SB-v-Department for Social Development (DLA) [2011] NICom 226
Decision No:  C41/10-11(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 17 July 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 17 July 2009 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.

2.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

3.	My substituted decision is that the appellant satisfies the conditions of entitlement to the lower rate of the mobility component and the lowest rate of the care component of disability living allowance (DLA) from 25 January 2009 to 24 January 2011.  As the appellant has already been in receipt of the entitlement to the lower rate of the mobility component those payments must be treated as having been made on account of this decision.

	Background

4.	On 19 September 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA on a renewal claim to that benefit.  Following receipt of further information, and a request to that effect, the decision dated 19 September 2008 was reconsidered on 11 February 2009 but was not changed.  An appeal against the decision dated 19 September 2008 was received in the Department on 9 March 2009.

5.	Following an earlier postponement of the appeal, the substantive appeal tribunal hearing took place on 17 July 2009.  The appellant was not present but was represented by her husband.  The Department was not represented.  The appeal tribunal allowed the appeal in part and substituted a decision to the effect that the appellant was entitled to the lower rate of the mobility component of DLA for the fixed period from 25 January 2009 to 24 January 2011 but was not entitled to the care component of DLA at any rate.  On 3 September 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 14 September 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

6.	On 1 October 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 25 November 2009 written observations on the application for leave to appeal were sought from Decision Making Services and these were received on 18 December 2009.  In these initial written observations, Mrs Hulbert, for DMS, opposed the application for leave to appeal on the majority of the grounds cited in the application but supported the application on one such ground.  The written observations were shared with the appellant and her husband on 8 January 2010.  On 27 July 2010 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to the extent to which the appeal tribunal properly addressed the conditions of entitlement to the lowest rate of the care component of DLA.

7.	On 28 July 2010 the legal officer directed Mrs Hulbert to provide additional written observations on certain questions in connection with the conditions of entitlement to the lowest rate of the care component of DLA.  Those additional written observations were received on 12 August 2010 and were shared with the appellant and her husband on 20 August 2010.  On 19 August 2010 I directed an oral hearing of the appeal.  The oral hearing of the appeal took place on 22 November 2010.  At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mrs Hulbert of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

8.	There then followed a delay in the promulgation of this decision due, in part, to the fact that similar issues were being considered by a Social Security Commissioner in other cases and it was considered that the decision in the case should await the outcome of those other cases.  In the event, however, the other cases were decided on a different basis to what has been decided here.

Errors of law

9.	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.

10.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

11.	As was noted above, in the initial written observations on the application for leave to appeal, Mrs Hulbert supported the application for leave to appeal on one of the grounds cited in the application.  Mrs Hulbert conceded that the appeal tribunal had not given any consideration to the potential impact of the appellant falling while indoors and the effect of such evidence on entitlement to DLA, through a requirement for supervision whilst indoors.

12.	At the oral hearing of the appeal, Ms Loughrey submitted that the decision of the appeal tribunal was in error of law on the basis of three submitted grounds, as follows:

(i)	the manner in which the appeal tribunal assessed entitlement to the lowest rate of the care component of DLA through satisfaction of section 72(1)(a)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended;

(ii)	the failure by the appeal tribunal to consider the appellant’s requirement to be encouraged or prompted to attend to her bodily functions; and

(iii)	as the appellant had a previous award of entitlement to DLA, the failure by the appeal tribunal to explain why this award was not being renewed.

I will deal with each of these issues in turn.

	Potential entitlement through section 72(1)(a)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended

13.	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.

14.	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.

15.	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.

16.	In C9/08-09(DLA) I gave an overview of 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 on the approach to take when considering potential entitlement under section 72(1)(a)(ii).  That overview revealed four main areas of analysis, as follows:

(i)	the general nature of the test;

(ii)	the relevance of variability 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.

	How did the appeal tribunal in the instant case deal with potential entitlement to the lowest rate of the care component of DLA through satisfaction of the ‘main meal’ test?

17.	In the renewal claim form to DLA, the appellant was requested to give information, inter alia, concerning (a) her ability to prepare a cooked main meal for herself and (b) whether she had problems with cutting up food, eating or drinking at mealtimes.  In relation to (a) the appellant, at page 28 of the relevant claim form, stated that she did have such problems adding that:

‘… I cannot cook a meal because of my fear of germs and of contamination.’

