Commissioner’s File: CDLA/4214/2002

1.		This is an appeal by the claimant with my leave, against a decision of the appeal tribunal (“the appeal tribunal”) sitting at Liverpool on 17th May 2002.  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted tribunal (“the new tribunal”) for rehearing.

2.		The issue in this appeal is whether or not the claimant is entitled to the care component of a disability living allowance.  The appeal tribunal made an indefinite award of the higher rate of the mobility component.  That award is not in issue.  The appeal tribunal declined to make an award of the care component because it considered that the claimant did not “satisfy the statutory criteria for an award of the care component at any rate”.  It is that aspect of the matter that has been appealed although, of course, it is the whole of the decision below which I must set aside.  Further, the appeal is now concerned with a “closed period” because, by a decision, said to have been dated 13th October 2002, the claimant was awarded the highest rate of the care component from 5th September 2002.  The period with which the new tribunal will be concerned is that from 28th January 2002 until 5th, or possibly 4th, September 2002.

3.		The background to the appeal is as follows.  The claimant was born on 23rd May 1943.  He will, therefore, be 60 in a few months time.  He suffers from a variety of medical complaints.  In particular, for present purposes, from severe emphysema.  See the letters dated 25th April 2002 and 29th September 2002, from Dr R M Angus, the consultant physician who is in charge of his care.  The latter letter was written after the date of the hearing.  The claimant has had lung surgery on, I think, two occasions – the last being in November 2000.  I infer from the fact that he has undergone surgery that his breathing problems are indeed of a serious nature.  The claimant first applied for a disability living allowance in February 1999.  The claim forms are included in the case papers and there are frequent references to his breathlessness.  In particular, he said at page 8 of the form (page 21 of the papers): “I have difficulty with breathlessness when walking up and [down] stairs.  Also difficulty breathing in the kitchen with the steam from the cooker”.  Later (page 23 of the papers) he said that he had “to be propped up at night because I have difficulty breathing and I have severe difficulty breathing first thing in the morning”.  At page 25 of the papers, he said that he had “severe difficulty breathing in the kitchen with steam and heat from the cooker”.  His then General Practitioner completed a short questionnaire making it plain that the claimant did have a serious breathing problem.  To be fair, he was asked whether the claimant could turn taps on and off, use a cooker, cope with hot pans and peel and chop vegetables.  He answered “yes” to all these questions.  There are a number of similar questionnaires with the papers and all the doctors who have completed them have answered “yes” to the same questions.  However, none of these questionnaires asks any of the doctors whether the claimant can cope with heat and steam in the kitchen.  

4.		By a decision dated 10th March 1999, the claimant was awarded the higher rate of the mobility component from 28th January 1999 to 27th January 2002.  No award of the care component was made at that point.  However, on 16th March 2000, the claimant wrote a letter stating that his health had deteriorated and his problems with daily life had increased.  As a result, on 13th May 2000, he was awarded the middle rate of the care component from 22nd October 1999 to 27th January 2002.  (It appears that the claimant had made more than one attempt to obtain an award of the care component but not all the papers are before me).  See page 50 of the papers.  

5.		In August 2001 the claimant applied to renew those awards.  In the claim form he said that he could not “prepare meals due to the heat and steam from the cooker”.  Once again a doctor completed a questionnaire emphasising the severity of his breathing difficulties but answering “yes” to the questions about using taps, and an oven and so forth.  On 8th October 2001, a decision maker decided that the claimant was not entitled to either component from and including 28th January 2002.  This, I think, was on the basis that the November 2000, lung operation had brought about an improvement in his condition. 

6.		The claimant asked for the decision to be looked at again.  It appears from page 98 of the papers that he said he “cant make a main meal as the steam or condensation means he cannot get his breath in the kitchen as it effects his emphysema”.  The decision was reconsidered but remained unchanged.  The claimant then appealed.  

7.		His appeal came before the appeal tribunal, consisting of three members, on 17th May 2002.  The claimant was present, together with his wife, and he gave evidence on his own account.  His appeal was partially successful.  The decision notice, which appears at page 117, records:
	“The Appeal is allowed.
	[The claimant] is entitled to the mobility component at the higher rate with effect from 28/01/2002 for an indefinite period.
	This is because he is virtually unable to walk.
	He does not satisfy the statutory criteria for an award of the care component at any rate.”

