MJD-v-Department for Social Development (DLA) [2013] NICom 70

Decision No:  C11/13-14(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 20 September 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Banbridge on 20 September 2012.

2.	I grant leave to appeal and proceed to treat and determine the application as if it were an appeal.  However, for the reasons I give below, I disallow the appeal.

REASONS

	Background

3.	The applicant as a child claimed disability living allowance (DLA) from the Department for Social Development (the Department) on the basis of needs arising from phenylketonuria (PKU).  He was initially awarded the low rate of the care component for a fixed period from 12 March 1996 to 24 October 2000.  He was subsequently awarded the middle rate of the care component in a series of five fixed term awards (variously based on attention and supervision needs) until 24 October 2010, when he reached his 20th birthday.  The most recent award was based on supervision needs.  He made a renewal claim, which resulted in disallowance from and including 25 October 2010.  He appealed.  The appeal was originally heard and determined by a tribunal on 26 January 2011, but the tribunal’s decision was set aside under Article 15(7) of the Social Security (NI) Order 1998 by Chief Commissioner Mullan.  The matter was then reheard by a newly constituted tribunal which disallowed the appeal on 20 September 2012.

4.	The applicant requested a statement of reasons for the tribunal’s decision, which was issued on 8 January 2013.  The applicant then applied for leave to appeal to the Social Security Commissioner, but the legally qualified member of the tribunal refused the appeal by a determination issued on 6 February 2013.  The applicant then applied to a Social Security Commissioner for leave to appeal.

	Grounds

5.	The applicant submits that the tribunal has erred in law on the principal ground that it failed to address and apply the “main meal test” relevant to the low rate care component of DLA.  It was further submitted that the tribunal had erred in its approach to the question of attention in connection with the bodily function of feeding.

6.	The Department was invited to make observations on the applicant’s grounds.  Mrs Hulbert responded on behalf of the Department.  She submitted that the tribunal had not erred in law for the reason contended but submitted that the tribunal had erred by failing to make any reference to the applicant’s previous award in disallowing the appeal.

	The tribunal’s decision

7.	In its statement of reasons, the tribunal says that it took the approach that the issue was not about the application of the “main meal test”.  It says that the question was not whether the applicant was able to prepare and cook and serve a conventional meal for one person.  Rather, it was whether he requires assistance with the bodily function of feeding himself.

8.	The tribunal accepted the evidence to the effect that the applicant needed to plan and prepare his meals with much greater care and difficulty than someone without his condition.  However, it found that the applicant was an intelligent adult with the intellectual grasp of the requirements of his diet and the tasks necessary to comply with it.  It rejected the account that he had practical difficulty with food preparation and found that he did not reasonably require help with the bodily function of feeding himself for a significant portion of the day.

	Relevant Legislation

9.	The relevant tests of entitlement to the care component for the purposes of this application are set out in section 72 of the Social Security Contributions and Benefits Act (NI) 1992 and are as follows:

‘72.—(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) 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); or

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

	(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

		(i) frequent attention throughout the day in connection with his bodily functions; or

		(ii) … (not relevant).’

	The Hearing

10.	I held an oral hearing of the application.  The applicant was present and was represented by his mother.  The Department was represented by Mrs Hulbert of Decision Making Services.  I am grateful to both of the representatives for their submissions.  Prior to the hearing, the parties had given their consent to me treating and dealing with the application as if it were an appeal.

11.	The applicant’s representative submitted, firstly, that the tribunal had not properly addressed itself to the issue of the main meal test.  Secondly, she submitted that the tribunal had erred in its consideration of the day time attention test.  Thirdly, she submitted that the tribunal had not adequately addressed the reasons for not continuing the award which had been in place for the previous 14 years.  However, she accepted that the conditions for entitlement on the basis of supervision needs were not met.

12.	On the basis of written evidence from Professor T, it was accepted that the applicant had the genetic condition PKU, having been diagnosed at the age of two weeks.  PKU is a condition which leads to severe mental disability if untreated, arising from an inability in the affected person’s body to process phenylalanine – a substance found in natural protein.  Treatment involves the severe reduction of natural protein in food intake and its replacement with synthetic protein.  Levels of phenylalanine are regularly monitored by blood tests.