18.	In relation to (b) she stated, at page 23 of the relevant form, that she did have problems with cutting up food, eating or drinking at mealtimes, adding that:

‘I cannot touch food because I fear I may contaminate it.  I need someone else’s help every time I eat or drink.’

19.	As was noted above, the appellant did not attend the oral hearing of her appeal but was represented there by her husband.  In the record of proceedings for the appeal tribunal hearing, the following is recorded:

	‘Miss Lecky
	Could she grill a chop?

	(The claimant’s husband)
	Washes food constantly, will think things are unclean

	Dr Kirkwood
	Happy for him to make it?

	Appellant
	Yes

	No worries about him contaminating food or at restaurant.

	Would wash chop 5/6 times but can’t physically cut it because afraid it would be contaminated.  Never a cooked meal.

	Would do frozen meals but not salads or raw meat.  Eats salad every day.  Can’t have spicy foods.  Has fruit/cereal/yoghurt in the morning.

	Has cooked chicken at lunch.

	Was a brilliant cook before she had nervous breakdown.  Was working for 15 years.

	Only reason she is alive is because of daughter.

	…

	Dr Kirkwood
	Cooking – she would do things in microwave

	(The claimant’s husband)
	Mostly daughter does this.

	Mrs Kirke
	Could she do main meal for one person?

	(The claimant’s husband)
	Could but it never really happens.  She wouldn’t eat because she is in a routine of things being prepared for her.

	…

	Phobias an issue – if she went to a restaurant, afraid food would be contaminated.’

20.	In these exchanges, ‘Miss Lecky’ is the disability qualified panel member of the appeal tribunal, ‘Mrs Kirke’ is the LQPM, ‘Dr Kirkwood’ is the medically qualified panel member.  I am perplexed by the reference to ‘Appellant’ in the record of proceedings as it is clear that the appellant did not attend the oral hearing of the appeal.  The record of proceedings appears to give a contra-indication that the appellant was present and gave oral evidence.

21.	In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal concluded, in respect of the potential applicability of section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, that:

‘The Appellant stated in her self-assessment form that she had problems preparing a cooked main meal for herself.  She stated that she could not cook a meal because of her fear of germs and contamination and felt she would be at risk of injury because her medication made her dizzy and unsteady.  In his oral evidence, (the claimant’s husband) accepted that his wife could make a cooked meal for one person but stated that this didn’t happen because she was in a routine of having food prepared for her.  He stated that she would have to wash a chop 5-6 times because of the fear that it would be contaminated.  The Tribunal considered that the appellant would nonetheless be capable of completing all the tasks involved in the preparation of a cooked main meal for one safely and unaided and that although this may take longer could nonetheless be completed in a reasonable time.  The Tribunal finds that the Appellant does not satisfy the main meal test in light of the [sic] all the evidence.  The Medically Qualified Panel Member also explained that the evidence found in the GP records did not indicate that the Appellant had any problems that would impact on her capability to perform the tasks involved in the preparation of a cooked main meal for one, safely and unaided.

In Commissioner’s decision CDLA/2267/1995 a GB Commissioner stated: “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 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.”

In light of the available medical evidence the Tribunal finds that the Appellant was capable of performing all the tasks involved in the preparation of a cooked main meal for one, safely and unaided.’

22.	In R(DLA) 1/97, Mr Commissioner Rowland, in considering the equivalent section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 in Great Britain, stated the following, at paragraphs 6 to 7 of his decision:

	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 [R(A) 3/94]).  However, as the Commissioner said in CDLA/85/1994 [R(DLA) 2/95]:

“7. 	...the “cooking test” is a hypothetical test to be determined objectively ... [and]
...
11. 	... the “cooking test” concentrates on the extent of a claimant’s abilities and not on the need for help, unlike the attention and supervision conditions contained in section 72(1)(a)(i), (b) and (c) of the Act where the test is that the disabled person must ‘require’ attention or supervision ...”

