AI v Secretary of State for Work and Pensions (DLA) (DLA, AA: personal care : cooking test) [2015] UKUT 176 (AAC)

UKUT-AAC
AI v Secretary of State for Work and Pensions (DLA) (DLA, AA: personal care : cooking test)
[2015] UKUT 176 (AAC) · 2015-04-02
[17]“17…[the cooking test’s] 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. As the form DLA 1 said, "try to imagine how much help you would need if you tried to do this." 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…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. So in my view the Court of Appeal was wrong to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life.”36. For present purposes, the significant point is that the cooking test was held to be “a notional test, a thought-experiment, to calibrate the severity of the disability”. Inevitably, this involves the concept of a “notional meal”, to which Lord Hoffman himself referred. I also note Lord Hoffman agreed with earlier authorities that the notional meal is what he referred to as a “traditional” meal. R (DLA) 2/9537. Mr I relies on the decision in R (DLA) 2/95 . The Social Security Commissioner began by stressing the objective nature of the test:
“…the ‘cooking test’ is a hypothetical test to be determined objectively”. 38. However, the Commissioner went on to suggest that the object of the test – a meal – may vary according to factors personal to a claimant: “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.”
Conclusion 39. If R (DLA) 2/95 envisages materially different meals for different communities (whatever a community is) it is incompatible with the ruling in Moyna that the cooking test is a notional test, designed to calibrate the severity of disability. 40. I suppose it would be possible for the cooking test to operate by reference to different meals for different communities while retaining its notional character. There would simply be a whole range of notional meals for the different communities to which claimants might belong. 41. What would be destroyed, though, by permitting the notional meal to vary from community to community is the character of the cooking test as a “thought experiment, to calibrate the severity of disability”. 42. Since the test simply calibrates disability, rather than aiming to secure access to a reasonable daily cooked meal, Parliament must have intended materially the same test for all. Parliament is to be presumed not to enact illogical legislation and it would be illogical for a test whose purpose is simply to calibrate disability to have different thresholds for different communities. The cooking test involves assessing a person’s ability to do various things with, and to, foodstuffs. Some are physical activities, such as chopping, peeling and carrying. Some are mental activities, such as correctly sequencing activities. The foodstuffs involved, and the activities performed in relation to them, must in material respects be the same for all. That is necessary in order to ensure a standard test. 43. The present case illustrates how varying the main meal from community to community would create different disability thresholds for different communities. It is said that, within the Nigerian community, meals take significantly longer to prepare than meals associated with some other communities. If that is right, then the disability bar is lowered for that community. A meal that takes 1 hour to prepare is more demanding, so that fewer disabled people would be able to complete the task, than a meal that takes say half an hour to prepare. 44. This is not to say that individual culinary preferences must be ignored. By all means, decision makers and tribunals may ask claimants about the styles of cooking with which they are familiar. But it must always be borne in mind that the purpose of the exercise is to obtain evidence about ability to perform those tasks comprised in preparing the traditional cooked main meal referred to in Moyna . 45. To sum up, in so far as R (DLA) 2/95 holds that the cooking test meal may vary to a material extent by reference to the community to which a claimant belongs it is incompatible with Moyna . To that extent, R (DLA) 2/95 should not be followed. 46. I am not in fact convinced that the Commissioner in R (DLA) 2/95 intended the cooking test meal to vary to a material extent by reference to the community to which a claimant belongs. She stressed that the test was “objective” (and so, at the risk of stating the obvious, not subjective) and her identification of the tasks involved seems to me to anticipate a common set of activities:
“8…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.”
