Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C9_08_09(DLD) (30 September 2009)

Decision No: C9/08-09(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 3 December 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal, which is the subject of this appeal, and which is dated 3 December 2007, is in error of law.
2. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
3. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made. Further I do not think it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
4. In referring the case to a differently constituted appeal tribunal for re- determination I direct that the appeal tribunal takes into account the guidance set out below.
5. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. In accordance with the guidance set out below the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

6. The decision under appeal is a decision of the Department, dated 15 August 2007, which decided that the appellant was not entitled to DLA from and including 9 July 2007, on what may have been a renewal claim.
7. The appeal was received in the Department on 31 August 2007.
8. The appeal tribunal hearing took place on 3 December 2007. The appellant attended with her son, and her representative. A presenting officer from the Department was also in attendance.
9. The appeal tribunal disallowed the appeal, and confirmed the decision dated 15 August 2007.
10. On 13 June 2008, an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service, on behalf of the appellant, through her representative.
11. On 17 July 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave to appeal, the point of law identified by the LQPM was whether the appeal tribunal had adequately explained its decision to disallow entitlement to the lowest rate of the care component of DLA.

Proceedings before the Social Security Commissioner

12. The appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners on 22 August 2008.
13. Observations were sought from the Decision Making Services unit (DMS) on 11 September 2008. These were received on 2 October 2008 and shared with the applicant, and representative, on 9 October 2008. DMS opposed the appeal on one of two grounds cited.
14. The representative replied to indicate that he had no further submission to make on the Department's observations.
15. I directed an oral hearing of the appeal. The oral hearing took place on 8 May 2009. At the oral hearing, the appellant was represented by Ms Kyne f rom the Citizens Advice Bureau, and the Department was represented by Mr Toner of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

The submissions from the parties

16. In the application for leave to appeal to the Social Security Commissioner, the appellant's representative submitted that the appeal tribunal erred in law by:

(i) failing to give adequate reasons for its decision and, more particularly, failing to give adequate reasons for its decision that the appellant could undertake the tasks associated with the preparation of a cooked main meal for one person; and

(ii) deciding that it was reasonable for the appellant to explore with an occupational therapist the possibility of obtaining additional aids to assist with the activity of the preparation of a cooked main meal. The applicant's representative submitted that the appeal tribunal had failed to address this issue at the oral hearing of the appeal, thereby denying her the opportunity to comment on this.

17. In its initial observations on the appeal, DMS agreed that the appeal tribunal's reasons for its decision did not adequately explain to the appellant why the appeal tribunal had decided that the appellant did not satisfy the conditions of entitlement to the lowest rate of the care component of DLA. DMS did not, however, support the second ground cited by the appellant's representative in the application for leave to appeal.
18. The grounds cited by the appellant's representative were expanded upon in the skeleton argument prepared for the oral hearing of the appeal before me, and in the submissions made at that oral hearing itself. The support from DMS for the first ground in the application was repeated in its skeleton argument and in the further submissions made at the oral hearing.

The relevant legislative provisions

19. The conditions of entitlement to the care component of DLA are to be found in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. Section 72(1)(a) provides that:

'… 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) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

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

(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night,—

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.'

20. The above legislative provisions equate to the three rates of the care component, as follows:

For adults, entitlement to the lowest rate is awarded if the appellant satisfies either of the conditions set out in paragraph (a). It is self-evident that there cannot be a double payment where there is a finding that both conditions are satisfied. For children, sub-paragraph (ii) cannot be considered and, in any event, entitlement based on sub-paragraph (i) is subject to the additional test for children. For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

For adults, entitlement to the middle rate is awarded if either of the conditions set out in paragraph (b) or paragraph (c) are satisfied. For children, entitlement based on paragraphs (b) or (c) is subject to the additional test for children. For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

For adults, entitlement to the highest rate is awarded if both of the conditions set out in paragraph (b) and paragraph (c) are satisfied. For children, entitlement based on both paragraphs (b) or (c) is subject to the additional test for children. For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