The use of different language in section 72(1)(a)(ii) is, in my view, necessary because the test is hypothetical and that fact necessarily excludes consideration of the realities of the claimant’s position.  It follows that “reasonableness” is to be judged only in relation to the practicality of the claimant carrying out the hypothetical function.  After all, even a fully fit person may, if leading a busy life, reasonably forego “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker” in favour of convenience food cooked in a microwave oven.

7. 	Mr. Forsdick conceded that, if I were to accept his submission as to the scope of the “cooking test”, the tribunal’s reasons were inadequate for compliance with regulation 26E(5)(b) of the Social Security (Adjudication) Regulations 1986.  I agree.  It is not clear whether the tribunal did consider whether the claimant could reasonably be expected to prepare a cooked main meal and their findings were not directed to that issue.  In particular, they made no findings as to the seriousness of any risk which the claimant might face when cooking.  I therefore set aside the tribunal’s decision.’

23.	Paragraph 6 is authority for the proposition that words implying reasonableness are to be implied into section 72(1)(a)(ii), but that reasonableness is to be judged only in relation to the practicality of the claimant carrying out the hypothetical function of cooking.  I accept and adopt that proposition.  It is important to note that on the findings of fact which he made in the case which was before him the Commissioner concluded that the additional risk and associated anxiety involved in cooking, over and above the risk attending all the claimant’s activities, did not justify a finding that it was unreasonable to expect the claimant to prepare a cooked main meal.

24.	In the instant case, it is arguable that the appeal tribunal’s conclusions with respect to the appellant’s ability to prepare a cooked main meal are satisfactory in so far as they go.  The appeal tribunal concluded that the appellant could physically attend to all of the tasks associated with the preparation of a cooked main meal.  In connection with that conclusion, the appeal tribunal was influenced and, arguably, to an extent over-influenced, by the conclusion of the medically qualified panel member that ‘…the evidence found in the GP records did not indicate that the Appellant had any problems that would impact on her capability to perform the tasks involved in the preparation of a cooked main meal for one, safely and unaided.’  I am also of the view that the appeal tribunal was selective about the evidence of the appellant’s husband in connection with the appellant’s ability to prepare a cooked main meal.  The appeal tribunal concluded that it would take longer for the appellant to prepare a cooked main meal but that she could achieve this task in a reasonable time.

25.	What the appeal tribunal did not do was to set its mind to the question of whether the appellant could reasonably be expected to prepare a cooked main meal.  The appeal tribunal made no clear findings on whether the impact of the appellant’s obsessional fear of contamination meant that it was not reasonable to expect her to prepare a cooked main meal.  For that reason, I conclude that the decision of the appeal tribunal is in error of law.

	The potential failure by the appeal tribunal to consider the appellant’s requirement to be encouraged or prompted to attend to her bodily functions

26.	I begin by confirming that it is now well established that ‘attention’ for the purposes of the above provisions can include encouragement, motivation and support.  In R(DLA) 1/07, a Tribunal of Commissioners in Great Britain, had the following to say on the issue, at paragraphs 18-27:

‘Prompting and motivation

18.	Before us, the Secretary of State conceded that, as submitted on behalf of the claimant, prompting and motivating are capable of constituting attention in connection with an impaired bodily function within the meaning of section 72(a)(i) (and also section 72(c)(i), which is in substantively the same terms).  We consider that concession properly made.

19.	“Attention” has in this context been the subject of substantial consideration by the higher courts.  In Mallinson (at page 637B), Lord Woolf approved and strongly commended the following from the judgment of Dunn LJ in Packer’s Case:

	“The word ‘attention’ itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended.  The very word suggests a service of a close and intimate nature.  And the phrase ‘attention … in connection with … bodily functions’ involves to my mind some service involving personal contact carried out in the presence of the disabled person.”

	Some comment on this passage might be helpful.

20.	First, in addition to this passage from Dunn LJ’s judgment in Packer’s Case, Lord Woolf also referred to Moran v Secretary of State for Social Services (reported as an Appendix to R(A) 1/88), in which Nicholls LJ characterised “attention” as denoting “a concept of some personal service of an active nature”, as opposed to supervision which is a state of passivity coupled with a readiness to intervene.  This characteristic – activeness – therefore has to be added to “care, consideration and vigilance”.

