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[2008] UKSSCSC CDLA_4051_2007 (16 May 2008)

CDLA/4051/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant with the leave of a commissioner from a decision of the Leeds Appeal Tribunal given on 15 June 2007 dismissing the appeal of the claimant from the decision of a decision maker that she was not entitled to either component of disability allowance with effect from 7 July 2006. For the reasons given below, this appeal is dismissed.

2. The claimant was found by the tribunal to suffer from chronic fatigue syndrome, depression, arthritis, asthma and migraine attacks. She made a new claim for disability living allowance on 7 July 2006. The claim was rejected by a decision maker on 14 October 2006. This decision was reconsidered but not revised on 19 December 2006. Her appeal to the tribunal was based principally on the exhaustion which she suffered when walking very short distances, the help she needed to cope with, and avoid danger from. fainting fits, which she stated occurred at least 3 to 4 times a year, and on the help she needed when preparing a cooked meal. In this last respect, her letter of appeal referred to CDLA/14594/1996 as showing that if a claimant could only prepare a main meal slowly and by instalments, it may be that she satisfies the conditions of entitlement. It was contended that the test required a claimant to prepare a main meal at a reasonable speed.

3. In her claim form, the claimant stated that she was not able to prepare a cooked main meal, and set out the problems from which she suffered which made this impracticable. In written submissions to the tribunal, her representative contended that for all but about one day a fortnight the claimant could do no more than cook pasta and add a sauce and frozen vegetables.

4. The claimant attended the tribunal, and was represented by an adviser from a local welfare rights organisation. On her best days, she could walk to the local supermarket, which she described as a walk of about 7 minutes for a normal person. She would also walk back. When her muscles started hurting, she would pause for a couple of minutes. She would visit the supermarket if she had enough energy, which was once or twice a week. She aimed not to shop two days in a row. About 2 to 3 times a week she did not have enough energy to get out of the house, while about 50 to 60 per cent of the time she would be able to get out of the house and might walk to a shop about a minute away. It would appear from the statement of reasons that the tribunal had sought to find out how long it took the claimant to walk to the supermarket but she had not answered the question.

5. She also emphasised that she needed to split things down into smaller tasks with more periods of rest in between, and that she had to adopt pacing strategies.

6. Her evidence in relation to cooking was that the main thing was the effort it took. When she shopped she bought fruit and vegetables, but she tried to have tinned goods in the house as well. When asked what she would typically make, she replied meat or fish, vegetables, potato and pasta. She could not carry potatoes because they were too heavy, so that she would just have the odd jacket potato. Pasta and vegetables were easy. She would buy vegetables that were as near prepared as could be. Carrots and turnips were hard to get a knife through. She would try to make herself a meal most days, but did not always manage it. Sometimes she did not feel hungry by the time she had prepared the meal after it had taken so long.

7. In relation to her fainting, the claimant stated that she had a warning which was long enough for her to sit down.

8. The tribunal appears to have substantially accepted the claimant's evidence. It concluded that on that evidence, she was not virtually unable to walk, and that given the warning she received and the precautionary steps she could take, she did not require supervision because of her problem with fainting. It also considered her evidence as to cooking and concluded, taking into account CDLA/14595/1996, which it considered to be obviously relevant to the case, that her ability to plan and prepare a main meal was not so slow that she could not be considered to do it at all.

9. The grounds of appeal relate only to the cooking test. Firstly it is said that the tribunal did not establish how long it took the claimant to prepare a meal. Reference is made to the claimant sometimes not feeling hungry after taking so long to prepare the meal and to her need to split the tasks with periods of rest in between. The representative then sought to give further evidence as to what the claimant might do. While it appears to me that one of the examples given – chopping the onions and beans and putting them in a pan of water – is no more than an example of splitting tasks, the other example – using frozen vegetables to have a change of vegetables - ought to have been given in evidence by the claimant if relevant, and appears to be inconsistent with the claimant's own evidence that she could manage vegetables other than hard root ones. It does not appear to me to be relevant that on occasions the claimant uses frozen vegetables, and there was no evidence that she could not use a range of fresh vegetables, other than hard root vegetables which needed chopping and peeling.

10. Thirdly, it is said that the tribunal did not find the claimant's speed of cooking comparable with the situation stated in CDLA/14595/1996, which was said to be perverse. I note that the actual case was said not to have been presented to the tribunal but it was referred to in the written submission and was explained by the claimant's representative.

11. The only award sought by the notice of appeal was the lowest rate of the care component. Somewhat surprisingly in those circumstances, a new representative responding to the submissions of the secretary of state put forward fresh objections to the statement of reasons, alleging one inaccuracy and a lack of clarity in the findings both as regards cooking and as regards mobility.

12. The factual inaccuracy alleged is that the tribunal is said to have described the claimant's chronic fatigue syndrome as moderate whereas her GP described it as moderate to severe. In fact the statement of reasons states that the severity is described as moderate, "and there is reference to exacerbations which could last for months". I am unable to find any ground for complaint in this finding. It is also clear that the claimant was asked about her problems at the tribunal and that her description of them was accepted by the tribunal.

13. On the claimant's own evidence, she was able to walk out of doors four to five days a week, at least to her local shop and back, and on one or two of those days she was able, resting on the way for a relatively short time, to walk to a supermarket and back with her shopping. She also stated that the walk to the supermarket would take a fit person seven minutes, which suggests that it must have been several hundred yards in each direction. While the claimant clearly had problems with walking, taking an overall view, the tribunal was amply justified in concluding that on her own evidence, although there were some bad days when she would not go out of doors, the claimant was not virtually unable to walk. There was nothing in the medical evidence in any way inconsistent with this conclusion.

