I feel that really I ought to know this but now I'm not so sure ....
If a claimant is physically too weak to propel a wheelchair themselves and gets assistance with this does this constitute personal care in connection with a bodily function (and therefore count towards the DLA care components)?

I anticipate that a tribunal might well rely upon a generalised 'the mobility components are for that sort of thing' approach and dismiss the counting of pushing a wheelchair as attention but would they be taking the correct legal approach in doing this?

Walking is obviously a bodily function but the person is not actually walking as they are being pushed along - could locomotion be seen as a more general bodily function perhaps? There are situations where people cannot actually perform a bodily function at all but the help given to accommodate or get around that lack is nevertheless classified as attention - why not so with walking?

I'm just getting myself confused the more I think about it - any views on this (including pointing out that it might be a stupid idea!) would be most welcome. Thanks.

I think it would count as attention, partly because the standard EMP report form mentions using a wheelchair in the list of attention activities.

It cannot simply be dismissed as falling within the ambit of mob comp. Mallinson treated walking as a bodily function, and for someone who cannot walk at all, presumably "locomotion" would be a substitute bodily function.

A Tribunal that goes down the line of "we counted that for mobility so we won't count it for care" will be in error: R(DLA)4/01.

Mallinson says (amongst other things) regarding daytime care:

1. Has the claimant a serious disability?
2. If so, what bodily function(s) does it impair?
3. Do they reasonably require attention in connection with these functions?
4. Is that attention frequent?

I would suggest in your client's case the impaired bodily function is that of the arms to propel the wheelchair. An otherwise fit person in a wheelchair would use their arms to propel it.

Someone in your client's case would probably also need help transferring in and out of the wheelchair.

The problem really lies with question 4 - is there enough need for your client to have to have this attention frequently throughout the day? On its own, even with the most socially active person (you'll want to refer to Fairey/Halliday, and both that and Mallinson have now gone down as reported decisions I think), that might be tricky, although not impossible and for instacne someone working full time should in my opinion qualify.

I would have thought in general terms you'd need to have other care needs to aggregate as well.

Thanks to everyone for all your helpful suggestions regarding this issue. The claimant concerned suffers from M.E. so indeed the issue of the use of arms should be relevant.

I'm just looking for daily activities which can count towards the aggregate of attention required so help with propelling the wheelchair can now hopefully add towards washing, drying, etc. to satisfy the 1 hour or more for the lower rate care.

Thanks.

As your client suffers from ME, I'm not sure if perhaps this earlier discussion forum thread re Commissioner decisions and ME may be useful to you -

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=100&topic_id=1097&mesg_id=1097&page=

IN Mallinson Lord Wolff said:

"Consistently with his submission Mr. Ouseley argued that, while a onelegged man who was supported when walking or standing if he received assistance from someone else would be receiving attention, the person who had lost the use of both his legs and was therefore pushed in a wheelchair rather than supported would not be receiving attention in respect of his bodily function of walking because he was incapable of performing the function of walking. Such a result is obvious nonsense and does not cease to be nonsense because there is a different allowance which can be payable for lack of mobility."

Very sweet Damian I'd forgotten that bit. Mallinson is a lovely decision.

I think you should go for MRC myself; surely LRC on cooking test grounds?

Have a look at the Disability Living Allowance Advisory Board website at www.dlaab.org.uk in the February 2004 edition. Although the information provided is not very helpful as it recommends ordering an EMP report.
Does pushing someone in a wheelchair constitute attention in connecion of a bodily function?
I am sure it does. Look at what Lord Denning said in R v National Insurance Commissioner Ex p the Secretary of State for Social Services, he provides advice on what constitutes bodily functions, the list he gives is not exhaustive but descriptive as to the types of functions that are relevant.
Have a look at all the times your client would have to be pushed around indoors ie getting to the bath or toilet or to the kitchen or going to get a loaf from the shop, get to the bedroom, get out of the bedroom, etc etc etc.