Northern Ireland - Social Security and Child Support Commissioners' Decisions

JR-v-Department for Social Development (DLA) [2013] NICom 13

Decision No: C42/12-13(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (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 16 August 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 16 August 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 28 January 2010, is confirmed.

 

         Background

 

2.     On 23 February 2010 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 28 January 2010.  On 2 March 2010 an appeal against the decision dated 23 February 2010 was received in the Department.

 

3.     An oral hearing of the appeal took place on 1 June 2010.  The appellant was present and was represented.  The record of proceedings for the oral hearing records that the appellant submitted a hand-written diary for the period from 24 May 2010 31 May 2010 together with a hand-written letter.  The oral hearing was adjourned as the appellant’s general practitioner (GP) notes were not available to the appeal tribunal.  There was a further oral hearing of the appeal on 7 July 2010 which was also adjourned.

 

4.     The substantive oral hearing of the appeal took place on 16 August 2010.  Once again the appellant was present and was represented.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 23 February 2010.

 

5.     On 1 November 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 4 November 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

6.     On 5 January 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 18 April 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 9 May 2011, Mr Hinton, for DMS, supported the application for leave to appeal on one of the grounds cited in the application but opposed the application on the other cited grounds.  Written observations were shared with the appellant on 19 May 2011.

 

7.     On 29 June 2011 I directed an oral hearing of the application.  For a variety of reasons the oral hearing did not take place until 17 April 2012.  At the oral hearing the appellant was not present but was represented by Mr Mitchell of the Citizens Advice organisation.  The Department was represented by Mr Hinton.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions and for their earlier written case summaries.  At the oral hearing of the appeal it was noted that the appellant had a further application for leave to appeal which was before the Social security Commissioners.  Mr Mitchell indicated, however, that he wished both applications to be considered separately.

 

         Errors of law

 

8.     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.

 

9.     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.”

 

         What did the appeal tribunal decide with respect to the care component of DLA?

 

10.   In the record of proceedings for the appeal tribunal hearing, the following is recorded:

 

‘Legally Qualified Member asked if (the claimant) was still standing by her claim in Tab 4 her letter of appeal that she agreed with the decision on Care.  She stated she had got worse since February.  Legally Qualified Member stated we would only be considering her condition as it was at the outcome date of 23 February 2010.  Any determination should be subject to a fresh claim to benefit.

 

(The claimant) stated she was in agreement with Tab 4 that she did not fulfil the Care criteria as at the outcome date.

 

…

 

Back as at February - she was able to wash, dress and toilet herself.  She can look after her own meals.  She was getting around the house okay - a few falls inside now and then.

 

…

 

She confirms she was cooking for herself back in February 2010.

 

…

 

She does light cooking as she does not have an appetite.  It tires her.  She could not look at it afterwards.’

 

11.   I am certain that the word ‘determination’ in the final line of the first paragraph of this extract should read ‘deterioration’.

 

12.   In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the following is recorded:

 

‘(The claimant) confirms today that she can attend to her bodily functions such as washing, dressing, bathing, toileting, medication etc unaided.  This confirms the contents of her own assessment in her letter of appeal that she agrees “with the decision.  I don’t qualify for care allowance, thank God I still do that for myself and hope to be able to do it for a while yet.  We are not convinced that frequent attention throughout the day or for a significant portion of the day is required in connection with bodily functions.

 

(The claimant) agrees that she can and does prepare a main meal for herself.  It is just that after cooking it she feels nauseous and does not feel like eating.  Nothing in General Practitioner records in any event indicates any reason why she would in any event be unable to do so.

 

(The claimant) indicates that she has no night time needs confirming the information given in her claim form.’

 

         What did the appeal tribunal decide with respect to falls?

 

13.   In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the following is recorded:

 

‘We note the claimant indicates a history of very frequent falling.  General Practitioner records in no way substantiates this.  We note (the claimant) walks with a crutch - given to her after her previous surgery - but has had no formal assessment by either Occupational Therapy or Physiotherapy for a suitable walking aid.  We believe the use of an appropriately assessed walking aid would prevent with falls.  (The claimant) has never had a serious injury in recent times as a result of a fall.  She is mentally clear and alert and aware of common danger and we see no reason why supervision by day or watching over at night would be required in order to avoid danger to herself or others.’