14. With regard to the cooking test, in CDLA/14594/1996, the claimant in that case had said in a letter that she could cook meals in easy stages, for example cut up the vegetables and then go and sit down, deal with the meat, then go and sit down, etc. The Commissioner observed in paragraph 8 of her decision:

"if the claimant in the present case can only prepare [a cooked main meal] slowly and by instalments as described by her, it may be that she satisfies the conditions of entitlement. The test requires a claimant to prepare such a meal at a reasonable speed."

15. In Moyna v Secretary of State for Work and Pensions, reported at R(DLA) 7/03, Lord Hoffman, in the leading judgment said of the cooking test at the end of paragraph 18:

"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."

16. Lord Hoffman went on to say at paragraph 20 that in any case 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 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. At paragraph 28, he observed that it was unhelpful for the Court of Appeal to construe the statutory language as if it included words like "daily" or "regularly".

17. Applying these last observations, it appears to me that one cannot import into the test the requirement that the claimant must prepare the meal at a reasonable speed. On the other hand, it may be that the speed at which the claimant can prepare a meal is so slow that it is reasonable to conclude that looked at overall she cannot be said to be able to prepare a cooked main meal for herself if she had the ingredients. Indeed in some cases there may be room for no other conclusion.

18. The tribunal in the present case considered whether the claimant was only able to plan and prepare a main meal so slowly that she could not be considered to be able to do so at all, and, on the evidence it had read and heard, the tribunal concluded that it did not so find. In giving leave to appeal in this case, Commissioner Rowland observed that the claimant did not give evidence in the detail necessary to support a case on that ground and indeed gave no specific evidence as to how long the task took her. I agree. The fact that the claimant sensibly carries out the various tasks involved in preparing a cooked meal at different times of the day, rather than all at once, does not, by itself, lead to the conclusion that she cannot prepare a cooked main meal for herself. Rather, it leads to the conclusion that she can and does do so. There is no requirement that the preparation must be carried out all at the same time.

19. Other evidence is needed to support a contention that it is all so difficult or time consuming that the tribunal should conclude that she is unable to do so. In granting leave to appeal, Commissioner Rowland raised the question whether the tribunal was under any obligation to ask more detailed questions about the length of time it took the claimant to prepare a cooked main meal when the claimant's representative had been aware of the relevant issue but had apparently not realised that there was a lack of evidence and had not elicited any further evidence from the claimant herself.

20. While submissions were made on this issue by the secretary of state, it was totally ignored by the new representative of the claimant when responding. The representative of the secretary of state has pointed out that the tribunal's role is an inquisitorial one and that it should ask questions so as to come to an informed decision, but submits that in this case it did so, and that both the claimant and the representative were given ample opportunity to speak.

21. While I accept these submissions, they do not fully deal with the issue raised by Commissioner Rowland. The issue of the time it took for the claimant to prepare a meal was clearly raised by the representative. It is one that required investigation by the tribunal, and if the tribunal considers that there are gaps in the evidence, then it needs to ask questions to try to fill those gaps. That is so whether a claimant is represented or not. It is a matter for the judgment of the tribunal how much additional information needs to be sought, and a tribunal is not to be criticised simply because a different tribunal might have asked additional questions provided that the tribunal has asked sufficient questions to ensure that the issue raised can reasonably be addressed. This is all the more the case where the claimant is represented and the representative is experienced and alert to the nature of the evidence which the tribunal needs to have to determine the issue raised.

22. In considering whether a person is so slow in preparing a cooked main meal for herself that she cannot be considered able to do so, one does not simply measure the time between the start of stage one and the end of the final stage. A person who is able regularly to prepare such a meal in say three or four stages of a few minutes each, separated by intervals of some hours, without serious adverse consequences, is on the face of it able to prepare the meal, and this is not affected by the fact that on occasions she might not be hungry when she comes to eat it. On the other hand, if the preparation is so difficult and arduous for that person that each stage takes several times longer than it would take a fit person, and leaves that person so exhausted that she can do nothing more for several hours, then one would expect a tribunal to reach a different conclusion. There are no doubt a variety of situations in between, where there may be different conclusions open to the tribunal, and different questions that may need to be asked.

23. In this case, the pacing strategies which the claimant adopted were to avoid undue fatigue. There is nothing to indicate that any of the steps in preparing a meal (avoiding peeling or chopping root vegetables) was disabling for the claimant except perhaps on bad days.

24. Further, the claimant's evidence as to her ability to prepare the meal does not indicate any great difficulty with anything other than peeling and chopping root vegetables. She can cook potatoes in their jackets, and her difficulty in carrying them home from the supermarket is irrelevant to this test which assumes that she has the ingredients. While the claimant did say that she bought vegetables which were are near prepared as can be, there is no suggestion that she could not cope with most vegetables. Her written evidence at p.20 indicated that it was only on bad days that she used the microwave, and her problems with heavy pans and draining pans are of the kind that can be overcome by using lighter pans and slotted spoons.

25. In these circumstances, it does not appear to me that the tribunal can be said to have erred in law in failing to ask further questions as to the time which the claimant took to perform cooking tasks. The claimant had already failed to answer a question as to how long it took to go to the supermarket. The representative could have asked any questions she considered would help. She was clear as to the issue which needed to be addressed, which she herself had raised. The evidence that was already before the tribunal did not in my judgment require the tribunal to ask further questions to determine whether this claimant satisfied the cooking test.

26. The appeal is therefore dismissed.

(signed on the original) Michael Mark

Deputy Commissioner

16 May 2008