[2007] UKSSCSC CDLA_1256_2007 (17 September 2007)

CDLA/1256/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the Secretary of State, brought with the permission of the chairman, against a decision of an appeal tribunal sitting at Birkenhead on 11 December 2006. For the reasons set out below I dismiss the appeal. 

2.	The Claimant is a woman now aged 47 who suffers from primary biliary cirrhosis, a chronic liver condition which gradually causes scarring of the liver, and which in the case of the Claimant results in symptoms of lethargy, arthralgia and nausea. 

3.	The Claimant was awarded the lowest rate of the care component of disability living allowance from 9 April 1996 to 8 April 2001. This was put on to the computer system as an indefinite award, with the result that payment continued after 8 April 2001. At about the beginning of 2006 the mistake came to light, and the Claimant was sent a claim pack to complete. This she did, and on 26 May 2006 a decision was made that the Claimant was not entitled to either component of disability living allowance from 6 February 2006. 

4.	On the Claimant’s appeal the Tribunal, by a majority, awarded the lowest rate of the care component from 6 February 2006 to 5 February 2010, on the basis of inability to prepare a cooked main meal. The Claimant’s evidence was that the thought of preparing food and the actual cooking of food made her feel sick. The majority of the Tribunal was satisfied that the Claimant’s nausea was such that she could be reasonably be expected to prepare a cooked main meal. The Tribunal said (in para. 9):

“With regard to the main meal test the tribunal decided that the appellant would not be able to carry out the necessary tasks, both physical and mental, in order to prepare a cooked main meal for herself. The tribunal was satisfied that the appellant’s nausea prevents her preparing and cooking a main meal for herself. The tribunal were satisfied that the feeling of nausea was an overwhelming problem …………”

5.	The primary ground for the Secretary of State’s appeal is based on the decision of Mr Commissioner May in CSDLA/854/03. The Secretary of State submits that that decision is authority for the proposition that experiencing nausea when cooking cannot entitle a claimant to the lowest rate of the care component. In para. 9 of that decision the Commissioner said:

“…….the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] 4 All ER 162 determine the scope of the cooking test. The circumstances in that case were somewhat different to the present and were related to the physical capacity to carry out the tasks involved in cooking a main meal. Lord Hoffmann gave the leading speech, to which the other members of the Judicial Committee agreed. He said in paragraph 17 of the report at page 167 in respect of the condition:-

“….. its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought experiment to calibrate the severity of the disability.” 

It is in my view important to give that test a context. The context, in my view, having regard to the approach set out by the House of Lords, is related to the capacity, in the light of the disability found, to carry out the tasks of cooking. It is not the potential or actual effect on the claimant of carrying out these tasks. Thus the effect, if it had been accepted, of the claimant being nauseous when cooking would have been an unpleasant one but that does not affect the capacity to do the tasks. It would not, to use the phrase of Lord Hoffmann, “calibrate the severity of the disability found.” 

6.	In my judgment the authorities holding that a person qualifies under the cooking test if, by reason of his disability, he cannot reasonably be expected to prepare a cooked main meal, are still good law. In R(DLA) 1/97, for example, Mr. Commissioner Rowland said (at para. 6):

“When one considers the purpose of section 72 of the 1992 Act it is obvious that the legislature intended that a person should qualify under section 72(1)(a)(ii) if he or she could not reasonably be expected to prepare a cooked main meal due to his or her physical or mental disabilities. Words implying reasonableness are to be implied into section 72(1)(a)(ii) just as they are into section 72(1)(a)(i), (b) and (c) (see Mallinson v Secretary of State for Social Security [1994] 1 WLR 630).”

7.	I fail to see why, in applying the “notional test” or “thought experiment” referred to by Lord Hoffmann, one should (as Mr. Commissioner May appears to consider) leave out of account the “potential or actual effect on the claimant of [cooking].” In the Claimant’s case her nausea is a symptom of her disability, and if, when applying the cooking test, one were to leave it out of account, one would not be “calibrating the severity of her disability” accurately. I agree with what Mr Commissioner Jacobs said in CDLA/1471/2004, where it was argued by the Secretary of State that the risk of the claimant self-harming whilst cooking could not be taken into account:

“The Secretary of State argues that the risk of self-harm is outside the scope of Lord Hoffmann’s thought-experiment. I reject that argument. The context of Lord Hoffmann’s remark was that it does not matter that a claimant does not need to cook or will not cook. The test is a measure of disability, as Lord Hoffmann says. But it is still a measure that is set by the legislation in the context of cooking a main meal. It is a measure of disability relevant to that function. Safety is an aspect of disability and it is relevant to the issue whether a claimant “cannot” prepare a main meal. If considerations of safety render the claimant incapable of preparing a meal, then he cannot do so.” 

8.	The Secretary of State, in his submission in reply, submits, in the alternative to his 
primary submission based on CSDLA/854/03, that (a) there is no evidence that the nausea 
which the Claimant experiences at the thought of preparing food is a symptom of her primary 
biliary cirrhosis and (b) that as far as the nausea caused by actually preparing food is 
concerned, it may be that that could be alleviated “by using the available ventilation in her 
kitchen.” He therefore submits that the case should be remitted to a new tribunal for further 
findings on the question whether the nausea could be overcome by using the available 
ventilation. 

9.	I need not consider part (a) of that submission, because as far as part (b) is concerned it 
is in my view implicit in the Tribunal’s findings that the Claimant would make full use of 
such ventilation as is available to her. In any event, it does not seem to me sufficiently 
probable that what the Tribunal described as the “overwhelming problem” of 
nausea could be sufficiently alleviated by ventilation to warrant remitting this matter to a new 
tribunal. 

	(signed on the original)	Charles Turnbull
		Commissioner
		17 September 2007