equipment, the DWP could argue that you do not require attention.

Attention can only count if it "is required to be given in the physical presence of the severely disabled person" (DLA regulation 10C). This means that an RNID Typetalk operator, who enables a deaf textphone user to communicate with a hearing person, cannot be providing attention.

A communication aid must be both 'reasonable' and 'practical' and used to overcome a need for attention (see R(A)1/87 and R(A)3/90). For example, it might be argued that subtitles overcome the need for another person to explain television programmes to you. You could argue that this is not a practical alternative, because not all programmes are subtitled and it is not reasonable for deaf people to restrict themselves only to programmes that are subtitled. Similarly, a hearing aid may be no substitute for a lipspeaker if background noise makes it hard to distinguish speech.

Lipreading

The DWP may argue that if you can lipread, you do not need an interpreter. A decision-maker should consider whether lipreading is a reasonable or practical alternative to communication support from a third person. You should explain to the tribunal that lipreading is not an exact science and that even the best lipreaders cannot follow everything that is said. Research suggests that as little as 25% of speech can be understood by lipreading alone (Dodd B, 'The role of vision in the perceptions of speech', Perception No 6, 1977). Lipreading is not a practical option in certain situations, for example, if you are in a meeting or group of people or if you are tired and cannot concentrate. Additionally, if British Sign Language (BSL) is your first language, you may find it hard to lipread English.

Communicating with written notes

The DWP may argue that the need for an interpreter can be avoided by communicating through written messages. A lot will depend on the specific circumstances of each case, depending on the literacy of the claimant and the complexity of the communication, but you could argue that written messages are not a reasonable alternative to providing a sign language interpreter.

In R(DLA) 2/02 (CDLA/3433/1999) Commissioner Levenson held that:
"if communicating through an interpreter is significantly more efficient or effective than communicating through writing, or trying to converse with a person who has to shout loudly, then it might well be that the services of an interpreter are reasonably required".

In R(DLA) 3/02 Commissioner Fellner agreed that:
"writing notes, and reading those written by a claimant, does take more time, especially if handwriting on one side or the other or both is bad; though no doubt such communications are made as short and simple as possible. Here, I think, much would depend on the complexity of the information to be communicated".

In practice, a decision-maker should look at how well you can read and write, how complicated the information that needs to be communicated is, and how practical it is to use written messages in particular situations. It may be that you would find it a lot easier if you had a BSL interpreter or lipspeaker. Also, if you need a notetaker or speech-to-text reporter to interpret spoken English to written English, that person is providing attention.

Domestic duties

In most cases, help with domestic tasks such as cleaning the house or doing your laundry or shopping does not count as 'attention in connection with bodily functions'. Lord Justice O'Connor, in the Packer case, concluded that "cooking is too remote from the proximity that 'attention in connection with a bodily function' necessarily requires" whereas "cutting up food for a person and/or feeding it to a person" could count.

However, if you need help so that you can perform your own domestic tasks, this may count as a care need. For example, you may do your own shopping but need help with communication at the shops.

In CDLA/267/94 Commissioner Rowland held that "if a claimant reasonably requires to be able himself to cook and can do so if he has assistance with, for example, seeing or lifting, that seems to me to show a requirement for attention in connection with his bodily functions".

Commissioner Sanders, in the case of a visually impaired woman, ruled that:
"if someone else goes shopping for her that would not count as qualifying attention. But if it is reasonably necessary for someone to go with the claimant and assist her with her shopping there is, in my view, no reason in principle why such assistance should not qualify" (CDLA/12381/1996).

Help with communication to enable a deaf person to shop has also been held to count as attention (CDLA/1634/1996). Other commissioners' decisions, which broadly share this approach to domestic duties, include CDLA/3711/1995, CDLA/11652/1995, CDLA/16996/1996, CDLA/16129/1996 and CDLA/12045/1996. However, Commissioner May in CSDLA/314/1997 and Commissioner Walker in CSDLA/281/1996 disagree with this approach.
Also see R(DLA)1/07 which considers the issue.