 




         Why was the decision of the appeal tribunal in the instant case in error of law?

 

         Submissions of the parties

 

14.   In the case summary which was prepared for the oral hearing of the application for leave to appeal, Mr Mitchell submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)        the appeal tribunal failed to consider the decision of the Social Security Commissioner in R(DLA) 1/08 and, more particularly, the effect which nausea had on the appellant’s ability to prepare a cooked main meal;

 

(ii)       there was no consideration or proper application of the decision of the Social Security Commissioner in R(DLA) 2/95.  That decision was authority for the principle that the ‘main meal’ or ‘cooking’ test was a test involving a labour intensive main meal.  The record of proceedings for the appeal tribunal hearing recorded that the appellant undertook ‘light cooking’ which, Mr Mitchell submitted, did not equate to a labour intensive main meal;

 

(iii)      the decision of the Social Security Commissioner in CDLA/42/1994 was authority for the principle that supervision might be anticipatory or precautionary and might never result in actual intervention.  The appeal tribunal had erred in failing fully to consider the claimant’s potential requirement for supervision;

 

(iv)      the medically qualified panel member (MQPM) assumed that any blackouts suffered by the appellant occurred after the decision under appeal.  There was no evidence as to when the blackouts had commenced; and

 

(v)       the appeal tribunal has not explained, in line with the decision in C8/08-09(IB) why it rejected the appellant’s written narrative, or indeed if it was considered at all.

 

15.   Mr Mitchell expanded on these arguments during the course of the oral hearing.

 

16.   In the case summary which was prepared for the oral hearing of the application for leave to appeal, Mr Hinton submitted that:

 

(i)        the appeal tribunal’s assessment of the appellant’s mobility, including her use of an appropriate walking aid was not in error;

 

(ii)       in line with the principles in C8/08-09(IB), an appeal tribunal had a duty to assess all of the evidence which was before it and give an explanation as to why it prefers, accepts of rejects evidence.  It was not clear whether or not the appeal tribunal had assessed the evidence contained within the hand-written diary for the period from 24 May 2010 to 31 May 2010 which was handed into the appeal tribunal as part of the oral hearing of the appeal on 1 June 2010;

 

(iii)      the principles in R(DLA) 1/08 meant that if nausea was a symptom of the appellant’s ability which would prevent her from preparing a cooked main meal then that should be taken into account when deciding entitlement to the lowest rate of the care component of DLA.  On the facts of the case, however, nausea did not prevent the appellant from preparing a cooked main meal for herself.

 

17.   Mr Hinton expanded on these arguments during the course of the oral hearing.

 

         Analysis

 

18.   In C9/08-09(DLA) I set out in some considerable detail the principles applicable to entitlement to the lowest rate of the care component of DLA on the basis that the claimant satisfies section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, in that the claimant ‘cannot prepare a cooked main meal for himself if he has the ingredients’.  At paragraphs 25 to 34, I stated the following, in connection with 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 reason, 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.’

 

19.   In IEC-v-Department for Social Development (DLA) ([2011] NICom 199 (C17/11-12(DLA)), I said the following, at paragraph 11:

 

‘11.      I accept the submission from Mr Hinton concerning the relevance of the decision of the Social Security Commissioner in Great Britain in R(DLA) 1/08.  That decision is authority for the principle that nausea as an effect, potential or actual, may be taken into account in assessing whether a claimant, for the purposes of Section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, has the ability to prepare a cooked main meal.  Of course, it will be for the appeal tribunal to assess all of the evidence relevant to a claimant’s disability, its effects or symptoms, and the consequence of those effects on the ability to prepare a cooked main meal, taking account the possible alleviation of those effects through other means such as proper ventilation.’

 

20.   I have no disagreement, therefore, on the general principles which require to be applied.  The focus turns, therefore, on how those principles were applied by the appeal tribunal.