The 'main meal' test

21. Accordingly, entitlement to the lowest rate of the care component of DLA may be awarded on the basis that the claimant satisfies section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, on the basis that the claimant 'cannot prepare a cooked main meal for himself if he has the ingredients'. Since the introduction of this legislative provision, the test has come to be known as the 'main meal' or 'cooking' test.
22. The separate provision for entitlement based on an inability to prepare a cooked main meal allows some claimants to have an entitlement to a certain level of benefit who, otherwise, might be ineligible. As was noted in the case of Moyna v Secretary of State for Work & Pensions ([2003] 4 All ER 162, reported as R(DLA) 7/03, (hereinafter referred to as Moyna), although the courts have been prepared to give the term 'bodily functions', for the purposes of establishing an entitlement based on a requirement for attention in connection with them, the House of Lords decided in Woodling v Secretary of State for Social Services ([1984] 1 All ER 593), that 'bodily functions' did not include the performance of domestic tasks like cooking. Accordingly, those whose limitations were restricted to such tasks could have no entitlement to benefit under the other 'attention' provisions.
23. It is probably because of the unusual specific nature of the test that section 72(1)(a)(ii) has received considerable attention from the appellate authorities. Further, the changing nature of the concepts of 'cooking' and 'main meal', based on alterations in social and domestic trends, the introduction of innovative technological and labour-saving food preparation devices, the advent of 'convenience' and 'fast' food products and a variation in the concept of what is a traditional main meal necessitates, in my view, a close examination of the relevant words and phrases within the legislative provisions.
24. The jurisprudence from the Social Security Commissioners in Northern Ireland, the former Social Security Commissioners in Great Britain, the Upper Tribunal and the appellate courts reveals four main areas of analysis, as follows:

(i) the general nature of the test;

(ii) the relevance of vari-ability in the preparation of a cooked main meal;

(iii) the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment in which the task is carried out; and

(iv) The relationship of the cooking test to other aspects of functioning.

The general nature of the test

25. In R(DLA)2/95, Commissioner Heggs had stated:

'…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.

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 e.g. 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 for just 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 the 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.

The word "prepare" emphasises a claimant's ability to make all the ingredients ready for cooking. This includes the peeling and chopping of fresh vegetable 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 into the category of "convenience foods" and are permissible as basic ingredients. I should add for the sake of 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.'

26. This Commissioner returned to the issue of the cooking test in CDLA/2267/95. In that case, she added to her comments in R(DLA)2/95 as follows:

'… 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 (sic) 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.'

27. Further support for the principles in R(DLA)2/95 is to be found in the decision of Commissioner Fellner in CDLA/770/00.
28. The Chief Commissioner, in C41/98(DLA), was of the view that the comments of Commissioner Heggs in CDLA/2267/95 supported the view that it is not necessary to use the oven for the preparation of a main reasonable daily meal for one person.
29. Further, the Chief Commissioner could not accept the submission that the traditional cooker referred to in R(DLA)2/95 means a cooker with a heated work surface at about waist height under which there is an oven. Even if the traditional cooker would normally have an oven in a position where a person would have to bend down to use it, the Chief Commissioner considered that the cooking test did not necessarily pre-suppose the use of a low level oven. It was all a question of what was reasonable in the circumstances. Support for this finding was also to be found in the conclusion of Mr Commissioner Rowland in CDLA/17329/96, with which the Chief Commissioner agreed that, as long as a reasonable variety of meals can be prepared by a claimant, the range need not be unlimited.
30. Overall, therefore, the Chief Commissioner thought that the decisions in R(DLA)2/95 and CDLA/2267/95 properly set out the legal position when interpreting section 72(1)(a)(ii).
31. The lead decision on the general nature of the test in section 72(1)(a)(ii) is now the decision of the House of Lords in Moyna, already referred to above. While Lord Hoffmann, with whom the other Law Lords agreed, was to concentrate on the issue of variability and the preparation of a cooked main meal, he began by giving his view on what the intentions of the legislators were. At paragraph 17 of his speech, he stated:

'… its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook … No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods, and ready-cooked meals. Not for nothing is the notional meal contemplated by the cooking test described in the authorities as 'traditional'. It must be remembered that disability living allowance is a non-contributory, non-means tested benefit. A person who cannot cook for himself, is entitled to the allowance, now £14.90 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy. On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance; to obtain the ingredients which the test assumes him to have, or because he is culinarily incompetent.'

