CDLA 17329/96

The Office of Social Security and Child Support Commissioners 
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
COMMISSIONER M ROWLAND
Tribunal:
Tribunal Case No:
[ORAL HEARING]
  
1. I dismiss the claimant's appeal against the decision of the Central London North disability appeal tribunal dated 17 July 1995. I grant the claimant leave to appeal against the decision of the Central London North disability appeal tribunal dated 22 October 1996 and I allow her appeal, but only to the extent of setting aside the decision of that tribunal and substituting my own decision which is that there are no grounds for reviewing and revising the decision dated 17 July 1995. Accordingly, the claimant does not achieve any practical success in either of these appeals. 

2. I held an oral hearing of these appeals. The claimant was present and was represented by her partner. The adjudication officer was represented by Ms Kemi Idris of the Office of the Solicitor to the Departments of Social Security and Health. 

3. The claimant's claim for disability living allowance received on 8 February 1995 was treated as made on 22 November 1994 but was disallowed by an adjudication officer whose decision was reviewed but not revised by another adjudication officer. The claimant appealed to a disability appeal tribunal who, on 17 July 1995, dismissed her appeal. They found the following facts:- 
"1.[The claimant] is a 49 year old lady who suffered a serious injury to her right thumb when she was 2. As a result she has limited use of that digit. In addition, when she was approximately 20, she also injured her left thumb which has limited the use of that hand to some extent as well.
"2. In consequence, [the claimant] has some difficulty with dressing, undressing and washing her hair and cutting her toe nails. She is however able to prepare and cook a main meal for herself."
The tribunal gave the following reasons for their decision:-
"We appreciated that [the claimant] had a serious injury to her right thumb when she was small. However, the question we had to consider was whether she was so severely physically disabled that she satisfied the requirements for an award of the Disability Living Allowance. We found that she did not do so as she does not need either frequent attention with her bodily functions throughout the day or for a significant portion of the day. Furthermore from her own evidence it was clear that she could prepare and cook a main meal for herself using pans with which she is familiar."

4. On 22 February 1996, the claimant wrote a letter which was received by the Department of Social Security on 26 February 1996 and was quite properly treated as an application for review of the tribunal's decision. On 20 March 1996, an adjudication officer refused to review the tribunal's decision. On 21 May 1996 another adjudication officer reviewed, but refused to revise, the decision of 20 March 1996. The claimant appealed and the matter came before a differently constituted tribunal on 22 October 1996. The claimant was present and was represented by her partner. The adjudication officer was neither present nor represented. After a lengthy hearing, during which the chairman took a substantial note of evidence, the tribunal declined to make any substantive decision on the appeal. They gave the following explanation:-
"[The claimant's representative's] complaint on behalf of the appellant was against the decision of the tribunal dated 17 July 1995. The tribunal found no evidence of that decision having been set aside. [The claimant's representative's] submission was that the previous tribunal's decision was erroneous in law.
"In the circumstances the appellant was advised to apply for 'Leave to appeal to the Commissioners'."

5. The claimant duly applied for leave to appeal against the decision of the tribunal dated 17 July 1995. The application was, of course, late but, on 21 January 1997, a Commissioner remitted the application and granted leave to appeal. The oral hearing before me took place on 26 June 1997 and, at that hearing, I invited the claimant to apply for leave to appeal against the decision of 22 October 1996. A written application for leave to appeal was submitted at the hearing and both parties gave their consent in writing to my treating the application as the appeal. 
6. Although strict logic might suggest that I should deal first with the appeal against the decision of 17 July 1995, it is much more convenient to deal first with the decision of 22 October 1996, then with the basic merits of the case and lastly with the decision of 17 July 1995.

7. The tribunal of 22 October 1996 clearly failed to appreciate the nature of the case before them. I suspect that a number of factors contributed to their misunderstanding. Firstly, there was no presenting officer from the Benefits Agency to explain the basis on which the case had been put before the tribunal. Secondly, the written submission to the tribunal failed to refer to the relevant provisions in the legislation. Reference was made to section 30 of the Social Security Administration Act 1992. However, the power of an adjudication officer to review a decision of a tribunal is derived from section 35 rather than from section 30 which is concerned only with the review of decisions of adjudication officers. Indeed, both the decisions of 20 March 1996 and of 21 May 1996 were made by adjudication officers using wording appropriate to reviews under section 30(2) rather than section 35 and both decisions referred to section 30 although the adjudication officer giving the first of those decisions had added a handwritten reference to section 35 without crossing out the reference to section 30. The true position was that the decision on 20 March 1996 should have been given under section 35(1) and the decision given on 21 May 1996 should have been given under section 30(1) as applied by section 35(8). There were two material differences between section 35(1) and section 30(2). One is that there is no reference to a prescribed period in section 35. The other is that an adjudication officer may not review a decision of a tribunal on the ground of error of law but may review a decision of an adjudication officer on that ground. Although some of the language used by the adjudication officers giving their decisions was inappropriate, none of this makes any difference in the present case save that, if the tribunal sitting on 22 October 1996 had been referred to section 35, they might not have declined to deal with the case before them. They ought to have considered whether there were grounds for review under section 35(1) of the decision of the earlier tribunal. The third contributor to the tribunal's confusion was the claimant's representative who said he was challenging the earlier tribunal's decision on the ground that it was erroneous in point of law. As I have mentioned, that was not a ground for review under section 35(1) and a challenge on that ground had to be by way of appeal. However, even if the substance of the claimant's case was that the decision of the earlier tribunal was erroneous in point of law, the second tribunal should not simply have declined to deal with the appeal before them. They should have considered whether there were in fact any grounds for review under section 35(1) and, if not, they should have dismissed the appeal. If the claimant had conceded there were no such grounds, the matter could have been dealt with very shortly. 

