CDLA_2991_2007 [2008] UKSSCSC CDLA_2991_2007 (10 April 2008)

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[2008] UKSSCSC CDLA_2991_2007 (10 April 2008)


     
    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. The claimant's appeal to the Commissioner is allowed. The decision of the Birmingham appeal tribunal dated 16 May 2007 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 20 below (Social Security Act 1998, section 14(8)(b)).

    2. The background
  2. The appeal tribunal of 16 May 2007 was concerned with the claim for disability living allowance (DLA) treated made on 6 May 2005. At the hearing the claimant's representative, Mr Poole of Birmingham Tribunal Unit, indicated that he was only putting in issue the lowest rate of the care component on either of the two conditions - the main meal test or requiring attention in connection with bodily functions for a significant portion of the day. The reasons for the long lapse of time between the dates of claim and hearing were that I set aside the decision of an earlier appeal tribunal in decision on Commissioners' file CDLA/2785/2006, dated 23 November 2006, and then the claimant was in hospital and unable to attend a hearing.

  3. The claimant described his illnesses or disabilities on the claim pack as chronic Crohn's disease, and the severity of his condition has never really been in doubt. He had earlier been awarded the middle rate of the care component for the period from 13 October 2004 to 12 October 2006, but an appeal tribunal on 6 May 2005 decided that he was not entitled to either component from and including 13 October 2004. The claimant said that he suffered severe fatigue, especially when his sleep had been disturbed by many trips to the toilet, and had problems with many ordinary activities, like ordinary personal hygiene, so that his mother had to keep an eye on him. He also mentioned needing help from his mother when he soiled his sheets at night. On preparing a cooked main meal for himself he wrote "Preparing 1 meal isn't a problem, eating it and keeping the food down is as I tend to vomit after meals as my bowel tends to block up due to my Crohn's disease". A report dated 7 May 2005 from the claimant's GP confirmed the severity of the condition ("rather a very disabled person") but rated his ability to self-care as OK.

  4. The decision was then given on 20 July 2005 that the claimant was not entitled to either component of DLA from and including 6 May 2005. The claimant appealed and attended the hearing on 6 April 2006 with Ms Ward of the Birmingham Tribunal Unit. At that hearing, she accepted that the claimant could physically prepare a meal, but said cooking would make him nauseous. The claimant had said that on a bad day he would not get up, so could not cook a meal.

  5. The appeal tribunal disallowed the appeal. In relation to the main meal test, it relied on what the claimant had said in the claim pack and the view of Mr Commissioner May QC in decision CSDLA/854/2003 that nausea did not make a claimant incapable of cooking. On further appeal to the Commissioner, I set the decision of the appeal tribunal of 6 April 2006 aside because it had failed to explain why it did not find qualification for the lowest rate of the care component on the alternative condition of a requirement for attention with bodily functions for a significant portion of the day. In view of that, I did not need to express any opinion of the correctness in law of what had been said by Mr Commissioner May, whether it was necessary to the decision in CSDLA/854/2003 or not. The case was remitted for a complete rehearing.

    6. The decision of the appeal tribunal of 16 May 2007
  6. The claimant attended the hearing on 16 May 2007 with Mr Poole. That appeal tribunal also disallowed the appeal. There was an exceptionally full and detailed statement of reasons. The statement contained the following about the main meal test:

    7. "16. [The claimant's] evidence to the Tribunal is that his only problem with cooking is the smell of it makes him nauseous and he felt he would have to keep abandoning the cooker to rush to the loo and that could be dangerous. He had no problem from a physical view point in eating, but it was keeping the food down that was the problem.
    17. The Tribunal was unable to accept that the smell of cooking was a relevant factor in this case. Food which makes a smell when it is cooking also makes a smell when it is on the plate and therefore presumably he would choose not to cook spicy food with a strong odour. Putting a lid on a saucepan keeps in both steam and the smell, and food cooked in the oven, covered with foil or similar, does not release smells. Nor could we accept that [the claimant] would all or most of the time have to keep abandoning the cooker to rush to the loo. His evidence was that he had urgent bowel motions between three and nine times in a 24 hour period. On his own account some of these happen at night which means that the chance of the need for a sudden bowel movement arising when he is cooking is somewhat limited because fewer than one in each two daytime hours is affected even at the frequency of nine bowel movements in a 24 hour period. Further, again adverting to the fact that he drives a car without any condition affecting his ability to control the car being reported to the DVLA - or indeed without a report of any accidents having been caused by his sudden loss of control - made it difficult for us to accept that the need for a sudden bowel movement occurs so frequently and with so little warning that he would not be able to spend the few minutes it takes to prepare a simple main meal. Preparing a piece of chicken or fish, placing it in a covered dish in the oven with whatever vegetables he wanted to have with it would take only a matter of moments. Peeling vegetables does not produce the smell of which he complains. In truth, it seemed to the Tribunal that [the claimant's] real complaint was not that he could not cook but that he does not like to eat. That is not the statutory test for an award of the lowest rate care component based on the main cooked meal test."
    The appeal tribunal went on to conclude that needs for attention in connection with bodily functions did not reach the level of a significant period of the day, discounting the effects of depression, which did not last long enough to satisfy the three-month qualifying period and the six-month prospective test.
    The appeal to the Commissioner
  7. The claimant now appeals against the appeal tribunal's decision with my leave. The application raised many challenges to the appeal tribunal's reasoning, but in particular that the measures suggested by the appeal tribunal would not in practice avoid smells from cooking unless an unreasonably narrow range of ingredients was used. When granting leave to appeal I said this:

