CDLA/2889/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	For the reasons given below, I allow this appeal, which is brought with the leave of a commissioner from a decision of the Wigan Appeal tribunal given on 23 April 2004 that the claimant was not entitled to either component of disability living allowance with effect from 15 December 2003 because he did not satisfy the statutory criteria of either component at any rate.  I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions given below.  The secretary of state should make available to the new tribunal and to the claimant the full claims history as set out in paragraph 6 below.  Although the only area where I consider that the tribunal erred in law is in relation to the cooked meal test, it is possible that there may be other evidence on the other issues which might be adduced to the new tribunal.  The claimant or his mother may wish to consider whether to have a proper independent assessment by a doctor or social worker who knows him as to the effect of his disability so far as relevant to this claim.  If there has been any change in the condition or needs of the claimant since the date of the decision of the decision maker, the parties and the tribunal should ensure that the evidence at the new tribunal hearing is directed to the situation as it existed at the date of the original decision.  I express no view as to the likely outcome of the new hearing.

2.      The claimant was born in 1983 and has Asperger’s Syndrome.  This is a form of autism.  There are differences as to the precise diagnostic criteria (see for example the varying diagnostic criteria listed in Appendix III to Asperger’s Syndrome by Tony Attwood, Jessica Kingsley Publishers, 1998).  In any event the manifestations of the syndrome can take different forms in different people and can vary in severity.  The most obvious characteristic is impairment of two-way social interaction arising from a lack of ability to understand and use rules governing social behaviour which is outside the normal range.  There tend to be serious communication problems associated with this problem.  Other common characteristics can include lack of motor co-ordination, adherence to repetitive routines and narrow interests and general impairment of comprehension including misinterpretations of literal and implied meanings.  Departure from routines and misunderstandings can bring about socially and emotionally inappropriate behaviour.  In a few cases the problems can lead to bizarre anti-social acts.  Those with the syndrome can be very unhappy when away from familiar places. 

3.      Not everybody with Asperger’s Syndrome has all of the characteristics, however, and in each case they vary in severity and in their consequences.  In some, but not all, cases sufferers are able to modify their behaviour by learning.  Indeed, all the features that characterise Asperger’s Syndrome can be found in varying degrees in the normal population, the essential difference being that the person with Asperger’s Syndrome does not take part appropriately in two-way social interaction and seems cut off from the effects of outside contacts (Wing, L., Asperger syndrome: a clinical account, in Psychological Medicine, 11, pp.115-129).

4.   Where a person with Asperger’s Syndrome is seeking an award of disability living allowance, it is necessary for the tribunal to assess the way in which the particular problems of the claimant affect him in ways relevant to his claim.  There are likely to be many ways in which those problems affect his everyday life which, however disabling, do not assist him in his claim for benefit.  An inability to interact socially is not something which gives any right to benefit of itself, as was pointed out by Commissioner Howell QC in R(DLA)3/03.

5.     It is also the case that in taking evidence from a person with Asperger’s Syndrome, a tribunal needs to be particularly careful to ensure that misunderstandings are identified and corrected, and where a claimant is assisted by a representative or family member, that representative or family member will often be in a good position to identify areas of misunderstanding that need checking.

6.     In the present case, the claimant had had at least two previous awards of benefit.  The earliest award in the file was made in July 2002 and was for the lower rate of the mobility component and the middle rate of the care component (file, p.47).  It is clear both from the fact that a renewal claim form was filled in (see file p.17) and from the statement by the decision maker at part 14 of form DBD600 that “Needs not changed” that this was not the first award at this level.  It is also clear from that statement that the decision maker at that time must have had available the evidence leading to at least one earlier award.  It is unfortunate that that evidence was not before the later decision maker who rejected the renewal claim made in 2003 or the tribunal, and the full claims history should be made available to the new tribunal to which I am remitting this case.

Mobility
7.      On the evidence before the tribunal, I am unable to find any error of law in its decision as to the claimant’s entitlement to the lower rate of the mobility component.  He gave evidence that he could walk in unfamiliar places and ask for directions.  The question for the tribunal was whether, disregarding any routes with which he was familiar, he was so disabled mentally that he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time. There was evidence from his mother, as recorded at p.115, that she had had to collect him on three occasions, once in Manchester when he had been drinking, once in Wigan when he had hurt himself and on a third occasion when he had been beaten up in a pub.  His representative stated that he was familiar with Manchester but suggested that he might have a problem in another place such as Liverpool.  She also indicated that while he could ask for information, there was a problem with the taking in of information.

