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7 August 2003

The Lords of Appeal have decided that the claimant in the Moyna case, and many other claimants in similar circumstances, cannot claim DLA on the grounds of being unable to cook regularly on one to three days a week. Finding against the claimant, Lord Hoffman - one of the UK's £175,000 a year hanging judges - pointed out that some disabled people who are unable to cook, cope by "having a wife" or "dining at the Savoy".

Quality of life
Mrs Moyna, a retired civil servant aged 58 at the time of her claim, has a heart condition. In her DLA claim pack she explained that she was unable to cook on one to three days in the average week because the exertion of preparing a meal brought on angina attacks. Her claim for the lower rate of the care component was initially turned down, but subsequently upheld by the Court of Appeal who pointed out that "a cooked main meal is something which is required not on an occasional basis but on a regular basis if someone is to enjoy a reasonable quality of life".

In Mrs Moyna's case the Court of Appeal accepted that whilst in some weeks there might be just one day when she was unable to cook a main meal, in other weeks "on just short of half the days in the week" she would "have to forgo her one cooked main meal". The Court of Appeal decided that this "represented a degree of disability that on any view was significant with very real consequences for the long term wellbeing of the person concerned". They considered that this was just the sort of person that parliament had in mind when it introduced DLA and awarded Mrs Moyna the lower rate of the care component.

Thought-experiment
However, the Department for Work and Pensions appealed to the House of Lords where a very different view was taken by Lord Hoffman, with the full backing of his four fellow Lords of Appeal.
Lord Hoffman ruled that the purpose of the cooking test "is not to ascertain whether the applicant can survive". Instead, according to the noble Lord, it is "a thought-experiment" to measure how severely disabled the claimant is. The Court of Appeal were wrong, therefore, "to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life". In fact, Lord Hoffman pointed out, a person who cannot prepare a cooked main meal because of their disability is entitled to lower rate care "whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy".

For Lord Hoffman, a sixty nine year old heterosexual male with a salary of £175,055 the options of "having a wife" or "dining at the Savoy" are both realistic ones, provided he sees marriage primarily as a means of solving domestic difficulties. (The view that a wife is a proper alternative to disability benefits was endorsed by the late Lord Denning in 1981 when he decided that shopping and cooking could not be considered "bodily functions" like washing or dressing because they were activities "a wife or daughter does as part of her domestic duties"*). For Mrs Moyna, however, "having a wife" presents obvious legal difficulties, whilst the £15.15 a week award of DLA would have bought rather less than one cooked meal at the Savoy, even if Lord Hoffman and his fellow Lords hadn't taken the money from her.

Hanging judge
But as one of Britain's hanging judges, Lord Hoffman is no stranger to making hard decisions and even deciding "whether the applicant can survive" or not. Lord Hoffman, as a member of the Privy Council, hears appeals against conviction and mandatory death sentences from former Caribbean colonies. One such sentence was against Trevor Nathaniel Pennerman Fisher:

" . . . a convicted murderer from the Bahamas who appealed to the privy council in October 1998, just one month before Hoffmann's ruling against Pinochet. Fisher's argument was simple: he should not be executed while a petition against his sentence was still being investigated by the inter-American commission on human rights (IACHR), to which the government of the Bahamas is a party. Two judges, Lord Slynn and Lord Hope, agreed with him, stating that "it was hard to imagine a more obvious denial of human rights than to execute a man, after many months of waiting for the result, while his case was still under legitimate consideration by an international human rights body". But they were outvoted by the three other judges - including milord Hoffmann of Amnesty International. Fisher was executed soon afterwards."
Britain's Executioners. Francis Wheen, Wednesday June 14, 2000. The Guardian.

In another case reported by Francis Wheen, involving two prisoners who had been kept for years "in one tiny, insanitary and unfurnished cell, from which they were let out for only 25 minutes' exercise four days a week" Lord Steyn held that: "The conditions in which the appellants were held for the last three years were an affront to the most elementary standards of decency. The Bahamas had, over a long period, treated them as subhuman and had forfeited the right to carry out the death sentences." Lord Cooke said that the men's treatment in jail was "completely unacceptable in a civilised society".

However, Lord Hoffman and two other judges upheld the sentences and the men were subsequently executed.

Sleepless
Lord Hoffman continues to hear appeals relating to convictions for murder and mandatory death sentences. For a judge used to deliberating in such matters, taking away a paltry £15.15 from a disabled claimant - harsh as it may seem - is hardly likely to cause a sleepless night.

 

*Lord Denning decided in R v. National Insurance Commissioner ex parte Secretary of State for Social Services [1981] that the bodily functions that could be taken into account for benefits purposes "include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself. But they do not include cooking, shopping or any of the other things which a wife or daughter does as part of her domestic duties: or generally which one member of the household normally does for the rest of the family".