13.	Evidence from a paediatric dietician indicated that treatment for PKU required adherence to a diet in four parts:

	(i) total avoidance of meat, fish, eggs, cheese, yoghurt, bread, biscuits and severe restriction of natural protein, such as in cereals, potato and some vegetables, to carefully weighed amounts determined on the basis of blood tests;

	(ii) consumption of synthetic protein substitute in measured quantities;

	(iii) permitted low protein foods, such as fruit, vegetables, butter, sugar, jam;

	(iv) prescribed low protein foods, such as low protein milk, flour, pasta and rice.  The dietician indicated that low protein products are difficult to prepare and require much skill, practice and expertise to prepare.

14.	The applicant’s representative submitted that the preparation of a cooked main meal in the applicant’s situation involved particular difficulty and required particular skill in successfully preparing the ingredients.  She submitted that it was more time consuming than the preparation of a conventional meal.  As an adult he required a greater range of meals to ensure good compliance with his diet.  She relied on the House of Lords decision of Moyna [2003] UKHL 44, submitting that the applicant needed assistance because he was “culinary incompetent”.

15.	In relation to attention in connection with bodily functions, the applicant relied on Fairey (reported as R(A) 2/98).  She submitted that attention must be reasonably required so as to enable the claimant as far as reasonably possible to live a normal life.  It was submitted that the applicant required assistance with cooking as otherwise he would not have a normal social life.

16.	It was submitted that, although the attention of preparing food was not done in his presence, it would count as attention in connection with a bodily function as an integral part of an overall regime, relying on R(DLA)1/98, and submitted that food preparation in connection with PKU had been accepted as attention in connection with a bodily function in R(A)1/87.  The applicant further relied on R(A) 1/91 and CSDAL/98/94 in this context.

17.	It was further submitted that there had been no change of circumstances such as would affect the applicant’s on-going needs which had led to his previous awards.

18.	Mrs Hulbert opposed the application.  She submitted that the tribunal had adequately addressed the cooking test.  She submitted that food preparation was too remote to amount to attention in connection with bodily functions.  In her written submissions she had queried whether the tribunal had properly explained its reasons for not renewing the award.  However, she accepted that the reasons for non-renewal could be inferred from the circumstances of a particular case, if sufficiently obvious.

	Assessment

19.	I consider that the applicant has established arguable grounds of appeal and on that basis I grant leave to appeal and I proceed to treat and determine the application as if it were an appeal.

	The “main meal” test

20.	The applicant submits that the tribunal did not consider and make findings on the question of whether he satisfied the “main meal” test.  It is clear from the written submission placed before the tribunal by the applicant that he wished this aspect of possible entitlement to be considered.  The record of proceedings contains a statement in the first couple of lines:

“Defined issue on appeal.  Confirmed it is whether ability.  Prepare food required for functioning, and main meal.  It is not to “main meal” test.”

21.	I consider that this record is ambiguous as to whether the applicant is accepting or the tribunal is indicating that the appeal is not about the “main meal” test.  Clearly the record of proceedings is not a verbatim account of what was said and is recorded in note form which is difficult to interpret.  However, the tribunal’s statement of reasons further says:

“The tribunal took the approach that the issue was not about the application of the “main meal test”.”

22.	The applicant submits that he did not concede that the main meal test had no application, but that the tribunal made this judgment.  For the Department, Mrs Hulbert submits that the tribunal nevertheless made adequate findings and gave adequate reasons on this aspect. 

23.	If the tribunal did indeed chose not to address a particular issue of entitlement at the outset of the hearing without the consent of the applicant, I consider that this would amount to an error of law.  It is clearly established that the tribunal has an obligation to hear and determine all relevant matters in dispute.  However, the record of proceedings before me is not clear as to whether the tribunal considered that it had the applicant’s consent to this approach.  It would be good practice to record such consent.  As it is not recorded, I give the benefit of the doubt to the applicant who says that he did not consent to the tribunal’s approach.  I hold that the tribunal has erred in law.

