Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/4294/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before  Judge of the Upper Tribunal: E A Jupp

 

Decision:  The decision of the appeal tribunal given on 8 June 2012 under Registration No. SC015/11/02427 was erroneous in law.  Accordingly, the claimant’s appeal succeeds.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted First-tier Tribunal of the Social Entitlement Chamber.

 

Directions: My Directions and guidance are set out in paragraphs 20 to 23 below.

 

 

REASONS FOR DECISION

 

1. The claimant is a woman born on 23 March 1951.  She has osteoarthritis, fibromyalgia, diabetes and Meniere’s Disease and made a claim for disability living allowance (DLA) on 19 October 2010.  Her doctor gave a report describing her Meniere’s Disease and diabetes conditions as mild, and her fibromyalgia and osteoarthritis conditions as moderate but giving little other information.  On 16 December 2010, the decision maker decided that the claimant did not qualify for an award of either component of DLA.

 

2. The claimant challenged this decision, which was reconsidered but not revised.  The claimant appealed, and provided further information.  The Department for Work & Pensions obtained a further report from the claimant’s rheumatology consultant which said that the claimant had not been seen since 2007 and provided little further information.  The claimant was then examined by a Healthcare Professional (HCP), a registered medical practitioner, on 30 June 2011.  As well as the core disabling conditions referred to in paragraph 1, he noted asthma, under control with medication, hypertension, medicated, and a right wrist tumour for which the claimant was due to have surgery in 2011.  He noted:

 

“Although claimant reports falls and tendency to fall, reasonable balance was observed, normal gait, was able to stand reasonably for two minutes without using aid.  No medication for Meniere’s Disease.  Unlikely to be at risk from falls.”

 

3. The decision maker reconsidered but did not revise the decision and the claimant’s appeal proceeded.  Further evidence was submitted from the claimant herself, a neighbour and her general practitioner. 

 

4. The tribunal was held on 8 June 2012, the claimant being present and represented, and accompanied by her neighbour/carer.  The representative’s submission focused on a multiplicity of different conditions with variable symptoms, submitting that the claimant had a mixture of good and bad days.  The claimant was questioned in detail.  The tribunal refused her appeal. 

 

5. With permission of the Upper Tribunal, the claimant appealed through her representative, essentially on the inadequacy of the tribunal’s findings of fact and reasons for its decision, in particular its failure to explain its preference for the HCP’s report over the claimant's own evidence.  Further, although the tribunal had noted the claimant as going out locally, it had failed to consider the issues of unfamiliar areas and anxiety, vertigo and loss of direction.  Also, it was not clear how the tribunal arrived at its conclusion that the claimant failed the cooking test: finding that she “habitually did batch-cooking food for a number of days ahead” failed adequately to address the test.

 

6. In giving permission to appeal Upper Tribunal Judge Mesher observed:

 

“2. In relation to paragraph 17 of the tribunal’s statement of reasons in relation to the cooking test, were there adequate findings of fact and reasons?  Did the tribunal need to say specifically whether or not it accepted that at the date of the decision the claimant could not prepare root vegetables, but either had to buy pre-prepared vegetables or get someone else to do the preparation?  On the assumption that it is to be taken as having made a finding, at least by implication, that she could not, did the tribunal then give an adequate explanation of why the claimant did not qualify?  Would an ability to cook meals not including root vegetables mean that a person could not qualify and did the tribunal need to explain more precisely what it meant in saying that the claimant’s painful right wrist and thumb did not in practical terms stop her from cooking meals?

 

3. I would have been inclined not to give permission to appeal if the only points raised had been in connection with the mobility component.  It would have been better if the tribunal had referred specifically to the conditions to do with the lower rate in regulation 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations 1991, but by the same token those conditions make it unlikely that the claimant could have qualified for the lower rate on the basis of fear or anxiety.  The reasoning in paragraph 16 of the statement of reasons is not always very clear, but if the effects of fear and anxiety are excluded I think that there was a sufficient explanation of why the physical effects of Meniere’s Disease did not qualify the claimant for the lower rate.  I think that there was also a sufficient explanation of the tribunal’s findings and conclusions on the higher rate, and analysis of the various elements of evidence (accepting that the word “contradictory” could have been better chosen).  However, the claimant’s representative is free to refine the grounds in relation to the mobility component if he wishes to do so after considering whatever [points] the Secretary of State takes on the appeal.”

