UK Social Security and Child Support Commissioners' Decisions

R(DLA) 7/03

(Secretary of State for Work and Pensions v. Moyna [2003] UKHL 44)

HL 

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffman, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe 

CDLA/5438/1999 



31.7.03

Disability living allowance - care component - inability to prepare a cooked main meal - whether inability on 1-3 days a week satisfies test - whether tribunals can properly reach different conclusions on the same facts - whether the meaning of words used in legislation was a question of law

The claimant had a heart condition which prevented her from exerting herself for any length of time, but she could on most days prepare a cooked main meal for herself. Her claim for disability living allowance was refused. She appealed to a tribunal, which decided that she did not satisfy the "cooking test" in section 72(a)(ii) of the Social Security Contributions and Benefits Act. On further appeal a Commissioner found no error of law in the tribunal's decision, holding that while not all tribunals might have reached the same conclusion, the tribunal was entitled on the evidence to reach the conclusion it did.

The claimant appealed to the Court of Appeal, which allowed the appeal. It held that the provision of a cooked main meal was required on a regular basis to ensure a reasonable quality of life. If there was a clear pattern of a person not being able to provide for himself, the test would be satisfied. The Court rejected the view that different tribunals could on the same facts properly reach different conclusions as to whether the cooking test was satisfied.

Held by the House of Lords, allowing the appeal, that:

the cooking test was a notional test of severity of disability and the Court of Appeal was wrong to lay such emphasis on the need for a cooked main meal more or less every day to ensure a reasonable quality of life (paragraph 17);

the test did not function at a day to day level, but required a broad view over the period throughout which it was to be satisfied. It was an exercise of judgment rather than an arithmetical calculation of frequency (paragraphs 18-19);

where a tribunal had to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there were bound to be cases where a reviewing court could not say that the tribunal had erred in law in deciding the case either way (paragraph 20);

the question whether the facts fell on one side or the other of some conceptual line drawn by the law is itself a question of fact, and will raise a question of law only if the decision of the fact-finding tribunal falls outside the bounds of reason (paragraphs 25-27).

Their Lordships restored the decision of the tribunal.

DECISION OF THE HOUSE OF LORDS

Nicholas Paines QC (instructed by Department for Work and Pensions) for the Appellant.

Richard Drabble QC for the Respondent

Judgment

LORD NICHOLLS OF BIRKENHEAD

1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow this appeal.

LORD STEYN

My Lords,

2. For the reasons given in his opinion by my noble and learned friend Lord Hoffmann, I would also allow the appeal.

LORD HOFFMANN

My Lords,

3. The issue in this appeal is whether the disability appeal tribunal made an error of law in deciding on 27 January 1999 that the appellant, Mrs Munira Moyna, did not qualify for disability living allowance under section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992. Mrs Moyna's condition subsequently deteriorated and she made a fresh claim which was allowed with effect from 14 June 2000. This appeal is concerned with whether it should have been paid before that date.
4. The Social Security Commissioner, to whom in the first instance an appeal from the tribunal lay under section 34(1) of the Social Security Administration Act 1992, decided that there had been no error of law but his decision was reversed by the Court of Appeal (Dame Elizabeth Butler-Sloss P, Potter and Kay LJJ). The functions of the disability appeal tribunal have since been transferred by section 4(1) of the Social Security Act 1998 to unified appeal tribunals constituted under that Act but the appeal to the Commissioner (section 14(1)) and thence to the Court of Appeal (section 15(1)) is still only on points of law.
5. Disability living allowance was introduced by the Disability Living Allowance and Disability Working Allowance Act 1991 to replace what had been called attendance allowance and mobility allowance. The qualifications for attendance allowance had required a severe degree of disablement: the applicant had to be so severely disabled physically or mentally that he required "frequent attention throughout the day" or "prolonged or repeated attention during the night" in connection with his "bodily functions" or "continual supervision" throughout the day or night in order to avoid substantial danger to himself or others. Although the courts were willing to give "bodily functions" a fairly wide meaning (see for example Mallinson v. Secretary of State for Social Security [1994] 1 WLR 630) [reported as R(A) 3/94] the House of Lords decided in In re Woodling [1984] 1 WLR 348 that it did not include the performance of domestic tasks like cooking.
6. One purpose of the new benefit introduced by the 1991 Act was to enable persons with lesser degrees of disability to qualify for allowances at lower rates. In provisions which are now consolidated in section 72 of the 1992 Act, it provided for payment of the "care component" of the allowance at three different levels. The present case is concerned with the lowest level, to which a person is entitled under section 72(1):

