Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C38/99(DLA) (8 December 1999)

 


Decision No: C38/99(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 2 July 1998
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application against a decision dated 2 July 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The Tribunal had disallowed Mr McC...'s appeal for Disability Living Allowance from 8 November 1996. Mr McC... had made a renewal claim for the allowance having formerly been in receipt of lowest rate care component from 27 October 1994 to 7 November 1996.
2. Mr McC... set out his grounds of appeal in an OSSC1 (NI) Form dated 9 February 1998. The grounds essentially were that the Tribunal had erred in law in failing to give consideration to the dangers that he would experience in the preparation and cooking of a main meal. He also submitted that the Tribunal had erred in not providing adequate findings of fact and reasons for its decision in that in concluding that Mr McC... did not satisfy the conditions of entitlement for the care component, it had not indicated why it had overlooked his general practitioner's view.
3. I held an oral hearing of the case and granted leave to appeal with the consent of Miss Loughrey of the Law Centre (NI), representing Mr McC..., and Mr Shaw of Central Adjudication Services representing the Adjudication Officer. I treat the application as an appeal and proceed to determine any question arising thereon as though it arose on appeal.
4. As well as having the benefit of the submissions of the two representatives at the hearing I have also had the benefit of written submissions which I requested and which were dated 13 May 1999 from Central Adjudication Services and 17 May 1999 from the Law Centre (NI).
5. My decision is that the decision of the Tribunal is in error of law. I set the decision aside and remit the matter for rehearing by a differently constituted Tribunal which should hear the matter afresh and should take into account the views expressed below.
6. My reasons for setting the decision aside are that I consider its reasoning is inadequate. There was a considerable conflict of evidence in this case, for example, between Mr McC... and the Examining Medical Practitioner. Some of this evidence is crucial yet there is no indication by the Tribunal of why it rejected Mr McC...'s evidence.
7. The Tribunal is of course perfectly entitled to reject Mr McC...'s evidence if it considers it unreliable for whatever reason. To give a hypothetical example, if the Tribunal considers that a claimant's evidence is unreliable as being incredible it is quite entitled to reject that evidence and any medical evidence which appears to be based on that person's unreliable history of his limitations. Usually, however, it should say so unless it is so clearly apparent from the decision that a reasonable person would understand why the claimant's evidence was rejected.
8. In cases of conflict of evidence it is not necessary that every single piece of evidence be exhaustively dealt with and there will often be pieces of conflicting evidence which are in no way crucial to the decision. However, where there is a conflict in a piece of crucial evidence, the Tribunal should give a general indication of why it has preferred the evidence which it has. The Tribunal need not give an explanation of why it does not believe certain evidence, it is usually sufficient if it states that it does not believe it. The Tribunal is required to give reasons for its decision not reasons for its reasons. The Tribunal as the adjudicating body must be allowed to reach its own assessment of the evidence.
9. In this particular case, however, all that the Tribunal has done is to recite the evidence which it has before it and its conclusion. It has made no evidential assessment. In a situation such as the present case where there is a conflict of crucial evidence, that is not an adequate statement of reasons and I set the decision aside for that reason.
10. I therefore direct that the new Tribunal dealing with the matter should give an indication of its assessment of evidence and brief reasons for its assessment.
11. As I would wish to give guidance to any future Tribunals I had asked for written submissions in this case in relation to the "cooking test" and in particular in relation to Mr McC...'s contention that he could not prepare and cook a main meal for himself because of his vertigo. I am grateful to Miss Loughrey and to Mr Shaw for their very comprehensive submissions in this matter. The views set out below are in light of the above, obiter, but will I hope serve as guidance for the new Tribunal if it has to deal with the issue of whether or not the claimant satisfies the cooking test.
12. The legislation in question is section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which states:-

"(1) Subject to the provisions of this Act, a person shall be

entitled to the care component of disability living

allowance for any period throughout which -

(a) he is so severely disabled physically or mentally

that -

(i) n/a

(ii) he cannot prepare a cooked main meal for

himself if he has the ingredients."

13. The legislation poses various questions, one of which is whether or not a claimant can prepare a cooked main meal for himself. This may obviously entail the asking of other questions. In particular in this respect, the factual situation in terms of the claimant's abilities to perform certain tasks may have to be investigated. The extent of this will depend on the evidence. However, the question which remains to be answered is whether or not the person can prepare and cook a main meal for himself. The construction of the statutory provisions is therefore extremely important. The ability to perform auxiliary activities need only be looked at to determine the fact situation and enable the Tribunal to answer the questions posed by the legislative provisions.
14. I will come to the construction to be given to the legislative provisions later but I would first wish to address the importance to be given to the inability to perform certain activities which have been described as "auxiliary activities" and which may be involved in the preparation or cooking of a main meal. I have had various authorities cited to me in this connection, the only one which is at present reported being R(DLA)2/95, a decision of Commissioner Heggs in Great Britain. Paragraphs 7 - 11 of that decision appear to have given rise to considerable difficulty. In those paragraphs Commissioner Heggs stated:-

"7. The main meal issue before the DAT was whether the claimant

satisfied the disability test for the lowest rate of the care

component contained in section 72(1)(a)(ii) of the Act. The

provision contains a number of different issues for which no

explanation or clarification is provided. In my view the

"cooking test" is a hypothetical test to be determined objectively.

