Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/4136/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Hull on 21 September 2012 under reference SC950/12/00340 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)            The new hearing will be at an oral hearing.

(2)           The appellant is reminded that the tribunal can only deal with his situation as it was down to 27.10.11 and not any changes after that date.

(3)           If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Leeds Appeals Service Centre within one month of the date this decision is issued.

(4)           The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                This is an appeal by the claimant from a decision of the Hull First-tier Tribunal (SEC) dated the 21^st of September 2012. I will refer to this from now on as “the tribunal” and the claimant as the “appellant”. The tribunal dismissed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of the 27^th of October 2011. The Secretary of State’s decision of that date was to the effect that the appellant was not entitled to any rate of either component Disability Living Allowance (“DLA”) with effect from 15^th October 2011.

2.               The appellant suffers from chronic fatigue syndrome, anxiety and depression, hypothyroidism, dyspraxia and gastric reflux.  The sole issue before the tribal was whether he qualified for the lowest rate of the care component (“lrcc”), either by way of the cooking test or because he reasonably required attention from anther person in connection with his bodily functions for a significant portion of the day. 

3.               The tribunal found that neither test for the lrcc was met and it therefore dismissed the appeal. A key aspect of its reasoning was its view that the appellant had made a decision to prioritise his energy and concentration on his work and because of the limitation on his energy (caused primarily by the CFS) this resulted in him having problems with certain aspects of self care. From this the tribunal reasoned that if, however, the appellant put his own self care as his first priority he would be capable of cooking a main meal and self caring.  The tribunal thus reasoned that the attention was not reasonably required because “[i]f [the appellant] put his own personal care as his priority he would be likely to be able to look after his bodily functions reasonably” and “he would be likely to have sufficient energy and stamina to be able to cook a main meal safely most of the time”

4.               Although not quite couched in terms of it being unreasonable for the appellant to be working, it certainly seems that the underlying basis of the tribunal’s reasoning was that the appellant could cook and care for himself if he did not work.  It was this reasoning, and what I will term the work/care dichotomy, that led Upper Tribunal Judge Ward to give the appellant permission to appeal to the Upper Tribunal on 14 January 2013. 

5.               The Secretary of State did not support the appeal to the Upper Tribunal in his written submission dated 8 March 2013. He accepted, however, that the appellant was attempting to lead a reasonable life by working and that, as a matter of the correct legal approach, this was relevant to the cooking test (following Fairey R(A)2/98). To this extent at least, it seems he was disagreeing the binary approach of the tribunal to work and self-caring/cooking. However, the Secretary of State went on to  argue that even adopting the “broad brush” approach laid down by the House of Lords in Moyna (R(DLA)7/03), the appellant could reasonably cook himself a main meal if he paced himself with this and other activities across the day as it was “not unreasonable for him to adjust his working pattern to take into account his personal needs”. 

6.               Neither party had requested an oral hearing, but Judge Ward directed that there be one. The hearing was taken by me and held at Doncaster County Court on the 1^st of July 2013. The appellant did not attend but was represented by Mr Green of Hull Advice.  Mr Cooper, solicitor, attended to represent the Secretary of State. The main focus of their arguments  was on the “cooking test” and the work/care dichotomy

7.               I accept the Secretary of State’s starting point that what may be reasonably expected of someone applies as much to the cooking test under section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 (“SSCBA”) as it does the other parts of section 72.  That was the view in R(DLA)1/97 and  CDLA/3450/2004 and in my view must be correct.

8.               There was some discussion in the arguments before me about whether Lord Hoffman’s remark in Moyna that the purpose of the cooking test “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 disability”, altered this perspective such that the focus is simply on whether a person can cook a mean meal for himself regardless of other factors extraneous to the abstract and notional act of cooking itself.

