England and Wales Court of Appeal (Civil Division) Decisions

Moyna v The Secreatry of State for Social Security [2002] EWCA Civ 408 (27th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONER
MR HOWARD LEVENSON

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2002

Lord Justice Kay:

1. This appeal raises an issue on the interpretation of one of the qualifying tests for disability living allowance (“DLA”) contained in Section 72 of the Social Security Contributions and Benefits Act 1992 (“The Act”) which has come to be known as “The Cooking Test”.
2. The appeal is an appeal against the decision of a Social Security Commissioner, Mr Howard Levenson dated the 13^th November 2000 by which he dismissed an appeal by Mrs Munira Moyna against the decision of the Disability Appeal Tribunal (“The Tribunal”) dated the 27^th January 1997 refusing her claim for both the higher rate mobility component and the lowest rate care component of DLA. The appeal at this stage relates only to the claim for the lowest rate care component and I shall make no further reference to the other aspects of her original claim.

The Factual Background

3. Mrs Moyna without question suffers, or has suffered from, various medical problems including writers cramp, angina, a heart attack, arthritis, lumbar spondylosis, hypertension, high cholesterol, hernia, breast cancer, and wide spread joint laxity with hypermobility. She took early medical retirement from the civil service on the 31^st May 1997.
4. On the 20^th December 1996 she lodged her claim for DLA.
5. That she is presently entitled to such allowance is not in issue because in the period that has elapsed since her original claim was refused, a fresh claim has succeeded. The issues at stake from her point of view are limited to her entitlement to the allowance from the date of her original claim until the date when she was granted the allowance on her subsequent application. The principles at stake, however, have much wider consequences for other similar claimants.

The Legal Framework

6. Section 72(1) of the Act provides a number of tests by which a person may qualify for the care component of DLA. The parts relevant to this case read:

“Subject to the provisions of this act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a) He is so severely disabled physically or mentally that –

(i)....

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;....”

This test has not surprisingly come to be known as “the cooking test.”

7. Section 72 subsection 4 of the Act makes provision for three distinct rates of the care component, the highest rate, the middle rate and the lowest rate. Satisfying only the cooking test would qualify a claimant for the lowest rate.
8. Clearly the system could not operate if a period as short as a day or a few days could qualify a person under the cooking test and section 72(2) of the Act makes provision as to the qualifying period. The relevant parts of that subsection read:

“Subject to the following provisions of this section a person shall not be entitled to the care component of disability living allowance unless –

(a) throughout –

(i) the period of three months immediately preceding the date on which the award of that component would begin: or

(ii) such other period of three months as may be prescribed,

he has satisfied or is likely to have satisfied one or other of the conditions mentioned in subsection 1(a)(c) above; and

(b) he is likely to continue to satisfy one or other of the those conditions throughout –

(i) the period of six months beginning with that date; ...”

The Claim for DLA

9. The DLA claim form which the appellant was required to complete listed a number of aspects of preparing a cooked main meal and provided a number of boxes one of which was to be ticked to show the extent of the help that was required for that aspect of preparation. The alternatives were no help, help one to three days a week, help four to five days a week, or help six to seven days a week.
10. The appellant completed the form as showing that she needed no help with planning a cooked main meal, peeling and chopping vegetables or using a cooker. She indicated that she needed help one to three days a week with using cooking utensils, using taps and coping with hot pans. She then added in the space provided to enable a clearer picture to be painted:

“If pans are heavy, I need someone to carry them and put them on the cooker or away. I cannot carry anything heavy, as if I do, it brings on angina attacks.”

11. The appellant was examined by an Examining Medical Practitioner who concluded that she could cut up food, peel or chop vegetables, use taps, use a cooker and cope with hot pans. The appellant was, however, critical of the extent of his examination.
12. As a result of the Examining Medical Practitioner’s report, the claim for care component of DLA was refused by the adjudication officer and on an application for review the decision was upheld. The appellant appealed to the Tribunal.

The Tribunal Decision

13. Before the Tribunal, the appellant submitted a report from a consultant clinical neurophysiologist which included:

“More recently, problems have developed with the use of her right hand in spooning soup, holding a cup and holding a knife.”

14. The report concluded:

“But overall it would appear that the prognosis is quite poor for useful right-hand function in Mrs Moyna.”

15. The appellant gave evidence to the Tribunal. The Tribunal’s reasons for its decision include reference to her telling them that “she had deteriorated since she had made her claim”. The Tribunal also recorded:

“we are very conscious of the numerous and seriousness of the appellant’s medical conditions.”

16. However, the Tribunal concluded that she did not satisfy the cooking test and it explained its reasoning in the following way:

“8.1 Next we needed to assess whether the appellant qualifies for the lower rate care component under Section 72(1)(a)(ii) on the grounds that “[S]he cannot prepare a cooked main meal for [her]self if [s]he has the ingredients.” Such a meal is a substantial or traditional cooked meal for one person. Obtaining the ingredients is not part of the “test”.

