UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CDLA_1471_2004 (16 September 2004)


 


DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Swansea appeal tribunal, held on 9 January 2004 under reference U/03/204/2003/01690, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.

The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.

The appeal tribunal must investigate and determine the claimant's entitlement to a disability living allowance on and from 21 October 2002, the date when his claim was treated as made.

The appeal tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (14 January 2003): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

History and background

2. The claimant made a claim for a disability living allowance, which was treated as made on 21 October 2002. The Secretary of State obtained reports from the claimant's GP and an examining medical practitioner. Neither report was supportive of an award. The decision-maker refused the claim. The claimant's solicitor applied for a revision of the refusal, but the decision was confirmed. The solicitor then appealed against the decision. She provided a detailed submission for the tribunal. It argued for an award consisting of the mobility component at the lower rate, and of the care component at the middle rate or at the lower rate on the cooked main meal test. Both arguments for the care component were based on risk of self-harm. A letter was written in support of the appeal by a doctor having care of the claimant (page 95) and a statement of truth was signed by a former work colleague of the claimant (pages 96 and 97). The claimant attended and gave evidence at the hearing of his appeal. He was represented, but not by his solicitor. The tribunal dismissed the appeal.
3. Mr Commissioner Pacey gave leave to the claimant to appeal to the Commissioner. The Secretary of State has supported the appeal. The case has now been transferred to me for decision.

The analysis of the evidence

4. The grounds of appeal were written by the claimant's solicitor. They cover over 5 pages. I am not going to deal with every point she makes. It is enough to deal with the case on the way that the tribunal dealt with the claimant's supporting evidence.
5. The doctor wrote that she had had care of the claimant since April 2001 and that he was at risk of self harm and suicide. The tribunal said that this report did not help because (a) it was written 10 months after the date of decision and (b) did not indicate the frequency, nature and severity of the claimant's relapses. As to (a), the evidence was relevant if it could be related to the relevant time. One way to do that was to ask the claimant at the hearing. But the tribunal did not do that. As to (b), again the tribunal could have investigated this at the hearing. But it did not do that. So, the tribunal's criticisms of this report were in the tribunal's power to remedy, or at least to try to remedy. It should have done so. The claimant was represented, but that does not resolve a tribunal of any responsibility to pursue its concerns about evidence with the claimant. If it has a concern about the evidence, it should put it to the claimant.
6. The tribunal rejected the witness statement 'having accepted the opinions of the EMP and the GP'. That was wrong. The tribunal should have assessed the evidence as a whole. It should have taken all the evidence, including that of the witness statement, into account in deciding what to accept and what to reject. I may be putting too much emphasis on the way that the chairman has worded the statement, so I do not hold this against the tribunal. There is, however, another deficiency with its reasoning on this statement.
7. The work colleague gave a vivid account of the claimant's behaviour that she had witnessed. The tribunal said that this was not of 'material assistance' because she had not been called as a witness to allow the tribunal to assess her credibility. This reasoning concerns me, because it is an example of something that I am seeing increasingly in tribunal's reasons. Too often I see tribunals taking an approach to evidence that is appropriate in a court, but not in a tribunal. The most extreme example I have seen was of a tribunal that rejected oral evidence of the distance that the claimant could walk between two buildings on the ground that his representative could have produced a map. Written evidence is acceptable. I notice that the examining medical practitioner's report was in writing and the doctor was not called. But the tribunal did not say that the doctor's report was not of 'material assistance'. The value of each piece of evidence has to be assessed in its context. The statement of truth in this case appears to me to be credible. It is clear and detailed. It purports to be of the writer's first hand experience. It is consistent with the evidence from the doctor who has care of the claimant. I can see no reason why it should be rejected as being of no help. That is not to say that the tribunal at the rehearing must accept it. It will also have to consider the other evidence, including that of the examining medical practitioner. No doubt, the claimant's solicitor will learn from experience and try to arrange for the writer to be present at the rehearing.

The cooked main meal test

8. I need to deal with this issue in order to direct the tribunal at the rehearing. The Secretary of State dealt with this in paragraph 4.3 at pages 130 and 131. I do not agree with that submission.
9. The Secretary of State has referred to this passage from Lord Hoffmann's speech in Secretary of State for Work and Pensions v Moyna (reported as R(DLA) 7/03). I have italicised the relevant sentence.

'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.'

10. The Secretary of State argues that the risk of self-harm is outside the scope of Lord Hoffmann's thought-experiment. I reject that argument. The context of Lord Hoffmann's remark was that it does not matter that a claimant does not need to cook or will not cook. The test is a measure of disability, as Lord Hoffmann says. But it is still a measure that is set by the legislation in the context of cooking a main meal. It is a measure of disability relevant to that function. Safety is an aspect of disability and it is relevant to the issue whether a claimant 'cannot' prepare a main meal. If considerations of safety render the claimant incapable of preparing a meal, then he cannot do so.

Disposal

11. I allow the appeal and direct a rehearing.

Signed on original on 16 September 2004

Edward Jacobs Commissioner