KS v Secretary of State for Work and Pensions (DLA) [2011] UKUT 29 (AAC)

UKUT-AAC
KS v Secretary of State for Work and Pensions (DLA)
[2011] UKUT 29 (AAC) · 2011-01-24
[1]This is an appeal, brought with permission granted by Judge Jacobs, against a decision of the First-tier Tribunal (Social Entitlement Chamber) sitting at Wakefield on 19 January 2010, dismissing an appeal from a decision of the Secretary of State, dated 14 July 2009, whereby she refused to award disability living allowance from 25 June 2009. I held a hearing in Doncaster and am grateful to both Mr Royston and Mr James for their helpful submissions.[2]So far as is relevant, sections 72(1) and 73(1) of the Social Security Contributions and Benefits Act 1992 provide – “ 72.– (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; or (b) he is so severely disabled physically or mentally that, by day, he requires from another person – (i) …; or (ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; (c) … “ 73.– (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which – (a) …; or (b) …; or (c) …; or (d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.”[3]The claimant suffers from Ménière’s disease, deafness in one ear, tinnitus and back pain.[4]In his claim form he said in respect of the mobility component:
“Because of Meniere’s disease I can get dizzy very suddenly and have a blackout. It comes on very quickly without any warning. I have to lie down because I feel unwell and disorientated. It takes some time for me to recover and if I was in an unfamiliar place I would need someone to assist me and get me home safely.”
[5]In respect of the “cooking test” for the care component (under section 72(1)(a)(ii)), he said – “I use a slow cooker about 4 to 5 times a week because I feel it is the safest way to cook – as I do not have to worry about standing over the cooker checking – if for example I have a vertigo attack and am out for an hour or so then the slow cooker would be safe – reduces the risk.”[6]In a witness statement prepared for the First-tier Tribunal, he said – “2. I have been diagnosed with Meniere’s disease for many years. I have always worked in the construction business. Over the years I have always had to take time off work because of this illness. Around 2000 I was employed to do welding and was off sick for a few weeks. The employer did not want me back because of my illness and gave me £500.00 to resign from my job. 3. I have also been dismissed from jobs on construction sites. On one occasion I had a blackout and was taken to the canteen to lie down and rest for a while. When the foreman discovered that I was not working because of the blackout he dismissed me. On another occasion I was caught resting in a van recovering after having an attack and I was dismissed. This also happened on another occasion when I was resting in a van recovering. 4. The blackouts can happen at any time during the day when I am awake. I cannot predict when they will happen. The frequency is difficult to establish as there is no pattern. I could have two blackouts in a week which is the most I ever had in one week. I may sometimes have two blackouts in a month or I could go a few months without having any blackout. 5. I obviously cannot work in the construction business any more because of the risk to myself and others. I was able to work in the past because I did not disclose that I had Meniere’s disease. 6. I also believe that if I disclose my illness to any potential employer my application would be rejected because the employer would have problems with insurance cover. I believe that no matter what work I would be doing there will always be a potential risk as when I have a blackout it could give rise to an unforeseen accident which could be a risk to myself or others. When I have a blackout I usually fall straight to the ground. I recently fell and injured my left thumb as I tried to break my fall. In the workplace there tends to be more hazards and greater risks with equipment and furniture. Any accident that would occur might be a risk to others.”[7]Entitlement to disability living allowance does not depend upon a person’s capacity for work but a written submission form Kirklees Law Centre submitted that the claimant was entitled to the lower rate of the mobility component on the ground that he required supervision when walking outdoors on unfamiliar routes (section 73(1)(d)) and either the middle rate of the care component on the ground that he required continual supervision throughout the day (section 72(1)(b)(ii)) or the lower rate on the ground that he could not prepare a cooked main meal for himself (section 72(1)(a)(ii)).