32. This analysis of the general nature of the 'cooking' test was approved by Commissioner Williams in R(DLA)/2/05. At paragraphs 7 to 8 of his decision, he noted:

'7. The reference by Lord Hoffmann to "the cooking test described in the authorities as traditional" is a reference to R(DLA) 2/95 where Commissioner Heggs defined the test as that of "a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. … a … meal for one person, not a celebration meal or a snack. ... [T]he 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." I take the House of Lords to be endorsing that test, but doing so in its own words and therefore to some extent replacing it. As a matter of both definition and interpretation the test can in my view be taken little further. For that eason, I do not consider any other earlier Commissioner's decision to be of assistance in this case. And I see no problem with the wording of the form DLA1A. Essentially, it leaves it to the claimant to explain her or his own problems, and for decision-makers to decide if the test is met.

8. The task is to apply the test to the problems the claimant has. That is a question of fact, not law. The starting point, as Lord Hoffmann comments, is what the claimant says in the claim form. To that must be added all other evidence. The tribunal's job, if there is a dispute, is to test for itself the claimant's abilities against the hypothetical test. It can do that by direct application – finding what difficulties the claimant actually has in cooking in the way he or she does so, if that happens. And it can do that by indirect application – finding what limits the claimant has on gripping, lifting, bending, planning or otherwise by reference to other activities the claimant does undertake such as eating, washing, driving, shopping, cleaning, being aware of danger, or any other physical or mental activity using the same bodily functions as are normally used in cooking. Having looked at all the available evidence, it must then, as the House of Lords expressly confirmed, take a broad judgmental view about whether the claimant's problems are such that the claimant is or is not able to meet the test for the relevant period, with input from all three members of the tribunal.'

33. Further support for the analysis in Moyna is to be found in CDLA/2367/2004.
34. In CSDLA/725/2004, Commissioner Parker holds that the reasoning in Moyna did not detract from the principle that, in appropriate cases, a lack of motivation due to disablement can lead to an entitlement to the lowest rate of the care component, under the 'cooking' test.

Vari-ability in preparing a cooked main meal

35. The issue at stake under this heading is the extent to which the adjudicating authorities, including the appeal tribunal, can make a determination that the test set out in section 72(1)(a)(ii) is satisfied in circumstances where the claimant/appellant is able to attend to the tasks associated with the preparation of a cooked main meal on certain days of the week, but requires assistance on other days. This was precisely the factual situation arising in Moyna. Variability is, of course, a factual situation which arises when adjudicating authorities are considering the other conditions of entitlement to the care component.
36. In Moyna the appellant's claim to benefit was disallowed, as was her appeal to the appeal tribunal, and to the Social Security Commissioner. The Court of Appeal allowed her appeal, holding that:

(i) the provision of a cooked main meal was something required regularly if someone were to enjoy a reasonable quality of life so that if the inability to cook were on no more than occasional days, the test would not be satisfied, but that it would if there were a clear pattern of a person not being able to provide for him/her self; and

(ii) that in the appellant's case there was such a clear pattern in that there would sometimes be weeks in which for three days she would have to forego her one cooked meal.

37. On appeal to the House of Lords, and as was noted above, the decision of the Court of Appeal was reversed.
38. Lord Hoffman stated:

'One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so … I do not think that [that] would be right. That is not because one occasion is de minimis but because the test does not in my opinion function at that day-to-day level. It involves looking at the whole period and saying whether, in a more general sense, the person [satisfies the conditions of entitlement] … It is an exercise in judgement rather than an arithmetical calculation of frequency … the question involves taking a 'broad view' of the matter and making a judgement.'

39. This guidance outlines the approach for adjudicating authorities, including appeal tribunals, when faced with the issue in vari-ability to perform the tasks associated with the preparation of a cooked main meal.

