IEC-v-Department for Social Development (DLA) [2011] NICom 199
Decision No:  C17/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 8 November 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 8 November 2010 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

5.	On 13 April 2010 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA on a renewal claim.  On 26 April 2010 an appeal against the decision dated 13 April 2010 was received in the Department.  An appeal tribunal hearing took place on 8 November 2010.  The appellant was present, accompanied by her daughter.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 13 April 2010.  On 12 January 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS).  On 25 January 2011 the application for leave to appeal was refused by the legally qualified panel member (LQPM) of the appeal tribunal.

	Proceedings before the Social Security Commissioner

6.	On 28 February 2011 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 19 April 2011 observations were sought from Decision Making Services (DMS) and these were received on 9 May 2011.  DMS opposed the application on most of the grounds submitted by the applicant but supported the application on one of those grounds.  Observations were shared with the appellant on 18 May 2011.

	Errors of law

7.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

8.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Was the decision of the appeal tribunal in the instant case in error of law

9.	The appellant, through her daughter, has submitted that the appeal tribunal erred in law in that:

(i)	the appeal tribunal’s conclusion that the appellant had the capability to mobilise on her own was based on a series of hypothetical questions based on her ability to ask for directions;

(ii)	the medically LQPM of the appeal tribunal did not appear to have sufficient knowledge of anxiety and depression;

(iii)	the appellant had explained that smells associated with the process of the preparation of a cooked main meal made her nauseous;

(iv)	the appeal tribunal did not appear to understand the level of the appellant’s depression.

10.	As was noted above, Mr Hinton for Decision Making Services has opposed the application on the majority of the grounds cited by the appellant.  He did submit, however, that:

‘…In the record of proceedings (the claimant) provided the following information relating to preparing and cooking a main meal.

“(Main meal…?).  Daughter cooks for me.  I never cook.  Could make a cup of coffee.  Could not do toast.  Nothing physical stops me cooking it’s the motivation…”

	The tribunal in its reasoning assessed (the claimant’s) evidence in this area as follows:

“…In relation to the cooking she claimed that she could not do toast which the Tribunal found difficult to understand in light of the fact that she did state earlier that she could make a cup of coffee and also in light of our findings herein.  Appellant advised that there was nothing physically stopping her from cooking but that she lacked motivation…

…Further, Appellant is not so severely disabled physically that she could not prepare a cooked main meal for herself if she had the ingredients.  The Tribunal has taken into account all the functions of cooking from preparation stage through to peeling, chopping, watching the cooker, shifting pans, dealing with water and so forth, right through to consumption…”

	The tribunal’s reasoning in terms of (the claimant’s) physical ability to prepare and cook a main meal is sound and I would contend it was correct to conclude that entitlement could not be satisfied on this ground.

	However, (the claimant) also raised the issue of a lack of motivation to cook.  Whilst the tribunal has referred to this in its reasoning, it has not indicated how it dealt with this issue.  Consequently I would contend that its reasoning is inadequate rendering its decision erroneous in law.

	Regarding (the claimant’s) contention that she is prevented from cooking because the smell of food makes her sick, this does not seem to have been raised by her at the hearing.  Having said that, I would refer to page 23 of (the claimant’s) self assessment form in which she states:

“I don’t like cooking as the smells make me sick.  Zoe comes round and cooks for me and makes me eat.”

	(The claimant) also raised this issue in her letter of appeal as follows:

“I cannot cook for myself as the smell makes me feel sick and I have no appetite.  My daughter cooks for me and encourages me to eat.”

	In a reported GB Commissioner’s decision, R(DLA)1/08 Commissioner Turnbull addressed the issue of whether nausea was relevant regarding the ability to prepare a cooked main meal.  At paragraph 7 he stated:

“I fail to see why, in applying the “notional test” or “thought experiment” referred to by Lord Hoffman, one should (as Mr Commissioner May appears to consider) leave out of account the “potential or actual effect on the claimant of [cooking]”.  In the claimant’s case her nausea is a symptom of her disability, and if, when applying the cooking test, one were to leave it out of account, one would not be “calibrating the severity of her disability” accurately….”

	Therefore in line with the above case law along with the evidence presented by (the claimant) in her self assessment form and the letter of appeal I would contend the onus was on the tribunal to investigate in more detail how (the claimant’s) sickness affected her ability to prepare a cooked main meal.  Its failure to do this renders its decision erroneous in law.’

11.	I accept the submission from Mr Hinton concerning the relevance of the decision of the Social Security Commissioner in Great Britain in R(DLA) 1/08.  That decision is authority for the principle that nausea as an effect, potential or actual, may be taken into account in assessing whether a claimant, for the purposes of Section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, has the ability to prepare a cooked main meal.  Of course, it will be for the appeal tribunal to assess all of the evidence relevant to a claimant’s disability, its effects or symptoms, and the consequence of those effects on the ability to prepare a cooked main meal, taking account the possible alleviation of those effects through other means such as proper ventilation.

12.	In CSDLA/725/2004, the Commissioner in Great Britain, after reviewing authorities relevant to the issue, at paragraphs 19 and 20, concluded that:

‘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.

13.	I agree with what was said by the Commissioner in CSDLA/725/2004.  Accordingly and where it is argued that physical or mental disablement is such that it induces a lack of motivation to prepare a cooked main meal, then such lack of motivation may be taken into account in assessing whether the statutory tests for entitlement are satisfied.  Once again, however, much will depend on the evidence which is adduced.

14.	Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law, in failing to assess the submissions that nausea and a lack of motivation impacted on the appellant’s ability to prepare a cooked main meal.

	Disposal

15.	The decision of the appeal tribunal dated 8 November 2010 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

16.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 13 April 2010 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Chief Commissioner

5 August 2011