8.      It is clear to me that the tribunal concluded from the claimant’s evidence that he was able to walk in unfamiliar places most of the time, and indeed did so despite the occasional problems that caused when he had been drinking or when he was hurt.  In my judgment there was ample evidence on which the tribunal could have come to that conclusion and it gave clear reasons for doing so.   

Care needs
9.    The tribunal also accepted the claimant’s evidence that he had no care needs.  It is said on this appeal that it does not make it clear why it preferred the evidence of the claimant to that of his mother, who is his main support.  However, the submissions at p.108 refer to the claimant’s mother taking care of the financial side of matters and of nagging him to clean his flat and his clothes.  None of these constitutes attention in connection with bodily functions, which is the necessary requirement for an award of the care component under section 72(1)(a)(i) and 72(1)(b)(i) of the Social Security Contributions and Benefits Act 1992.  Calming him when he gets anxious and panicky when his routine is changed might come under this heading but there is no suggestion that this is either throughout the day or for a significant portion of it.  Finally, interpreting the normal world for the claimant also appears to me not to be attention in connection with bodily functions for these purposes (R(DLA)1/03, paragraph 14).

10.    In my judgment, there is nothing in the evidence of the claimant’s mother as recorded which would, if accepted, entitle the claimant to any award on this basis.  It might have been preferable for the tribunal to explain this, but even if the failure to explain was an error of law, in the absence of any other issue I would have substituted my own decision to the same effect as that of the tribunal.

11.   It further appears to me that there was ample evidence on which the tribunal could conclude that the claimant did not require continual supervision throughout the day in order to avoid substantial danger to himself or others (section 72(1)(b)(ii) of the Social Security and Contributions Act 1992).  It seems clear from the evidence that he did not receive continual supervision throughout the day and I agree with the tribunal that there is no evidence that he needed it to avoid substantial danger to himself.  He may well have required some supervision in some circumstances when his routine was disturbed but that is all.

Cooked meal test
12.    The only point at which it appears to me that the tribunal erred in law is in relation to the cooked meal test under section 72(1)(a)(ii) of the Social Security and Contributions Act 1992.  Having said that the claimant said that he did not need help at mealtimes, the tribunal made no findings on the point.  The record of the proceedings show that he stated that he did his own cooking (p.141) and that he sometimes cooked a meal.  He did burgers in a microwave.  He could not be bothered to peel potatoes although he could peel.  He also ate cereal and bacon.  In my judgment that evidence is insufficient to justify the conclusion that he could prepare a cooked main meal for himself if he had the ingredients, and the tribunal gives no real explanation for its decision in this respect.  

13.   In R(DLA)7/03 the House of Lords held that the cooking test was a notional test of severity of disability which required a broad view over the period throughout which the test was to be satisfied.  The notional main meal which is contemplated is a labour intensive traditional main meal (R(DLA)2/95).  The use of a microwave to heat up pre-prepared food is not cooking a main meal.  The claimant should be able to cook a sufficient number of dishes to provide a reasonable degree of variety to his diet (CDLA/17329/1996).  “Ability” for this purpose does not require that he has the necessary skill as this is a hypothetical test, but that he is capable of acquiring the skill, and could use it once he had it.

14.    If, because of his mental state, all the claimant could bring himself to do, or was able to do, was to heat up burgers, fry bacon and boil potatoes in their skins, then he could not be regarded as able to prepare a cooked main meal for himself if he had the ingredients.  It was for the tribunal to investigate, in the light of his evidence as recorded, whether he could satisfy the cooking test and if he could not, then it had to go on to enquire whether that was due to mental disability.  These issues plainly merit further consideration and evidence.

15.    I therefore set aside the decision of the tribunal and remit the case to a new tribunal as set out in paragraph 1 above.  Although my decision to set aside is based only on a failure properly to apply the cooking test, all other issues will be open to argument before the new tribunal.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		21 December 2004