Northern Ireland - Social Security and Child Support Commissioners' Decisions

MK-v-Department for Social Development (DLA) [2012] NICom 321

 

Decision No:  C98/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 5 August 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 5 August 2010 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

2.     As will be noted below, I directed an oral hearing of the appeal.  My purpose in directing an oral hearing was to permit me to take further evidence from the appellant on what has turned out to be a narrow issue thereby avoiding, should the appeal be allowed, the requirement for the appeal to be remitted to a differently constituted appeal tribunal.  As it turned out, the appellant was unable to attend the oral hearing due to illness.  There are further findings of fact to be made on two specific issues.  I am unable, in the unavoidable absence of the appellant, to make those findings of fact.  Accordingly, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

3.     In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.  It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

         Background

 

4.     On 21 December 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to DLA from and including 30 November 2009.  A letter of appeal against the decision dated 21 December 2009 was received in the Department on 21 January 2010.

 

5.     Following an earlier adjournment, the substantive appeal tribunal hearing took place on 5 August 2010.  The appellant was present and was represented by the Citizens Advice organisation.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 December 2009.  On 16 December 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 20 December 2010 the application for leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the LQPM identified the following question, as a point of law:

 

‘Did the tribunal apply the correct main meal test?’

 

         Proceedings before the Social Security Commissioner

 

6.     On 2 March 2011 the appeal was received in the Office of the Social Security Commissioners.  On 4 May 2011 written observations on the appeal were requested from Decision Making Services (DMS) and these were received on 18 May 2011.  In these written observations, Mr Kirk, for DMS, opposed the appeal on the grounds submitted by the appellant’s representative.  On 4 May 2011 the then Chief Commissioner accepted the late appeal for special reasons.  On 6 June 2011 the written observations were shared with Ms Kyne, the appellant’s representative from the Citizens Advice organisation.  On 5 July 2011, written observations in reply were received from Ms Kyne which were shared with Mr Kirk on the same date.  On 16 August 2011 I directed an oral hearing of the appeal.  The oral hearing took place on 13 October 2011.  At the oral hearing the appellant was not present but was represented by Ms Kyne.  The Department was represented by Mr Kirk.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision for which apologies are extended to all of the parties to the proceedings.

 

         Errors of law

 

7.     A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

8.     In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)       giving weight to immaterial matters;

 

(v)        making a material misdirection of law on any material matter;

 

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         Why was the decision of the appeal tribunal in the instant case in error of law?

 

9.     In the application for leave to appeal to the Social Security Commissioner, Ms Kyne submitted that the decision of the appeal tribunal was in error of law in that it had failed to apply the correct test in relation to its consideration of the appellant’s potential entitlement to the lowest rate of the care component of DLA in relation to the ‘main meal’ test.  Further, the appeal tribunal did not apply, in the correct manner, the proper approach to variability to prepare a cooked main meal.  In response, Mr Kirk, for DMS, opposed the appeal on the grounds submitted by Ms Kyne submitting that the decision of the appeal tribunal was sustainable.

 

         The relevant legislative provisions

 

10.   The conditions of entitlement to the care component of DLA are to be found in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended.  Section 72(1)(a) provides that:

 

‘… 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)    he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

 

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

 

(b)       he is so severely disabled physically or mentally that, by day, he requires from another person—

 

            (i)    frequent attention throughout the day in connection with his bodily functions; or

 

            (ii)   continual supervision throughout the day in order to avoid substantial danger to himself or others; or

 

(c)        he is so severely disabled physically or mentally that, at night,—

 

            (i)    he requires from another person prolonged or repeated attention in connection with his bodily functions; or

 

            (ii)   in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.’

