UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CDLA_1572_2005 (01 August 2005)

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

The decision of the Stockport appeal tribunal under reference U/06/938/2005/00005, held on 9 March 2005, is not erroneous in point of law.

2. This case has been referred to me for decision in the absence of Mrs Commissioner Jupp, who is on sick leave.

The claim for disability living allowance

3. The claimant made a claim for a disability living allowance that was treated as made on 2 September 2004. He set out problems with mobility and care. He identified the cause of his problems as sciatica back and leg pain. He also mentioned depression. The claim pack was sparsely completed. It is, therefore, not surprising that the Secretary of State sought evidence from his GP and an examining medical practitioner.
4. The GP's report gave diagnoses of cervical and lumbar pain and mentioned a referral to a pain clinic. It did not identify any relevant disablement. The examining medical practitioner's report contained a statement given and signed by the claimant as well as the doctor's clinical findings on examination. The doctor accepted that the claimant had a genuine disablement, but could not identify a disability that was sufficient to qualify for a disability living allowance.
5. Having received the evidence, a decision-maker refused the claim on 4 November 2004.

The appeal to the appeal tribunal

6. The claimant exercised his right of appeal to an appeal tribunal and obtained the services of a welfare rights officer as his representative. The officer provided a written submission, inviting the tribunal to award a disability living allowance consisting of the mobility component at the higher rate and the care component at the lowest rate (mentioning only the cooked main meal test). The representative obtained evidence from the claimant's GP and from his Consultant in Anaesthesia and Pain Management. The claimant attended the hearing of his appeal and gave evidence. His representative was in attendance.
7. The tribunal dismissed the appeal. On mobility, the tribunal found that the claimant's only limitation was his speed of walking, which was half normal speed. On the cooked main meal test, the claimant referred to lack of co-ordination, which the claimant attributed to his medication, and to frequent cuts and burns. On the former, the tribunal found that this was not a problem as the claimant could drive. On the latter, the tribunal found that burns could be avoided by using an oven glove.

The appeal to the Commissioner

8. The claimant sought leave to appeal, which was granted by a local district chairman. The Secretary of State has not supported the appeal and the claimant's representative has made a response to the Secretary of State's observations. The case is now ready for determination.
9. The claimant's grounds of appeal, written by his representative, are: (a) the tribunal did not deal adequately with the pain experienced by the claimant when walking; (b) the tribunal did not investigate sufficiently into the dosage of the claimant's medication, did not deal with the evidence that he cut himself while preparing a meal, and gave inadequate reasons. As far as driving is concerned, the retirement pension attached a letter of enquiry to and a reply from the Mobility Advice and Vehicle Information Service.

Pain when walking

10. The claimant's representative says (correctly) that walking while in severe discomfort must be disregarded. He then argues that the tribunal did not deal adequately with the pain experienced during and after a walk. The representative refers to his recollection of the evidence, to the evidence on medication and to the consultant's comment that he would not be surprised if the claimant had difficulty walking more than 50 yards due to pain. He concludes that, given the lack of consideration to severe discomfort, the tribunal did not give adequate reasons on mobility.
11. I accept the claimant's evidence as recorded by the chairman. The representative says that it is not his recollection and refers to his written submission, but does not say what evidence the claimant did give at the oral hearing. I have suggested before that representatives should take a note of the evidence so that they can substantiate arguments that the record of proceedings is not correct or complete.
12. The evidence as recorded by the chairman shows that the only impediment to walking mentioned by the claimant was his speed. That is how the tribunal dealt with the case on the mobility component. This was evidence given by the claimant in person in response to questions designed to elicit information relevant to that component. The tribunal was entitled to accept it. The claimant had told the tribunal that his medication from the pain clinic had ceased being effective in June 2004. He referred to pain later when describing his 200 metres walk to the garage shop, saying that he stopped after 150 metres for a few seconds because he was frightened of getting severe pain. In other words, the stop was preventative. It would be surprising in view of that evidence if he had been walking in significant pain.
13. I consider that the tribunal was entitled to accept the evidence of the claimant on his mobility given in response to its direct questioning. On his answers, the tribunal was entitled to analyse the evidence and apply the law as it did.
14. The claimant's representative has also referred to the fluctuations in the claimant's disablement. I deal with this in relation to his response to the Secretary of State's observations.

