JR-v-Department for Social Development (DLA) [2013] NICom 14

Decision No:  C43/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 17 June 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 17 June 2011 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.	For further reasons set out below, 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.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  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.

4.	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), for a limited period, 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

5.	On 16 June 2009 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 21 May 2009.  On 19 July 2009 the decision dated 16 June 2009 was reconsidered but was not changed.  An appeal against the decision dated 21 May 2009 was received on 24 July 2009.

6.	An appeal tribunal hearing took place on 18 December 2009.  The appeal tribunal disallowed the appeal and confirmed the decision dated 16 June 2009.  Subsequently the appellant appealed to the Social Security Commissioner who decided, on 8 February 2011 to exercise the powers conferred on him by Article 15(7) of the Social Security (Northern Ireland) Order 1998, as amended, and set aside the decision of the appeal tribunal dated 18 December 2009 and remit the appeal for re-determination by a differently-constituted appeal tribunal.

7.	The further appeal tribunal hearing took place on 17 June 2011.  The appellant was present but was not represented.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 16 June 2009.

8.	On 27 January 2012 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from the applicant’s representative, Mr Mitchell of the Citizens Advice organisation.  On 16 February 2012 the legally qualified panel member (LQPM) (i) accepted that the application for leave to appeal was late but accepted that special reasons existed and accepted the application and (ii) refused leave to appeal.

	Proceedings before the Social Security Commissioner

9.	On 20 March 2012 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 16 July 2012 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 25 July 2012.  Written observations were shared with the appellant and Mr Mitchell on 13 August 2012.

	The further claim to DLA and further proceedings before the Social Security Commissioner

10.	On 28 January 2010 a further claim to DLA was received in the Department from the appellant.  On 23 February 2010 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA on foot of this further claim from and including 28 January 2010.

11.	On 16 August 2010 an appeal tribunal disallowed the appeal and confirmed the decision dated 23 February 2010.  On 4 November 2010 the LQPM refused leave to appeal to the Social Security Commissioner on foot of an application to that effect received in TAS on 1 November 2010.

12.	Subsequently the appellant sought leave to appeal to the Social Security Commissioner.  On C42/12-13(DLA) the Social Security Commissioner granted leave to appeal but disallowed the appeal and confirmed the decision of the appeal tribunal to the effect that the appellant did not have any entitlement to DLA from and including 28 January 2010.

	Errors of law

13.	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.

14.	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?

15.	In the application for leave to appeal to the Social Security Commissioner, Mr Mitchell submitted that the decision of the appeal tribunal was in error of law on the basis that:

	(i)	the appeal tribunal failed to consider and apply the principles set out by the Social Security Commissioner in Great Britain in R(DLA) 1/08.  More particularly, Mr Mitchell submitted that while the record of proceedings for the appeal tribunal hearing and the statement of reasons for the appeal tribunal’s decision confirm that the issue of nausea was raised at the oral hearing of the appeal, and that while the appeal tribunal appeared to have accepted the appellant’s evidence that the appellant suffered nausea as a result of her medication, the appeal tribunal did not go on to consider the relevance of nausea in respect of its impact on the appellant’s ability to prepare a cooked main meal;

	(ii)	the appeal tribunal failed to consider the principles set out by the Social Security Commissioner in Great Britain in R(DLA) 2/95.  Mr Mitchell submitted that that case was authority for the principle that a cooked main meal should be defined ‘… as a labour intensive reasonable main meal, freshly cooked and prepared on a daily basis on a traditional cooker for one person.’  Mr Mitchell submitted that the record of proceedings for the oral hearing of the appeal made reference to the appellant cooking eggs and toast which could not amount to a ‘traditional main meal’.  Accordingly, the appeal tribunal had not undertaken a sufficient investigation into the appellant’s ability to prepare a cooked main meal; and

	(iii)	the appeal tribunal failed to follow the ‘rule of law’ set out by the Social Security Commissioner in Great Britain in R(SB) 33/85 that an appellant’s evidence does not require corroboration.