8.2 In her claim pack appellant wrote that while she needed no help planning the meal, peeling and chopping vegetables and using the cooker, on one to three days a week she needed help using cooking utensils and taps and coping with hot pans. She wrote that she could not carry anything heavy, as an angina attack might be brought on. Nevertheless, she told the EMP that she could prepare a cooked meal, and he so found. We considered this issue carefully, having regard not only to angina, but also to the consultant clinical neurophysiologist’s report dated the 5^th December 1996 relating to the appellant’s writers cramp, affecting her right-hand grip and control. She had annotated on it the difficulties she experienced with utensils.

8.3 Appellant told us that others cooked for her, or she ate convenience foods. However, when the cooking operations were analysed in questioning, she can cook, although “nothing elaborate”. Chopping and peeling is sometimes difficult – and always is with hard vegetables if they are large. She can manage a small saucepan for herself. The other difficulty is standing for a long time, and the appellant’s tactic if she has to cook something for herself is to put it on the cooker then lie down. From this we concluded that, with some planning and careful arranging of cooking requisites and perhaps use of a high chair, appellant can, on most days, prepare a cooked main meal for herself, and that it is not unreasonable to expect her to do so. She therefore does not qualify for the care component on that basis.”

The Decision of the Commissioner

17. The appellant sought leave to appeal against the Tribunal decision. This was refused by the chairman of the Tribunal but granted when renewed to a Commissioner.
18. The Secretary of State put in written submissions to the hearing of the appeal from the Tribunal that accepted the appellant’s claims that the Tribunal had “erred by failing to interpret the main meal test in an appropriate manner”.
19. Notwithstanding this concession, when the appeal was heard by Mr Commissioner H Levenson, he rejected the appeal. Having quoted the passages from the reasoning of the Tribunal at 8.2 and 8.3, he said:

“However, the claimant told the tribunal that she could deal (for example) with small carrots, she could use a small saucepan for herself and she uses Pitta bread. She cannot roll a chappati but this is because she cannot stand for long. It seems to me that the test is not whether the claimant can cook a particular meal, but whether in general terms the claimant can cook “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker” (per the Commissioner in R(DLA)2/95). Although not all tribunals might have reached the same conclusion, it seems to me that on the basis of the evidence before it the tribunal in this case was entitled to adopt the conclusion that it did adopt.”

20. It is against that decision of the Commissioner that this appeal is brought. The issue is, therefore, whether having reached its factual findings, the Tribunal was entitled in law to reach its conclusion.

The Appellant’s Submissions

21. On behalf of the appellant it is contended that the Tribunal did not dissent from the appellant’s evidence that on one to three days a week she needed assistance and they concluded that on most days she could prepare a cooked main meal. The necessary implication of that, it is submitted, must be that they were satisfied that on a number of days, (which it followed from their not rejecting her evidence was one to three days a week) she could not prepare such a meal.
22. It is submitted that the test is satisfied if, in the normal run of things, she is unable to prepare such a meal every day of the week.
23. Hence it is submitted that, on the findings of fact made, or implicitly made, by the Tribunal, the Tribunal, if it applied the proper test, was obliged to say that the appellant did qualify for the lowest rate of the care component of DLA. Thus the Commissioner was wrong not to conclude that the Tribunal had erred as a matter of law and should have allowed the appeal.

The Respondent’s Submissions

24. Miss Anderson, in helpful submissions on behalf of the respondent, submits that it would be wrong to classify this as a case in which there was only one conclusion open to the Tribunal on the facts and that accordingly the decision of the Tribunal cannot be characterised as perverse. It is pointed out that the Tribunal is a medically qualified Tribunal, assessing medical evidence with the benefit of live evidence from the appellant. Thus it is said that this would not be a case in which it would be proper to interfere with the Tribunal’s assessment of the facts.
25. In relation to Section 72 of the Act, it is submitted that the purpose of the test was to provide what it was hoped would be a straightforward means of assessing the degree of disability and gauging the disadvantages that flowed from the disability for a claimant in pursuing a “normal life” when compared to an able-bodied person.
26. The following propositions it was submitted flowed from the wording of the Act:

(i) The statute poses a simple objective test to assess the degree of adverse impact flowing from the disability. No restrictions or additional words should be read into the statutory terms.

(ii) The objective nature of the test means that subjective preferences are irrelevant (such as a preference for a particular meal).

(iii) The theoretical nature of the test indicates that it is not relevant whether a claimant actually does require a home cooked meal each day. A claimant could chose to eat outside the home or consume “takeaway meals” and still be eligible for benefit.