The cooked main meal test

15. I deal later with the evidence of driving. Here I deal with the evidence of the effect of medication and the evidence of cutting himself while preparing vegetables.
16. With regard to the medication, it was listed by the examining medical practitioner on page 55. The medically qualified panel member would understand the significance of the dosage and be aware of potential side-effects.
17. With regard to the danger of cutting himself, this must be related to the lack of co-ordination. There is nothing else in the evidence to account for it. And the tribunal rejected the case on lack of co-ordination.
18. I accept that the chairman did not spell out these points in the statement, but they are covered by what he did write.

The use of evidence of driving

19. The representative produced correspondence in support of his appeal to the Commissioner. It consisted of a letter by one of his colleagues and the reply. His colleague's letter reads:

The Driving Advisors

Mobility Advice and Vehicle Information Service

Crowthorne Business Estate

Old Wokingham Road

Crowthorne

Berkshire RG45 6XD

Dear Sir or Madam:

I am a Welfare Rights Officer for Stockport Council. My role includes representing claimants at Disability Appeal Tribunals.

I am looking for information or an opinion on the relevance of the activities required when driving a car to the activities of preparing a cooked main meal for one person.

Put quite simply, if someone is so physically or mentally disabled that they are unable to cook a main meal, they are entitled to the lowest rate of the care component of Disability Living Allowance.

It is not unusual for claimants who are suffering from physical disabilities such as reduced grip, pain or weaknesses to explain that they are unable to peel and chop vegetables or meat.

In our experience it is common place for examining doctors, decision makers and tribunals to use evidence of driving ability to dismiss the disabled persons description of pain, weakness or grip as being overstated. The approach is, if a person is able to steer, change gear, operate a handbrake and to use the instrument stalks on a car they are not so physically disabled to be unable to cook a main meal for one.

As a lay person and someone who drives a car and peels and chops vegetables it has been my belief that the activities of driving and cooking are dissimilar. I do not believe that the grip required in holding a potato and a peeler or knife is the same as is required to drive a modern car with power steering.

The cooked main meal test legislation

Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which - he is so severely disabled physically or mentally that - he cannot prepare a cooked main meal for himself if he has the ingredients.

Section 72 (1)(a)(ii) Social Security Contributions and Benefits Act

Below is in extract from a speech made Lord Hoffman in Moyna v Secretary of State for Work and Pensions, [2003] that I believe explains the legislation.

'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 £15.55 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy.'

Would you be in a position to comment in a professional capacity on the grip strength/technique required to steer, change gear, operate a handbrake and use the instrument stalks of a standard modern car?

The response reads:

'Thank you for your letter which discusses the value of a comparison between a person's ability to prepare food and their ability to drive a care.

Both tasks require physical and mental function but there is to my knowledge no research which correlates the two.

In the absence of any evidence, I would have to say that neither task could be reliably used to give an indication of performance in the other.'

20. I have three comments on this letter. First, it reads to me like a polite brush off. Second, it records that there is no evidence based on research, which is hardly surprising. Third, it deals impressionistically and in very general terms with the tasks of driving and cooking. It does not respond to the precise questions asked.
21. The issue for an appeal tribunal is whether the claimant

'is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients'. (Section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992.)