    8. "I grant leave to appeal with a certain amount of reluctance, as the case has already been before me once (CDLA/2785/2006) and the decision of the appeal tribunal of 16 May 2007 was obviously thorough and detailed. However, it is arguable that the appeal tribunal's approach to the effect of the smell of cooking on the claimant led to an inadequacy of explanation. It did not adopt the approach of Mr Commissioner May QC in decision CSDLA/854/2003 that nausea caused by cooking did not count (which Mr Commissioner Turnbull has very recently declined to follow in decision CDLA/1256/2007). It did not say explicitly that it did not accept that the claimant would be affected as he stated by nausea from the smells involved in cooking, although some of paragraph 17 of the statement of reasons seems to point in that direction. Instead, it said that it did not accept that the smell of cooking was a relevant factor in the case before it. That was put primarily on the ground that the claimant could, if he was cooking, avoid smells by not cooking spicy food with a strong odour and by putting lids on saucepans and foil etc on dishes in the oven. The decision notice also referred to ventilation. And it was said that peeling vegetables did not produce a smell. In my judgment there is at least doubt whether such measures could, given the practicalities of the cooking process as stressed in the claimant's representatives' letter dated 25 July 2007, eliminate smells so as to enable the claimant to cook, if it was accepted that cooking smells produced nausea (see also paragraphs 8 and 9 of CDLA/1256/2007). Therefore some further explanation was needed either of how such measures could work or of how far the claimant's evidence was or was not accepted."
    Submissions
  8. In the submission dated 19 November 2007 the representative of the Secretary of State did not support the appeal. It was said that the main meal test was a hypothetical test used as a means to assess a claimant's manual dexterity and that on that basis it was clear that the claimant was not unable to prepare a cooked main meal. The other elements of the appeal tribunal's conclusions were said to be reasonable on the evidence and submissions made to it. An oral hearing was not requested.

  9. In reply, Mr Poole relied on the decision in CDLA/1256/2007 and in particular Mr Commissioner Turnbull's rejection of Mr Commissioner May's view that the potential or actual effect on the claimant of cooking was irrelevant to the calibrating of the severity of the disability found in accordance with the approach of Lord Hoffmann in Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, R(DLA) 7/03. Mr Commissioner Turnbull could not see why such effects should be left out of the calibration of the severity of disablement. Therefore, Mr Poole submitted, the main meal test was not restricted to assessing manual dexterity, but encompassed all the effects of disability that might mean that a claimant could not reasonably be expected to prepare a cooked main meal. His reply was issued to the parties for information on 9 January 2008.

    10. The Secretary of State's unsolicited further submission
  10. The representative of the Secretary of State on 6 February 2008 stated that she wished to make a further submission in response and applied for an extension of time. That application was misconceived, as the written submissions were closed and permission was needed for the making of a further submission at all, not merely an extension of time beyond 8 February 2008. But before a ruling could be made on the application, the Secretary of State's representative sent in the further observations dated 8 February 2008. These contained the submission that decision CSDLA/854/2003 should be followed in preference to CDLA/1256/2007 as in line with Moyna and the statutory intention in introducing the lowest rate of the care component in 1992. The statement of statutory intention relied on dated from 1998 rather than 1992 and said that the main meal test was seen as:

    11. "a proxy of ability to perform a wide range of household tasks. These include both physical and mental activities, such as manual dexterity, ability to stand, bend and reach, and ability to plan and execute activities."
    Nevertheless, it was still asserted in paragraph 3 that the test was an assessment of manual dexterity. It was submitted that it might be appropriate for the Chief Commissioner to consider convening a Tribunal of Commissioners in view of the differences of opinion between Commissioners.
  11. That way of proceeding is not in general to be encouraged. The time for proper and full written submissions to be made is in the initial round of submissions that will be directed by a Commissioner. Apart from anything else, having a second round of written submissions will inevitably cause delay in the giving of a decision, perhaps by up to three months. In the case of appeals by claimants, the Secretary of State has no automatic right to put in second and supposedly better thoughts after reading a reply from the claimant to his first submission. On the other hand, there is nothing stop any party to a case that has reached such a stage applying to a Commissioner, before a decision has been given, for permission to make a further written submission. In some circumstances, such as where the Secretary of State changes his view from not supporting an appeal to supporting it or some new authoritative decision is made, the interests of justice would demand the making of a further submission. Commissioners in England and Wales would usually not refuse to look at submissions that raise some relevant point, on the basis that it is better in the long run to consider and deal with the point in their decision. That should make the decision more complete, while the alternative might raise possibilities of applications to set aside the decision or for permission to appeal to the Court of Appeal.

  12. It seems to me that the important practical points are these. The parties must not assume a right to make further submissions after the close of any round of directed submissions, as appears to have been assumed on behalf of the Secretary of State. A Commissioner does not need to include in the direction for a round of submissions that no further submissions will be allowed without permission. That is implicit. When the directed round of written submissions has been completed, the case will be referred to the Commissioner concerned, who will at that stage consider whether to direct further submissions. If the Commissioner does not do that, the case will be retained by him or her for decision, within a timescale that will depend on the number of other cases already at that stage for the particular Commissioner. If any party wishes to put in a further written submission after the close of the round of directed submissions they must therefore act quickly. Ideally, permission to do so should be sought, with reasons, in advance of the lodging of the submission itself. However, the seeking of permission may be incorporated in the further submission itself or, in appropriate cases, as implied by the lodging of the further submission.

  13. Much the same principles apply to requests for an oral hearing of the case, or suggestions that a Tribunal of Commissioners is appropriate, made after a round of directed written submissions has been completed. There is, I think, much less objection to such requests being made. They would always need to be supported by reasons, but one can readily imagine circumstances where a respondent did not see any need to request an oral hearing when making the first written submission on an appeal, but wishes to make a request after reading what has been submitted by the appellant in reply. There is the same need to act quickly, before a Commissioner makes a decision.

    14. A Tribunal of Commissioners?
  14. In the present case, on receipt of the Secretary of State's further submission of 6 February 2008 I referred the case to the Chief Commissioner for him to consider whether to appoint a Tribunal of Commissioner under section 16(7) of the Social Security Act 1998. He decided not to do so and referred the case back to me. I then instructed the Commissioners' office to write to the parties to inform them of that outcome, which was done on 28 March 2008. I am not privy the Chief Commissioner's reasons for declining to appoint a Tribunal of Commissioners, but I think that it must have been relevant that the decision of Mr Commissioner Turnbull in CDLA/1256/2007 is to be reported as R(DLA) 1/08. In accordance with paragraphs 3 and 4 of Chief Commissioner's Practice Memorandum No 2, dated 31 December 2004, on the publication and citation of Commissioners' decisions, that indicates that the decision commands the assent of at least a majority of Commissioners and is thought by the Editorial Board of Commissioners to contribute to the orderly development and operation of the law. The representative of the Secretary of State could not have known, when writing the submission of 8 February 2008, of the decision on reporting, because that was not taken until the March 2008 meeting of the Editorial Board.

    15. An oral hearing?
  15. I think that the Secretary of State's suggestion as to a Tribunal of Commissioners must be taken as impliedly incorporating a general request for an oral hearing. I now refuse that request, as I am satisfied that the appeal to the Commissioner can properly be determined without a hearing (Social Security Commissioners (Procedure) Regulations 1999, regulation 23(2)). Without going into any extended discussion of how individual Commissioners should approach situations where previous decisions of other individual Commissioners conflict, the need here to adjudicate between CSDLA/854/2003 and CDLA/1256/2007 has for all practical purposes been overtaken by the decision to report the latter decision. If I take into account the argument for the correctness of CSDLA/854/2003 made for the Secretary of State in the submission of 8 February 2008 (which I do), fairness does not require giving him the opportunity to repeat or elaborate on that argument at an oral hearing.

    16. R(DLA) 1/08 and CSDLA/854/2003
  16. I grant permission for the Secretary of State to have made the submission of 8 February 2008. It could be looked on as support for the suggestion of a Tribunal of Commissioners to adjudicate between two then unreported decisions of individual Commissioners, which was not an unreasonable suggestion in the circumstances at the time. On the view that I have taken, it has not been necessary to seek any reply from the claimant's representative.

