IN THE UPPER TRIBUNAL	Appeal No.  CDLA/1984/2008
(ADMINISTRATIVE APPEALS CHAMBER)

Before JUDGE ROWLAND

Attendances:

For the Appellant:	Mr Mick Guy of Durham Welfare Rights 

For the Respondent	Mr Huw James, solicitor, as agent of the Solicitor to the Department of Health and the Department for Work and Pensions 

Decision:  The claimant’s appeal is dismissed. 

REASONS FOR DECISION

1.	The claimant suffers from a number of conditions, including osteoarthritis and chronic fatigue syndrome.  The Secretary of State disallowed her claim for disability living allowance, made on 8 March 2007, and she appealed on a number of grounds.  Among other points relating to both the mobility component and the care component, she told the tribunal that she had suffered a fractured skull in 1998, as a result of which she had lost her senses of smell and taste and it was argued on her behalf by Mr Guy that the consequence was that she could not reasonably be expected to prepare a cooked main meal.  On 5 February 2008, the Darlington appeal tribunal dismissed her appeal, saying in respect of that issue –

“12.	The appellant stated that she always had a hot meal every day but that this was a ‘ready-made’ meal.  She said that she could prepare a meal by herself if she had to; although standing to do this may be a problem she could prepare at a table.  She could manage small pans.  She used a table-top grill and there was no evidence that she could not adequately cope with the hob of a cooker.

“13.	As she had lost the sense of both taste and smell, she would need to remain in the kitchen during cooking.  The Representative submitted that this loss of taste and smell constituted a danger to the health of the appellant as she may, for example, eat a bad egg because of this.  The Tribunal was unable to accept this submission as there are known ways of identifying such problems e.g. a bad egg will, to a degree, ‘float’ in water compared with a fresh egg.

“14.	Again, on the totality of all this evidence, including in particular the combined medical evidence, and on the balance of probability, the Tribunal found that in June 2007 the Appellant was able to plan, prepare and cook a main meal for one person.”

The evidence before the tribunal included the claimant having answered “no” when asked in her claim form whether she would “have problems because of your illness or disability if you prepared a cooked main meal for yourself”.

2.	The claimant now appeals against the tribunal’s decision with the leave of a salaried tribunal chairman.  At the hearing before me, Mr Guy abandoned the first ground of appeal, which related to the mobility component, and concentrated on the second ground of appeal, related to the “cooking test” for the lowest rate of the care component.

3.	Section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 provides –

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

4.	Mr Guy submitted to me that I should set aside the tribunal’s decision on the ground that it had erred in law because it had given inadequate reasons for its decision and he further submitted that I should substitute an award of the lowest rate of the care component.  His arguments both before the tribunal and before me were that (a) loss of a sense of smell led to a risk that inedible ingredients would be used and that that risk could not reasonably be obviated by relying on “sell-by dates”, (b) a sense of smell was an invaluable aid for determining whether food was cooked that could not be replaced by vision, (c) an inability to taste led to a risk that inedible food would be consumed and (d) an inability to smell led to a risk that burning would not be detected and this could not be avoided by watching over the cooking food because other tasks had to be carried out.  Mr James submitted that the tribunal’s reasons were adequate because common sense suggested that a loss of the senses of smell and taste did not prevent a person from cooking and that, in any event, such sensory loss was not relevant to the “cooking test” as a matter of law.

5.	In support of this latter submission, Mr James relied upon CSDLA/854/2003 to which reference was made in the Secretary of State’s written submission.  However, I drew his attention to R(DLA) 1/08, in which Mr Commissioner Turnbull declined to follow CSDLA/854/2003.  Generally, a reported Commissioner’s decision carries more weight than an unreported decision because it can be taken to have had the assent of the majority of Commissioners (R(I) 12/75) and, generally, a decision that has carefully considered but disagreed with an earlier decision carries more weight than the earlier decision because it is likely to have been the result of a more detailed consideration of the arguments and for that reason is more persuasive (see Forsikringsaktieselskapet Vesta v. Butcher [1986] 2 All E.R. 488, 508, recently considered in In re Taylor (A Bankrupt) [2007] Ch 150 at paras [33] and [48]).   I accept that it is open to the Upper Tribunal, and even to the First-tier Tribunal, to prefer an earlier unreported decision to a later reported decision disagreeing with it, but good reasons for such a preference would be expected and Mr James made no attempt to persuade me not to follow R(DLA) 1/08 because, he submitted, it was unnecessary for him to do so.  He would have had an uphill task, as he no doubt sensed.

