UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the tribunal's decision and, since it is not expedient for me to make the findings of fact which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.
2. The claimant, who suffers from osteoarthritis and peripheral vascular disease, made a claim for disability living allowance on 5 October 2001. On 18 October 2001 a report was received from the claimant's general practitioner, in which he stated that the claimant could probably walk only a short distance and might have difficulty with many of the tasks required to prepare and cook a main meal when her joints were painful. On 14 November 2001 the claimant was examined by an examining medical officer, who assessed the distance which the claimant could walk before the onset of severe discomfort as about 700 metres on an average day and about 1000 metres on a good day. The examining medical officer assessed the claimant's grip as being reduced by 10% in each hand, but expressed the view that the claimant was able to perform safely each of the physical tasks required to prepare and cook a main meal for one.
3. On 19 November 2001 a decision was made refusing the claim to both the mobility and care components of disability living allowance and on 3 January 2002 the claimant appealed against that decision. The decision was not revised on reconsideration and, accordingly, the appeal proceeded to a hearing on 20 June 2002. Prior to the hearing the claimant submitted a medical report from an orthopaedic specialist, who stated that the claimant's walking distance was 30 yards "and after this she certainly suffers with low back pain as well as pain in both legs." In relation to the tasks required to cook a main meal, the specialist stated:

"She finds it very difficult to peel potatoes and to lift heavy pans. Hence it is impossible to cook a hot meal occasionally sometimes especially when in pain.

When she is cooking she uses small dishes and is unable to use the oven."

4. The tribunal dismissed the appeal in respect of both mobility and care components. In relation to higher rate mobility component, the tribunal rejected the claimant's estimate of the distance which she could walk before the onset of severe discomfort and accepted the examining medical officer's assessment of 700 to 1000 metres because of what they regarded as inconsistencies in the claimant's estimates of her walking ability. I agree with the claimant's representative and the Secretary of State's representative that in regarding the claimant's evidence that she had walked a distance of 100 yards to the tribunal as inconsistent with her previous estimates of her walking ability, the tribunal appear to have disregarded the claimant's evidence that she had stopped twice when walking to the tribunal building. I am therefore satisfied that the tribunals' decision in relation to higher rate mobility component was erroneous in point of law.
5. The tribunal's findings in relation to "cooking test" lowest rate care component were as follows:

"1. (The claimant's) grip is described by the EMP as reduced by 10% only.

(The orthopaedic specialist) describes grip as weak on the right.

As a result we considered she could peel/chop vegetables and cope with a small pan. A view that confirmed the EMP's opinion.

She told us she relied on a microwave. She could thus use this to cook ingredients prepared by herself."

The appeal against that aspect of the tribunal's decision is on the ground that the tribunal erred in law in taking into account the claimant's ability to use a microwave oven.

6. Section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 confers entitlement to the lowest rate of the care component of disability living allowance on a claimant who is so severely disabled physically or mentally that "he cannot prepare a cooked main meal for himself if he has the ingredients", and in the leading case R(DLA)2/95 it was held that the cooked main meal contemplated by the provision is a "labour intensive reasonable main daily meal freshly cooked on a traditional cooker". The difference between the demands made on a claimant when cooking by means of a traditional cooker and those made when cooking on a microwave oven may not be significant in many cases, but in other cases they may be crucial. An example of the latter category of case is CDLA/021/1994, in which the claimant could use a microwave oven, but could not cook on a traditional cooker because doing so brought on asthma attacks. In my judgment, the nature of the task which has to be considered when applying the 'cooking test' cannot vary from case to case, according to the circumstances of the individual claimant, so that a microwave oven cannot simply be substituted for a traditional cooker in applying the 'cooking test' if a claimant has a microwave oven available. It is therefore always necessary to consider whether a claimant can reasonably be expected to use a traditional cooker to cook a main meal, and, unlike the Commissioner in CDLA/770/2000, I respectfully agree with Mr Commissioner Henty in CDLA/020/1994 in holding that a claimant who is for all practical purposes wholly unable to use a traditional cooker satisfies the section 72(1)(a)(ii) condition of entitlement.
7. Although the 'cooking test' is a hypothetical and abstract test, in the sense that it is not concerned with questions such as a claimant's cooking skills or the need for a claimant to cook for himself in practice, it was held in R(DLA)1/97 that questions of reasonableness are nevertheless relevant when applying the 'cooking test', just as they are when considering each of the other tests of entitlement to the care component. Reasonableness for the purposes of the 'cooking test' is to be judged in relation to the practicality of the particular claimant carrying out the hypothetical task prescribed by section 72(1)(a)(ii), and may therefore take into account 'devices to assist' (R(DLA)2/95) or 'coping stratagems' (CDLA/5686/1999), provided that such devices or stratagems are not special or unusual. The question in each case is whether it would be reasonable to expect a person in the claimant's position to cook a main meal for one on a traditional cooker, or, as it was put by the Chief Commissioner for Northern Ireland in C41/98(DLA), whether a reasonable person would consider it unreasonable for the particular claimant to carry out that task.
8. A microwave oven must now, in my view, be regarded as an ordinary piece of kitchen equipment, and I therefore see no reason why it should not be taken into account in applying the 'cooking test', in the same way as other 'devices to assist', in deciding what it is reasonable to expect a particular claimant to achieve by way of cooking. However, it must be borne in mind that cooking a main meal involves more than just re-heating pre-cooked ready meals-see paragraph 11 of CDLA/5686/1999-and that cooking a main meal generally requires each of the ingredients to be cooked at the same time, or at least to be kept hot until the rest of the meal is ready. In many cases, a microwave oven may therefore be of limited use in helping a disabled claimant to cook a main meal from raw ingredients by means of a traditional cooker. If a tribunal considers that the assistance which a claimant might reasonably be expected to obtain from using a microwave is relevant to the claimant's ability to cook a main meal using a traditional cooker, they must make it clear in their reasons why that is so. The tribunal in this case did not explain why the claimant's ability to use a microwave oven was relevant to her ability to cook a main meal using a traditional cooker, and I therefore agree with the claimant's representative and the Secretary of State's representative that this aspect of the tribunal's decision is also erroneous in point of law.
9. For those reasons, I allow the appeal and set aside the tribunal's decision. I am clearly not in a position to make the findings which are necessary to determine entitlement to benefit, and I therefore refer the case for re-hearing before a differently constituted tribunal. There is evidence that the claimant's ability to cook a main meal is variable, so that the outcome of this appeal may be affected by any appeal to the House of Lords in Secretary of State v Moyna. I therefore direct that this case be referred to a district chairman prior to re-listing, for consideration to be given to adjourning this case until after the conclusion of any further appeal in the Moyna case.

(Signed) E A L Bano

Commissioner

25 November 2002