Factors such as the type of facilities or equipment available and

a claimant's cooking skills are irrelevant.

8. The nature of the "cooked main meal" which the claimant

"cannot prepare" is crucial. In my view it is a labour

intensive reasonable main daily meal freshly cooked on a

traditional cooker. What is reasonable is a question of

fact to be determined by reference to what is reasonable

for a member of the community to which the claimant belongs

eg. a vegetarian meal as opposed to one which is not. The

use of the phrase "for himself" shows that the meal is

intended to be just for one person, not for the whole family.

The "main meal" at issue is therefore a labour intensive,

main reasonable daily meal for one person, not a celebration

meal or a snack. The main meal must be cooked on a daily basis

and it is irrelevant that a claimant may prepare, cook and

freeze a number of main meals on the days that help is provided

and then defrost and heat them in a microwave on subsequent days.

The test depends on what a claimant cannot do without help on

each day. Because the main meal has to be cooked, the test

includes all activities auxiliary to the cooking such as

reaching for a saucepan, putting water in it and lifting it

on and off the cooker. All cooking utensils must of course be

placed in a reasonable position.

9. The word "prepare" emphasises a claimant's ability to make

all the ingredients ready for cooking. This includes the peeling

and chopping of fresh vegetables as opposed to frozen vegetables,

which require no real preparation. However in my view a chop, a

piece of fish or meat ready minced does not fall in the category

of "convenience foods" and are permissable as basic ingredients.

I should add for completeness that because the test is objective

it is irrelevant that a claimant may never wish to cook such a meal

or that it is considered financially impossible.

10. The DAT were required to consider whether the claimant could

not prepare a cooked main meal for herself because she was "so

severely disabled physically or mentally". The test on this issue

is subjective to be determined by a DAT as a question of fact based

on the evidence before them. In the present case the DAT had before

them a medical report dated 1 December 1992 from the claimant's own

doctor in which he stated that her disabling condition was a "pain

in back and left leg causing difficulty walking". The DAT also had

a medical report dated 24 June 1993 from Mr D J Price, a Consultant Neurosurgeon, to the effect that the claimant suffered from pain in

her back and left leg which had not responded to physiotherapy or

surgery. The claimant said in her application that she was unable

to stand for long and that she was unable to lift pans because

lifting caused her pain. The Chairman's note of evidence records

that the claimant said that her condition gave problems with lifting

and twisting and that she was unable to bend to cupboards, lift pans

or transfer them to the sink. In the light of that evidence the DAT

concluded that despite the claimant's limitations of movement and

difficulty lifting, she could cook a main meal for one. In my view

the DAT decision was inadequate because they recorded insufficient

findings of fact in relation to the claimant's ability to cook a

main meal and insufficient reasons in support of their conclusion.

They failed to explain the reasons for rejecting the evidence before

them. The DAT did not explain whether they considered that the

claimant could stand for long periods and could cope with hot pans

or whether they considered that these activities were not necessary

in the preparation of a main meal.

11. As stated the "cooking test" is objective and is not dependent

on the type of facilities or equipment available to a claimant. The

DAT further erred in law in that they considered that the test of

the claimant's ability to cook a main meal was to be limited by

reference to the use of special kitchen appliances to compensate for

her disability, without explaining in any detail what appliances they

had in mind and how these would help. In my view if a claimant

cannot, given normal reasonable facilities (which might include

certain devices to assist) perform the tasks necessary to prepare

a main meal then the condition of section 72(1)(a)(ii) of the Act

will be satisfied. Once it is established that a claimant is unable

to perform those tasks it is not necessary in the context of the

"main meal" test to consider whether that inability can be overcome

be specially adapting the kitchen or making alternative arrangements.

The test is designed as a measure of a claimant's ability to perform

specific daily tasks. The "cooking test" concentrates on the extent

of a claimant's abilities and not on the need for help, unlike the

attention and supervision conditions contained in section 72(1)(a)(i),

(b) and (c) of the Act where the test is that the disabled person

must "require" attention or supervision. If an alternative to

attention or supervision is reasonably available then the attention

or supervision cannot be said to be required."