 

11.   The above legislative provisions equate to the three rates of the care component, as follows:

 

12.   For adults, entitlement to the lowest rate is awarded if the appellant satisfies either of the conditions set out in paragraph (a).  It is self-evident that there cannot be a double payment where there is a finding that both conditions are satisfied.  For children, sub-paragraph (ii) cannot be considered and, in any event, entitlement based on sub-paragraph (i) is subject to the additional test for children.  For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

 

13.   For adults, entitlement to the middle rate is awarded if either of the conditions set out in paragraph (b) or paragraph (c) are satisfied.  For children, entitlement based on paragraphs (b) or (c) is subject to the additional test for children.  For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

 

14.   For adults, entitlement to the highest rate is awarded if both of the conditions set out in paragraph (b) and paragraph (c) are satisfied.  For children, entitlement based on both paragraphs (b) or (c) is subject to the additional test for children.  For both adults and children entitlement is subject to the disability conditions being satisfied during the relevant qualifying periods.

 

         The ‘main meal’ test

 

15.   In C9/08-09(DLA), I said the following, at paragraphs 21 to 40:

 

‘The ‘main meal’ test

 

21.       Accordingly, entitlement to the lowest rate of the care component of DLA may be awarded on the basis that the claimant satisfies section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, on the basis that the claimant ‘cannot prepare a cooked main meal for himself if he has the ingredients’.  Since the introduction of this legislative provision, the test has come to be known as the ‘main meal’ or ‘cooking’ test.

 

22.       The separate provision for entitlement based on an inability to prepare a cooked main meal allows some claimants to have an entitlement to a certain level of benefit who, otherwise, might be ineligible.  As was noted in the case of  Moyna v Secretary of State for Work & Pensions ([2003] 4 All ER 162, reported as R(DLA) 7/03, (hereinafter referred to as Moyna), although the courts have been prepared to give the term ‘bodily functions’, for the purposes of establishing an entitlement based on a requirement for attention in connection with them, the House of Lords decided in Woodling v Secretary of State for Social Services ([1984] 1 All ER 593), that ‘bodily functions’ did not include the performance of domestic tasks like cooking.  Accordingly, those whose limitations were restricted to such tasks could have no entitlement to benefit under the other ‘attention’ provisions.

 

23.       It is probably because of the unusual specific nature of the test that section 72(1)(a)(ii) has received considerable attention from the appellate authorities.  Further, the changing nature of the concepts of ‘cooking’ and ‘main meal’, based on alterations in social and domestic trends, the introduction of innovative technological and labour-saving food preparation devices, the advent of ‘convenience’ and ‘fast’ food products and a variation in the concept of what is a traditional main meal necessitates, in my view, a close examination of the relevant words and phrases within the legislative provisions.

 

24.       The jurisprudence from the Social Security Commissioners in Northern Ireland, the former Social Security Commissioners in Great Britain, the Upper Tribunal and the appellate courts reveals four main areas of analysis, as follows:

 

            (i)    the general nature of the test;

 

            (ii)   the relevance of vari-ability in the preparation of a cooked main meal;

 

            (iii)  the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment in which the task is carried out; and

 

            (iv)  The relationship of the cooking test to other aspects of functioning.

 

The general nature of the test

 

25.       In R(DLA)2/95, Commissioner Heggs had stated:

 

‘…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.

 

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 for just 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 the 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.

 

The word "prepare" emphasises a claimant's ability to make all the ingredients ready for cooking.  This includes the peeling and chopping of fresh vegetable as opposed to frozen vegetables, which require no real preparation.  However in my view a chop, a piece of fish or meat ready minced does not fall into the category of "convenience foods" and are permissible as basic ingredients.  I should add for the sake of completeness that because the test is objective it is irrelevant that a claimant may never wish to cook such a meal or that it is considered financially impossible.’

 

26.       This Commissioner returned to the issue of the cooking test in CDLA/2267/95.  In that case, she added to her comments in R(DLA)2/95 as follows:

 

‘… It cannot be overstressed that the "main meal" at issue is a main reasonable daily meal for one person.  It follows that the use of heavy pans or dishes are (sic) not necessary for the preparation of such a meal.  Nor is it necessary to use the oven.  If the claimant is unable to stand for any length of time, such a meal can be prepared and cooked while sitting on a high stool or chair if necessary.  It is all a question of what is reasonable in the circumstances of the case.’

