[2004] UKSSCSC CDLA_1418_2004 (22 December 2004)

1.	This appeal, brought with leave of a district chairman, succeeds.  The decision of the tribunal on 25 3 03 was erroneous in law, as explained below, and I set it aside.  But I am able on the tribunal’s own findings of fact to substitute my own decision, which is that the claimant does not qualify for any rate of disability living allowance on her claim made on 2 9 02.

2.	I held an oral hearing at which the appellant Secretary of State was represented by Jonathan Auburn of counsel and the claimant was assisted by her son.  She was provided with an interpreter, Ms A Alrizk.  I am grateful to all for their help at this hearing.

3.	The claimant sought an award of disability living allowance based on very poor sight in her left eye, recurrent migraines, and neck ache (cervical spondylosis).  She said the sight in her right eye was also weak, but neither her GP nor Moorfields Eye Hospital agree with her. 

4.	She came before a tribunal on 25 3 03.  The tribunal awarded her the lowest rate care component as, because of the migraines, she could not cook a main meal for herself on at least one day a week, “most likely 2 or 3 days”.  It relied expressly on the Court of Appeal’s decision in Moyna v Secretary of State [2002] EWCA Civ 408.  This held that a person who regularly could not cook on one day a week (though sometimes as often as three days a week) qualified as a matter of law on the cooking test as being unable to prepare a cooked main meal for herself if she had the ingredients: Social Security Contributions and Benefits Act 1992, s72(1)(a)(ii).  This decision came as a surprise to most judges and practitioners, who were accustomed to consider questions like the cooking test as questions of fact, not law, so that where the response was within the bounds of reasonable judgment, a tribunal’s decision would not be upset on appeal.     

5.	Moyna had been appealed to the House of Lords by the time the tribunal in this case sat.  The Secretary of State has power in such cases under ss26(2)(b) and 26(4)(b) of the Social Security Act 1998 to “serve notice” on a tribunal “requiring” it either to stay an appeal to await the outcome of the other pending appeal or to decide a case against a claimant as if the other appeal had been successful.  In the case of Moyna the President of the Appeals Service on 4 2 03 issued “Guidance” to tribunals warning them to expect notices from the Secretary of State and giving advice on how to deal with them (pages 81-2) – though he recognised (paragraph 3) he had no power to order a tribunal to decide any particular way.  Nor does he, and the Secretary of State was wrong to suggest that this tribunal erred in not following the President’s Guidance.  Only the Secretary of State has power to serve a notice “requiring” a tribunal to behave in a particular way.
6.	But in the present case there was no such notice from the Secretary of State.  It is said that he did not realise Moyna might be involved, because the tribunal submissions did not highlight it; but that is scarcely the tribunal’s, still less the claimant’s, fault.  The claim was made in September 2002, Moyna having been decided by the Court of Appeal in March 2002.  It is said the tribunal was fully aware of the Moyna appeal and the President’s Guidance and was under a mandatory duty to act in accordance with it; but I myself see nothing in the papers to suggest the tribunal was aware of the onward appeal to the House of Lords, nor of the President’s Guidance (the file copy was added only at a later stage), and even if it was I do not think that in the admitted absence of a Secretary of State’s notice it was obliged to do anything at all.        

7.	The Secretary of State sought and obtained leave to appeal from a district chairman, because the House of Lords on 31 7 03 had held the Court of Appeal’s Moyna decision wrong, and restored the previous state of the law: [2003] UKHL 44.  The tribunal should not, urged the Secretary of State, have followed the Court of Appeal in Moyna, and it should have done as the President said and stayed the case or decided it against the claimant.   
	
8.	In giving directions I advised the claimant to see a welfare rights adviser, and I see that both a legal officer and an administrator repeated this advice.  But she did not do so.  Therefore her grounds for opposing this appeal turned on facts.  She raised no question of law. She argued that she had fulfilled the conditions of entitlement, and the tribunal’s decision had been right.  Mr Auburn explained that the House of Lords had “changed the law” back to what it had been (in fact declared what it always had been), which was hard for the claimant but could not be helped.  She was angry that a mistake had been made.  This is understandable, though she told me she has never received the benefit which she was awarded.
		
9.	I have already given my view on the s26(2)(b) argument.  There was no Secretary of State’s notice for the tribunal to disobey, and the President’s Guidance is what it says it is: guidance.  It is not binding.  That ground of appeal fails.

10.	But even so, the fact remains that the House of Lords did overturn the Court of Appeal’s decision in Moyna and I accept the Secretary of State’s argument that the present tribunal’s decision was clearly made with its mind firmly fixed on the Court of Appeal.  Although (as I pointed out at the oral hearing) there are findings of inability to cook a main meal up to three times a week, I cannot be certain that without the Court of Appeal the tribunal’s decision would have been the same.  So I set it aside.  

11.	The question then arises of what I should do with the appeal.  Should I decide it against the claimant myself, using the tribunal’s findings of fact, as Mr Auburn urged, or should I send it back to a different tribunal?  As I made clear at the oral hearing, neither I nor another tribunal would be able to look at any matters more recent than the date of the decision appealed against, 4 11 02.  This is required by s12(8)(b) of the Social Security Act 1998.  I did explore the evidence a little further with the claimant and her son, but the results were not encouraging for her, for example it was said she needed the benefit to get help with housework and to manage cooking for all her children, but unfortunately housework is not covered by disability living allowance and the cooking test refers only to cooking a main meal for one person, whatever a claimant’s family circumstances may be.  It was not clear whether the claimant wanted a second chance before a tribunal or wanted to have done with this claim and make a fresh one.   	

12.	I have concluded that I should decide the appeal myself, and viewing matters overall, and asking the question posed by Lord Hoffmann in the House of Lords (paragraph 18), I decide that this claimant, on the facts found by the tribunal, cannot be said over any relevant period of time (as opposed to sporadically) to be a person who is unable to cook a meal for herself if she has the ingredients.  I add that the tribunal found the migraines usually to last for about four hours (paragraph 7), which does not necessarily rule out an ability to prepare a cooked main meal at some time of day other than lunchtime.       	

13.	I advised the claimant to make a fresh claim if she wished.  I cannot give any guarantee of success on such a claim.						
							
							(signed on original)		Christine Fellner
												Commissioner

												22 December 2004