 

7. The Secretary of State does not support the appeal.  With regard to the weight given to the HCP’s report compared to the claimant’s own evidence, it is submitted that “a tribunal may well accept evidence of the examining medical practitioner above other evidence due to the independence of his findings”. 

 

8. The Secretary of State further submits that at the examination on 30 June 2011, just before the claimant had surgery to remove a lump on her wrist, the HCP’s report gave evidence of “full limb function and good grip…..  That being the case in June 2011 when her wrist was possibly at her worst, I submit that the limitation it caused may have been minimal”.

 

9. On the claimant's asserted cooking problems the Secretary of State quotes extensively from R(DLA)2/95, which is sufficiently well known for it not to be necessary for me to repeat it fully here, although it may be helpful to repeat paragraph 9:

 

“9. The word “prepare” emphasises a claimant’s ability to make all the ingredients ready for cooking.  This includes the peeling and chopping of fresh vegetables as opposed to frozen vegetables, which require no real preparation.  However in my view a chop, a piece of fish or meat ready minced does not fall in the category of “convenience foods” and are permissible as basic ingredients.  I should add for completeness that because the test is objective it is irrelevant that a claimant may never wish to cook such a meal or that it is considered financially impossible.”

 

10. The Secretary of State accepts chopping hard vegetables as being part of the overall task of preparing a main cooked meal for one, but submits that given the other tasks in preparing and cooking a main meal for one, it is merely a small part of the test, adding that although the claimant sometimes buys prepared vegetables this “perhaps forms an updating of the cooking test, as a hypothetical test adjusts to reflect modern life”. 

 

11. In respect of the mobility component the Secretary of State supports Judge Mesher’s view that the tribunal sufficiently explored the issues and provided sufficient explanation of why the conditions for entitlement were not satisfied in respect of each rate.  The tribunal did not take into account any irrelevant matters or fail to consider all relevant matters. 

 

12. The case has now been passed to me for decision.  On the Secretary of State’s submission that a tribunal may well accept evidence of the examining medical practitioner above other evidence due to the independence of his findings”, I would only say that tribunals have repeatedly been told not to accept a report on the grounds solely of its independence.  It is a factor, but as Mr Commissioner Williams, as he then was, said in CIB/2308/2001 at paragraphs 19 and 20:

 

“19 ……The medical evidence should be evaluated in this case for what it is: a series of answers by medical practitioners, none of whom have any special status though some may have more relevant training or expertise than others, to a series of standard questions issued by the Department. …. 

 

20 The tribunal should then have done what Commissioners have repeatedly told tribunals to do: weigh the evidence on the issues in the case. In this case, as in too many others, the tribunal took the short cut of preferring the evidence of the examining medical practitioner as a whole to that of the claimant as a whole (see its reasons set out above). ……..The tribunal did not assess the evidence from all sources together in one “weighing” exercise on the issues in dispute. …..”

 

Overall, it is evident the tribunal found the claimant's evidence to be inconsistent.

 

13. In paragraph 16 of the statement of reasons the tribunal recorded that it found the claimant’s evidence was contradictory in respect of her mobility, claiming both that she could walk 75 metres on a very good day and that on a good day she could walk the distance of 12 to 13 houses.  On the other hand, it is submitted for the claimant that there is in fact very little inconsistency in this, as the houses the claimant would pass would only be about six metres wide. I have been unable to discern on what basis the tribunal made its finding as to inconsistency.  In the circumstances, I do not need to decide whether this amounts to a material error in law. 

 

14. The remainder of paragraph 16 considers the claimant’s ability to walk in her own locality and use public transport or taxis.  With respect to Judge Mesher and what he said when issuing the case management directions, I cannot see that the tribunal considered how the claimant would function in an unfamiliar place.  There was certainly some consideration, implicitly, of regulation 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations 1991, which would have been relevant had the claimant asserted that she suffered from anxiety as a mental condition.  As I understand it, the claimant’s asserted anxiety arose not from a mental condition, but from dealing with her attacks of Meniere’s Disease.  Although the tribunal referred to the unpredictability of the claimant’s attacks of Meniere’s Disease, it appears to me that it did so within the context of her being in familiar places.  I see no indication that she was questioned, nor that any finding was made, on how she would cope in an unfamiliar place.  It is possible that the result would have been the same, but insufficient investigation was made.  For this reason the decision must be set aside.