 

27.       Further support for the principles in R(DLA)2/95 is to be found in the decision of Commissioner Fellner in CDLA/770/00.

 

28.       The then Chief Commissioner, in C41/98(DLA), was of the view that the comments of Commissioner Heggs in CDLA/2267/95 supported the view that it is not necessary to use the oven for the preparation of a main reasonable daily meal for one person.

 

29.       Further, the Chief Commissioner could not accept the submission that the traditional cooker referred to in R(DLA)2/95 means a cooker with a heated work surface at about waist height under which there is an oven.  Even if the traditional cooker would normally have an oven in a position where a person would have to bend down to use it, the Chief Commissioner considered that the cooking test did not necessarily pre-suppose the use of a low level oven.  It was all a question of what was reasonable in the circumstances.  Support for this finding was also to be found in the conclusion of Mr Commissioner Rowland in CDLA/17329/96, with which the Chief Commissioner agreed that, as long as a reasonable variety of meals can be prepared by a claimant, the range need not be unlimited.

 

30.       Overall, therefore, the Chief Commissioner thought that the decisions in R(DLA)2/95 and CDLA/2267/95 properly set out the legal position when interpreting section 72(1)(a)(ii).

 

31.       The lead decision on the general nature of the test in section 72(1)(a)(ii) is now the decision of the House of Lords in Moyna, already referred to above.  While Lord Hoffmann, with whom the other Law Lords agreed, was to concentrate on the issue of variability and the preparation of a cooked main meal, he began by giving his view on what the intentions of the legislators were.  At paragraph 17 of his speech, he stated:

 

‘… 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 does not matter whether the applicant actually needs to cook …  No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods, and ready-cooked meals.  Not for nothing is the notional meal contemplated by the cooking test described in the authorities as ‘traditional’.  It must be remembered that disability living allowance is a non-contributory, non-means tested benefit.  A person who cannot cook for himself, is entitled to the allowance, now £14.90 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy.  On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance; to obtain the ingredients which the test assumes him to have, or because he is culinarily incompetent.’

 

32.       This analysis of the general nature of the ‘cooking’ test was approved by Commissioner Williams in R(DLA)/2/05.  At paragraphs 7 to 8 of his decision, he noted:

 

‘7.  The reference by Lord Hoffmann to “the cooking test described in the authorities as traditional” is a reference to R(DLA) 2/95 where Commissioner Heggs defined the test as that of “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. … a … meal for one person, not a celebration meal or a snack. ...  [T]he 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.”  I take the House of Lords to be endorsing that test, but doing so in its own words and therefore to some extent replacing it.  As a matter of both definition and interpretation the test can in my view be taken little further.  For that reason, I do not consider any other earlier Commissioner’s decision to be of assistance in this case.  And I see no problem with the wording of the form DLA1A.  Essentially, it leaves it to the claimant to explain her or his own problems, and for decision-makers to decide if the test is met.

 

8.   The task is to apply the test to the problems the claimant has.  That is a question of fact, not law.  The starting point, as Lord Hoffmann comments, is what the claimant says in the claim form.  To that must be added all other evidence.  The tribunal’s job, if there is a dispute, is to test for itself the claimant’s abilities against the hypothetical test.  It can do that by direct application – finding what difficulties the claimant actually has in cooking in the way he or she does so, if that happens.  And it can do that by indirect application – finding what limits the claimant has on gripping, lifting, bending, planning or otherwise by reference to other activities the claimant does undertake such as eating, washing, driving, shopping, cleaning, being aware of danger, or any other physical or mental activity using the same bodily functions as are normally used in cooking.  Having looked at all the available evidence, it must then, as the House of Lords expressly confirmed, take a broad judgmental view about whether the claimant’s problems are such that the claimant is or is not able to meet the test for the relevant period, with input from all three members of the tribunal.’

 

33.       Further support for the analysis in Moyna is to be found in CDLA/2367/2004.

 

34.       In CSDLA/725/2004, Commissioner Parker holds that the reasoning in Moyna did not detract from the principle that, in appropriate cases, a lack of motivation due to disablement can lead to an entitlement to the lowest rate of the care component, under the ‘cooking’ test.