"… for any period throughout which—

(a) he is so severely disabled physically or mentally that—

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

7. Paragraphs (b) and (c) of section 72(1) prescribe the conditions for payment of allowances at the two higher levels. In order to ensure that the allowance is paid only for more or less chronic disabilities, subsection (2) provides that:

"… a person shall not be entitled to the care component of a disability living allowance unless—

(a) throughout—

(i) the period of 3 months immediately preceding the date on which the award of that component would begin …

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

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

(i) the period of 6 months beginning with that date …"

8. Mrs Moyna was for 21 years a civil servant in the (then) Ministry of Agriculture, Fisheries and Food who retired in 1997, aged 58, on grounds of ill health. She has a number of illnesses and disabilities, including a heart condition which prevents her from exerting herself for any length of time without bringing on pain and discomfort. On 20 December 1996 she applied for disability living allowance. There is (or was) a comprehensive form for such applications called DLA 1, which includes a section on "Help that you need during the day - preparing a cooked main meal for yourself". The form said:

"You may never have planned or prepared a cooked main meal for yourself. But try to imagine how much help you would need if you tried to do this.

If you had everything you needed for the meal, roughly how many days a week would you need help

planning a cooked main meal?

peeling and chopping vegetables?

using cooking utensils?

using taps?

using a cooker?

coping with hot pans?"

9. The boxes to be ticked on the form offered the alternatives of no help needed, 1 to 3 days, 4 to 5 days and 6 to 7 days. Mrs Moyna ticked the 1 to 3 days boxes for help with cooking utensils, taps and hot pans. By way of explanation, she added in the space provided:

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

10. Mrs Moyna was then visited by an examining medical practitioner, who had his own form to fill in. This starts with a statement of the "disabled person's needs in their own words". Under the heading "Preparing a cooked Meal", the doctor wrote "Can prepare a cooked meal". In the section for the doctor's own opinions, under the heading "Need for attention: in your opinion can the disabled person safely ...", followed by a list of actions, he ticked "Without someone's help" in respect of peeling and chopping vegetables, using taps, using a cooker and coping with hot pans.
11. The application form and the medical report then went to an adjudication officer, Mrs Roberts, who on 4 February 1997 disallowed the claim. Mrs Moyna wrote on 13 February 1997 requesting a review. The case was reconsidered by another adjudication officer, who reaffirmed the decision:

"I accept the visiting doctor's opinion as it is based on the examination and observation of Mrs Moyna.

The cooked main meal is for one person only, therefore I consider that she could manage the pans for cooking such a meal. I do not accept that she cannot prepare a cooked main meal for herself."

12. In her more detailed reasons, the adjudication officer said:

"In her claim pack, Mrs Moyna states that she needs help 1-3 days a week, to use cooking utensils and taps and to cope with hot pans. She cannot carry anything heavy as it brings on angina attacks.

In her statement to the visiting doctor, she states she can prepare a cooked meal.

The visiting doctor's opinion is that she does not require help to prepare a cooked main meal."

13. Mrs Moyna then appealed to the disability appeal tribunal, which dismissed her appeal on 27 January 1999. She told the tribunal that she could cook, although "nothing elaborate". The tribunal concluded:

"Chopping and peeling is sometimes difficult - and always is with hard vegetables if they are large. She can manage a small saucepan for herself. The other difficulty is standing for a long time and the appellant's tactic if she has to cook something for herself is to put it on the cooker then lie down. From this we concluded that, with some planning and careful arranging of cooking requisites and perhaps use of a high chair, appellant can, on most days, prepare a cooked main meal for herself, and that it is not unreasonable to expect her to do so. She therefore does not qualify for the care component on that basis."

