UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CDLA_1714_2005 (09 September 2005)

CDLA/1714/2005

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. This appeal arises out of a claim for disability living allowance made on 18 October 2003 by a 61 year old woman who has osteoarthritis in both knees, cervical spondylosis and diabetes. In relation to her ability to cook a main meal for herself, she stated on her claim form:

"I cook for myself a main meal on days that I do not have severe discomfort and pain or restricted movement because of my Osteoarthritis and Patellofemoral component, or have become unwell because of my Diabetes, then I have to make do with a snack.

On days I have severe discomfort I need help to prepare a meal.

Cooking is only possible if the ingredients are available. I cannot always get out to do the shopping.

I do injure myself by twisting or putting too much weight on one leg or knee, when looking in my refrigerator or moving about the kitchen."

3. The claim was referred to an examining medical officer, who found the claimant to have substantial impairment of the function of both knees, but assessed her as being able to peel/chop vegetables, use taps, use a cooker and cope with hot pans, all without help. On 22 January 2004 a decision was made awarding the claimant the mobility component of disability living allowance at the higher rate from 18 October 2003 to 15 March 2005, but rejecting the claim to care component in its entirety. The claimant appealed against the decision on 19 February 2004 and, because the decision was not revised on reconsideration, the appeal proceeded to a hearing on 9 September 2004.
4. The claimant did not attend the hearing but was represented by her husband, who also gave evidence on her behalf. The Record of Proceedings records the claimant's husband as stating that he thought that the claimant could cope with a meal if the ingredients were to hand, but that she had general pain and discomfort, and could not stand at a cooker or bend to reach down. However, he is also recorded as stating that the claimant could manage if everything was to hand and she had a perching stool, and that she could move a small pan to and from the cooker.
5. The tribunal found that the claimant's attention needs were insufficient to qualify for the care component at either the lowest or middle rate. It also rejected the claim to lowest rate care component on the basis of the cooking test for the following reasons:

"The appellant's husband accepted in evidence before the tribunal that if the ingredients were to hand and the appellant used a perching stool, she could prepare a cooked main meal for one person. She could also utilise a slotted spoon or other helpful cooking implements."