 

15. Turning to the lowest rate of the care component, it is long established by the House of Lords’ decision in Moyna v Secretary of State for Work and Pensions [2003] 4All E.R 162 (R(DLA ) 7/03) that the cooking test is one of “a broad view of the matter”, an overall impression to be reached by a general approach rather than by fixed rules.  “It involves looking at the whole period and saying in a more general sense the person can fairly be described as a person who is unable to cook a meal.” 

 

16. The submission by the Secretary of State is that chopping hard vegetables forms merely a small part of the cooking test, and that the fact that the claimant sometimes buys prepared vegetables “perhaps forms an updating of the cooking test, as a hypothetical test adjusts to reflect modern life”.  On the last sentence of that submission, I may observe that, were that the case, with the ability to obtain an extensive range of prepared meals nowadays, this would be undermine the cooking test as a whole.  It is also long established that the use of pre-cooked meals which are simply reheated does not enable a claimant to satisfy the criteria for the cooking test.

 

17. The test must still embrace the proper preparation of vegetables, as opposed to the use of pre-prepared vegetables, but there is no requirement in the preparation of an adequate meal that it is necessary to use root vegetables.  In CDLA/17329/1996 Mr Commissioner Rowland, as he then was, said:

 

“13……the test is concerned with an ability to prepare a cooked main meal and, as long as there is a reasonable variety of meals that can be prepared by the claimant, the range need not be unlimited.

 

It is not necessary always to use root vegetables, nor even that root vegetables such as potatoes, carrots or parsnips need to be peeled and cut up before cooking.  It is possible that the claimant's submission may have had potatoes in mind, but potatoes, as well as carrots and parsnips, may be boiled in their skins with any necessary cutting up being done after cooking has taken place and the vegetables removed from the hot pan with, if necessary, a slotted spoon.  This would not inevitably prevent the meal satisfying the criterion that it should be a “traditional cooked main meal” – see KS v SSWP[2011] UKUT 29 (AAC).  

 

18. Given the claimant’s evidence that her problems in this area were variable (page 30) and that she did do batch cooking of meals, which would presumably involve the preparation of a larger amount of material for meals than would normally be sufficient for one person, that may not tend to support a finding in the claimant’s favour.  I appreciate that she would do batch cooking only on the days when she was well enough to do so and that her condition was stated to be variable, but nonetheless, overall but this will need further investigation by the new tribunal.  There was inadequacy in the tribunal’s findings and reasons for its decision on this aspect , and possibly also in the point identified by Judge Mesher that the tribunal should have explainedmore precisely what it meant in saying that the claimant’s painful right wrist and thumb “did not in practical terms stop her from cooking meals”.

 

 

19. The statement of reasons records in paragraph 17 the tribunal’s observation that “being helped in and out of the bath does not fit the criterion” for an award of the care component.  That is not so, but what usually prevents such attention being taken into account is that the length of time attention is reasonably required in connection with getting in and out of the bath is not enough, on its own, to amount to a requirement for attention for at least a significant portion of the day.  In the event I do not need to take this point further in the present case.

 

20. For the reasons above given, I conclude that, overall, the tribunal’s decision contains material errors of law.  It is appropriate for it to be set aside and for the case to be reconsidered by a differently constituted tribunal. 

 

 

 

DIRECTIONS

 

 

21. The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998.  It must make and record full findings of fact on all necessary points, on the basis I have set out in paragraph 17, with reasons for its acceptance of the evidence which is preferred, and why the other evidence is rejected. 

 

22. The claimant will appreciate that the tribunal must not take account of circumstances which did not obtain at the date of the decision appealed against, 16 December 2010, now almost three years ago, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date.  The claimant will appreciate that any further evidence she wishes to submit must relate to the extent of her disablement at 16 December 2010, and not at the date any report or evidence is given.

 

23. The claimant is advised to attend the new hearing with representation if at all possible.

 

24. The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it.  The outcome may not be different or more helpful to her.

 

25. For the reasons stated, the claimant’s appeal succeeds.  As further findings of fact are necessary I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunal, Courts and Enforcement Act 2007, I remit the appeal for reconsideration.

 

 

(Signed on the Original)

 

 

 

E A Jupp

 

Judge of the Upper Tribunal

 

3 December 2013