Two-way communication

In the Fairey case, the House of Lords only looked at the issue of three-way communication, where an interpreter acts as an intermediary between a deaf person and hearing people. However, in the earlier appeal stages it had been argued that the extra effort needed to start and conduct two-way sign language communication can also constitute attention. Although the Court of Appeal in the Fairey case did not think that all two-way communication could constitute attention, two of the judges agreed that two-way communication could count in certain circumstances. Lord Justice Glidewell accepted that "it may be that, in a particular case, the effort required of another person to initiate two-way conversation with a deaf person could constitute attention" (Secretary of State v Fairey, Court of Appeal, 1995).

Similarly, Lord Justice Swinton Thomas said that "if the person giving the attention to the deaf person has to do extra work, or take extra time, away from the attendant's ordinary duties to help the disabled person that may be capable of being included in the attention which is being provided". As this issue was not pursued in the House of Lords, these comments should be treated as authoritative.

There are a number of helpful commissioners' decisions on this issue made in the light of the Appeal Court judges' comments in the Fairey case, notably R(DLA) 1/02, R(DLA) 2/02, CDLA/16668/1996, CDLA/15884/1996, CDLA/16211/1996 and CDLA/16246/1996. Useful commissioners' decisions on this point cited before the Fairey case include CSA/83/1990, CSA/113/1991 and CDLA/240/1994.

In CDLA/15884/1996 Commissioner Sanders drew the following distinction: "where the persons concerned are reasonably fluent in the use of sign language or at lipreading, the fact that such may be a more laborious method of communication does not mean that, on that account alone, relevant attention is given. But if extra effort is required, for example to initiate a two-way conversation, that could constitute attention". In CDLA/240/1994 Commissioner Rowland held that "it is conceivable that communication is so slow and difficult that there will be an element of service".

In a reported decision, R(DLA) 2/02, Commissioner Levenson said that:
"attention in connection with bodily functions includes unusual efforts reasonably required to attract the attention of a deaf person in order to communicate with her. By unusual I mean steps that are not or would not be required in respect of attracting the attention of a person in the same environment who is not deaf".

It could be argued that tapping a deaf person on the shoulder, flashing a light, or stamping on the floor are all 'unusual methods' that would not normally be required to attract the attention of a hearing person if they were within earshot.

However, in another reported decision, R(DLA) 3/02, Commissioner Fellner remarked that such actions "involve negligible extra work or extra time away from the communicator's ordinary duties". While the Commissioner stressed that attracting attention was not necessarily negligible, she held that "something more than reaching out to tap a shoulder, stamping, switching a light momentarily off and on or throwing a paper ball … would be required to constitute any significant amount of attention".

However, even if initiating communication or conducting two-way communication does not in itself involve sufficient attention from another person, consideration must be given to whether communication would be much easier with an interpreter. See R(DLA) 2/02.

Lower rate mobility component

If you are deaf and have no other disabilities you will not qualify for the DLA higher rate mobility component. There is no equivalent of the mobility component for people over 65 who have to claim AA.

Some deaf people qualify for DLA lower rate mobility component. You qualify if you are
"able to walk but [are] so severely disabled physically or mentally that, disregarding any ability [you] may have to use routes which are familiar to [you] on [your] own, [you] cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time" (Section 73(1)(d) Social Security Contributions and Benefits Act 1992).

In R(DLA) 6/03 the Commissioner held that it was irrelevant whether the claimant actually walked on unfamiliar routes – the question was whether or not s/he could do so without guidance or supervision. If not, then the claimant qualified.

The ruling by a Tribunal of Commissioners in R(DLA)4/01 has made it clear that some deaf people can qualify for DLA lower rate mobility component if they need guidance out of doors.

