IN THE UPPER TRIBUNAL Case No CDLA/1991/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Ipswich on 12 February 2009 under reference 134/08/00619 involved the making of an error on a point of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 16 of the Reasons.

REASONS FOR DECISION

1. The claimant appeals, with my permission, against a decision by the First-tier Tribunal to award Disability Living Allowance (“DLA”) at the higher rate of the mobility component, albeit from a later date than the Secretary of State had previously decided, and to refuse the care component at any rate. I am grateful to the Suffolk County Council Welfare Rights Officer who has assisted the claimant and to the Secretary of State’s representative for their expert and well-directed written submissions.

2. The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of errors on a point of law and has agreed to a rehearing. The claimant, by making this appeal, has done the same. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reasons why I am setting aside the tribunal’s decision.

3. I have set the tribunal’s decision aside, because of errors in relation to:

a. applying the cooking test and

b. its approach to aids and adaptations.

I deal with each in turn below.

4. With one exception, I do not need to deal with any other error on a point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.

The cooking test

5. The claimant gave oral evidence that he is unable to make a main meal because of breathlessness and joint pain, referring to pain in his hands and wrists and to his consequent inability to peel and chop ingredients. In his claim form he referred also to the effect of his depression on his motivation to cook a meal.

6. The tribunal dealt with the cooking test in terms that:

“He finds it difficult to deal with hot conditions but we do not consider that cooking a meal for one person is likely normally to cause him to be breathless this does not seem to be a matter with which another person could assist him” (sic).

7. In considering whether it was a matter with which another person could assist him, in my view the tribunal wrongly confused the cooking test with the test of a requirement for attention. As Mrs Commissioner Heggs said in R(DLA)2/95:

“The ”cooking test” concentrates on the extent of a claimant’s abilities and not on the need for help, unlike the attention and supervision conditions contained in section 72(1)(a)(i), (b) and (c) of the [Social Security Contributions and Benefits Act 1992] where the test is that the disabled person must “require” attention or supervision.”

8. Whether or not cooking a meal for one person was likely to cause the claimant (who has cardiomyopathy) to be breathless is a mater of fact for the tribunal. I am not clear in what sense it was apparently accepted that the claimant found it difficult to cope with hot conditions but not normally to be breathless and further findings of fact and clearer reasoning why the claimant’s evidence on the point was not accepted were required.

9. The impact of breathing difficulties was considered by Mr Commissioner Powell in CDLA/4214/02. In remitting the claimant’s appeal, he gave the following direction:

“16. In my judgment, the appeal tribunal failed to investigate matters properly. I therefore allow the appeal and remit the matter to the new tribunal for rehearing. The new tribunal should first make findings as to just how serious the claimant’s breathing problems are. Putting it another way, what is the severity of his problems and how is he likely to be affected if he attempts to prepare a cooked main meal for himself? The new tribunal should proceed on the basis that such a meal, if cooked for one person, will usually produce less heat and steam than if cooked for more than one. However, the amounts produced will not be negligible or insignificant. If the new tribunal is satisfied that the claimant will be affected they can, if they consider it appropriate, go on to consider whether anything can be done to alleviate those problems. In that event, they must make findings about the layout of the kitchen, the position of the windows and any other matters which they consider relevant. The claimant must be given an opportunity to comment on what is being suggested. If the new tribunal thinks that a solution can be devised, it should say what it is and why it is thought to help matters.”

Such an approach is equally applicable to the present case.

10. Before leaving the cooking test, I merely record that as there were three conditions which the claimant said affected his ability to cook – breathlessness, joint pain and lack of motivation resulting from depression, adequate findings will be required on all three.

Aids and adaptations

11. In considering whether the claimant was eligible for the lowest rate of the care component on the alternative basis that he “requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods)” under section 72(1)(a)(i), the tribunal observed:

“[the claimant] is said to need motivation to get up when he is in pain and to dress himself. We do not consider that encouragement to get up and dress will amount to a significant portion of the day. He may need help into and out of the bath but the occupational therapist has recommended a bath board and bath with a shower, these have not been fitted as he has moved house but we consider that with these aids he will not need the help of another person.”

12. In CDLA/304/07, Mr Deputy Commissioner Mark said:

“22. Finally, it is submitted that the availability and/or acceptance of aids and adaptations is a justifiable reason for not accepting evidence of the claimant’s care needs. I disagree. The question in relation to attention is as to the attention which the claimant reasonably requires. What she reasonably requires must depend on what alternative help is reasonably available to her both initially and throughout the six months period from the date the award would commence. If, for example, a stick would enable a claimant to walk safely indoors, she cannot pray in aid its absence. Other aids and adaptations which are readily available might also be expected to be used, and taken into account in assessing the claimant’s care needs, whether or not she has them at the date of the decision provided that they can be expected to be obtained at short notice. “

I respectfully agree. I emphasise that the question falls to be looked at in accordance with section 12(8)(b) of the Social Security Act 1998 on the basis of the circumstances obtaining down to the date of the original decision appealed against.

13. The claimant’s claim was made on 2 May 2008. He said on his claim form that both his mobility and care needs started on 19 April 2008. This was the date of an episode of acute cardiac pain, necessitating his admission to hospital. Whether it was correct for the tribunal, with its inquisitorial jurisdiction, to accept this date is discussed further below. Whether from 19 April 2008, or from some other start date, the claimant would have to meet the 3 month qualifying period and the 6 month prospective test set out (in relation to the care component) in section 72(2) of the 1992 Act. The decision on the claimant’s claim was taken on 1 July 2008. Accordingly, the tribunal needed to consider whether, looking at the circumstances obtaining at that date, the bath board and bath with shower were likely to be provided within the 6 month prospective period. To do this required further findings of fact, which would need to cover such matters as whether the claimant’s accommodation was owner occupied or rented and the available mechanisms (including funding) for installing the bath with shower and whether plans existed at the date of decision to move house, so as to be likely to result in delay to the installation of the bath with shower.

Fulfilling the three month qualifying period

14. The claimant was originally awarded the higher rate of mobility component from 2 May 2008, his date of claim. At the hearing, the presenting officer argued that the requirement for a 3 month qualifying period, discussed above in relation to the care component, but equally applicable to the mobility component, meant that the mobility component could only be awarded from 19 July 2008. There was evidence in the bundle of chest pains and breathlessness before this, but equally, oral evidence of “prev heavy job”, apparently the job the claimant was doing up to April 2008. The Secretary of State now raises whether acceding to the presenting officer’s submission, without addressing the evidence of pre-existing conditions, was itself an error of law.

15. I do not need to decide whether the extent of the tribunal’s consideration of the evidence on the point, or its reasoning, were sufficient. In its statement of reasons, it appears to base its decision on the statement in the claim form. I would not necessarily criticise it for having done so, particularly as the claimant was represented at the hearing and there was clearly discussion of the point. However, as I am setting aside the decision on other grounds, the new tribunal will have the opportunity to consider in the light of all the evidence, in relation to each of the mobility and care components (the entitlement to which (if any) which may, of course, arise as the result of different conditions with differing histories) the date as at which, if at all, the 3 month qualifying period was served.

Direction

16. I direct that the 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 Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

Observation

17. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

11 March 2010