(iv) Similarly, a Disability Appeal Tribunal is not required to assess whether, on each and every day for which benefit was claimed, the Claimant was able or unable to prepare a cooked meal. Such an assessment would be impracticable given that a claimant’s medical condition is likely to fluctuate and it would be impossible to verify any evidence from the claimant as to the medical condition each day. This theoretical test requires a broad approach in assessing the degree of disability (see Commissioners decision in R(A) 2/74 and CIB 14534/96).

(v) The statutory terms concern the preparation of a meal and do not require the preparation of each ingredient from its raw state.

(vi) Due weight should be given to expert medical evidence in assessing the degree of disability in the light of all the evidence.

Decision

27. As to the factual basis upon which the claim was to be considered, I accept unhesitatingly the submissions made on behalf of the appellant by Mr Kolinsky. There is no express rejection by the Tribunal of the evidence of the appellant, nor do I think one could be read in by implication. If her evidence was to be rejected, reasons would clearly be required. In the absence of any such reasons, the correct factual starting point is that the Tribunal accepted that over the relevant period on one to three days a week, the appellant could not prepare for herself a cooked main meal. That, it seems to me, is entirely consistent with the Tribunal’s express finding that on “most days” she could.
28. In considering, the conclusions open to the Tribunal on that factual finding I have found it helpful to start from the observations of Mr Commissioner David Williams in CDLA 2795/2001 in which he said:

“10. The legislation requires that entitlement to allowance arises for someone who is so severely disabled physically or mentally “for any period throughout which...he cannot prepare a cooked main meal...”: Social Security Contributions and Benefits Act 1992 Section 72(1). In our (DLA) 2/95 the Commissioner stated: “the main meal must be cooked on a daily basis... the test depends on what a claimant can do without help on each day.”

11. As the Chief Commissioner for Northern Ireland recently commented generally about that decision in C41/98(DLA), the reference in R(DLA)2/95 to “each day” is not part of the legislation (although the representative suggests it is in the grounds of appeal). It has to be read in context of the accepted view that the approach is to take “a broad view of the matter”: R(A)2/74. At one extreme, the test cannot be met by the occasional ability to meet it. The benefit is a weekly benefit and the test has to be met retrospectively for three months before a claim and prospectively for six months after it, so there must be some permanence and some recurrence. Equally, the occasional ability to prepare a cooked main meal is not sufficient to stop a claim. It also depends whether the problem is that a claimant cannot perform the activities at all or that they cannot be done safely. Where the line is drawn is a question of fact. If as a result one Tribunal awards benefit where another does not, it does not mean that one is “right” and the other is “wrong”. Both may be “right” in the sense that they have reached their decision without error of law. ”

29. The proposition that parliament could have intended a test whereby different Tribunals faced with identical factual findings could properly reach different conclusions on the entitlement to the care component of DLA is one that I simply cannot accept. The inherent injustice to the person refused is such that I cannot conclude that legislation which has, as its very essence, provision for the disadvantaged should be interpreted in such a way.
30. I accept that Parliament was, as is submitted on behalf of the Secretary of State, trying to set a test which would be relatively straightforward to administer and, since it was intended to be straightforward, it should in the same circumstances lead to the same conclusion.
31. The provision of a cooked main meal is something which is required not on an occasional basis but on a regular basis if someone is to enjoy a reasonable quality of life. Thus it seems to me that Parliament was providing a test that distinguished those who could, other things being equal, regularly provide themselves with a cooked main meal if they so wished from those whose disability prevented even this minimal quality of life.
32. Where a person had no more than occasional days when they could not prepare such a meal, then I would have no difficulty in concluding that such a person would not qualify for the allowance. Where, however, there was established a clear pattern that a person was not able even to provide for himself or herself in this limited way on a regular basis then the position is very different.
33. In this case, just such a clear pattern was established on the findings of the Tribunal. Week in, week out, this appellant could not provide for herself in this way. Some weeks it might be no more than one day a week when she could not do so, but in other weeks, on just short of half the days in the week, she would, if not afforded assistance, have to forgo her one cooked main meal.
34. It seems to me that it was to cater for just such a regular pattern that the test was provided. Bearing in mind that the pattern must have been present for a three month period and must have been likely to continue for at least a further six months, it represented a degree of disability that on any view was significant with very real consequences for the long term wellbeing of the person concerned. As such, it was a sensible approach distinguishing between those with real a need for support and those who were more fortunate.
35. If, instead of the regular pattern to be found in this case, the problems were occasional or intermittent, then differing considerations would arise. However, I am satisfied that this regular pattern did satisfy the test. Accordingly, I would conclude that the Tribunal was wrong in law to reject the appellant’s claim on its own finding of the extent of her disability and that the Commissioner was wrong not to recognise the Tribunal’s error in law.
36. For these reasons I would allow this appeal.

Lord Justice Potter:

37. I agree.

The President:

38. I also agree.
Order: Appeal allowed with costs. (Order does not form part of the approved judgment)