15. Miss Loughrey submitted that because of paragraph 8, the cooking test had to be viewed as involving all auxiliary activities. Mr Shaw, while acknowledging that consideration should focus on the abilities needed to cook a meal, submitted that if the claimant could largely perform the tasks involved in preparing and cooking the meal, the inability to perform one particular task should not lead to satisfaction of the conditions. He referred to various decisions in Great Britain in this connection and indeed to a later decision CDLA/2267/95 of Commissioner Heggs in which she expressed the view that it was not necessary to use an oven to prepare and cook a main meal for one person.
16. Mrs Commissioner Heggs had stated at paragraph 9 of CDLA/2267/95:-

"... It cannot be overstressed that the "main meal" at issue

is a main reasonable daily meal for one person. It follows

that the use of heavy pans or dishes are not necessary for the

preparation of such a meal. Nor is it necessary to use the oven.

If the claimant is unable to stand for any length of time, such

a meal can be prepared and cooked while sitting on a high stool

or chair if necessary. It is all a question of what is reasonable

in the circumstances of the case. ..."

17. I agree with Commissioner Heggs that the tasks to be performed and how they are to be carried out all depend on what is reasonable in the circumstances of the case, the meal at issue being a main reasonable daily meal for one person. In addition in the light of paragraph 10 of R(DLA)2/95 set out above I am not sure that Commissioner Heggs ever did express the view that all the "auxiliary activities" were necessary in the preparation of a main meal. The final sentence of that paragraph would indicate that she was of the view that if certain activities were not always necessary in the preparation of a main meal, then the overall test would not be satisfied by a failure to perform those activities, and CDLA/2267/95 would confirm that as her view. The test may involve giving consideration to certain activities auxiliary to preparation and cooking but if claimant can prepare a reasonable range of meals without the performance of some of those activities then I fail to see how the test can be satisfied.
18. In short certain activities ancillary to the preparation and cooking of a reasonable range of main meals for one person may, depending on the accepted evidence, have to be considered but the question to be answered in connection with section 72(1)(a)(ii) is not whether a claimant can perform and carry out all of those activities - it is whether or not he can prepare and cook a reasonable range of main meals for himself. In my view if he can do so even while avoiding one or more of the auxiliary activities then he cannot be said to satisfy the test.
19. I come then to the construction to be given to section 72(1)(a)(ii) and in particular to the construction to be given to the word "cannot". I have had cited to me my own decision in case C34/98(DLA) and in particular paragraph 19 thereof. I think it is also necessary that in this connection I mention paragraph 15. In that paragraph I stated:-

"It is a fundamental rule of statutory interpretation that unless

the context indicates otherwise a word or phrase is to be given

its ordinary every day meaning. The Collins English Dictionary

definition of "cannot" is "to be unable, to not have the power or

to not be allowed". In the case of an adult of adequate mental

competency... there is of course no question of permission having

to be sought from another person, it is what he ought to allow

himself to do... Giving the construction of "not being allowed"

does, however, in my view give a more sensible construction to

the word "cannot" in this context. So doing I take "cannot" to

include a situation where it would be completely unreasonable...

for a claimant to permit himself to go out walking without

guidance or supervision most of the time."

20. At paragraph 19 I stated:-

"It therefore seems to me that a claimant, to satisfy the

conditions of section 73(1)(d) of the Act has to show that

by reason of physical or mental disablement, he is either

actually unable or it would be completely unreasonable to

expect him to take advantage of his faculty of walking out

of doors on unfamiliar routes... It would not be sufficient

to qualify for it merely because it is reasonable for a person

to be supervised. For something to not be allowable (whether

by the claimant or another) it must be completely unreasonable.

The test of whether or not it is so unreasonable should be an

objective standard ie what a reasonable person would consider

impermissible."

21. Mr Shaw has asked me whether by using the words "completely unreasonable" I have imposed a new test. He has mentioned to me various decisions of Great Britain Commissioners in this respect in particular CDLA/902/94, Commissioner Rowland, CDLA/4127/95 of Deputy Commissioner Inglis-Jones. In connection with Commissioner Rowland's decision, Mr Shaw has cited in particular paragraph 7 where Commissioner Rowland says:-

"... It is not clear whether the tribunal did consider whether

the claimant could reasonably be expected to prepare a cooked

main meal and their findings were not directed to that issue.

In particular, they made no findings as to the seriousness of

any risk which the claimant might face when cooking. I

therefore set aside the tribunal's decision."

22. I think however, that it is also necessary to refer to paragraph 10 where Commissioner Rowland states:-

"... Clearly it takes the claimant rather longer to prepare

a meal than it would for most people and clearly also he

suffers some anxiety when he does so, but the fact remains

that he can and does prepare traditional cooked main meals.