 

21.   I would begin by noting that at the oral hearing of the appeal the appeal tribunal addressed with the appellant the question of whether she was submitting that she had an entitlement to any rate of the care component of DLA.  The appeal tribunal made reference to the appellant’s letter of appeal in which she had stated:

 

‘I do agree with the decision I don’t qualify for care allowance thank God I can still do that for myself and hope to be able to do for a while yet.’

 

22.   Thereafter, and as was noted above, the record of proceedings for the appeal tribunal hearing records the following:

 

‘Legally Qualified Member asked if (the claimant) was still standing by her claim in Tab 4 her letter of appeal that she agreed with the decision on Care.  She stated she had got worse since February.  Legally Qualified Member stated we would only be considering her condition as it was at the outcome date of 23 February 2010.  Any determination should be subject to a fresh claim to benefit.

 

(The claimant) stated she was in agreement with Tab 4 that she did not fulfil the Care criteria as at the outcome date.’

 

23.   Despite this discussion as to whether lack of entitlement to the care component of DLA was conceded by the appellant, the appeal tribunal went on to take evidence from the appellant concerning any functional disability which might lead to entitlement to the care component of DLA and, as the statement of reasons for its decision confirms, did consider potential entitlement to the care component.

 

24.   I turn to the appeal tribunal’s consideration of the effect which nausea had on the appellant’s ability to prepare a cooked main meal.  The evidence which the appeal tribunal had before it in connection with this issue included statements made by the appellant in her claim form to DLA; the appellant’s letter of appeal; her oral evidence to the appeal tribunal and all other supporting evidence which included the hand-written diary for the period from 24 May 2010 31 May 2010 together with a hand-written letter which were submitted at the adjourned oral hearing of the appeal on 1 June 2010.  I will address, in more detail below, the manner in which the appeal tribunal dealt with the evidence submitted at the adjourned oral hearing of the appeal on 1 June 2010.

 

25.   In her claim form to DLA, the appellant was asked certain specific questions about the activities and tasks associated with the preparation of a cooked main meal.  At page 23 of the relevant form she was asked whether she had difficulty or needed help with cutting up food, eating or drinking.  Her reply to that question was ‘no’.  At page 28 she was asked whether she had difficulty preparing a cooked main meal for herself.  Her immediate answer to that question was ‘no’.  The appellant added, however, a paragraph of narrative, as follows:

 

‘I very seldom cook a full meal myself.  I don’t have a great taste for cooking or eating since going onto treatment for diabetes.  I often only have cereal or toast and beans at teatime.  My sister makes my food at weekends.  I eat a lot of fruit during day.’

 

26.   Elsewhere in the claim form, at page 31, the appellant made reference to ‘… lack of appetite and heavy nausea.’  As was noted above, in the letter of appeal, the appellant made no reference to an entitlement to a ‘care allowance’ but did add that her sister:

 

‘… also cooks meals at weekends and brings them up to give my son a break, he would eat most of what is sent up as I don’t always have an appetite and can’t eat.  I don’t always have an appetite and can’t eat.  I think I want food until its set in front of me then it turns me or if I try and eat some it comes up again after about ½ hr …

 

Summer is a lot easier for eating as I can make salads and light food not so much cooking involved.

 

I can’t even stand the smell of food in the take away and pubs down the town’

 

27.   As was noted above, at the adjourned oral hearing which took place on 1 June 2010 the appellant submitted a hand-written diary for the period from 24 May 2010 31 May 2010 together with a hand-written letter.  In the hand-written diary there is reference to the appellant suffering from nausea but, invariably, after she had eaten something.

 

28.   At the oral hearing of the appeal which took place on 16 August 2010, the appellant gave evidence concerning her ability to prepare a cooked main meal for herself as of the date of the decision under appeal ie 23 February 2010.  The appeal tribunal recorded that the appellant was in a position to prepare a cooked main meal for herself in February 2010 although noting that the appellant had noted the appellant’s submission had deteriorated since that date.

 

29.   I am of the view that there is a certain substance to Mr Mitchell’s submission that the appeal tribunal has failed to address the evidence which was submitted by the appeal tribunal at the adjourned oral hearing of the appeal which took place on 1 June 2010.