16.	In his written observations on the application for leave to appeal, Mr Hinton, for DMS, opposed the application for leave to appeal on the third ground cited by Mr Mitchell and as set out above.  In relation to the first two grounds, Mr Hinton made the following observations:

‘In R(DLA)1/08 Commissioner Turnbull considered whether nausea was relevant regarding the ability to prepare a cooked main meal.  As a result of an appeal by the appellant the tribunal awarded her the low rate care component on the basis of her inability to prepare a cooked main meal having satisfied itself that her nausea was problematic.  The Secretary of State appealed the tribunal decision to the Commissioner citing the decision of Commissioner May (CSDLA/854/2003).  This decision referred to Moyna v Secretary of State for Work and Pensions which stated that the test was related to the capacity to carry out the tests of cooking and not the potential or actual effect on the claimant of carrying out those tasks.

Commissioner Turnbull did not agree with this view and held that if nausea is a symptom of the claimant’s disability that would prevent her from preparing a main meal then it should be taken into account in deciding entitlement to low rate care in respect of the main meal test.  Paragraph 7 of this decision states:

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

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

	The above decision was endorsed by Chief Commissioner Mullan in unreported decision IEC –v – Department for Social Development (DLA) [2011] NICom 1999.  At paragraph 11 Chief Commissioner Mullan stated:

“……. That decision is authority for the principle that nausea as an effect, potential or actual may be taken into account in assessing whether a claimant, …. Has the ability to prepare a cooked main meal.  Of course, it will be for the appeal tribunal to assess all of the evidence relevant to a claimant’s disability, its effects or symptoms, and the consequence of those effects on the ability to prepare a cooked main meal, taken account of those effects through other means such as proper ventilation.”

	In the record of proceedings (the claimant) provided the following information concerning the relationship between food and her nausea:

“...Can prepare food do all physical things but turns when she cooks.”

If food is there, can cook.  Even a fried egg, this causes problems with nausea.  Nausea starts at 4pm.  Takes first injection half hour before breakfast.  One hour after gets tired, light nausea.  No desire to eat at lunchtime.  Boiled eggs, toast instead is adapting what she eats to what she can tolerate...”

	In her letter of appeal date stamped 3 June 2011 (the claimant) stated:

“...I have constant nausea and no desire for food.  I can’t stand the smell of food cooking and even if it’s cooked for me when I sit down to it I turn...”

	The tribunal in assessing the relationship between (the claimant’s) nausea and her ability to prepare and cook food concluded in its reasoning:

“The Appellant did not claim in her self assessment form that she had problems preparing a cooked main meal for herself.  However she stated in oral evidence and her correspondence that her diabetes was controlled with medication which made her feel nauseous.  Certain foods disagreed with her.  This impacted on her appetite and ability to cook but she acknowledged in oral evidence that she had adapted her foods based on what she could tolerate.  It was noted from her GP notes and records that she was started on medication in May 2008 for her diabetes.  However it was reported by the Diabetes Service on 3 August 2009 that... “nausea improved.  Tolerating byetta”.  On 8 February 2010 it was further reported...”continuing with byetta.  Suits well.”  The appellant indicated at the oral hearing that her reaction to the medication was worse in the past year but had improved at the date of decision under appeal.

The tribunal finds that the Appellant also does not satisfy the main meal test in light of the above medical evidence...”

	The tribunal in its reasoning stated that at the date of decision under appeal (the claimant’s) nausea had improved because she was able to tolerate the medication to alleviate this condition.  I would contend this was a finding the tribunal was entitled to make.  However, on the evidence presented in the record of proceedings by (the claimant) it would appear that her tolerance level of food was limited to making snacks.  This would not meet the statutory test laid down concerning a labour intensive main meal.