To say that he acts unreasonably in doing so would apply that

a person in his position acts reasonably only if he or she

gives up traditional meals or cooking methods or has someone

else cook such meals. It is not unreasonable for a person

with a disability to try to pursue as normal a life as possible

... I do not think that the additional risk and associated

anxiety involved in cooking, over and above the risk attending

all the claimant's activities, justifies a finding that it is

unreasonable to expect him to prepare a cooked main meal."

23. I have been referred in particular to paragraph 14 of Deputy Commissioner Inglis-Jones decision where he states:-

"... This is an objective test. The question is, once again,

that of reasonability. Is it reasonable for the claimant to

prepare a cooked main meal for himself, involving, as this must

do from time to time, having vessels containing boiling water

and turning on the electric or gas rings on a hob; or is the

danger of injury such, when the frequency of attacks are

considered and the seriousness of the possible injury is

considered, that it is not reasonable for the claimant to

undertake this preparation because of the risks involved to

him. ..."

24. I do not read either of these decisions as purporting to give any interpretation to the word "cannot" in section 72(1)(a)(ii). Both were dealing with issues as to whether or not a Tribunal had taken into account safety factors and made proper findings in relation thereto. In any event it appears to me that in paragraph 10 of CDLA/902/94 Commissioner Rowland was indicating that the standard was whether or not it was unreasonable for a person to prepare and cook a main meal for himself. He was dealing with a situation where it could have been reasonable for the claimant to seek help in relation in so doing but that was not a standard which he considered applied. He appeared to indicate that the standard was whether it was unreasonable for the claimant to do it, not that it was reasonable for the claimant to require assistance. Similarly I am not of the view that Deputy Commissioner Inglis-Jones was applying a standard of reasonable requirement for assistance to cook a meal. As he stated in the final sentence of the extract above, the issue was whether or not it was reasonable for the claimant to undertake the preparation.
25. Since the hearing of this case I have had sight of the decision of the Chief Commissioner in C41/98(DLA). At paragraphs 28-31 thereof the Chief Commissioner comments on C34/98(DLA). At paragraphs 31 or 32 thereof he sets out the test to be applied when considering the question of whether or not a claimant can prepare a main cooked meal for himself.
26. The Chief Commissioner expressed the view at paragraph 30 that the concept of "complete unreasonableness" was perhaps slightly too restrictive. Having seen his comments I consider the word "completely" to be tautologous. "Completely" in my view does not add anything to unreasonable - an action is either unreasonable or it is not.
27. The Chief Commissioner at paragraph 31 sets out the standard to be satisfied. He states "a claimant, to satisfy the conditions of section 72(1)(a)(ii), has to show that, by reason of physical or mental disablement, he either does not have the ability to prepare a main cooked meal for himself or it would be unreasonable to expect him to prepare such a meal." With the exception of the word "complete" the Chief Commissioner is endorsing the interpretation given in C34/98(DLA).
28. I do not therefore consider that the legislative test of "cannot" can be read as automatically satisfied merely because it is reasonable to have assistance. The legislator used the word "cannot" in the context of the lower rate of care component of Disability Living Allowance. The standard for the alternative condition for lower rate care and for the middle and high rate care components of that allowance are that a person reasonably requires attention. Had the legislator wished to impose a standard of reasonable requirement of assistance to prepare and cook a main meal it could have easily done so. It did not. It used the word "cannot". While, therefore, I am of the view that the word "cannot" does permit the question of risk to be considered, I consider that the standard is not whether a person reasonably requires assistance to prepare and cook a meal nor whether it is reasonable for a person to refrain from doing so. The standard is whether the person actually cannot do it or whether it would be impermissible for the person to do it. Far from imposing a new standard, I consider that the use of "cannot" in the legislation demands this construction. The word "completely" in C34/98(DLA) is tautologous but the standard is still one of impermissibility or unreasonableness.
29. Of course there will be many situations where it would be reasonable for a person to have assistance and it would also be unreasonable for that person to prepare and cook a meal without such assistance. That does not alter the fact that the standard imposed by the legislator is one of "cannot" and it does not alter the fact that "cannot" should be given its ordinary everyday meaning ie. to actually be unable or to be impermissible.
30. This may in certain cases involve the adjudication authorities in having to determine in situations where risk is accepted as being relevant, the degree of risk, the precautions which the claimant can take to avoid risk, and the overall question of whether or not the claimant can prepare a reasonable range of cooked main meals for himself. It will all depend on the accepted evidence.
31. As mentioned above the matter is remitted to a differently constituted Tribunal for rehearing. That Tribunal should bear in mind the views set out above and ensure that any conflict of crucial evidence is dealt with as indicated at paragraph 8 above. The assessment of evidence is, of course, a matter for the new Tribunal.

(Signed): M F Brown

COMMISSIONER

8 December 1999