 

30.   In C2/10-11(IB), I stated the following, at paragraphs 22 to 26:

 

‘22.      Article 13(8)(b) of the Social Security (NI) Order 1998 provides -

 

‘(8) In deciding an appeal under this Article, an appeal tribunal -

 

(a)……….

 

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

23.       Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal.  The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure.  It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal.  In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

 

24.       It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal.  Moreover, the appeal tribunal itself has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence.

 

25.       In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

 

26.       In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal.  The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.’

 

31.   I am of the view, therefore, that the appeal tribunal was correct to remind itself that it was restricted by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, to refrain from taking into account any circumstances not obtaining at the time when the decision appealed against was made.

 

32.   In paragraph 43 of C2/10-11(IB), and following a detailed analysis of the decisions of Commissioner Jacobs in R(DLA) 2/01 and R(DLA) 3/01 and the approval of those decisions by Mrs Commissioner Brown in C24/03-04(DLA), I cited the following extract from paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01 -

 

‘…If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

 

and in paragraph 44, and in the circumstances of that case, I found that:

 

‘…, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal has endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal.’

 

33.   In the instant case, the appellant had provided a specific submission, in the form of a hand-written diary for the period from 24 to 31 May 2010, on the impact of her disabilities on her ability to function.  It was clear that she had formed the view that this evidence was significant to the issues arising in her appeal.  Although the evidence post-dated the decision under appeal, the appeal tribunal was, in my view, under a duty to determine whether the post-dated evidence relates to the period under its consideration.

 

34.   In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal had endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal.  When an appeal tribunal is adjourned, particularly on more than one occasion it is easy for a subsequent appeal tribunal to overlook evidence which was submitted at the earlier adjourned oral hearing.  Nonetheless and although the evidence contained within the post-dated decision under appeal by a number of months, the appeal tribunal should have considered the significance of the evidence and whether the evidence was related to the period under consideration.

 

35.   The failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it did not fully assess, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA).  Accordingly, the appeal tribunal has made an error in law.  I am reminded, however, that in paragraph 30 of R(I) 2/06 the categories of commonly encountered errors of law were qualified by the statement that:

 

‘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.’

 

36.   Accordingly, I have to ask the question whether the error in the instant case was material in the sense that it would have made any difference to the outcome of the appeal tribunal hearing.

 

37.   I begin my analysis of that question by confirming that I cannot find any fault with the decision which the appeal tribunal made and which was based on the assessment of evidence which it did consider.  As was noted above, that evidence included the evidence contained within the claim form to DLA; her letter of appeal and her oral evidence to the appeal tribunal.  The appeal tribunal also had access to the appellant’s GP records.  Looking at the manner in which the appeal tribunal assessed that evidence, its findings in fact and the conclusions which it reached, I have concluded that it arrived at a decision which it was entitled to reach.  The appeal tribunal noted that the appellant suffered from problems with nausea.  It concluded that the appellant’s problems with nausea were most manifest after the appellant had prepared food for herself and that nausea, in itself, did not prevent the appellant from engaging in the preparation of a cooked main meal for herself.  That conclusion is consistent with all of the evidence which was considered by the appeal tribunal.  The appeal tribunal had access to the appellant’s GP records and could not find therein any reason why, in any event, the appellant should not be able to prepare a cooked main meal for herself.

 

38.   Would consideration of the evidence submitted at the adjourned oral hearing of the appeal on 1 June 2010 have made any difference to the appeal tribunal’s outcome decision?  In line with the principles in set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA), I have considered the evidence which post-dated the decision under appeal and have related that evidence to the period under consideration by the appeal tribunal - that is the period up to the date of the decision under appeal.  I conclude that the post-dated evidence does not relate to the period under consideration by the appeal tribunal in that it had to be assessed as part of the appellant’s submission that there had been a deterioration in the appellant’s condition since the date of the decision under appeal.