	R(DLA)2/95 defined what the cooking test involved in paragraph 8.  This stated:

“The nature of the “cooked main meal” which the claimant “cannot prepare” is crucial.  In my view it is a labour intensive main daily meal freshly cooked on a traditional cooker....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.”

	In the record of proceedings (the claimant) stated that “if food is there can cook”, she “cooks independently” and she can do all the physical things when preparing food.  The tribunal in assessing (the claimant’s) ability to prepare a cooked main meal stated in its reasoning:

“...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 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.  Accordingly the Tribunal found that the appellant did not satisfy the conditions of entitlement to an award of the care component of Disability Living Allowance from and including 21 May 2009.”

	The tribunal has concluded in light of the available medical evidence that there was no physical restriction regarding (the claimant’s) ability to prepare and make a main meal and (the claimant’s) evidence presented at the hearing would tend to support this view.  However whilst (the claimant) stated she could cook independently it would appear from the evidence presented that she was not cooking ingredients associated with a main meal.  The record of proceedings show (the claimant) stating that she could boil eggs and make toast; however this would not come under the category of a labour intensive meal for one person as laid down in R(DLA)2/95.  That decision also stated that a snack would not meet the criteria.  I would also point to (the claimant’s) letter of appeal in which she stated that:

“I usually end up eating toast or cereal for my main meal of the day.”

	Consequently, whilst the tribunal stated that (the claimant) was not physically restricted in preparing and making a main meal, it should have investigated further with the appellant whether she was using ingredients as laid down in the statutory test.  Its failure to investigate this issue more thoroughly renders its decision erroneous in law.’

17.	I agree with the submission made by Mr Hinton in its entirety.  The issue is certainly a narrow one.  With respect to Mr Mitchell’s submissions, I am of the view that the appeal tribunal gave greater consideration to the issue of nausea and its effects on the appellant’s ability to prepare a cooked main meal than he was suggesting.  Nonetheless, what the appeal tribunal failed to do was to undertake a more thorough investigation of the type of meal which the appellant was preparing, and whether, in light of the evidence which was before it, what the appellant was preparing satisfied the definition of a ‘cooked main meal’ as set out in R(DLA 2/95.  With a degree of reluctance, therefore, I have concluded that the decision of the appeal tribunal is in error of law.

	Disposal

18.	The decision of the appeal tribunal dated 17 June 2011 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.

19.	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 16 June 2009 in which a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 21 May 2009;

	(ii)	as was noted above, on 28 January 2010 a further claim to DLA was received in the Department from the appellant.  On 23 February 2010 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA on the foot of this further claim from and including 28 January 2010.  On 16 August 2010 an appeal tribunal disallowed the appeal and confirmed the decision dated 23 February 2010.  On 4 November 2010 the LQPM refused leave to appeal to the Social Security Commissioner on foot of an application to that effect received in TAS on 1 November 2010.  Subsequently the appellant sought leave to appeal to the Social Security Commissioner.  On C42/12-13(DLA) the Social Security Commissioner granted leave to appeal but disallowed the appeal and confirmed the decision of the appeal tribunal to the effect that the appellant did not have any entitlement to DLA from and including 28 January 2010.  Accordingly, and in line with the principles set out in C20/04-05(DLA) and C34/10-11(DLA), the appeal tribunal’s jurisdiction is limited to the fixed period from 21 May 2009 to 27 January 2010;

	(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. 

	Postscript

20.	In correspondence received in the Office of the Social Security Commissioners on 6 February 2013 the appellant has indicated that she was awarded an entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from 6 September 2011 to 5 September 2012.  The Department, through e-mail correspondence received from Mr Hinton on 13 February 2013, has confirmed that the appellant was made an award of entitlement to DLA, to the effect stated by her, following an appeal tribunal hearing on 15 January 2013.  Although this further award is of significance to the appellant it does not alter my decision which is set out above.

(signed):  K Mullan

Chief Commissioner

27 February 2013