Kitchen aids and the cooking environment

40. There is a plethora of case-law attempting to give guidance to adjudicating authorities on the extent to which the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment in which the task is carried out, can be taken into account. I would summarise the guidance from these authorities as follows:

(i) the test pre-supposes that the preparer of the meal has the ingredients. Accordingly, inability to shop for the ingredients is to be excluded (CDLA770/00);

(ii) an inability (can't), or disinclination (won't) to cook is to be ignored - the test is hypothetical or abstract (Moyna, R(DLA) 2/05, R(DLA) 2/95, CDLA/770/00, CDLA/5686/1999);

(iii) the usual kitchen devices to assist with the preparation of food may be taken into account (R(DLA) 2/95, CDLA/770/00);

(iv) the usual kitchen devices to assist with the cooking of food may be taken into account (CDLA/1469/95, CDLA/5686/99, CDLA/770/00);

(v) while usual kitchen devices may be taken into account, the test should not be limited by reference to specific adaptations to the traditional kitchen to compensate for a disability (R(DLA)2/95);

(vi) the ability to bend is not an essential part of the main meal test, and it does not require the manipulation of heavy pots and pans (CDLA/1469/95, CDLA/5686/99, CDLA/770/00, C41/98(DLA), CDLA/2367/2004);

(vii) microwave ovens, used in the preparation of a cooked main meal, may be taken into account (CDLA/770/00, CDLA/5250/02). In this regard, the following comments of Commissioner Jupp in CDLA/2367/2004 at paragraph 10 are apposite:

'The claimant's second ground of appeal was that the use of the microwave in preparing a cooked main meal should be disregarded. This is an oversimplification of the position. The test is whether a claimant "cannot prepare a cooked main meal for himself if he has the ingredients". In the Secretary of State for Work and Pensions v. Moyna [2003] 4AER 162 R(DLA) 7/03, Lord Hoffman said of the "cooking test" that:

"….its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought experiment, to calibrate the severity of the disability".

Thus we have moved from the position where a claimant might satisfy the criteria if s/he could not, most of the time, prepare a cooked main meal for one on a traditional cooker. The better view now is that it is more a question of what the claimant does with the microwave most of the time which will enable the appropriate decision to be made as to whether s/he satisfies the criteria for an award. It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one. If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of the microwave should not be taken into account. It will be borne in mind that it has long been held that it is not necessary for a claimant to be able to bend to the oven nor hold heavy pans to prepare a cooked main meal for one.'

(viii) claimed risks associated with cooking will have to be assessed, but all risk cannot be eliminated (R(DLA) 1/97);

(ix) the effects of heat and steam must be considered where the appellant/claimant suffers from breathing problems. Factors include the nature of the disability, likely reaction to heat/steam, and degree of ventilation available (CDLA/4214/02, CDLA/20/94).

How did the appeal tribunal in the instant case analyse whether the appellant satisfied the 'main meal' test?

41. The record of proceedings (ROPs) for the appeal tribunal hearing confirms that the appeal tribunal had before it a copy of the appeal submission prepared by the Department. Within that appeal submission, at Tab No 3, was a copy of a Factual Report completed by the appellant's general practitioner (GP) on 9 August 2007. In this Factual Report, the GP is asked to comment on the effect of the appellant's disabling condition on her ability to self-care. In response to this question, the GP has noted 'May have problems with … making a main meal due to pain.'
42. The ROPs also confirm that the appeal tribunal had before it a letter from the appellant's GP dated 21 November 2007 and from an occupational therapist (OT) dated 19 October 2007. In the letter from the GP, it is noted that 'Her son does all her cooking as she cannot lift kettles, pots, pans etc. She has severe pain in her elbows and hands.' The letter from the OT notes that the appellant had been issued with a number of items of equipment including a trolley to assist with the carrying of items.
43. At the appeal tribunal hearing, the appellant was present and gave oral evidence to the appeal tribunal. In relation to the preparation of a cooked main meal, the ROPs record the following:

'Main meal?

Can't lift a pan or even a full kettle.

Hands too sore to feel.

Son provides a meal for her – freezes – defrosts – heats in microwave.

Rarely uses cooker – occasionally heats things up.

Can (eg) heat a tin of beans on the cooker.

Can't lift the grill.'