[8]The claimant did not attend the hearing and the First-tier Tribunal decided to hear the case in his absence. Its findings and reasons were – “9. [The claimant] suffers from Meniere’s disease and is deaf in his left ear. He has no problems with his right ear. His deafness causes him some problems. He cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken. From time to time he has cluster episodes and his balance is affected and he vomits. These episodes have not required admission to hospital. He is aware that, from time to time, his balance may be affected, so takes the reasonable precaution of sitting on his bed when dressing, in case he falls over. For the majority of the time he does not have a problem with Meniere’s disease, and is able to wash, dress, cook a main meal for himself, climb stairs using a banister for support, travel by bus to see his family, and go to a local public house by himself. Whilst he does not use a conventional oven he is able to use a slow cooker. His hearing does not prevent him going out alone, meeting people or using public transport. He is not at risk when he does go out alone. He does not, for the majority of the time, require any one to be with him either to guide or supervise him when outdoors. [The claimant] has no mental health problems. He is mentally competent.10. The tribunal found that [the claimant] is not so severely disabled, physically or mentally that he reasonably needs supervision from another person for most of the time when walking outdoors and the statutory criteria for an award of the lower rate of the mobility component are not met.11. The tribunal found that [the claimant] is, for the majority of the time, able to manage his daily life. He can, using a banister, walk about in his home, wash and dress himself. With regard to the cooking test the tribunal considered that he would be able to carry out the necessary tasks both physical and mental in order to prepare a cooked main meal for himself. Although he may have problems standing for any length of time, or be fearful of becoming dizzy, the preparation of a meal for one person does not require prolonged standing. He is able to peel and chop vegetables and place them in a slow cooker. He uses a slow cooker to prepare a cooked main meal to avoid danger to himself. Many people do not use a cooker to prepare a cooked main meal but use a microwave for the same reason. Tribunals have considered the use of a microwave to be a reasonable alternative and there is no reason why a slow cooker should not be considered as a reasonable alternative. The statutory criteria for an award of the lowest rate of the care component are not met.”[9]The claimant now appeals on the ground that the First-tier Tribunal erred in law in dealing with both the mobility component and the “cooking test”.[10]In relation to the mobility component, both Mr Royston and Mr James submitted that the First-tier Tribunal erred in law on the ground that it had not disregarded the claimant’s ability to use routes which were familiar to him on his own. The tribunal had referred to the claimant’s ability to use a bus to visit a friend or go to a pub, which Mr Royston and Mr James submitted would be using familiar routes.[11]In R(DLA) 2/08, Mrs Commissioner Parker said – “When a claimant does not differentiate between problems on familiar and unfamiliar routes, and there is nothing inherent in his condition to suggest a relevant distinction, then if he is unable to satisfy a tribunal that he has the required difficulty on familiar routes, in a context where the onus of proof on all matters lies on him, a tribunal may legitimately infer that he therefore would not need guidance or supervision on unfamiliar routes either.”[12]I expressed some doubt as to whether there was anything inherent in this claimant’s condition to suggest that he would require supervision on unfamiliar routes if he did not require supervision on familiar ones. Mr Royston and Mr James both accepted that the use of familiar routes could be relevant for the reasons given by Mrs Commissioner Parker but submitted that the claimant might find it more difficult to re-orientate himself after a blackout on an unfamiliar route. I still have some doubt as to whether any such additional difficulty would be sufficient to justify a requirement for supervision whenever using unfamiliar routes, but the strength of Mr James’ support for the appeal has persuaded me that it is a matter the First-tier Tribunal should at least have considered and, accordingly, I allow this appeal.[13]Mr Royston and Mr James also both submitted that this was a case that should be remitted to the First-tier Tribunal for consideration. Where a claimant has decided not to appear before the First-tier Tribunal, he should not be too surprised if, on appeal, the Upper Tribunal decides to determine the case without directing a hearing before another panel of the First-tier Tribunal. However, in the circumstances of this case, I accede to the submission of the parties, partly because of my approach to the “cooking test”.