8.		The appeal tribunal expressly stated in its statement of facts and reasons that it accepted the claimant’s evidence that his condition improved slightly following the second operation on his lungs but that, after about nine months, his condition deteriorated again.  The appeal tribunal also accepted that the claimant was only able to walk about 20 yards before the onset of severe discomfort due to breathlessness.  As already indicated, the award of the higher rate of the mobility component is not in issue.  

9.		The appeal tribunal decided that the claimant’s needs did not merit an award of the care component.  In relation to the cooking test, it said this.
	“The tribunal also agrees the appellant is able to prepare for himself a cooked main meal.  The appellant told the tribunal he is able to peel vegetables for himself.  The appellant is able to lift a pan containing food for himself, turn taps and cooker knobs.  In the claim pack on document 76 the appellant states that he cannot prepare meals due to the heat and the steam from the cooker.

	The tribunal agrees that in preparing a meal just for himself the heat and steam generated would be negligible.  The tribunal agrees that with the aid of a seat or perching stool the appellant would be able to perform the tasks necessary to cook a main meal (peeling and chopping vegetables, turning taps and cooker knobs and lifting a small pan containing food for the appellant).  The tribunal therefore agrees the appellant is not entitled to care component with regard to the main meal test.” 

10.		In saying that it agreed “that in preparing a meal just for himself the heat and steam generated would be negligible” the appeal tribunal has not identified with whom they are agreeing.  Interestingly, in the final paragraph of the statement, the appeal tribunal said that it “accepts the appellant’s oral and written evidence…[but] they agree that his difficulties are not so severe as to entitle him to an award of the care component from 28th January 2002 under the legislation”.  The claimant had, of course, repeatedly said that he experienced difficulties in the kitchen.

11.		The claimant applied for permission to appeal the appeal tribunal’s decision.  His grounds of appeal are set out in his representative’s letter of 15th July 2002.  Permission was refused by the chairman of the appeal tribunal and a renewed application came before me on 18th October 2002.  I granted permission and said that I did so for the following reasons.
	“The decision of a tribunal can only be appealed to a Commissioner on the grounds that it contains one or more errors of law.  See section 14(1) of the Social Security Act 1998.  The tribunal is the final arbiter on questions of fact.  The grounds of appeal do not appear to appreciate the distinction.  They are unpersuasive.  On 17th September 2002, those acting for the applicant lodged a medical report dated 29th August 2002.  In deciding whether or not the tribunal erred in law, that report, which came into being three months after the tribunal’s decision, is irrelevant.  A tribunal cannot be criticised for not taking account of evidence which was not put before it.

	Nevertheless permission to appeal is granted for the following reasons.  The tribunal accepted the applicant’s evidence that he had severe breathing problems.  The applicant said that he could not cook because the heat and steam generated by cooking adversely affected his breathing.  The tribunal dealt with that evidence by saying: “The tribunal agrees that in preparing a meal just for himself the heat and steam generated would be negligible”.

	Can that proposition be justified?

	The statutory test is a cooked main meal for one person.  It is arguable that the heat and steam generated by many, if not most, cooked main meals will not be negligible even when the meal is cooked for a single person.  For example, with a conventional oven the cooking of a single baked potato will generate almost the same amount of heat as that required to bake three or four potatoes.  Likewise, small amounts which need to be boiled, grilled or fried for more than a short period.”

12.		The Secretary of State has lodged submissions which do not support the appeal.  He does not dispute the award of the higher rate of the mobility component but he submits that the appeal tribunal was right to refuse to award the care component.  He deals with my reasons for granting permission in the following terms.  
	“On granting leave, the Commissioner points to the tribunal’s reasoning upon the “main meal test” [page 146].  The claimant contends that he is unable to tolerate heat and steam in the kitchen because of his emphysema and breathlessness.  The tribunal explained that in preparing a main meal just for himself, the heat and steam generated would be negligible.  The Commissioner asks: “Can that proposition be justified?”  I submit that it can.  The claimant’s key evidence is at page 99.  There he says: “My wife has to help with all my daily tasks, preparing all my meals because I cannot bend down to get into the fridge or cupboards, also I cannot be in the kitchen when the cooker is on because of the steam I cannot get my breath.”   Clearly the claimant is talking about the effect on him in the kitchen when his wife is preparing a meal for them both.  I do not dispute his evidence.  But the tribunal refers to the statutory test, that is to say cooking a main meal for one person.  And in that respect I submit that it was right to hold that cooking a main meal for one person would not generate significant amounts of heat and steam.  That seems to me to be sufficiently cogent reasoning, however I add two further points.  One is that there seems to be no reason why the claimant could not take the common sense step to alleviate any discomfort by opening a window or door to ventilate the cooking area.  Secondly, the “cooking test” is in any event a hypothetical test of planning ability, bodily function and dexterity.  In the light of the conceptual nature of the test, it is arguable that it is not meant to encompass such particular consequences as the effect of heat and steam.  And even if such consequences are admitted, I submit that one is not prevented from considering the remedy of ventilation.”