 

39.   At the oral hearing of the appeal, which took place on 16 August 2010, the appellant submitted that there had been a deterioration in her medical condition since the date of the Departmental outcome decision, that is 23 February 2010.  That deterioration might have included a worsening of the appellant’s problems with nausea.  In turn, any worsening of her problems with nausea might, by the date of the appeal tribunal hearing, have impacted on her ability to prepare a cooked main meal for herself.  In my view, the appeal tribunal was correct to advise the appellant that any significant change in her circumstances by August 2010 had the potential to be actioned by a renewal claim to DLA.

 

40.   In any event, I am not that sure that there was evidence of a significant deterioration in the appellant’s medical condition, even at the date of the appeal tribunal hearing, that is 16 August 2010 such that it was affecting the appellant’s ability to prepare a cooked main meal for herself.  I have considered the detail of the hand-written diary for the period from 24 to 31 May 2010, and the additional piece of correspondence, submitted by the appellant at the adjourned oral hearing of the appeal on 1 June 2010.  I accept that the appellant was submitting that she continued to suffer from problems with nausea, that she was seeking additional medical advice in connection with those problems, and that her problems with nausea were impacting on her appetite, more specifically on her desire to eat cooked food, once prepared.

 

41.   In my view, therefore, consideration of the relevant evidence would not have made any difference and, as such, I have concluded that the appeal tribunal’s failure obviously to take account of that evidence was not a material error in the sense that it would have made a difference to the outcome of the appeal.  I would add that if I am incorrect in my conclusions that the error made by the appeal tribunal was not material, I would have been prepared to make any required additional findings in connection with the evidence which post-dated the decision under appeal, as set out above.  The making of those additional findings would have resulted in my making a decision to the same effect as the appeal tribunal that the appellant did not satisfy the conditions of entitlement to the lowest rate of the care component of DLA as set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

42.   With respect to Mr Mitchell’s remaining grounds on which he submitted that the decision of the appeal tribunal was in error of law, I cannot accept them.

 

43.   The first of these was that there was no proper consideration or application of the decision of the Social Security Commissioner in Great Britain in R(DLA) 2/95.  As was noted above, I agree with Mr Mitchell that the decision in R(DLA) 2/95 is authority for the principle that the ‘main meal’ or ‘cooking’ test was a test involving a labour intensive main meal.  Mr Mitchell notes that the record of proceedings for the appeal tribunal hearing records that the appellant undertook ‘light cooking’ which, Mr Mitchell submitted, did not equate to a labour intensive main meal.  The reference in the record of proceedings is a reference to the evidence of the appellant as the nature and form of the cooking which she undertook.  I cannot agree that the overall conclusion of the appeal tribunal concerning the application of the statutory test set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, or a misapplication of the principles in R(DLA) 2/95.

 

44.   The second further submission concerned the appeal tribunal’s failure to address the appellant’s requirement for supervision.  With respect to Mr Mitchell’s submission in respect of this ground, I cannot accept it.  I find no failure in the manner in which the appeal tribunal has addressed the question of a requirement for guidance and/or supervision either indoors or outdoors.  Mr Mitchell’s third and final additional ground related to a submission that the MQPM made an assumption in connection with the evidence presented by the appellant concerning blackouts from which she suffered.  Once again, and with respect to Mr Mitchell, I cannot accept that any such assumption was made.  The record of proceedings for the appeal tribunal hearing records the MQPM noting that there was no evidence contained within the GP records concerning blackouts and, thereafter, reminding the appellant, that the appeal tribunal was concerned with circumstances pertaining as at the date of the outcome decision.  I do not, with respect, agree that this amounts to an assumption about evidence made by the MQPM.

 

         Disposal

 

45.   The decision of the appeal tribunal dated 16 August 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 28 January 2010, is confirmed.

 

         Postscript

 

46.   In correspondence received in the Office of the Social Security Commissioners on 6 February 2013 the appellant has indicated that she was awarded an entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from 6 September 2011 to 5 September 2012.  The Department, through e-mail correspondence received from Mr Hinton on 13 February 2013, has confirmed that the appellant was made an award of entitlement to DLA, to the effect stated by her, following an appeal tribunal hearing on 15 January 2013.  Although this further award is of significance to the appellant it does not alter my decision which is set out above.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

27 February 2013