14. Mrs Moyna then appealed to the Commissioner, saying that the tribunal has misconstrued the requirements of section 72(1)(a)(ii). The Commissioner found no error of law. The test, he said, is whether the claimant can cook a "labour intensive reasonable main daily meal freshly cooked on a traditional cooker". Not all tribunals might have reached the same conclusion but the tribunal was entitled on the evidence to reach the conclusion it did.
15. In the Court of Appeal the leading judgment was given by Kay LJ and the other two members of the court agreed. He did not accept that one could have facts on which different tribunals could properly reach different conclusions about whether the "cooking test" had been satisfied. The test was intended to be "straightforward" and produce the same answer on the same facts.
16. Kay LJ said that the provision of a cooked main meal was something required "not on an occasional basis but on a regular basis if someone is to enjoy a reasonable quality of life". If the inability to cook was on "no more than occasional days", the test would not be satisfied. But if there was a "clear pattern" of a person not being able to provide for himself, it would. In the present case, there was such a clear pattern, because on the basis of Mrs Moyna's answers on the claim form, there would sometimes be weeks in which for three days she would "have to forgo her one cooked meal". This was a "significant" disability because there was a regular pattern rather than something "occasional or intermittent".
17. My Lords, there are two points to be made about the "cooking test" in section 72(1)(a)(ii). The first is 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. It does not matter whether the applicant actually needs to cook. As the form DLA 1 said, "try to imagine how much help you would need if you tried to do this." 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. So in my view the Court of Appeal was wrong to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life.
18. That leads on to the second point, which is that the test says nothing about how often the person should be able to cook. It would have been easy for Parliament to say that a person should be able to cook daily or six times a week or whatever. Instead, the statute approaches the question of frequency in a different way. Section 72(2) contemplates that one should be able to say of someone throughout a nine month period that he is a person whose disability is such that he cannot cook a main meal. What does this mean? 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. But the Secretary of State does not contend for this construction and I do not think that it 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 can fairly be described as a person who is unable to cook a meal. It is an exercise in judgment rather than an arithmetical calculation of frequency.
19. I therefore agree with the Commissioner that the question involves taking "a broad view of the matter" and making a judgment. The standard of motor abilities required by the cooking test is not so precise as to allow calibration by arithmetical formula. In the present case, I think that the Court of Appeal attached too much weight to the fact that in her claim form Mrs Moyna had ticked the box "1-3 days" for the extent to which she needed help with heavy pans, cutting vegetables and so forth. In answering the generalised question of whether Mrs Moyna could fairly be described as a person unable to cook, it may be relevant to consider not only the number of occasions on which she says she would need assistance but also the reasons why it would be needed. The tribunal went into the matter in some detail. It observed that she could cook for herself using lighter pans and cutting up smaller vegetables. In addition, it had the opinion of the examining doctor and his record of Mrs Moyna's own description of herself as a person who could cook a meal - a description which is, as I have said, not inconsistent with her not being able to do so all the time. These are all items of evidence which go into the decision-making process.
20. In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] 2 AC 803, 815-816. I respectfully think that it was unrealistic of Kay LJ to think that he was able to sharpen the test to produce only one right answer. In my opinion the Commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law.
21. That is sufficient to dispose of the appeal, but I must say something about an alternative submission by Mr Paines, who appeared for the Secretary of State. He said the words "period throughout which … he is so severely disabled physically or mentally that … he cannot prepare a cooked main meal for himself" were ordinary English words and that their meaning was not a question of law. Consequently the short answer to the appeal was that the decision of the tribunal raised no point of law.
22. This submission was based upon some well known remarks of Lord Reid in Brutus v. Cozens [1973] AC 854, 861, in which the question was whether the appellant had been guilty of "insulting behaviour":

"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved."

23. I think that these observations have been given a much wider meaning than the author intended. Lord Reid was in my opinion making two very pertinent points. First, he was drawing attention to a feature of language; namely, that many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning. Lord Kilbrandon made the same point in his reference to Dr Johnson at p. 867. On the other hand, Lord Reid insisted that, whether the statute used simple words or difficult ones, its construction was a question of law.
24. Lord Reid was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator's meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.
25. Lord Reid's second point is made in the last sentence of the passage I have quoted, when he says that the question of whether the facts found by the tribunal count as "insulting" for the purposes of the statute is a question of fact. There is a good deal of high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact: see, for example, Edwards v. Bairstow [1956] AC 14 and O'Kelly v. Trusthouse Forte plc [1984] QB 90. What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.
26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on "Trial by Jury" Lord Devlin said (at p 61):

"The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries."

27. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd [1995] Ch 241, 254-255.
28. Applying the first of these two points to the facts of the present case, I think that it was unhelpful for the Court of Appeal to construe the statutory language as if it
     
    

included words like "daily" or "regularly". Applying the second, I think that the decision of the tribunal was within the bounds of reasonable judgment. I therefore think that, properly understood, Lord Reid's remarks in Brutus v. Cozens [1973] AC 854, 861 do not lay down some heterodox principle which provides a short cut to dismissing an appeal ("the last resort of counsel appearing on behalf of respondents" as Lord Woolf MR said in R v. Radio Authority, Ex p Bull [1998] QB 294, 304) but are in accordance with established principles and common sense.

29. I would therefore allow the appeal and restore the decision of the tribunal.

LORD RODGER OF EARLSFERRY

My Lords,

30. I have had the privilege of considering the speech of my noble and learned friend Lord Hoffmann in draft. For the reasons that he gives I too would allow the appeal and restore the decision of the tribunal.

LORD WALKER OF GESTINGTHORPE

My Lords,

31. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons given in his speech I would allow this appeal.