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CDLA/4958/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1 I allow the appeal.

2 The claimant and appellant is appealing with my permission against the decision of the Nottingham appeal tribunal on 23 August 2002 under reference U 42 030 2001 00462.

3 For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision (Social Security Act 1998, section 14(8) and (9).

4 I deal with this decision briefly because I agreed when granting permission to appeal with one of the issues raised by the claimant in making her application , and the secretary of state's representative has since agreed that I set aside the decision of the tribunal on that ground.

5 In granting permission to appeal I gave as my reasons:

This is a renewal claim following the expiry of a two year award. I can see no valid reason why the previous award of middle rate of the care component was limited to two years (that her needs might change is not a valid reason), but there was no appeal against that earlier decision and it is now final.

I grant permission because of the view taken by the tribunal about cooking ability. The tribunal concludes that the claimant “would be able to drain vegetables using a slotted spoon which would remove the need to remove pans.” This fails to explain how one can cook without using pans. Who puts the pans on the cooker/hob and who takes them off? How does use of a slotted spoon solve that problem? The Secretary of State specifically asked the examining medical practitioner to report on the ability of the claimant to move hot pans, but the examining medical practitioner said she could not lift pans. The remark was not limited to hot pans. References to a slotted spoon appears to have emerged from CDLA 5686 1999 as an example of a device to help prepare a cooked main meal. There was an argument in that case that the tribunal erred in law by suggesting that a claimant could remove food from hot pans by using a slotted spoon. But that only deals with one aspect of preparing a cooked main meal at issue in that case.

As CDLA 5686 1999 makes clear, this has to be seen as part of the overall objective test discussed in R(DLA) 2/95. It is a question of fact. This tribunal seems to have turned it round to infer that the use (or , more correctly in this case, assumed use) of a slotted spoon removes the need to move pans at all. It is not obvious to me how as a matter of fact anyone can be said to be able reasonably to carry out activities of the kind necessary prepare a cooked main meal for himself or herself (R (DLA) 2/95) if, as in this case, he or she must do so without using an oven or otherwise bending, without lifting pans or anything similar, and without preparing vegetables or performing similar acts unless sitting down (the conclusions that follow from the opinions of the examining medical practitioner in broadly similar terms to the evidence of the claimant herself, who added that she could not lift things out of a fridge). If this was the view of the tribunal, it has failed to explain it adequately. Nor, more specifically, do I see any express evidence in this case on which the tribunal could base its comment that the claimant could definitely use a slotted spoon as suggested, as the claimant was not at the hearing, or a specific finding that she could use such a spoon. That appears to have been assumed.

There is a separate issue about whether this decision should await the decision of the House of Lords about consideration of the Moyna case (whether “most of the time” or “regularly” is the right test for disability living allowance). But I do not consider that this appeal need await that decision.

5 I do not consider it appropriate to decide this appeal in place of the tribunal because the other grounds of appeal raise issues of fact with regard to a higher award of the care component. The claimant told the tribunal that she could not attend the hearing because of her lower back pain – precisely the issue on which she based her claim for the care component. The claimant appears to be been under the impression from something said by a member of the appeal service staff that it would be fine if she did not attend her hearing. If that is what she was told, then it may be that the hearing was rendered unfair by that advice. But I need explore that issue no further. In any event, the claimant’s own evidence has not been heard and I therefore refer the matter to another tribunal so that it can be considered.

6 The claimant has had no representative in this appeal. She is strongly advised to seek help from a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser in connection with the rehearing. She should consider with that representative whether she should submit any further medical or other evidence about her limitations to the tribunal. The decision under appeal is a renewal claim taking effect from February 2002 and the evidence should be related to that time.

7 The claimant also stated that she was unable to attend the tribunal because of inability to sit. If she is unable to get to the tribunal venue, but can do so using a taxi, and her general practitioner will confirm that she would need a taxi to get to the tribunal centre, then she should ask the appeal tribunal to pay her taxi fare. If she is unable to get to the tribunal hearing even with a taxi then she should consider asking the tribunal for a “domiciliary visit” – that is – a hearing at or near her home. She will need medical evidence to support that application as well. It is important that the claimant attend, or is at least represented, at the new hearing if at all possible. The tribunal consists of a doctor and someone with experience of the disabled as well as a lawyer and only if she attends can she discuss her case with them.

8 The tribunal should note that this case raises an issue within the scope of the appeal to the House of Lords in the case of Secretary of State v Moyna as the evidence of the examining medical practitioner in June 2002 that she is regularly unable to carry out various physical functions, including walking beyond 20 metres. The tribunal may therefore need to consider adjourning the case if it cannot decide the matter in favour of the claimant on the basis of her limitations or on the basis of the decision of the Court of Appeal in Moyna (that it is sufficient that needs for disability living allowance arise regularly). See document 145 of the papers. It will be noted that the previous tribunal applied the “most of the time” test.

David Williams
Commissioner

27 February 2003
[Signed on the original on the date shown]