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Please note: this decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below [ref.xd1]:

www.osscsc.gov.uk/aspx/view.aspx

CDLA/4351/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER




1. For the reasons given below, this appeal is dismissed.

2. The appeal is brought by the claimant with the leave of a commissioner from the decision of the Hull Appeal Tribunal given on 4 October 2006 that the claimant is not entitled to any award of either component of disability living allowance from and including 21 October 2005. The sole issue is whether he is entitled to an award of the lowest rate of the care component on the ground that he is so severely disabled physically that he cannot prepare a cooked meal for himself if he has the ingredients.

3. The claimant, who was born in 1960, has achondraplasia. As a result, he is only 4 feet tall and has disproportionately short arms and legs. Although he has some back problems, they are not relied on as affecting his claim. His case is that his height, and the shortness of his limbs, means that he cannot easily use a traditional cooker, and in particular the hobs on such a cooker.

4. Until the submissions of the secretary of state on this appeal, it was common ground that the result of the achondraplasia was that the claimant had a disability and the question was whether he was so disabled as to satisfy the cooking test. The secretary of state, however, appears to submit on this appeal that the achondraplasia is not a disability for the purposes of disability allowance. I reject this contention. It appears to me to be a matter of fact for the tribunal to determine whether a claimant’s size or shape, resulting from achodraplasia, amounts to a disability, and it also appears to me to me that the tribunal was entitled to find, as it implicitly did, in the absence of any contention to the contrary, that in this case the claimant’s size and the length of his arms and legs did amount to a disability.

5. The real question is whether that disability is such that the claimant could not prepare a cooked main meal for himself if he had the ingredients. The claimant complains that the tribunal failed to address the level of difficulties the claimant would face and failed adequately to deal with his inability to reach the hobs on a traditional cooker, the height of which is said to be 3 feet and 6 inches. The suggestion that the claimant could stand on something to cook is criticised on the basis that the claimant would need a platform about 2 feet high to use the hobs, which, it is said, would be neither practicable or safe.

6. The claimant’s evidence, as appears from the EMP’s report and more specifically from the record of the proceedings, is that he does in fact do his own cooking using a small Belling oven with two rings on top, plus a microwave. Baby Belling ovens have been generally available on the open market for very many years and are about half the height of a standard size cooker. The evidence is that the claimant can cook a labour intensive main reasonable daily meal for one person on his cooker, and using his microwave. Use of a microwave oven can be taken into account provided that food prepared by the claimant is cooked in it, and it is not just used to heat pre-prepared food.

7. In CDLA/1212/2005, I commented on the reference to a traditional cooker in R(DLA)2/95 as follows:

“11.In paragraph 8 of R(DLA)2/95, Commissioner Heggs refers to the meal as being “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker.” However, section 72(1)(a)(ii) does not specify how the meal is to be cooked. There are now a number of commissioners’ decisions that it can be cooked in a microwave oven provided it is prepared and cooked and not simply a pre-prepared meal which is heated up. Thus, in CDLA/2367/2004, Commissioner Jupp said that the claimant’s ground of appeal that the use of the microwave in preparing a cooked main meal should be disregarded was an oversimplification of the position. The test is whether a claimant “cannot prepare a cooked main meal for himself if he has the ingredients”. After quoting from Lord Hoffmann’s judgment in Moyna, she continued:
“Thus we have moved from the position where a claimant might satisfy the criteria if s/he could not, most of the time, prepare a cooked main meal for one on a traditional cooker. The better view now is that it is more a question of what the claimant does with the microwave most of the time which will enable the appropriate decision to be made as to whether s/he satisfies the criteria for an award. It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one. If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of the microwave should not be taken into account. It will be borne in mind that it has long been held that it is not necessary for a claimant to be able to bend to the oven nor hold heavy pans to prepare a cooked main meal for one.”

13. This approach accords with the wording of the section, and I follow it, although it does mean that the calibration of the severity of the disability by reference to this test may vary as cooking methods and kitchen equipment change. The tribunal was entitled to take into account the use of microwave ovens and heatproof pan handles even though the claimant did not have them, its approach was correct and there was no error of law. It was not concerned with how the claimant actually cooked, but with the hypothetical question of whether he could in a general sense safely prepare a cooked main meal for himself given the ingredients.”

8. It appears to me that this approach applies equally to Baby Belling cookers. They are simply amongst the smallest of traditional cookers and are, and have for many years been, readily available for general use in kitchens or other areas that are too small conveniently to accommodate a full size cooker. They have two hobs and an oven. I see no reason why, if a claimant can prepare a proper main meal for one on such a cooker, he should be treated as unable to prepare such a meal because he would have difficulties with a larger cooker.

9. There is no suggestion in this case that the claimant’s safety has been put at risk by the cooking methods adopted by him, or that it is unreasonable to expect him to prepare his food in this way. While he may have some problems with taps, he has obviously been able to overcome them. In those circumstances, it is unnecessary to consider whether a platform or step would assist the claimant to cook in safety at a traditional cooker which is 3 feet 6 inches high. On the evidence, the claimant is able to prepare a cooked main meal for himself if he has the ingredients both as a matter of Lord Hoffmann’s notional test in Moyna and in practice. The appeal must therefore be dismissed.



(signed on the original) Michael Mark
Deputy Commissioner
24 April 2007.