8. The tribunal sitting on 22 October 1996 having erred in law in effectively declining jurisdiction, I grant leave to appeal against their decision and I set aside their decision. Both parties were content that I should give a final decision in the case in substitution for the decision given on 22 October 1996.

9. I therefore must consider whether there were grounds for reviewing the decision of the tribunal dated 17 July 1995. There is no suggestion in this case that the extent of the claimant's disabilities has altered since 22 November 1994 and, therefore, the only conceivably relevant basis for a review of the decision of 17 July 1995 would be under section 35(1)(a) of the 1992 Act which permits the decision of the tribunal to be reviewed if "the decision was given in ignorance of, or was based on a mistake as to, some material fact". Looking at the evidence before the first tribunal and at the evidence before me, I do not consider that the first tribunal were ignorant of any material fact or made any mistake as to a material fact. 
10. Even if the first tribunal could have been said to have been ignorant of some potentially material detail, I would not revise their decision. There is no doubt that the claimant has been severely disabled by the injuries to her thumbs. There are many things that she cannot do and her injuries have had some impact upon her emotionally as well as physically. However, disability living allowance is not like disablement benefit which is paid at a rate which depends on an assessment of disablement arising from a loss of faculty due to an industrial accident or disease. Entitlement to disability living allowance does not depend on an assessment of the degree of disablement suffered by the claimant; it depends upon the amount of assistance the claimant requires from other people and the statutory criteria are narrowly drawn. In the present case, there is no suggestion that the claimant requires assistance at night or that, by day, she requires continual supervision. Furthermore, her representative argued only faintly that she required attention in connection with her bodily functions either frequently or for a significant portion of the day and I am satisfied on the evidence that she does not require such attention. There are some things she cannot do as well or as easily as most people but she can nevertheless do them. Where she is unable to do things at all, for the most part either the performance of the task by another person does not amount to "attention in connection with [her] bodily functions" or else she can reasonably be expected to avoid the difficulty by, for instance, not wearing clothes with very small fasteners. Such other help as she may require is not required frequently throughout the day or for a significant portion of the day.

11. The real issue in this case is whether or not the claimant satisfies the "cooking test" in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 which provides:-
"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) ...; or
(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or ...."
The difficulty facing the claimant on her claim for disability living allowance is that she can and does prepare cooked main meals for herself. However, it is submitted that she nonetheless satisfies the cooking test because she is only able to prepare cooked main meals by using special implements and there are some foods that she is unable to prepare at all. 

12. In support of the proposition one should ignore the capacity to cook achieved only through the use of special implements, the claimant's representative referred me to CDLA/85/94 and CDLA/20/94. In CDLA/85/94, the Commissioner said:-
"7. The main issue before the DAT was whether the claimant satisfied the disability test for the lowest rate of the care component contained in section 72(1)(a)(ii) of the Act. The provision contains a number of different issues for which no explanation or clarification is provided. In my view the 'cooking test' is a hypothetical test to be determined objectively. Factors such as the type of facilities or equipment available and a claimant's cooking skills are irrelevant. 
"8. The nature of the 'cooked main meal' which the claimant 'cannot prepare' is crucial. In my view it is a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. 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. The use of the phrase 'for himself' shows that the meal is intended to be just for one person, not for the whole family. The 'main meal' at issue is, therefore, a labour intensive, main reasonable daily meal for one person, not a celebration meal or a snack. The main meal must be cooked on a daily basis and it is irrelevant that a claimant may prepare, cook and freeze a number of main meals on the days that help is provided and then defrost and heat them in a microwave on subsequent days. The test depends on what a claimant cannot do without help on each day. Because the main meal has to be cooked, the test includes all activities auxiliary to the cooking such as reaching for a saucepan, putting water in it and lifting it on and off the cooker. All cooking utensils must of course be placed in a reasonable position.
.....
"11. As stated the 'cooking test' is objective and is not dependent on the type of facilities or equipment available to a claimant. The DAT further erred in law in that they considered that the test of the claimant's ability to cook a main meal was to be limited by reference to the use of special kitchen appliances to compensate for her disability, without explaining in any detail what appliance they had in mind and how these would help. In my view if a claimant cannot, given normal reasonable facilities (which might include certain devices to assist) perform the tasks necessary to prepare a main meal then the condition of section 72(1)(a)(ii) of the Act will be satisfied. Once it is established that the claimant is unable to perform those tasks it is not necessary in the context of the 'main meal' test to consider whether that inability can be overcome by specially adapting the kitchen or making alternative arrangements. The test is designed as a measure of a claimant's ability to perform specific daily tasks. 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 Act where the test is that the disabled person must 'require' attention or supervision. If an alternative to attention or supervision is reasonably available then the attention or supervision cannot be said to be required."
In CDLA/20/94, the Commissioner followed CDLA/85/94, saying:-
"The first question which arises is whether cooking by a microwave oven might not enable the claimant to satisfy the cooking test, if he were otherwise unable to use a conventional cooker. In my view, the possibility of cooking by way of a microwave of fast foods, frozen meals or ordinarily prepared meals should be ignored."