 

Vari-ability in preparing a cooked main meal

 

35.       The issue at stake under this heading is the extent to which the adjudicating authorities, including the appeal tribunal, can make a determination that the test set out in section 72(1)(a)(ii) is satisfied in circumstances where the claimant/appellant is able to attend to the tasks associated with the preparation of a cooked main meal on certain days of the week, but requires assistance on other days.  This was precisely the factual situation arising in Moyna.  Variability is, of course, a factual situation which arises when adjudicating authorities are considering the other conditions of entitlement to the care component.

 

36.       In Moyna the appellant’s claim to benefit was disallowed, as was her appeal to the appeal tribunal, and to the Social Security Commissioner.  The Court of Appeal allowed her appeal, holding that:

 

            (i)    the provision of a cooked main meal was something required regularly if someone were to enjoy a reasonable quality of life so that if the inability to cook were on no more than occasional days, the test would not be satisfied, but that it would if there were a clear pattern of a person not being able to provide for him/her self; and

 

            (ii)   that in the appellant’s case there was such a clear pattern in that there would sometimes be weeks in which for three days she would have to forego her one cooked meal.

 

37.       On appeal to the House of Lords, and as was noted above, the decision of the Court of Appeal was reversed.

 

38.       Lord Hoffman stated:

 

‘One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so …  I do not think that [that] would be right.  That is not because one occasion is de minimis but because the test does not in my opinion function at that day-to-day level.  It involves looking at the whole period and saying whether, in a more general sense, the person [satisfies the conditions of entitlement] …  It is an exercise in judgement rather than an arithmetical calculation of frequency … the question involves taking a ‘broad view’ of the matter and making a judgement.’

 

39.       This guidance outlines the approach for adjudicating authorities, including appeal tribunals, when faced with the issue in vari-ability to perform the tasks associated with the preparation of a cooked main meal.

 

Kitchen aids and the cooking environment

 

40.       There is a plethora of case-law attempting to give guidance to adjudicating authorities on the extent to which the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment in which the task is carried out, can be taken into account.  I would summarise the guidance from these authorities as follows:

 

            (i)       the test pre-supposes that the preparer of the meal has the ingredients.  Accordingly, inability to shop for the ingredients is to be excluded (CDLA770/00);

 

            (ii)      an inability (can’t), or disinclination (won’t) to cook is to be ignored - the test is hypothetical or abstract (Moyna, R(DLA) 2/05, R(DLA) 2/95, CDLA/770/00, CDLA/5686/1999);

 

            (iii)     the usual kitchen devices to assist with the preparation of food may be taken into account (R(DLA) 2/95, CDLA/770/00);

 

            (iv)     the usual kitchen devices to assist with the cooking of food may be taken into account (CDLA/1469/95, CDLA/5686/99, CDLA/770/00);

 

            (v)      while usual kitchen devices may be taken into account, the test should not be limited by reference to specific adaptations to the traditional kitchen to compensate for a disability (R(DLA)2/95);

 

            (vi)     the ability to bend is not an essential part of the main meal test, and it does not require the manipulation of heavy pots and pans (CDLA/1469/95, CDLA/5686/99, CDLA/770/00, C41/98(DLA), CDLA/2367/2004);

 

            (vii)    microwave ovens, used in the preparation of a cooked main meal, may be taken into account (CDLA/770/00, CDLA/5250/02).  In this regard, the following comments of Commissioner Jupp in CDLA/2367/2004 at paragraph 10 are apposite:

 

                      ‘The claimant’s second ground of appeal was that the use of the microwave in preparing a cooked main meal should be disregarded.  This is an oversimplification of the position.  The test is whether a claimant “cannot prepare a cooked main meal for himself if he has the ingredients”.  In the Secretary of State for Work and Pensions v. Moyna [2003] 4AER 162 R(DLA) 7/03, Lord Hoffman said of the “cooking test” that:

 

                      “….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”.

