EH-v-Department for Social Development (DLA) [2010] NICom 15

Decision No:  C45/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 19 January 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner on 2 December 2009, against the decision of the tribunal, affirming a decision-maker’s decision, to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 14 April 2008.

2.	On 14 April 2008 the claimant made a claim for DLA stating that she suffered from rheumatoid arthritis, spondylitis and depression.  On 4 June 2008 it was decided that the claimant’s claim should be disallowed from and including 14 April 2008.  The claimant appealed to a tribunal which disallowed the appeal.  The claimant then sought leave to appeal to a Commissioner.  Leave to appeal was refused by the legally qualified member on 7 July 2009.  However, as stated at paragraph 1 herein, leave was granted by a Commissioner on 2 December 2009.

3.	Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

4.	Mr Ciaran O’Donnell, Citizens Advice Bureau, Londonderry, appears on behalf of the claimant, while Mr Michael Collins of Decision Making Services represents the Department.

5.	The claimant’s main contention was that the tribunal had failed to assess if the claimant’s failure to cook was due to lack of motivation resulting from her mental illness.  In addition it was also contended that the tribunal, even if it did make such an assessment, failed to give reasons as to why DLA, low rate care, was not awarded on the basis that the claimant fulfils the criteria in relation to the preparation of a main meal.

6.	Mr Collins basically supports the claimant’s contentions.  He has pointed out that the legislative basis for the award of low rate care of DLA is found in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which states:

“(1)	Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a)	he is so severely disabled physically or mentally that –

(i)	…

(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients.”

	Clearly, arising out of the terms of the legislation, difficulties arising from mental disability forms part of the criteria which can be considered.

7.	As Mr Collins pointed out, the claimant’s case relied on the mental disability aspect.  Her DLA1 claim form mentioned depression.  Her general practitioner confirmed depression as one of her conditions.  In her DLA1 claim form, more particularly, she indicated that she lacked the motivation to cook as well as having physical difficulties in coping with the tasks associated with the preparation of a main meal.  She stated:

“I have no motivation to cook and tend to only snack on foods rather than cook.  Because of my arthritis I am in constant pain in my hands and have very little strength.  Because of this I cannot cut vegetables and I have difficulties using taps.”

	Mr Collins has also drawn my attention to the fact that in the record of proceedings made at the hearing of 19 January 2009, the tribunal has recorded as follows:

“Does not cook – makes coffee and toast in morning.  Sister makes food in evening.  Finds too hard to peel potatoes or vegetables.  Stiffness in her hand and hard if she stands.  Has not cooked for more than one year.  Lost 2 ½ stone in last year and half.

Does not have same appetite.

Would not want to cook.”

8.	In relation to the main meal test the tribunal arrived at the following conclusion set out in its statement of reasons:

“… the Tribunal notes that (the claimant) could make coffee and toast.  It noted that she states that she does not cook and does not want to cook and that she finds it hard to peel potatoes or vegetables and has stiffness in her hand and she finds it hard if she stands.  However Dr Palin does not make any reference to (the claimant) having any significant problems with her hands and Elaine Johnston (Senior Physiotherapist) states that as regards upper limb function including manual dexterity – intact function, limited at times by pain and on consideration of all the evidence the Tribunal considered that most of the time (the claimant) could prepare a cooked meal for herself if she had the ingredients.”

9.	The tribunal has clearly considered the issue of the claimant’s ability to prepare a main meal.  However, as submitted by the applicant, the tribunal’s statement of reasons has shown that the tribunal concentrated exclusively on the physical aspects of her inability.  Undoubtedly the tribunal, when dealing with the issue of attention or supervision, dealt with both physical and mental disablement.  Yet, in relation to the main meal test, the tribunal has simply noted that the claimant stated that she does not cook and does not want to cook and then went on to address her physical difficulties only.

10.	Mrs Commissioner Parker in Great Britain decision CSDLA7225/2004, at paragraph 19, stated as follows:

“… Mr Bartos (the appellant’s advocate in CSDLA7225/2004) too agreed, and I consider that he was right to do so, that if a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test; the claimant’s abilities are assessed throughout the relevant statutory nine month period (taking a broad view in exercising judgement on whether, in a general sense, the claimant can fairly be described as a person who is unable to cook a meal). …”

11.	Mrs Commissioner Parker, in my view, has correctly stated the legal position.  Accordingly, I conclude that the tribunal has erred in law in this particular case by failing to consider whether the claimant had difficulties preparing a main meal as a result of mental health problems and erred by not making explicit findings in relation to this issue.

12.	In light of my findings I conclude that the tribunal’s decision is erroneous in point of law.  Accordingly I allow the appeal.  In the circumstances I set the tribunal’s decision aside and refer the case to a differently constituted tribunal for a rehearing on the merits.  I direct that tribunal to bear in mind what Mrs Commissioner Parker stated in CSDLA7225/2004, in particular paragraph 19, when deciding the issues in this case.  However, the fact that the claimant has been successful in this appeal does not necessarily indicate that the claimant’s appeal before the new tribunal will be successful.

(signed):  J A H Martin QC

Chief Commissioner

19 March 2010