21.	Second, Lord Woolf (at page 637B) added one important caveat to the comments of Dunn LJ, namely that the “contact” need not be physical contact; and he held, on the facts of the case before him, that contact by spoken word can amount to “attention in connection with bodily functions”.  However, this was no more than a marker that simply talking to someone is capable of amounting to such attention.  Whether it has the requisite proximity (in terms of “care, consideration and vigilance”, and activeness) will depend upon the facts of the specific case.

22.	Third, in Mallinson Lord Woolf gave the majority judgment.  In Cockburn, Lord Slynn approved and followed Lord Woolf’s approach.  In respect of both of the individual cases before him, Lord Slynn said that the relevant test was whether what was done had “the active, close, caring, personal qualities referred to by Lord Woolf” (at pages 814C–D and 818E).  This test – does the service provided have sufficient active, close, caring and personal characteristics to constitute “attention” – has consequently had the further endorsement of the House of Lords.

23.	Fourth, when Dunn LJ referred to attention conveying “more than personal service”, he appears not to have been setting a specifically high level for the “personal” nature of the relevant service.  We agree with Mr Collins, that in the context of that case he appears to have been saying simply that it means more than personal domestic service such as cooking and cleaning.  It is noteworthy that, towards the end of his judgment (at page 1026H), O’Connor LJ found that “cooking is too remote from the proximity that ‘attention … in connection with [a] bodily function’ necessarily requires”.

24.	Indeed, we do not consider it helpful to describe the hurdle to be overcome by a claimant in this regard in terms of being “high” or indeed “low”.  Lord Bridge in Woodling (at page 352) said that “a high degree of physical intimacy between the person giving and the person receiving the attention” is required; but this has not been endorsed subsequently as setting a peculiarly high hurdle, and we do not consider it to be anymore than an indication that a real degree of proximity will be required.  We do not consider that Dunn LJ in Packer’s Case suggested more.

25.	Where the line should be drawn is a matter of fact and degree for decision- makers and tribunals to decide, on the approach advocated by Mallinson and Cockburn.  However, the cases give some guidance as to the proximity that will be sufficient.  In Mallinson itself, Lord Woolf found that guiding a blind person has the requisite “active and the close, caring, personal qualities” to amount to attention for the purposes of section 72(1)(a) (at page 639C).  In Cockburn (at page 814), in relation to Miss Fairey’s case, Lord Slynn considered that “providing interpretation by sign language (which involves personal communication between two people even if the message is at the same time by the making of signs communicated to others) has sufficiently “the active and the close, caring, personal qualities referred to in the authorities (per Lord Woolf in the Mallinson case [at page 639]) as to constitute attention for the purposes of the Act.  The provision of an ‘interpreter’ to use sign language is therefore capable of providing ‘attention’ within the meaning of the section.”  The same has been held to apply to the use of an interpreter for a prelingually deaf claimant in comprehending and responding to written documents (R(A) 1/03).

26.	On the basis of the approach advocated in Mallinson and Cockburn (and the illustrations of application of that approach in the cases to which we have referred), and the proposition that “bodily functions” includes the functions of the brain (see paragraphs 13–17 above), as was common ground before us, we consider that prompting and motivating are capable of constituting attention in connection with an impaired bodily function.

27.	Simple apathy of course will not entitle a claimant to DLA.  Although we would not have phrased it in the same terms, we believe that this is what Mrs Commissioner Parker meant when she said in an earlier appeal relating to this same claimant, CSDLA/190/2004: “It must of course be the claimant’s mental disablement which causes the lack of motivation and not, for example, a character defect.”  (See paragraph 5 above.) But where a claimant suffers from a condition which has as a component a lack of motivation which exhortation from another is able to overcome, then we agree with Mrs Commissioner Parker (at paragraph 15 of that decision) that this is capable of constituting attention with bodily functions.  Although any case will depend upon its own facts – and, where a child is the claimant, the provisions of section 72(6)(ii) will apply, so that only if the child’s requirements are substantially in excess of the normal requirements of a child of his or her age will the conditions of section 72(1)(a)(ii) be satisfied – we are firmly of the view that such services are at least capable as a matter of law of having the requisite active, close, caring and personal characteristics to amount to attention within the meaning of section 72.’