 

                      Thus we have moved from the position where a claimant might satisfy the criteria if s/he could not, most of the time, prepare a cooked main meal for one on a traditional cooker.  The better view now is that it is more a question of what the claimant does with the microwave most of the time which will enable the appropriate decision to be made as to whether s/he satisfies the criteria for an award.  It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one.  If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of the microwave should not be taken into account.  It will be borne in mind that it has long been held that it is not necessary for a claimant to be able to bend to the oven nor hold heavy pans to prepare a cooked main meal for one.’

 

            (viii)   claimed risks associated with cooking will have to be assessed, but all risk cannot be eliminated (R(DLA) 1/97);

 

            (ix)     the effects of heat and steam must be considered where the appellant/claimant suffers from breathing problems.  Factors include the nature of the disability, likely reaction to heat/steam, and degree of ventilation available (CDLA/4214/02, CDLA/20/94).’

 

16.   To that analysis, and in the context of the issues arising in the present appeal, I would add the following passages from R(DLA) 2/95 and CDLA/77/00:

 

‘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.

 

9.         The word “prepare” emphasises a claimant’s ability to make all the ingredients ready for cooking.  This includes the peeling and chopping of fresh vegetables as opposed to frozen vegetables, which require no real preparation.  However in my view a chop, a piece of fish or meat ready minced does not fall in the category of “convenience foods” and are permissible as basic ingredients.  I should add for completeness that because the test is objective it is irrelevant that a claimant may never wish to cook such a meal or that it is considered financially impossible.’

 

 

‘27.      I therefore conclude that the cooking test does require envisaging the peeling and chopping (or sawing or slicing) of fresh vegetables, and that pre-prepared or frozen foods which only need reheating are to be disregarded.’

 

         The emphasis in both these quotations is my own.

 

         What did the appeal tribunal decide?

 

17.   The appeal tribunal’s conclusions as to whether the conditions of entitlement set out in section 72(1)(a) (ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, were satisfied, were as follows:

 

‘The Appellant indicated to the tribunal that her care needs arise as a result of her difficulties with her back and her hands.  She indicated that she would be unable to cook a main meal for herself and that she needed help for a significant portion of the day.  However, her own evidence to the Tribunal did not bear this out.  She confirmed that she is able to make tea and toast.  She is able to use the taps and turn the cooker knobs.  She confirmed that she could lift food out of saucepan and place it on a plate.  She indicated that her main difficulty with cooking would be standing but this could be alleviated by the use of a perching stool.  We note that there were no recent referrals to a specialist for problems with her back or hands.  We note that the Appellant is able to drive a manual car indicating good use of her hands.  We accept that at times she might find it difficult to peel or chop vegetables but we do not consider from the evidence provided that this would be for most of the time.  In any event, if the Appellant is unable to peel or chop vegetables, it would be possible for the Appellant to purchase vegetables which have already been peeled and chopped.

 

We note that the Appellant attends the General Practitioner’s surgery every 2-3 months and she has not indicated care needs.  …..’

 

18.   At first glance, the appeal tribunal has undertaken a fairly thorough analysis of the evidence which was before it, found relevant findings of fact and had endeavoured to apply the relevant legislative provisions to the facts as found on the evidence.

 

19.   What is problematic about the appeal tribunal’s reasoning are its findings that the appellant could ameliorate the difficulties occasioned by her inability to peel and chop vegetables by the purchase of vegetables which have been pre-peeled or pre-chopped.

 

20.   The commercial food sector now provides access to products such as fruit and vegetables in a manner which is very different to 20 or 30 years ago.  At that time fruit and vegetables were sold in the rawest of states and preparation for the purpose of cooking might involve as many as three stages of cleaning, peeling and chopping. The actual cooking of the vegetables followed only after those three stages.  Today the initial pre-cooking three stage process can be avoided by the purchase of pre-prepared, pre-cleaned, pre-peeled, and pre-chopped vegetables and fruit.  All that may be required by way of preparation is the opening of a packet or container and the placing of the vegetables in water in a saucepan or fruits on a plate.  Does the availability of prepared fruit and vegetables in a state ready for cooking alter the nature of the ‘main meal’ test set out in section 72(1)(a) (ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended?  In my view it does not.  The principles that ‘preparation’ of a cooked main meal relates to a person’s ability to make all the ingredients available for cooking; that preparation involves the peeling and chopping of fresh vegetables; and, most significantly, that it does not include the re-heating of pre-prepared or frozen vegetables, are strong and have been re-emphasised over a significant period of time.  Those principles cannot, in my view, be displaced.