44. In respect of the appeal tribunal's decision with respect to potential entitlement to the lowest rate of the care component of DLA and, more particularly, potential entitlement based on satisfaction of the 'main meal' test, the statement of reasons records the following:

'Main meal test:

This was the care component particularly in issue. (The claimant) reports that she cannot prepare and cook a main meal for one person. She is afraid to lift hot saucepans and would have difficulty with their weight. She can heat food in a microwave and can, eg, heat beans in a saucepan on the cooker. The Tribunal is of the opinion that (the claimant) could undertake the tasks involved in preparing and cooking a main meal for one person.

Also, it would be reasonable for (the claimant) to explore with the Occupational Therapist the possibility of obtaining additional aids (in addition to the trolley she has) to assist with this activity.'

Was the decision of the appeal tribunal in error of law?

45. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
46. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

47. In the instant case, both parties have submitted that the decision of the appeal tribunal is in error of law as the appeal tribunal has failed to give adequate reasons on the material matter as to whether the 'main meal' test was satisfied.
48. I am in agreement with those submissions. In my view, the plain statements that the appellant can heat food in a microwave and can heat beans in a saucepan on a cooker are insufficient to lead to the further conclusion that the requirements of section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, on the basis that the claimant 'cannot prepare a cooked main meal for himself if he has the ingredients', are not satisfied.
49. That is a step too far. The analysis outlined above demonstrates that there is much more to the analysis as to whether section 72(1)(a)(ii) is satisfied. There is a requirement for rigorous and meticulous fact-finding with respect to the test. In the instant case, the evidence that the appellant might head food in a microwave might fall within the excepted category outlined by Commissioner Jupp at paragraph 10 of CDLA/2367/2004 '… if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one'. Without further assessment of the evidence, fact-finding and reasoning, it is impossible to determine that from the statement of reasons (SORs) for the appeal tribunal's decision. Further, the basic coupling of the statement with respect to the microwave to the heating of beans in a saucepan on a cooker is insufficient in my view to support an overall conclusion that the appellant could undertake the tasks involved in preparing and cooking a main meal for one person.

The further comments concerning the availability of aids from an OT

50. As was noted above, the ROPs also confirm that the appeal tribunal had before it a letter from an OT dated 19 October 2007. The letter from the OT notes that the appellant had been issued with a number of items of equipment including a trolley to assist with the carrying of items.
51. Additionally, and as was noted above, the SORs records the following:

'Also, it would be reasonable for (the claimant) to explore with the Occupational Therapist the possibility of obtaining additional aids (in addition to the trolley she has) to assist with this activity.'

52. In the application for leave to appeal to the Social Security Commissioner, the appellant's representative submitted that deciding that it was reasonable for the appellant to explore with an OT the appeal tribunal erred in law in the possibility of obtaining additional aids to assist with the activity of the preparation of a cooked main meal. Further, the applicant's representative submitted that the appeal tribunal had failed to address this issue at the oral hearing of the appeal, thereby denying her the opportunity to comment on this.
53. DMS submitted that no great emphasis should be placed on the comments relating to the obtaining of aids from the OT and that the appeal tribunal was merely suggesting that the provision of further aids might be beneficial to the appellant.
54. Having found that the decision of the appeal tribunal was in error of law on the basis of the first ground cited in the application for leave, I do not have to consider the appellant's other ground for appealing. I would indicate the following, however.
55. The statement with respect to the possibility of obtaining aids from an OT to assist with the tasks in the preparation of a cooked main meal is, as the contrary submissions on its possible interpretation have suggested, ambiguous. If, as DMS suggests, it was designed merely to provide guidance to the appellant on the range of assistance which could be made available, then it can safely be ignored in that context. If, on the other hand, the statement was designed to imply that the 'main meal' test should be limited by reference to specific adaptations to the traditional kitchen to compensate for a disability and, further, that there is a pro-active duty on claimants to adapt their facilities to meet the requirements of the test, then it is contrary to the principles set out in R(DLA)2/95.

Disposal

56. The decision of the appeal tribunal, which is the subject of this appeal, and which is dated 3 December 2007, is in error of law.
57. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
58. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made. Further I do not think it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
59. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i) the decision under appeal is a decision of the Department, dated 15 August 2007, which decided that the applicant was not entitled to DLA from and including 9 July 2007;

(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the rinciples set out in C20/04-05(DLA);

(iii) it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv) it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(Signed): K Mullan

COMMISSIONER

30 September 2009