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[2005] UKSSCSC CSDLA_725_2004 (09 March 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/725/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

Oral Hearing

Appellant: Respondent: Secretary of State

Tribunal: Greenock Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of a tribunal sitting in Greenock on 10 August 2004 (the tribunal) is wrong in law. I therefore set its decision aside and remit the case for rehearing by a new tribunal.

Background

2. A new claim for disability living allowance (DLA) was made on 24 June 2003. An examining medical practitioner (EMP) on 26 August 2003 listed depression, asthma and alcoholism (noting that the appellant had last drunk four months previously) as the main conditions causing disability. A senior community psychiatric nurse (the nurse) in a report dated 30 July 2004 states a diagnosis of paranoid schizophrenia, depression and alcoholic dependence syndrome.
3. A totally adverse decision dated 4 September 2003 on entitlement to DLA by a decision maker (DM) on behalf of the Secretary of State was appealed to a tribunal. By a unanimous decision of the tribunal, it awarded the lowest rate of the care component of DLA from 24 June 2003 to 23 June 2006 because it was satisfied that:

"He was unable to make a main meal for himself due to his lack of motivation".

4. This was under s.72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) (the cooked main meal test):

"(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 –

…

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

Appeal to the Commissioner

5. The appellant has been represented throughout these proceedings by Mr Derek Flood (a welfare rights officer). Mr Commissioner May QC granted leave to appeal with respect to the following two grounds raised on the appellant's behalf by Mr Flood. He firstly contended that the tribunal gave insufficient reasons why the appellant did not satisfy entitlement to the lower rate of the mobility component of disability living allowance (lower mobility). Secondly, Mr Flood submitted that the tribunal erred in law by giving insufficient consideration to the nurse's letter, because it was dated 30 July 2004 and "seemed to give an account of the position as at that date".
6. The Secretary of State in a written submission to the Commissioner supports both grounds of appeal. On the first point, it is accepted by the Secretary of State that the tribunal made no findings of fact about the appellant's asserted panic attacks and blackouts. So far as the second point is concerned, the Secretary of State submits that the tribunal erred by overlooking that the nurse's letter stated the following:

"The above named gentleman has been in contact with the Inverclyde Community Mental Health Resource Team, for approximately twelve months. During which time he has received fortnightly home visits from myself for monitoring of his mental health and education and information regarding treatment and management of his illness. During this time, it has become fairly apparent that [the appellant] requires support, not only from family and friends, but from the psychiatric services, and indeed without this support would probably not be able to maintain any decent quality of life".

Quite apart from the fact that later evidence may nevertheless reflect the circumstances at the time of the adverse decision under appeal, twelve months prior to 30 July 2004 is 30 July 2003 and the adverse decision of the DM beyond which circumstances may not be taken is 4 September 2003.

7. Mr Commissioner May QC directed an oral hearing to address the following:

"… having regard to Moyna whether a lack of motivation can found the basis for an award of the lowest rate of the care component, cooked main meal condition".

The oral hearing

8. In the event the case came before me, for an oral hearing on 8 March 2005. The appellant remains represented by Mr Derek Flood. The Secretary of State was represented by Mr David Bartos, Advocate, instructed by Miss Parker, Solicitor, of the Office of the Solicitor to the Advocate General. I am grateful for the submissions made.

My conclusion and reasons

9. Mr Bartos on behalf of the Secretary of State adhered to the written submission that the grounds of the appeal were well made. I accept that submission. In respect to entitlement to lower mobility, the new tribunal is referred to the structured approach for these kinds of cases set out in CSDLA/430/04 (to be reported as R(DLA) 6/05). On the second ground of the appeal, while analysis and weighing of the evidence is a matter of fact and the tribunal's assessment can be disturbed as erroneous in law only if there is an irrational or improper approach or it is inadequately explained, I accept the concession made by the Secretary of State that the tribunal's approach was perverse; it relied, in dismissing the value of the nurse's account, on the stated basis only that it was insufficiently contemporaneous, when in fact the reverse seems to have been the case.