24.	Nevertheless, in order for this to amount to a material error of law, I would still need to be satisfied that the tribunal’s failure to consider the test could have affected the outcome of the appeal.  I will therefore consider the main meal test further.

25.	The evidence before the tribunal established that the applicant would be physically able to prepare a main cooked meal.  The issue was that the applicant required a special diet involving greater levels of skill and requiring more time to prepare than a main meal for someone without his condition.

26.	I consider that the applicant’s representative misconstrues what Lord Hoffman (not Lord Nicholls who is cited in error) was saying at paragraph 17 of Moyna.  Lord Hoffman made the point that the cooking test was a hypothetical one.  He criticised the Court of Appeal below for laying emphasis on the question of whether the claimant could actually enjoy a reasonable diet without assistance.  He said that it does not matter if the claimant actually needs to cook, referring to other means of obtaining nutrition.  In that context, he referred to the situation of someone who had the motor skills to cook but needed help to obtain the ingredients or who was culinarily incompetent.  He was thereby illustrating examples of claimants who would not satisfy the “cooking test”, even though they might not enjoy a reasonable diet without assistance.  I do not accept that Moyna is authority for the proposition that persons can satisfy the “cooking test” by reason of culinary incompetence.

27.	The applicant has particular dietary needs.  I consider that Commissioner Heggs was correct in R(DLA)2/95 when she described the nature of a main meal as “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker”.  I also agree with her when she said “what is reasonable is a question of fact to be determined by reference to what is reasonable for a member of the community to which the claimant belongs, e.g. a vegetarian meal as opposed to one which is not”.  I conclude, therefore, that when addressing the main meal test in the applicant’s case, it is necessary to consider the nature of the food which he must eat.

28.	The applicant’s representative submitted that the applicant’s food required more time to prepare, giving the example of the requirement to prepare a pasta sauce from fresh ingredients rather than using a sauce bought pre-prepared.  However, such labour intensive cooking is precisely what the main meal test envisages.  There is no aspect of the applicant’s condition which would prevent him preparing such a meal.  I can accept that a person with a disability which results in a particularly slow and prolonged cooking process might be accepted as unable to prepare a cooked main meal.  However, I am not satisfied that the processes involved in preparing food suitable for the applicant’s diet would require significantly more time than preparing food with similar ingredients containing higher levels of protein.

29.	It is also clear that the applicant cannot simply buy, for example, a loaf of bread in a supermarket.  He can obtain bread on prescription or must bake bread from low protein flour and appropriate substitute ingredients.  The applicant’s representative submitted that using ingredients such as low protein flour required particular culinary skill which the applicant did not possess.  However, that is a matter addressed to the issue of culinary competence.  The issue which requires to be addressed in the main meal test is whether the applicant is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients.

30.	A person who is disabled physically or mentally will not satisfy the test because of culinary incompetence, but only if the disability in question prevents the cooking of a main meal.  It is the ingredients of his meals which serve to distinguish the applicant from persons without PKU.  However, the test envisaged by the legislation is a test of ability to prepare a meal “if he has the ingredients”.  PKU does not prevent the applicant preparing a cooked main meal.  Therefore, I must conclude that he does not satisfy the conditions of entitlement to the low rate of the care component based on the main meal test.

31.	The tribunal was not entitled to move on from this question without giving it fuller consideration, since the applicant had specifically raised it in his submission to the tribunal.  However, even if it had fully addressed the issue of the main meal test, I consider that the tribunal could only have reached the conclusion that the applicant did not satisfy that test.

	Day time attention

32.	The applicant further made the case that, if he did not qualify under the main meal test, he nevertheless required attention in connection with a bodily function.  This could potentially give rise to entitlement to the care component at the low rate if such attention was for a significant portion of the day or at the middle rate if it was frequently throughout the day.  The key issue on this aspect of the applicant’s case is not the duration or frequency of the attention, although that is important to the nature of potential entitlement, but whether the applicant requires attention in connection with a “bodily function” as that legislative term has been interpreted in the relevant jurisprudence.