'Guidance'

In R(DLA) 4/01, the Tribunal of Commissioners decided that prelingually deaf people, with little or no ability to communicate by speaking, reading, writing or lipreading, might be able to demonstrate "a requirement for guidance most of the time". The Commissioners held that
"such claimants may need someone with them on unfamiliar routes to ensure that they do not get lost. Although the guide may only intervene occasionally, for example to indicate whether or when the claimant should take a turning, he will nonetheless be guiding (or possibly supervising) all of the time since otherwise the claimant will not know whether or when to change direction".

However, if you are "capable of studying maps, reading street signs or communicating with passers by, either in writing or by speaking or lipreading" you may not need guidance most of the time.

'Fear or anxiety'

In R(DLA) 4/01, the Commissioners decided that, in addition to a need for guidance to ensure that they do not get lost, a deaf claimant may need supervision because of fear or anxiety about walking on unfamiliar routes. But a subsequent amendment to the DLA rules meant that, from 8 April 2002, 'fear or anxiety' could no longer be taken into account when considering someone's need for outdoor supervision, unless these are symptoms of a severe mental disability (SI 2002 No. 648).

This does not mean that deaf people who suffer 'fear or anxiety' are excluded from claiming lower rate mobility component. If, for example, fear and anxiety are symptoms of underlying difficulties with asking for or following directions, then a deaf person can still qualify. However, it is advisable to place more emphasis on a person's communication problems and the effects on their ability to walk in unfamiliar places, rather than any feelings of fear or anxiety.  In R(DLA) 6/05, it was established that if a person has anxiety about the effects of their disabling condition when walking outdoors (in that case, the anxiety was about having an asthma attack), then consideration must be given to whether guidance or supervision is required due to the level of difficulty arising from the disabling condition.

Higher rate mobility component

You can qualify for higher rate mobility component if you are "both blind and deaf" (Section 73(2)(a) Social Security Contributions and Benefits Act 1992).
Regulation 12(2) Social Security (Disability Living Allowance) Regulations 1991 provide that a person satisfies this condition if:

In R(DLA) 3/95, Commissioner Rice ruled that assessment of the degree of disablement should be the same as for occupational deafness in the Industrial Injuries Disablement Benefit Scheme (which expresses disablement in percentage terms). DWP guidance on occupational deafness says the 80% disablement condition is satisfied if a person’s average hearing loss in each ear, at 1, 2 and 3 kHz, is at least 87 decibels. In CDLA/7090/1999 it was held that, for DLA, testing should be in the open air rather than in an enclosed environment.

A 100% disablement from blindness means "loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential". This is the same as the criterion for being registered blind under the National Assistance Act 1948.

Where can I get further information?

Internet resources:

Department of Work and Pensions (DWP)

You can access resources including legislation and guidance from the DWP website (select the ‘Advisers and Professionals’ tab).

Commissioners' and court decisions

You may find it hard to get copies of older commissioners' and court decisions. However, many recent decisions have been published on the internet. Here are some useful places to get them:

Social Security and Child Support Commissioners England and Wales
3rd floor
Procession House
55 Ludgate Hill
London EC4M 7JW
Telephone 020 7029 9850
Textphone 020 7029 9820
Fax 020 7029 9819
Email: osscsc@tribunals.gsi.gov.uk
Social Security and Child Support Commissioners England and Wales (external link, opens new browser window)

Northern Ireland
1st floor, Headline Building
10-14 Victoria Street
Belfast BT1 3GG
Telephone 028 90728731
Fax 028 90313510
Email: socialsecuritycommissioners@courtsni.gov.uk 
Northern Ireland
 (external link, opens new browser window)
Scotland
The Commissioners’ Office in Scotland
George House
126 George Street
Edinburgh EH2 4HH
Telephone 0131 271 4310
Fax 0131 271 4398
Email: ossc@ossc-scotland.org.uk
Scotland (external link, opens new browser window)

The House of Lords

The Judicial Office at the House of Lords sells copies of judgements.
Judgements delivered since 14 November 1996 are available on the website.  Select 'judicial work' then 'judgements'.