27.	The conclusions of the Tribunal of Commissioners in R(DLA) 1/07 reflects the jurisprudence of the Social Security Commissioners in this jurisdiction.  In C46/96(DLA) the then Chief Commissioner for Northern Ireland stated:

‘In the light of the decisions to which … has referred, it must be accepted that “encouragement” to perform the relevant functions may constitute attention for the purpose of establishing entitlement to disability living allowance.  I would point out, however, that the mere proof of the provision of such encouragement of the stipulated degree of frequency, will not, in itself, be sufficient to establish entitlement to the care component.  As well as being related to physical or mental disability the attention in question must in all cases be “reasonably required” and it seems to me that this matter is of particular importance where attention by way of “encouragement” is concerned.  In my view such attention ought not to be accepted as being reasonably required unless it is established that, without it, the claimant would probably not perform the bodily function in question, and that, in consequence, his or her general health would to some extent be adversely affected.’

28.	The decisions to which the Chief Commissioner was referred are Mallinson v Secretary of State for Social Security ([1994] 2 AER 295), C44/96(DLA), CDLA/895/94, CDLA/494/94 and CDLA/1414/95.

29.	The decision in C46/96(DLA) was considered by the current Chief Commissioner for Northern Ireland in C12/99(DLA).  The Chief Commissioner stated:

‘ … the record of the Tribunal’s decision gives no indication that the Tribunal was aware that a requirement for reassurance, encouragement or motivation can be accepted as attention in connection with bodily functions … I consider that it is appropriate to quote the former Chief Commissioner in his decision C46/96(DLA) … at paragraph 5 where he emphasized that “encouragement” is only relevant if it is not only given but also “reasonably required”.’

30.	The decision in C46/96(DLA) was also considered by Commissioner Brown in C10/00-01.  After deciding that the appeal tribunal erred in not considering the issue of encouragement, she stated:

‘In this connection the Tribunal should pay particular attention to the decision C46/96(DLA) … It is only attention in connection with bodily functions which can qualify.  General unfocused encouragement in the form of “pep talks” etc. is unlikely to fall within this category.  As the Chief Commissioner said encouragement may constitute attention of the relevant type but it does not necessarily do so.  It depends on the question of whether or not the encouragement is attention in connection with bodily functions and whether it is reasonably required.  What is involved in the encouragement is, therefore, likely to need detailed exploration to establish if it does constitute attention in connection with bodily functions.’

31.	Encouragement or prompting to prepare a cooked main meal was considered by Mrs Commissioner Parker in CSDLA/725/04.  The Commissioner stated, at paragraph 10 of her decision:

‘On the issue raised by the Commissioner’s direction, I accept the joint submission of the parties that, in appropriate cases, a lack of motivation due to disablement can found entitlement to the lowest rate of the care component of DLA under the cooked main meal test and that nothing said by the House of Lords in Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, R(DLA) 7/03 (Moyna) detracts from this principle.’

32.	In addition, she noted, at paragraphs 19 and 20:

‘19.	I have always accepted that it is not a simple issue of whether a claimant has the physical ability to perform all the activities in connection with planning, preparing and cooking a “…labour intensive, main reasonable daily meal for one person …” (R(DLA) 2/95) but rather it is relevant whether, through disablement, the claimant lacks the motivation to do so on a sufficiently regular basis.  Mr Bartos too agreed, and I consider that he was right to do so, that if a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test; the claimant’s abilities are assessed throughout the relevant statutory nine month period (taking a broad view in exercising judgement on whether, in a general sense, the claimant can fairly be described as a person who is unable to cook a meal).  Moyna has in no way altered this.

20.	On the contrary, in my own view, Moyna has implicitly endorsed it.  If the test is one of the severity of the disability and the impact the said disability has on functioning and on what the claimant can or cannot do, then lack of motivation (provided demonstrated as due to disablement) is, in logic, as relevant as is any physical impediment to carrying out the activities integral to the cooked main meal test.’

