CDLA/5250/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.		This is an appeal by the claimant, with my leave, against the decision of the appeal tribunal sitting at Birmingham (“the appeal tribunal”) on 8th July 2002.  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a freshly constituted appeal tribunal (“the new tribunal”) for rehearing.  

2.		The claimant, who was born on 10th April 1952, suffers from depression, osteoarthritis and psoriasis.  She also suffers from a degree of incontinence which is, I think, currently being investigated.  It appears from the papers, although the actual decision is not in evidence, that she was awarded the lowest rate of the care component by a decision dated 12th June 2001.  The claimant was not satisfied with that decision and, on 25th September 2001 she asked for it to be looked at again.  See page 2 of the papers.

3.		The matter was duly investigated and, on 30th January 2002, a supersession decision was given.  See pages 55 to 58A.  This decision preserved the status quo.  That is, the claimant continued to be entitled to the lowest rate of the care component but was not entitled to a higher rate of that component.  Nor was she entitled to the mobility component.  It should be noted that the care component was awarded on the basis that she was unable to prepare a cooked main meal for herself if she had the ingredients.  

4.		The claimant appealed and her appeal came before the appeal tribunal, consisting of three members, on 8th July 2002.  The claimant attended, together with her son’s partner, and gave evidence on her own behalf .  The result was, however, a disaster from her point of view.  All three members of the appeal tribunal decided not only not to award her the mobility component and a higher rate of the care component but they went on to remove her existing entitlement to the lowest rate of the care component with effect from 25th September 2001.  That, it will be recalled, was the date on which she asked for the matter to be looked at again.

5.		The claimant sought permission to appeal to a Commissioner.  Her grounds of appeal are set out at pages 87 to 89, in a letter dated 25th November 2002.  Permission was refused by a legally qualified panel member but was granted by me on 24th January 2003.  In granting permission I said that the grounds of appeal were arguable.  The Secretary of State has lodged submissions in which he submits that the appeal tribunal’s decision is erroneous and that the matter should be remitted for rehearing.  I accept those submissions.

6.		The point is this.  The tribunal removed the claimant’s existing entitlement which had been awarded on the basis of an inability to prepare a cooked main meal.  That being so, it was important that the decision set out clear findings about the claimant’s culinary abilities and explained with some precision why the appeal tribunal considered that these were such as to disentitle her to her existing award.  

7.		This, with respect, the appeal tribunal failed to do.  In relation to cooking, it first recorded the oral evidence which the claimant had given as follows.
	“With regard to cooking, she said that she had a problem with lifting anything too heavy.  She could not use a knife, although special knives had been provided, which she was able to use.  She does not cook at all, but is able to use a Microwave.”
The appeal tribunal did not, however, make any findings about the claimant’s ability to use knives nor does it appear to have investigated the nature of the special knives and what they were intended to be used for.  Clearly, if someone has a problem with knives, and requires special ones, they may not necessarily be able to use those special knives for all activities required in preparing meals.  

8.		The appeal tribunal then went on to say this under the general heading “Reasons for the Decision”.
	“The Tribunal has considered carefully the Appellant’s care needs.  She does not need assistance in cooking a main meal for herself.  She has said again in her own evidence that she is quite capable of using a Microwave oven whenever she needs to provide herself with a meal.  However, this is now largely done for her by her son’s girlfriend who is now living at the property, but when on her own she can manage to provide herself with a main meal with the use of a Microwave oven.”
That passage has been criticised as inadequate by both the claimant and the Secretary of State.  I agree, particularly in view of the fact that the tribunal was removing an award originally made on 12th June 2001 and confirmed by the supersession decision – the decision under appeal – of 30th June 2002.  The sentence “She does not need assistance in cooking a main meal for herself” is really a conclusion rather than a finding of fact.  One is left wondering why she does not need assistance.  Likewise the statement “but when on her own she can manage to provide herself with a main meal with the use of a Microwave oven”.

9.		Microwave ovens seem to be becoming rather topical.  At one time, some people thought that their use should always be ignored in relation to the cooking test while others took a more cautious line.  This is an area where verbal confusions creep in.  When microwave ovens were relatively new, which is not so long ago, they were fairly basic machines and people had rather limited knowledge about how to use them.  Consequently, they were mainly used for heating up food which had already been prepared, if not completely cooked, and for preparing very simple snacks.  For example, heating up soup or a pie.  Probably most people still use them in this way.  Hence the considerable amount of space which supermarkets devote to pre‑cooked meals such as curries, pastas, Chinese dishes and even “meat and two veg” meals.  You simply pierce the covering film, put the carton in a microwave, press the right buttons and you have a ready cooked meal in about five minutes.  Clearly that type of cooking goes nowhere near meeting the statutory test set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992.  

10.		However, microwaves are becoming more and more sophisticated and often come with elaborate recipe books.  It is perfectly possible, even with a simple microwave, to prepare a substantial family meal.   If that is the sort of use to which someone puts their microwave, then it would be ridiculous to ignore it when considering the test.  Further, cooking technology develops as time goes by.  Anyone who has recently considered buying a microwave, and who has done a little research, will be aware that there are some very sophisticated models available.  At the top of the range there are what appear to be “conventional” ovens with a grill and microwave facility.  Some appear to have programmers which enable a dish to, say, be cooked for a while using the microwave facility – thus saving time – and then the oven switches to being a “conventional” oven, or a grill, in order to give a better flavour or texture to the food.  Indeed the word “conventional” needs to be used with caution.  I think that what is usually meant is the gas or electric cooker with hobs on top, a grill and an oven below which was very popular a generation ago.  Modern appliances however, often separate the hobs from the oven so that the latter does not have to be underneath the former and can be placed anywhere in a kitchen.  Further, within living memory the traditional cooker was probably what was called “a range”.  Similar in principle, if not efficiency, to the modern Agas which are popular with those who can afford them.

11.		In short I entirely agree with what Miss Commissioner Fellner said in paragraph 36 of her decision numbered CDLA/770/2000.  See page 113 of the papers and the quote by the Secretary of State at page 100 in paragraph 4.3 of his submissions.  If an appellant says that he or she uses a microwave, a tribunal needs to investigate the nature of that use unless it is clearly obvious.  If the use is merely heating up pre‑prepared food or assisting in the preparation of simple snacks, then its use should probably be ignored.  This might not be right if the use was more substantial.  It is probably still the case that most people use a microwave for the former purposes but some make greater use of them.  The new tribunal should investigate the matter and make appropriate findings.  

12.		For the reasons I have given I allow the appeal and remit it to the new tribunal for rehearing.  

							(Signed)	J.P. Powell
									Commissioner

							Dated:		5th June 2003