The Judicial Office
The House of Lords
London SW1A 0PW
Telephone 020 7219 3111
Fax 020 7219 2476
Email: holjudicialoffice@parliament.uk
Website: The Judicial office
 (external link, opens new browser window)

Useful reading:

Social Security Legislation 2006. Volume I: Non-means tested benefits, D Bonner, I Hooker, R White. Volume III: Administration, Adjudication and the European Dimension

M Rowland and R White
Published by Sweet & Maxwell.

Sweet & Maxwell Ltd
100 Avenue Road, Swiss Cottage, London NW3 3PF
Telephone:  0845 600 9355
Fax: 0207 449 1144/1155
Website: Sweet and Maxwell (external link, opens new browser window) 

Welfare Benefits and Tax Credits Handbook

Published by the Child Poverty Action Group (CPAG)

CPAG
94 White Lion Street
London N1 9PF
Telephone 020 7837 7979
Fax 020 7837 6414
Email: bookorders@cpag.org.uk
Website: CPAG website (external link, opens new browser window)

Disability Rights Handbook

Published by Disability Alliance

Disability Alliance Digest of DLA/AA decisions

This is a useful free resource that summarises the key court and commissioners’ decisions in DLA and AA. You can download it from the Disability Alliance.

Newcastle City Council Welfare Rights Service

They produce a comprehensive guide to DLA and AA for deaf people.
For a copy, email welfare.rights@newcastle.gov.uk (write 'RDDP' in the subject line) or send a 70p A4 SAE to:

Newcastle Welfare Rights Service
FAO TIP Unit
Newcastle City Council
Brian Roycroft Centre
Newbiggin Hall
Newcastle NE5 4BR

The following organisations will be able to give you advice about challenging an AA or DLA decision:

Benefit Enquiry Line (BEL)

BEL Northern Ireland

Citizens Advice Bureau (CAB)

Disability Alliance

Disability Benefits Helpline

Law centres

National Deaf Children's Society

Social Security Agency for Northern Ireland

Welfare rights advice centres

See your phonebook to find your local welfare rights advice centre.

Further information from RNID

RNID Casework Service

If you or your adviser need advice on challenging a DLA or AA decision, please contact the RNID Casework Service.

RNID Casework Service, 19-23 Featherstone Street, London EC1Y 8S
Telephone: 0808 808 0123
Textphone: 0808 808 9000
Fax: 020 7296 8199
Email: caseworkteam@rnid.org.uk

RNID Information Line

The RNID Information Line offers a wide range of information on many aspects of deafness and hearing loss. You can contact us for further copies of this factsheet and the full range of RNID information factsheets and leaflets.

RNID Information Line, 19-23 Featherstone Street, London EC1Y 8SL
Telephone: 0808 808 0123
Textphone: 0808 808 9000
Fax: 020 7296 8199
Email: informationline@rnid.org.uk   

RNID Cymru

RNID Cymru, Tudor House, 16 Cathedral Road, Cardiff CF11 9LJ
Telephone: 029 2033 3034
Textphone: 029 2033 3036
Fax: 029 2033 3035
Email: rnidcymru@rnid.org.uk

RNID Northern Ireland

RNID Northern Ireland, Wilton House, 5 College Square North , Belfast BT1 6AR
Telephone: 028 9023 9619
Textphone: 028 9031 2033
Videophone: 028 9043 8354
Fax: 028 9031 2032
Email: rnidni@rnid.org.uk

RNID Scotland

Glasgow
Empire House, 131 West Nile Street, Glasgow G1 2RX
Telephone: 0141 341 5330
Textphone: 0141 341 5347
Fax: 0141 354 0176
Email: rnidscotland@rnid.org.uk

Edinburgh
2nd Floor, 25 Ravelston Terrace, Edinburgh EH4 3TP
Telephone/textphone: 0131 311 8522
Fax: 0131 311 8529
Email: rnidscotland@rnid.org.uk