 

21.   That is not the end of the matter, however.  Mr Kirk, for DMS, while submitting that the appeal tribunal’s reference to the potential to utilise pre-prepared vegetables to ameliorate the inability to peel and chop is unfortunate, it is not fatal to the appeal tribunal’s overall decision with respect to section 72(1)(a)(ii).  That is because the appeal tribunal’s conclusions with respect to the appellant’s ability to peel and chop were but one factor which the appeal tribunal took into account when deciding whether the ‘main meal test’ was satisfied.  Further, the appeal tribunal had concluded that the appellant’s inability to peel and chop, and hence the possible amelioration through the purchase of pre-prepared vegetables, was only occasional.  In turn, the appeal tribunal had found that the requirement to purchase pre-prepared vegetables was not for ‘most of the time’.  Mr Kirk submits that if the appeal tribunal had found that the appellant’s difficulties with the peeling or chopping of vegetables could always or at least ‘most of the time’ be eased by the purchase of pre-prepared vegetables then it would be in error of law.  Mr Kirk’s submission leads to the second ground on which she submitted the decision of the appeal tribunal was in error of law.  To recall, that ground was that the appeal tribunal had misapplied the proper approach, as set out in Moyna above, to the issue of variability to prepare a cooked main meal.

 

22.   Overall, and although the issue is marginal, I am of the view that the appeal tribunal’s (i) reference to the potential to utilise pre-prepared vegetables and (ii) its reference to ‘at times’ and ‘most of the time’ is not as immaterial as has been submitted by Mr Kirk.  I do accept that the appeal tribunal was attempting to balance its acceptance of the appellant’s inability to carry out certain of the functions associated with the preparation of a cooked main meal with its other conclusions that her other function was such that she could attend to the remainder of those tasks.  In addition, I accept that the appeal tribunal was attempting to quantify the periods in which the appellant might have difficulty with certain tasks and identify a stratagem for the alleviation of those difficulties.

 

23.   On balance, however, I have formed the view that the reader of the appeal tribunal’s reasons for its decision in connection with the potential fulfilment of the conditions set out in section 72(1)(a)(ii), (and that reader would include the appellant), might form the view that the test permitted the substitution of pre-prepared vegetables for fresh vegetables requiring peeling and chopping and that variability was to be assessed not by taking the ‘broad’ or common-sense approach identified in Moyna, and as confirmed in R(DLA) 5/05, but by quantification of periods.

 

24.   At the oral hearing of the appeal, a further issue arose, namely the appeal tribunal’s conclusion that the appellant’s problems with standing as part of the activities associated with the preparation of a cooked main meal could be alleviated by the use of a perching stool.  Ms Kyne submitted that whether the use of a perching stool in this context was not and should have been put to the appellant.  In paragraph 32 of CDLA/770/00, Commissioner Fellner noted that reasonableness did play:

 

‘… some part in considering … whether sitting down is a fully adequate way of cooking a main meal, or whether getting up and down which probably is essential from time to time brings its own problems.  A high stool may not be a complete answer.’

 

25.   Nonetheless, I also accept that, equally, the use of a perching stool may be the answer.  The decision as to whether the use of a perching stool as a reasonable device to assist, to alleviate problems with standing when preparing a cooked main meal is for the appeal tribunal to answer.  In assessing that question, however, it should, in my view, put the issue to the appellant.

         Disposal

 

26.   The decision of the appeal tribunal 5 August 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

27.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

         (i)      the decision under appeal is a decision of the Department, dated 21 December 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to DLA from and including 30 November 2009;

 

         (ii)     the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

 

         (iii)    it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

 

         (iv)    it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

21 August 2012