  17. I follow decision R(DLA) 1/08 rather than CSDLA/854/2003. The choice of CDLA/1256/2007 for reporting as R(DLA) 1/08 is very recent and that decision fully considered the reasoning in CSDLA/854/2003. In those circumstances, the factors of comity between Commissioners and the securing of legal certainty and the avoidance of confusion on questions of legal principle (see paragraph 21 of Tribunal of Commissioners' decision R(I) 12/75 as applied to the current method of choosing decisions for reporting mentioned in paragraph 14 above) are given added weight. It would plainly require a compelling argument to persuade another Commissioner now to follow CSDLA/854/2003 in preference to R(DLA) 1/08. The argument put forward for the Secretary of State falls a very long way short of that. I would have followed R(DLA) 1/08 even if it had not been reported. I consider that the reasoning of Mr Commissioner Turnbull, as summarised in paragraph 9 above, is correct and need not repeat it here. Like him, I see no reason to restrict the effects of disability that are to be taken into account in the main meal test in the way suggested in CSDLA/854/2003. I see no inconsistency in that approach with Moyna or with the other strands of Commissioners' decisions mentioned in the submission of 8 February 2008. Indeed, those other decisions stress the wide range of functions that can be tested in the main meal thought experiment.

  18. In particular, I see no warrant whatsoever for the proposition that the test is directed solely at manual dexterity, or even primarily at that ability (although no doubt it will often be an important factor). The only possible basis that I can see for the suggestion of such a restriction lies in some words used by Lord Hoffmann in Moyna. In paragraph 17 of his speech he referred to a person who needed to cook and had the motor skills to do so. And in paragraph 19 he said that "the standard of motor skills required by the cooking test is not so precise as to allow calibration by arithmetical formula". First, "motor skills" covers a great deal more than manual dexterity. But in both those places Lord Hoffmann was considering particular points (in paragraph 17 that the test was not whether in practice a claimant could or could not enjoy a reasonable quality of life in terms of nutrition, and in paragraph 19 that the test was not to be judged simply by counting if it was satisfied on more than three days of a week). And the context was of a claimant whose asserted limitations were in chopping and peeling and carrying heavy things, like heavy pans. Lord Hoffmann is not to be taken as expressing any limitation on the form of the effects of disability which in the myriad different circumstances of individual cases could be relevant to the ability to prepare a cooked main meal.

    19. The Commissioner's decision on the appeal and directions
  19. Since the appeal tribunal of 16 May 2007 did not make its decision turn on the adoption of the approach in CSDLA/854/2003, it did not err in law in that way. However, I have concluded that the appeal tribunal's reasons were inadequate in the way suggested when I granted leave to appeal (see paragraph 7 above). Although it appeared that the claimant's actual problems were with keeping food down when he had eaten it, as in practice his mother did all the cooking, it was necessary for the appeal tribunal to consider the hypothetical question of what would have happened if he had tried to cook. The appeal tribunal apparently did not ask the claimant or Mr Poole on 17 May 2007 about the measures it suggested as capable of reducing smells to a non-problematic level. As the claimant did not cook and the test was entirely hypothetical, I am not sure what could have been gained by his answering any such questions, although he could perhaps have given evidence about how well or badly ventilated his kitchen was. But the posing of the questions would have given Mr Poole the opportunity to make points like those made in his letter of 25 July 2007 applying for leave to appeal. There was arguably, in addition to a failure to give adequate reasons for the effectiveness of the suggested measures, a breach of the principles of natural justice in failing to give him and the claimant that opportunity. Both of those arguable errors of law are on the margins, but in combination they leave me with a feeling of disquiet about the appeal tribunal's decision sufficient to persuade me to accept them as errors of law justifying its setting aside. The appeal tribunal's decision cannot then be saved by reliance on CSDLA/854/2003 as submitted by the Secretary of State, as that decision is not to be followed in the light of R(DLA) 1/08.

  20. Accordingly, I set the appeal tribunal's decision aside as erroneous in point of law. The claimant's appeal against the decision of 20 July 2005 is referred to a differently constituted appeal tribunal for determination in accordance with the directions below. No-one who was a member of either of the appeal tribunals of 6 April 2006 or 16 May 2007 is to be a member of the new appeal tribunal. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunals of 6 April 2006 and 16 May 2007. I need not give any directions of law on the conditions of entitlement to DLA beyond that to apply Commissioner's decision R(DLA) 1/08 (CDLA/1256/2007) and not CSDLA/854/2003 and to apply the approach in paragraph 20 above. The new appeal tribunal need only consider the lowest rate of the care component, on the circumstances as at and before 20 July 2005, unless the claimant's representative makes a specific submission putting a higher rate of the care component or the mobility component in issue. Although I have not found the appeal tribunal to have made any error of law in its conclusion that the claimant did not require attention in connection with bodily functions for a significant portion of the day, that condition must be reconsidered afresh just as much as the conditions of the main meal test. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

    21. (Signed) J Mesher
    Commissioner
    Date: 10 April 2008

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