6.	It was not necessary for Mr James to persuade me not to follow R(DLA) 1/08 because the tribunal’s decision was based upon the premise that loss of the senses of smell and taste could as a matter of law be relevant to satisfaction of the “cooking test”, which is consistent with R(DLA) 1/08.  The claimant was unsuccessful because the tribunal considered that the loss of those senses did not in fact render her unable to prepare a cooked main meal for herself rather than because it considered that the loss of those senses was irrelevant in principle.

7.	The tribunal did not answer all the points made to them by Mr Guy but, as he accepted, that is immaterial if common sense suggests that there could only have been one answer to them.  A tribunal is not obliged to deal with every point made to it.  I appreciate that not having a sense of smell or taste can create difficulties for a person who is preparing a cooked main meal but that is not the same as saying that a person who has lost those senses cannot reasonably be expected to prepare a cooked main meal.   In R(DLA) 1/97, I said –

“… the fact remains that he can and does prepare traditional cooked main meals.  To say that he acts unreasonably in doing so would imply that a person in his position acts reasonably only if he or she gives up traditional meals or cooking methods or has someone else cook such meals.  It is not unreasonable for a person with a disability to try to pursue as normal a life as possible unless the risks involved in carrying out a particular task make it so.”

8.	For the purposes of this case, I am prepared to assume that the selection of ingredients is part of the preparation of a cooked main meal, although it is arguable that a person “has the ingredients” only for as long as the ingredients are fit for human consumption.  While a loss of the senses of smell and taste may make it more difficult to detect food that has gone off, the frequency with which anyone relies on that sense to detect food that it would be unsafe to eat seems to me to be limited.  Vision is usually a sufficient alternative and, where it is not, any risks can further be reduced by other means.  The egg test mentioned by the tribunal was plainly offered as just one example.  It may be safer for a person who has no sense of smell to store food at home for less time than other people might or possibly to avoid certain foods altogether when there is no-one else on hand to check them, but it cannot be regarded as reasonably necessary to stop cooking altogether and, in my judgment, the tribunal did not err in not spelling the reasons out more fully.

9.	The other points raised by Mr Guy are even less substantial.  I have some doubt as to the extent to which a sense of smell is ever relied upon to determine whether food has been adequately cooked.  Cooks generally know how long it takes to cook food properly and use of the sense of vision or the testing of consistency through the sense of touch are more reliable tests than smell.  The need to rely on taste can be avoided by the same stratagems as avoid the need to rely on smell and, indeed, it will be very rare for unfit food to be detectable only after it has been cooked.  The need to detect burning through vision rather than smell may require a person with no sense of smell to watch over cooking more closely than others, which, as the tribunal said, may mean remaining in the kitchen and may also mean less multi-tasking in the kitchen than is common for other cooks, but, again, the need to take that action cannot make it reasonable to give up cooking altogether.  All these answers are obvious and the tribunal did not err merely because most of them were not mentioned in the statement of reasons.

10.	It may not be possible to eliminate every risk faced by a person with no sense of smell or taste but sensible management can reduce the degree of risk to a level that permits him or her to cook a reasonable range of meals reasonably safely.  I do not accept Mr Guy’s suggestion that the degree of risk faced by a cook without the senses of smell or taste is at all comparable to that faced by the tetraplegic left alone in a house to whom reference was made in R(A) 2/89.  If sensible precautions are taken, it is no greater, and possibly a good deal less, than the degree of risk faced by the claimant with haemophilia in R(DLA) 1/97.

11.	For all these reasons, I am satisfied that the tribunal’s decision is not erroneous in point of law.

MARK ROWLAND
4 December 2008