13.		I do not accept those submissions.  In the first place, it has already been decided by Mr Commissioner Henty that the effects of heat and steam can be taken into account in the case of someone with breathing problems.  In decision CDLA/20/1994 the appellant suffered from asthma and it was submitted, as in the present case, that no account should be taken of heat and steam.  Mr Commissioner Henty dealt with that submission at the end of paragraph 5 of his decision and said this.
	“Now, while, broadly speaking, I agree with what the AO has submitted before he came to paragraph 9 of his submissions, I there part company.  The paragraph applies if “he cannot prepare a cooked meal for himself if he has the ingredients”.  To my mind that necessarily involves, not just the manual dexterity necessary to prepare and cook a meal viewed objectively, but also the physical ability viewed subjectively to do so.  If the claimant is, in practical terms, unable to cook because the heat from the cooker brings on an asthma attack then, in my view, she is similarly just as unable to cook a meal as one who say has lost both hands and has lost the manual dexterity.  I do not think that the test should be viewed as it were in vacuo but in practical terms, Is the claimant physically able to prepare and cook a meal?”.   If the evidence is that her asthma, for all practical purposes prevents that, then it seems to me that she cannot prepare a cooked meal for herself.  I therefore reject the submissions of the adjudication officer on this point.  This is, however, a point which must be considered by the new tribunal in assessing whether the care component of the lowest rate should be awarded.”

14.		I agree with Mr Commissioner Henty and consider that the effects of heat and steam on a person in the position of the claimant must be considered. 	I do not accept the Secretary of State’s submissions that cooking a meal for one person necessarily generates either negligible amounts of heat and steam or that the amounts generated will not be significant.  Generally speaking, cooking for one will generate less heat and steam than cooking for more than one.  The amounts generated will not, however, necessarily be negligible or insignificant.  For instance if something has to be cooked in a conventional oven for, say, one hour at a high temperature, the kitchen will become hot.  It will not matter greatly whether what is being cooked in the oven is for one person or for two or three.  Likewise, if something must be boiled or simmered on the hob for any length of time. The test is a test of someone’s ability to prepare a cooked main meal for himself.  Not all cooked main meals generate quantities of heat and steam.  However, most will generate some and many will generate a lot of either heat or steam or both.

15.		Further, how any particular kitchen can be ventilated, how effective that ventilation is or will be and whether windows and doors can be opened are all questions of fact.  In the case of someone with slight or moderate breathing difficulties, leaving a window open or the use of some sort of fan may alleviate the problems.  The case of someone with severe difficulties is likely to prove more problematical. Further it must not be forgotten that many people with breathing problems also have difficulty with blasts of cold air and opening a window wide during very cold weather might result in a remedy that was worse than the condition it sought to cure.  However, I do agree with the Secretary of State that, since these are questions of fact, they need to be investigated properly if a tribunal wishes to go down that route.  Tribunals should not refer to opening windows without making findings as to what is possible in relation to the kitchen in question.  Many kitchens, particularly in converted properties, are far from ideal and may have very limited window space or windows that are difficult to open.  Against that, the occasional appellant may turn out to have installed a powerful and, for him or her, effective extractor fan. 

16.		In my judgment, the appeal tribunal failed to investigate matters properly.  I therefore allow the appeal and remit the matter to the new tribunal for rehearing. The new tribunal should first make findings as to just how serious the claimant’s breathing problems are. Putting it another way, what is the severity of his problems and how is he likely to be affected if he attempts to prepare a cooked main meal for himself? The new tribunal should proceed on the basis that such a meal, if cooked for one person, will usually produce less heat and steam than if cooked for more than one. However, the amounts produced will not be negligible or insignificant. If the new tribunal is satisfied that the claimant will be affected they can, if they consider it appropriate, go on to consider whether anything can be done to alleviate those problems. In that event, they must make findings about the layout of the kitchen, the position of the windows and any other matters which they consider relevant. The claimant must be given an opportunity to comment on what is being suggested. If the new tribunal thinks that a solution can be devised, it should say what it is and why it is thought to help matters.

	(Signed)	J.P. Powell
		Commissioner

	(Date)	3rd March 2003