33.	Ms Loughrey argued that there was evidence that the appellant has a reasonable requirement for prompting or encouragement to attend to her bodily functions.  I cannot, with respect, agree with this submission.  It is clear to me that the appeal tribunal did have the factor of encouragement or support in its mind when it concluded that the appellant had no entitlement to the care component of DLA.  The appeal tribunal concluded that the appellant was independent in self-care and was not at risk of self-harm or neglect.  In my view, the appeal tribunal was entitled to arrive at that conclusion on the evidence which was before it.  Their findings could not be described as perverse or irrational.

	The relevance of the previous award of DLA

34.	Ms Loughrey’s final submission was based on the fact that the appellant had a previous award of entitlement to DLA and that the appeal tribunal was under a duty to explain why it had decided not to renew entitlement.  In support of this submission, Ms Loughrey cited the decision of Mr Commissioner Howell in R(M) 1/96.  In that decision, the Commissioner stated, at paragraph 15:

‘15.	It does however, seem to me to follow from what is said by the Court of Appeal in Evans, Kitchen & Others, that while a previous award carries no entitlement to preferential treatment  on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair.  This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit.  An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision.’

35.	In R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an examining medical practitioner (EMP).  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal. In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

36.	Before the Court of Appeal, it was submitted that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

37.	The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

38.	In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

‘[39] The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

[40] The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

[41] We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

[42] The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

39.	Applying those principles to the present case, the appeal tribunal’s duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to the care component of DLA.  Absent the error with respect to potential entitlement to the lowest rate of the care component of DLA, through section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, I have concluded that the statement of reasons was sufficient to ‘convey to the appellant why she was not going to receive the benefit’.  It was obvious from the appeal tribunal’s findings why the previous award was not being renewed.  In the language of R(M) 1/96, it was ‘… reasonably obvious from the tribunal’s findings why they are not renewing the previous award.’

	My further findings of fact

40.	I have no doubt that the appellant suffers from an irrational obsession with contamination resulting in an equal irrational obsession with cleaning.  There is medical evidence before me, including a report from Dr Paul, consultant psychiatrist, dated 24 April 2008, which confirms that the irrationality from which the appellant suffers is of some significance.  She also has a significant eating disorder.  I accept that when it comes to the preparation of a cooked main meal, the appellant has an irrational obsession with the handling or raw meat, to the extent that she will either not handle it at all or must wash it up to 6 times.  I accept that even when the appellant does wash the raw meat she is unable to handle the product to cut it.  I accept that the nature of the appellant’s condition and its effects is such that she will avoid the preparation of what would be understood to be a cooked main meal for one person, and will rely on others to prepare food for her or will rely on a significantly altered diet.  I have considered whether the objectionable effects of the appellant’s irrational obsession with the handling of meat could be alleviated by the use of appropriate aids, tongs, for example, negating the requirement to physically handle the meat.  It seems to me, however, that at present the position is such that the alleviation of the difficulties would not be possible, whatever action might be taken.  That is not to say, however, that the position might change in the future, if appropriate therapy proved to be successful.

	My decision

41.	In line with the principles in R(DLA) 1/97, I conclude that the appellant cannot reasonably be expected to prepare a cooked main meal. I would add that my decision in this respect is confined to the particular circumstances of this case, and is not of general applicability to those with irrational obsessions or compulsions.  I find that the appellant satisfies the conditions of entitlement to the lowest rate of the care component of DLA, through satisfaction of section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

42.	The appeal tribunal concluded that the appellant satisfied the conditions of entitlement to the lower rate of the mobility component of DLA.  I agree with that substantive conclusion.  I note that the appeal tribunal made the entitlement to the mobility component for a fixed period of two years but without specifying the reasons for such a period.  I conclude, however, that, in the circumstances of the case, it was reasonable to fix the period of award and that a two year period was appropriate.  It is appropriate to review entitlement after a fixed period to reflect changes in circumstances whether beneficial or disadvantageous.  I fix the period of entitlement to the care component for the same period.

	Disposal

43.	The decision of the appeal tribunal dated 17 July 2009 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.

44.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

45.	My substituted decision is that the appellant satisfies the conditions of entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 25 January 2009 to 24 January 2011.  As the appellant has already been in receipt of the entitlement to the lower rate of the mobility component those payments must be treated as having been made on account of this decision.

(signed):  K Mullan

Chief Commissioner

9 November 2011