6. The claimant's husband appealed on her behalf, challenging the tribunal's reliance on the claimant's ability to use a perching stool and slotted spoon, and disputing the accuracy of the record of his evidence. I gave leave to appeal, on 30 June 2005, on the ground of inadequacy of reasons, raising also the question of the relevance of perching stools as an aid to cooking in the light of the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929. The Secretary of State has supported the appeal in a submission dated 15 July 2005.
7. Section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 confers entitlement to lowest rate care component on a person who is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients. It is clear from that wording that the ability to prepare a cooked main meal is intended as a measure of the severity of physical or mental disability. In Moyna the House of Lords rejected the proposition that the provision was concerned with a claimant's actual ability to provide food for himself without assistance, and held (per Lord Hoffman at [17]) that the test is "a notional test, a thought-experiment, to calibrate the severity of the disability." It was also held that, in applying the test, a tribunal should look at the whole nine month period stipulated in section 72(1) and decide, by taking a broad view of the matter and making a judgment rather than an arithmetical calculation of frequency, whether the claimant could fairly be described as a person who was unable to prepare a cooked main meal.
8. Since the cooking test is intended to calibrate the severity of a claimant's disability, and not a claimant's actual ability to provide a main meal for himself, the focus of the tribunal's inquiry must be on the effects of any disability on the claimant's ability to cook a main meal, rather than on ways in which those effects can be overcome. No doubt it is possible to devise aids of one kind or another to overcome virtually any disability-the claimant in this case apparently uses an electric vegetable peeler-but in order to measure the extent of a claimant's disability, Lord Hoffman's thought experiment has to be directed at the claimant's ability to carry out the activities required to cook a main meal, rather than at some imaginary kitchen equipment catalogue. Although the tribunal in this case did investigate the effect of the claimant's disabilities on her ability to cook, their findings were expressed solely in terms of the aids which would be needed to enable her to cook a main meal without help (although they did not say what "other helpful cooking implements" they had in mind to enable her to do so). I agree with the claimant's representative that the tribunal therefore misapplied the 'cooking test', and that their decision is accordingly erroneous in point of law.
9. That is not to say that aids to cooking are wholly irrelevant. Lord Hoffman accepted that the notional meal contemplated by the cooking test is a reasonable main meal for one person, of the kind described by Mrs Commissioner Heggs in the leading case R(DLA) 2/95. The activities which need to be considered when applying the cooking test are those which are normally required to cook such a meal, and in my judgment, in order to calibrate the severity of a claimant's disability, it is necessary to consider how those activities are normally carried out. Cooking is normally performed using kitchen implements, and a person without disabilities will sensibly use implements such as a slotted spoon in order to avoid dangers such as burning or scalding. A person with a disability can reasonably be expected to do the same, and I therefore respectfully agree with Mr Commissioner Rowland in CDLA/5686/1999 that if a claimant cannot lift a pan of hot water safely, account can be taken of any ability which the claimant may have to use a slotted spoon to remove vegetables from the pan without the risk of scalding.
10. The submission to the tribunal stated that the claimant did not satisfy the main meal test because she could manage all the tasks to prepare a cooked meal. That assertion was no doubt based on the examining medical practitioner's assessment that the claimant could safely perform all the cooking related tasks listed on the medical report form DLA 143, that is to say, peeling/chopping vegetables, using taps, using a cooker and coping with hot pans.
11. Although it may be useful in many cases for a tribunal to investigate a claimant's ability to carry out the tasks specifically listed on form DLA 143, I do not agree with the submission writer that those tasks are all that has to be considered. In cases of mental disability, it may be necessary to consider matters such as a claimant's ability to memorise what has to be done, to plan the cooking of the meal, to concentrate sufficiently to cook a meal in safety, and to respond to events such as pans boiling over and food becoming burned. In such cases it will also be necessary for the tribunal to bear in mind that cooking a main meal of the kind considered in R(DLA) 2/95 requires the different components of the meal to be ready at roughly the same time, so that it will often be necessary for the tribunal to consider a claimant's ability to carry out more than one task simultaneously.
12. In cases of physical disability, I consider that it is also necessary to bear in mind that cooking a main meal involves more than just being able to carry out separately the activities listed on form DLA 143. Typically, it is necessary to move pans from one burner or electric ring to another, adjust the heat under pans, turn over a piece of meat or fish in a frying pan or grill, test whether food is fully cooked, and respond to untoward events such as food becoming burned. Cooking a main meal therefore requires some degree of physical agility, and although it would no doubt be possible to devise a kitchen which would enable a meal to be cooked entirely from a stationery or sitting position, that is not how cooking is normally carried out. In my judgment, in applying the cooking test, it is therefore relevant to have regard to disabilities, such as those in this case, which affect the lower part of the body. A person without any disability may sit down on a kitchen stool while cooking a meal during periods when it is possible to do so to in order to relieve fatigue or discomfort, and a person with disabilities affecting the lower back or legs may be expected to use an ordinary kitchen stool or perching stool in the same way. As Mrs Commissioner Heggs held in CDLA/2267/1995, use of a stool is a question of what is reasonable, but a claimant should not be held to be able to cook a main meal with the aid of a perching stool if the claimant lacks the agility or mobility necessary to cook a main meal in a reasonably normal manner.
13. In CDLA/492/2004 Chief Commissioner Hickinbottom derived support from Moyna for the proposition that a broad approach should be taken when answering composite factual questions, of the kind posed by the disability living allowance legislation. In my view, a test of entitlement expressed in terms of an ability to carry out a task as familiar and everyday as cooking a main meal is the clearest possible indication that Parliament intended a non-technical and common sense approach to be taken. Provided that the cooking test is properly applied as a measure of disability and adequate findings of fact are made to support a tribunal's conclusions, I consider that, for the reasons given by the Chief Commissioner, appeals on points of law should seldom arise.
14. However, for the reasons I have given, I consider that the tribunals' decision in this case was erroneous in point of law, and I therefore set that decision aside. It is clearly not possible for me to decide the claimant's entitlement to benefit on the papers, and I therefore refer the case for rehearing to a differently constituted tribunal.
15. The claimant raised on the claim form the question of the variability of her condition, but it was not dealt with by the tribunal. In accordance with the guidance given by the House of Lords in Moyna, the new tribunal will have to make findings on the variability of the claimant's condition and take those findings into account in deciding whether the claimant satisfies the test throughout the relevant period.

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(signed on the original) E A L BANO

Commissioner

9 September 2005