In deciding that issue, the tribunal may take account of any evidence that is relevant. A good inquiry into the claimant's ability to cook will focus on the precise disabilities that are said to hamper the claimant in cooking. Examples may be lack of grip, poor balance, inability to bend and so on. The tribunal would need to inquire whether those disabilities are consistent with the evidence of the claimant's medical condition and medication. It will also use as a cross-check whether the claimant experiences the same disabilities in performing other functions. Take poor balance as an example. This may manifest itself while cooking, but it is hardly likely to be limited to cooking. If the claimant does not report poor balance at any other time, the tribunal may conclude that it is improbable that he is experiencing it while cooking. If the claimant's alleged impediment in cooking involves a function that is involved in driving, the tribunal may use evidence of the ability to drive to show that the cooked main meal test is not satisfied. The key is obviously to ensure that the function involved in driving and in cooking is truly the same. If it is, the evidence is relevant and admissible. It is my experience that, if tribunals go wrong in using evidence in this way, they do so by drawing inferences rather than questioning the claimant about both activities (cooking and driving, for example) to ensure that there is a true comparison. This does not, of course, mean that the tribunal has to accept the claimant's explanation, only that the inquiry should be made.

22. In this case, the tribunal used driving to refute the claimant's account of lack of co-ordination. It seems to me beyond dispute that driving requires co-ordination. The tribunal was entitled to make the limited use of the claimant's driving that it did. I can see no value in inquiring further of the claimant how he might be able to manage to drive without co-ordinated movements.

The representative's response to the Secretary of State's observations

23. In response to the Secretary of State's observations, which do not support the appeal, the claimant's representative has made four points.
24. The first point refers to the medical evidence and its comparative value. The representative describes the GP's report as 'brief', but says that the Consultant's report, unlike that of the examining medical practitioner, was based on several examinations over a period of years. That is all correct. However, there are two comments to make against the Consultant's report. One is that the report is cautiously worded:

'Certainly, at present, his problem is causing him a fair degree of disability and I would certainly have no surprise, if I were told he did have difficulty walking more than 50 yards due to pain. Likewise, that he might need assistance in other areas.'

The other point is more significant. It is that this report is opaque. In other words, it expresses a conclusion, but it does not set out the evidence on which it is based. The result is that the tribunal cannot assess the accuracy of the opinions expressed. It has the Consultant's opinion and that is all. In contrast, reports by examining medical practitioners (and medical advisers in incapacity cases) are transparent. That is, they are reasoned reports which contain the evidence on which they are based. That allows the tribunal to assess for itself the accuracy of the opinions expressed. That makes it better evidence. I have regularly drawn attention to this distinction. It is an important one that accounts for the relative lack of value in much medical evidence that is produced in support of appeals. I do not underestimate the problems that representatives have in persuading busy doctors to provide detailed reasoned reports, especially if the claimant cannot pay a fee. However, these considerations cannot affect the probative worth of the evidence.

25. The second point is that the tribunal did not adequately address the claimant's severe discomfort both while walking and after walking. I have already dealt with this. The tribunal relied on the claimant's own evidence which showed that he would pause at 150 yards in order to avoid severe pain. The minimum distance that the tribunal found the claimant could walk was such that any inability to walk further was irrelevant. It was way beyond the boundary of virtual unable to walk.
26. The third point refers to the claimant's statement to the examining medical practitioner that his condition was 'like this most of the time'. The representative says that that is not the same as 'not fluctuating'. I agree, but it is language that indicates that for most of the time the claimant's condition does not diverge significantly from what it was at the time of the examining medical practitioner's examination. And I do not read the claimant's evidence at the hearing as suggesting any significant variation. I note that his representative was in attendance and could have elicited further evidence if necessary to ensure the tribunal had the full account of the claimant's disablement.
27. The fourth point refers to the final paragraph of the letter from the Mobility Advice and Vehicle Information Service. I have already dealt with this. I do not agree with the writer. I consider, and have explained, that evidence from driving can be relevant in assessing the claimant's evidence of an inability to cook.

Disposal

28. I dismiss the appeal.

Signed on original on 1 August 2005

Edward Jacobs Commissioner