9.               Quite apart from the fact that CDLA/3450/2004 was decided after Moyna and the Commissioner in that case was specifically referred to Moyna in arguments before him, I do not consider that Lord Hoffman’s remark extend this far. The cooking test is a thought experiment but one that has to relate to individual clamant.  As Commissioner Jacobs (as he then was) said in paragraph [10] of CDLA/1471/2004: “[t]he 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”. In other words, the consequence of not having main meal every day (which troubled the Court of Appeal in Moyna) is not relevant: what has to be measured is whether the appellant’s disability is such that he cannot prepare a cooked main meal for himself.

10.            However in measuring that ability by, per Moyna, “looking at the whole [nine month] period and saying whether [taking a broad view of the matter] the person can fairly be described as a person who is unable to cook a meal”, it must be relevant, in my judgment, to consider the individuals day to day life and the activities of normal daily life he or she reasonably engages in when assessing whether he or she cannot cook a main meal. To hold otherwise would mean that a person with, say, extreme CFS who can cook (and wash, dress, toilet and eat) if he does nothing all day save for those tasks and sleeping would not qualify for the lowest rate of the care component under section 72(1)(a)(ii) of the SSCBA but he may well qualify for lowest rate of the care component under s.72(1)(1)(a)(i) because attention with washing and dressing may nonetheless be reasonably required to, per Lord Slynn in Fairey “enable the severely disabled person as far as reasonably possible to live a normal life” (i.e. not to have sleep all day).  That difference in approach within the same subsection is, in my judgment, not compelled either by principle or the statutory wording.  And, I remind myself, it was not an argument being advanced by the Secretary of State.

11.             The tribunal therefore misdirected itself in law by seeking to assess the appellant’s cooking ability in isolation from his work and as if he was not working.  What had, and still has, to be assessed is whether in the course of his normal life - which here included his attempting to work – the appellant over a broad period could or could not prepare a cooked main meal for himself because of his CFS and other health conditions.

12.            I accept that, in some cases, engaging in what Lord Woolf in Mallinson (R(A)3/94) called “extreme situations” may mean that the person may be found not to reasonably need help to engage in that activity (see, for example, the examples of a blind person wishing to try mountaineering, and windsurfing referred to in CDLA/8167/1995). I would also accept, by extension, that unreasonably engaging in conduct which, for that reason alone, makes a person unable to cook or unable to eat for himself might mean that the inability to cook or the help needed to eat might not qualify under s.72 of the SSCBA. However, that unreasonable conduct or activity has to be measured against societal norms and I cannot see how seeking to work might be said to be abnormal and thus amount to unreasonable conduct or an unreasonable activity (save, perhaps, where the very act of working might endanger the person’s health).  

13.            I also accept the broad thrust of the Secretary of State’s argument that a person with CFS may, with pacing and pre-planning, reasonably be able both to work and cook a main meal for him or herself.  (On the other hand, it may be the case that each activity precludes the other, in the sense that if person does one he or she cannot do the other.  If that was the factual situation then on the above analysis the person may qualify for the lowest rate of the care component).

14.            The problem here, however, is that the tribunal did not investigate these areas with the appellant.  For example, what was the nature of the work the appellant was doing, where did it take place (did it involve travel to and from work as well – my impression is that it was being done at home), what were the hours of work, and how did the work fit with patterns of fatigue across the day (e.g. could the appellant cook the meal before he started work or after a rest after work)?  It was only after exploring these areas that the tribunal could have ascertained whether the appellant could reasonably adjust this working pattern so as to also be able to prepare a cooked main meal for himself.  The failure to explore these areas was also a material error of law.

15.            It is for these reasons that the tribunal’s decision dated 21^st September 2012 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

16.            I should add for the sake of completeness that, although the argument before me focused only on the “cooking test”, the above analysis applies just as much to s.72(1)(a)(i) of the SSCBA and there are aspects of the evidence given to the tribunal (needing to be encouraged to get up and taking five hours to have a bath) that will probably warrant examining this limb of the lowest rate care component test as well.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 18^th July 2013