13. In the present case, the claimant uses a flat potato peeler rather than a more conventional one, she uses a device for opening jars, she uses an old-fashioned can opener rather than a more modern one, she has a cooker with old-fashioned control knobs that she can use although she could not manipulate modern controls, she uses ugly saucepans with flat handles rather than more attractive modern ones and she is restricted in the types of knives she can use. Nonetheless, because she has the right implements, she can peel potatoes, she can open jars and cans, she can operate her cooker, she can use small saucepans and she can cut up vegetables (although she cannot dice them finely).

14. I do not consider that there was anything in either CDLA/85/94 or CDLA/20/94 that requires one to ignore the fact that the claimant has certain appliances which enable her to prepare a meal when more conventional appliances would not enable her to do so. Indeed, in CDLA/85/94, the Commissioner stated that "normal reasonable facilities .... might include certain devices to assist". Those decisions were both given in cases where it seems to have been suggested that claimants should obtain appliances they did not already have or should adapt their kitchens which were not already adapted. In such cases there might arise questions whether claimants can reasonably be expected to buy small, readily obtainable devices or appliances, but it clearly cannot be right to consider a claimant's capacity to prepare a meal on the artificial basis that he or she has a hypothetical ideal kitchen. However, there is no reason why, if a claimant does have his or her kitchen adapted so that he or she is able to prepare a cooked main meal, that claimant should continue to receive disability living allowance under section 72(1)(a)(ii). As was said in CDLA/85/94, the "cooking test" is a hypothetical test and it is unnecessary to consider whether the claimant reasonably requires to be able to prepare a cooked main meal. The test is concerned only with a notional requirement for assistance but one must look at the individual claimant in his or her actual circumstances and consider what he or she can reasonably be expected to achieve in the way of preparing a cooked main meal. In CDLA/20/94, the Commissioner said:-
"I do not think that the test should be viewed as it were in vacuo but in practical terms, 'is the claimant physically able to prepare and cook a meal?'"

15. There are certain things that the present claimant is unable to do even with special appliances. There are some sealed packages she is unable to open. Her ability to use knives is limited and she is unable to cut vegetables very finely and is not always able to trim meat. She is unable to use heavy saucepans so that, whilst she can cook baked beans or small amounts of fresh vegetables, she is unable to cook things such as pasta that require a lot of water. I accept that the consequence of this is that, if the claimant did not have assistance, the range of meals she could prepare would be somewhat restricted. However, 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. One must approach a case like this with a broad brush and a reasonable amount of commonsense.

16. In the present case, looking at the evidence as a whole, I am quite satisfied that the claimant is able to prepare a cooked main meal with the equipment available to her. It follows that, even if there were grounds for reviewing the decision of 17 July 1995, I am not satisfied that there were any grounds for revising that decision. The decision I give in place of the decision of the tribunal dated 2 October 1996 is therefore that there are no grounds for reviewing and revising, under section 35(1) of the Social Security Administration Act 1992, the decision of the tribunal dated 17 July 1995. 

17. Finally, I turn to the question whether the decision dated 17 July 1995 was erroneous in point of law. It will be clear from what I have already said that I consider that the decision that the tribunal reached was one they were perfectly entitled to reach on the evidence before them. That answers the main thrust of the arguments on behalf of the claimant. It also seems to me that the decision cannot be criticised on any procedural ground. As the facts were clear and not in dispute, elaborate reasoning was not required from the tribunal. I therefore dismiss the claimant's appeal against the decision of the tribunal dated 17 July 1995. 

Signed
M Rowland
Commissioner 
30 July 1997 
 
© Crown Copyright 1997.