33.	It was held by the Court of Appeal in England and Wales in Packer [1981] 1 WLR 1017, a case concerned with attendance allowance (AA), that cooking was too remote from the bodily function of eating to qualify as attention in connection with bodily functions.  This interpretation was confirmed by the House of Lords in Woodling [1984] 1 WLR 348.  AA for persons under the age of 65 was replaced by DLA from April 1992.  DLA introduced a new low rate care component which had no equivalent in AA.  The low rate could be satisfied on the basis of the main meal test or a test of whether the claimant required attention in connection with bodily functions for a significant portion of the day.  It is my understanding that the purpose of the introduction of entitlement to the low rate care component on the basis of the main meal test, as distinct from the significant portion of the day test, was the recognition that cooking was not a bodily function and therefore that a separate route to entitlement on that basis was required.

34.	The cooking test does not apply to persons under the age of 16 by section 72(1A)(a) of the Contributions and Benefits Act.  When a claimant is a child, it seems clear that there is a presumption that the child will not be expected to prepare a main meal independently.  However, case-law suggests that where a claimant is a child, attention may be reasonably required, assuming for the moment that preparation of food in accordance with a special diet amounts to attention in connection with bodily functions.  Thus, in R(A)1/87, Commissioner Monroe held that attention conditions were met in the case of preparing the necessary diet for a child with PKU.  However, subsequently, in considering the same statutory test, Lord Wolff in Mallinson [1994] 1 WLR 348, and Lord Slynn, in Cockburn (R(A)2/98), approving Lord Wolff, referred to a need for "the active and the close, caring, personal qualities referred to in the authorities" in the context of attention in connection with bodily functions.  R(A)1/87 was subsequently disapproved in CSDLA/160/95 on the basis that it had not considered the concept of intimacy which appears in the authorities (see paragraph 19).  It appears to me that the view of the Commissioner in CSDLA/160/95 carries considerable force, but I do not need to resolve the discrepancy between these authorities.

35.	This is because a basic aspect to the question of entitlement is whether the applicant requires attention by reason of physical or mental disablement.  However, there is no aspect of the applicant’s condition which prevents him preparing a meal for himself, even if preparing a meal amounted to attention in connection with bodily functions.

36.	The applicant submits that as preparation of food for his special diet is time consuming and prevents him from having a normal social life, relying on Fairey (R(A)2/98).  In Fairey, the attention was addressed at overcoming disadvantages directly resulting from the disability of profound deafness.  However, there is no evidence that the applicant’s disability prevents him enjoying a social life.  Even if preparation of food is time consuming, arranging his social life is merely a matter of time management rather than overcoming disability.

37.	The tribunal found that the account given that the applicant had practical difficulty with food preparation was not credible.  The tribunal found that the applicant was physically and mentally capable of understanding and meeting the demands of his special diet, with which he has been familiar as he grew up.  It found that, as a capable adult, the applicant could be expected to manage his diet and medication independently.  These were reasonable conclusions for the tribunal to reach on the evidence before it.  It was therefore entitled to conclude that the applicant did not reasonably require attention in connection with bodily functions.  I cannot accept the submission that the tribunal has erred in determining this question.

38.	Finally, the applicant submits, with the support of the Department, that the tribunal erred by not giving reasons for the non-renewal of his existing award.  The applicant in the present case was awarded DLA throughout his childhood at the middle rate of the care component on the alternating basis of attention and supervision needs.  His award then stopped.  It is true that the Court of Appeal in Northern Ireland in the case of Quinn [2004] NICA 22 has stated that reasons should be given in such cases.  However, it qualified this obligation by the proviso that such reasons should be given by a tribunal unless obvious from its findings.  I consider that the tribunal’s reasons are obvious.  The applicant received an award for most of his childhood when looked after in his parental home and for the reason that he was a child, but was now claiming as an adult living an independent life.  I reject the submissions of the applicant and of the Department that the tribunal has erred in not specifying reasons for not continuing the previous line of awards.

39.	I therefore dismiss the appeal.

(signed):  O Stockman

Commissioner

26 November 2013