The relevance of lack of motivation to the cooked main meal test

10. 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.
11. The judgement of the House of Lords in Moyna was given by Lord Hoffman, with whom the other Law Lords agreed. The House of Lords overruled the Court of Appeal, which had held that the provision of a cooked main meal was required on a regular basis in order to ensure a reasonable quality of life, so that if there was a "clear pattern" of a claimant not being able to provide a cooked meal for himself on a more than occasional basis such a person would qualify.
12. The House of Lords referred to section 72(2) of the 1992 Act:

"Subject to the following provisions of this section, a person shall not be entitled to the care component of disability living allowance unless –

(a) throughout –

(i) the period of three months immediately preceding the date on which the award of that component would begin; …

…

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

(b) he is likely to continue to satisfy one or other of those conditions throughout –

(i) the period of six months beginning with that date; …

…"

13. On this aspect, the House of Lords confirmed that (see paragraph 18 of its decision):

"It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal. It is an exercise in judgement rather than an arithmetical calculation of frequency".

14. The other main point made by the House of Lords, to which presumably Mr Commissioner May QC was referring in his direction, was the following one about the cooked main meal test (see paragraph 17 of R(DLA) 7/03):

"… its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook".

15. However, both Mr Flood and Mr Bartos submitted to me that all the House of Lords was underscoring in the above passage (as further set out in its paragraph 17) was the irrelevance of the claimant's actual dietary habits.
16. The point remains, as it did before Moyna, that the cooked main meal test is a test of functionality. A new claimant must establish on a balance of probabilities that through disablement, whether physical or mental or both combined, he lacks to a sufficient degree the capacity to carry out the activities inherent in the cooked main meal test. As Mr Commissioner Jacobs said at paragraph 10 of CDLA/1471/2004:

"… The context of Lord Hoffman's remark [it is a notional test, a thought-experiment, to calibrate the severity of the disability] 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" (original emphasis).

17. That there is an inability through disablement to carry out cooking tasks safely is a factor contended on the appellant's behalf in the present case in addition to a lack of motivation to carry out the necessary activities. With respect to what a lack of motivation might demonstrate, the point was dealt with as long ago as 1996 by Mr Commissioner Walker QC at paragraphs 8 and 9 of CSDLA/80/1996:

"8. … In a physical disability case, it might be said that arthritis prevented performance of certain of the tasks necessary to preparation of a main meal.

Equally … if it could be shown what the lack of motivation resulted in, by way of preventing the same preparation, then the test might be satisfied. The relevant questions concern whether the psycho-neurosis induced lack of motivation prevented this claimant from even approaching the provided ingredients or, for example, having done the preparation whether his motivation tended to lag and fail so that the ingredients would never be cooked. I think a determination about any such link is of critical importance …The claimant … was recorded as saying … 'most days I am unable to cook for myself as I am too frightened to use the cooker'.

9. If that be correct, and is the consequence of the neurosis and if it explains how lack of motivation prevents the preparation of a cooked main meal then, I consider, that a tribunal would be entitled to conclude that the lowest rate care component award was justified …".

18. In CSDLA/80/1996, the claimant complained of lack of motivation, panic attacks, hallucinations, voices and impaired concentration, so that there are many parallels with the present case (although I emphasise that each individual appeal must be decided on its own particular circumstances). At paragraph 10 of CSDLA/80/1996, Mr Commissioner Walker QC said:

"It will be for the new tribunal to consider with appropriate care, the evidence about the claimant's mental condition; what if anything it produces, symptomatically or otherwise, which could prevent the claimant from preparing a cooked main meal given the ingredients …".

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.

Summary

21. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant's case on the merits is entirely for them. Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open. Even the limited award given by the tribunal falls with this decision and will in the same way be determined completely afresh.

(Signed)

L T PARKER

Commissioner

Date: 9 March 2005