[14]In respect of the “cooking test”, Mr Royston submitted first that, in the light of the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 ; [2003] 1 WLR 1929 (also reported as R(DLA) 7/03), the “cooking test” remains to be judged by whether the claimant can prepare a “labour intensive reasonable main daily meal freshly cooked on a traditional cooker” or alternatively that the issue in this case was whether the claimant could prepare a reasonable range of meals (CDLA/17329/1996) reasonably safely (R(A) 1/97). On either approach, he submitted that the First-tier Tribunal had erred because a slow cooker was not the traditional cooker contemplated in Moyna or because it did not enable a person to produce a sufficient variety of meals. Mr James, however, submitted that the First-tier Tribunal had been entitled to reach the decision it did for the reasons it gave.[15]The traditional cooker has become firmly embedded in the jurisprudence on the “cooking test” and it even makes an appearance on page 28 of the claim form for disability living allowance. However, it is not mentioned in the legislation and I have some difficulty in seeing why any sensible purposive construction of the legislation should insist on its use as the yardstick of the cooking test if adequate alternatives are available. The House of Lords in Moyna was not concerned with the method of cooking and Lord Hoffmann, giving the leading speech, did not explicitly approve the test the Commissioner had applied in that case, although he also did not criticise it. It was the meal that Lord Hoffmann said was required to be “traditional” and his emphasis was on it being home-cooked as opposed to it being convenience food or ready-cooked. That emphasis is not surprising, given both the purpose of the legislation and the obvious fact that what is traditional in one community in modern Britain may not necessarily be traditional in another.[16]As to whether a reasonable variety of meals can be produced using a slow cooker, I am not inclined to express a view because I regard the question as unrealistic in the circumstances of this case and, perhaps, in most cases. It is far from obvious to me why the claimant cannot reasonably be expected to use at least some other methods of cooking such as using the oven on a traditional cooker. His blackouts appear to be relatively rare and his back pain not particularly severe. Of course one must guard against a catastrophic event however rare it might be, but a great deal seems to me to turn on the question for how long the claimant is rendered incapable of doing anything when he has a blackout. It is possible to take steps to avoid carrying articles, such as pans of boiling water, that will be dangerous if they are being held when an unexpected collapse occurs. If a person does collapse while cooking, the main source of danger then will arise if he or she is unable to turn off any cooking appliance before it causes injury or significant damage. It doubtless takes the claimant some time to recover from a blackout completely, but, particularly in the light of the witness statement submitted to the First-tier Tribunal, the question that has to be answered is how long it would take for him to recover sufficiently to turn off an electric or gas ring or a grill or an oven (although timers can often be set for ovens). The fact that a claimant does restrict his methods of cooking may be an indication that he feels other methods to be unsafe but it does not necessarily follow that other methods of cooking are actually sufficiently unsafe to make it unreasonable to expect the claimant use them. In the present case, neither the Secretary of State nor the First-tier Tribunal had carried out much of an investigation but the First-tier Tribunal was unable to do so without adjourning due to the claimant’s own failure to attend the hearing. The First-tier Tribunal carefully considered whether it needed to adjourn and neither party criticises its decision not to do so.[17]As the First-tier Tribunal made its decision on the basis that the claimant was able only to use a slow cooker, it seems to me that the only criticism that can really be made of its decision in respect of the care component is that it did not explicitly consider whether the claimant could prepare a sufficiently wide range of meals not to satisfy the “cooking test”. On the other hand, that issue was not raised in the law centre’s submission of 6 January 2010, which merely argued that use of a slow cooker should be ignored altogether. It is unnecessary for me to decide whether, in those circumstances the First-tier Tribunal erred in law in not giving adequate reasons for its decision, because the Secretary of State is content for the whole decision to be set aside in view of the conceded error in respect of the mobility component. Although a part of a tribunal’s decision may be preserved when not vitiated by an error in respect of another part, that is seldom appropriate in disability living allowance cases because facts that may appear to be clear and obvious to an Upper Tribunal judge considering a case on the papers may be a lot less clear and obvious to a tribunal hearing from live witnesses and injustice to one party or the other may occur if the First-tier Tribunal’s hands are tied. The issue of the range of meals that the claimant can cook has now been raised and the panel to whom this case is now remitted will need to consider that issue. Mark Rowland 24 January 2011

Cited in 1 later judgment