Does the Human Rights Act 1998 require a different result? 47. The article of the European Convention on Human Rights on which Mr I relies is Article 14.[48]The general approach of the European Court of Human Rights in the application of article 14 was explained by that Court’s Grand Chamber in Carson v United Kingdom (2010) 51 EHRR, para 61: "In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."49. If the cooking test is applied properly, in accordance with Moyna , no one is treated any differently to anyone else. There is no direct discrimination because the test is a uniform one. That is nearly the end of the matter in relation to Article 14. The only remaining issue is whether there is discrimination contrary to Article 14 due to a failure to treat differently persons whose situation is relevantly different. It seems to me that Mr I’s representative’s argument probably falls within this category given the contention that the test ought to accommodate particular religious or cultural dietary requirements,50. Mr I’s representative’s argument rests on the flawed premise that the cooking test’s purpose is to ensure a disabled person has a reasonable diet. That is not its purpose, which is simply a means of calibrating disability. Since the cooking test is not an attempt by the state to ensure reasonable nutrition for disabled people, it cannot realistically be argued that it is indirectly discriminatory for the test to fail to take account of different cooking preferences across different communities.51. While the arguments in relation to Article 14 could hardly be described as well developed, I am confident that it does not require any modification to what I have held in paragraph 45. The perching stool issue52. Below, I set aside the Tribunal’s decision for errors of law concerning the mobility component. For that reason, I will say nothing about the perching stool issue. The Secretary of State’s argument is that, even if errors were made, they were immaterial because the evidence showed Mr I could prepare a cooked main. I do not want to say anything about that argument in case it is viewed as an opinion on the merits of Mr I’s claim. Like every other issue on Mr I’s appeal, the cooking test will need to be considered afresh by the Tribunal to which the appeal is remitted. The mobility component53. There were evidential conflicts about Mr I’s walking ability.54. On the less favourable side of the scale for Mr I’s claim, his own G.P. wrote that his ability to get around was “OK” and the examining psychologist observed his gait to be normal. His consultant had also advised him to be “well mobilised”, a peculiar combination of words but which might be viewed as advice to move around although a medical member of the First-tier Tribunal is far better qualified than I to interpret them.55. On the other hand, Mr I’s evidence, if accepted, made a clear case for entitlement to the higher rate of the mobility component on the grounds that he was virtually unable to walk. His claim form indicated it would take him 5 minutes to walk just 100 metres, before the onset of severe discomfort, and his oral evidence to the Tribunal was that he could not walk the 80 metres to his bus stop in one go.56. No doubt, there are cases where the evidence speaks for itself, in unison, so that a Tribunal is not required to set out separately findings of fact about a person’s ability to walk. For the sake of illustration, if Mr I’s clinicians had said that he had no problem regularly walking 200 metres with a normal gait and he had not disputed this, the Tribunal would have been entitled simply to conclude that the evidence clearly showed the entitlement test was not met. But this was not a case where the undisputed evidence spoke for itself. Nor was it a case where the Tribunal rejected Mr I’s evidence.57. The Tribunal seems to have accepted Mr I’s evidence that he could not walk to his bus stop, 80 metres from home, without stopping. In those circumstances, clear issues arose as to why he stopped, how frequently, the time taken to walk between stopping points and his recovery period. Since Mr I’s evidence was not rejected, findings were required about those matters in order for the Tribunal properly to apply regulation 12(1) of the Social Security (Disability Living Allowance) Regulations 1991: “(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances- (a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment- …(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk”.58. I accept Mr I’s representative’s argument that the Tribunal was not sufficiently inquisitorial. It should have asked Mr I further questions about his walking ability. In turn, that has led to inadequate reasons for the Tribunal’s decision. Due to those errors of law, I set its decision aside and remit Mr I’s appeal to a differently-constituted First-tier Tribunal for re-hearing. That is to be a complete re-hearing in which the issues arising are considered afresh. In its reasoning, this Tribunal may not take into account the decision or findings of fact of the Tribunal whose decision I have set aside.59. In circumstances where it has never been claimed that Mr I meets the entitlement criteria for the lower rate of the mobility component and the appeal is to be remitted in any event, I shall not say anything about Mr I’s challenge to the Tribunal’s decision that he was not entitled to this rate of the component. Directions Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows: (1) An oral hearing must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision I have set aside. (2) The Tribunal must not take into account matters personal to Mr I in determining the nature of the notional cooked main meal the preparation of which is to be assessed in the application of the cooking test. This does not, however, limit the evidence that the Tribunal may take into account. (3) Mr I is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 28 January 2013, when the decision under appeal was taken (4) If Mr I has any further evidence that he wishes to put before the Tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued. (5) Within one month of the date on which this Decision is issued, Mr I must supply the Tribunal with a supplementary submission which sets out whether he claims to be entitled to the lower rate of the mobility component and, if so, on what basis. He may make any further argument which he wishes to make in that submission. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 2 March 2015

Cited in 4 later judgments