THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/854/03

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Appellant:				Respondent:  Secretary of State

Tribunal:  Glasgow			Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Glasgow on 31 July 2003 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.

2.	The claimant has appealed to the Commissioner against the decision of the tribunal recorded at page 89.  The grounds of appeal are related to the tribunal’s decision that the claimant did not satisfy the conditions for the cooked main meal condition set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992.  The grounds of appeal are in the following terms:-

	“The basis of the appellant’s argument for an award of the lowest rate of the care component of DLA was that he is nauseated by cooking and therefore cannot prepare a cooked meal for himself.  The tribunal dismissed this as implausible “given the obvious weight gain which he seemed to have experienced recently.”  In this reasoning the tribunal appears to have taken account of circumstances not obtaining at the time of the decision appealed against (note the use of the word “recently”).  Given that the tribunal is prohibited from so doing by Section 12(8) of the Social Security Act 1998, inadequate reasons are provided for rejecting the appellant’s contention.  Quite aside from this, it is in any event quite possible to gain weight without being able to cook for yourself, either by relying on others to cook or by eating food which does not require to be cooked.

	The only reason given by the tribunal for rejecting the appellant’s argument is that he has gained weight.  This is inadequate for the reasons stated above.”

3.	The Secretary of State supports the appeal for the following reasons:-

“4.	In reaching their determination, the tribunal found that the claimant’s obvious weight gain, which he seemed to have experienced “recently”, was evidence that it was implausible nausea prevented him from preparing a cooked main meal for himself.  In reaching this conclusion, I submit the tribunal has failed to adequately establish whether the “recent” weight gain was obtaining at the date of the decision under appeal.

5.	Having regard to s12(8)(b) of the Social Security Act 1998, in taking into account evidence that may not have been obtaining at the date of the decision under appeal.”

4.	I do not consider that there is any merit in the grounds of appeal nor the support for them.  The tribunal record in their facts and reasons that the claimant’s argument was that he was nauseated both by the preparation of food and the eating of it.  It was on that basis that he asserted that he satisfied the cooked main meal condition.  It is clear from what is said by the tribunal that they did not accept this evidence.  They reached the view that the claimant’s recent weight gain made his evidence implausible.  Assessment of the evidence was a matter for the tribunal and they were entitled to accept and reject the evidence placed before them.  The rejection of the claimant’s evidence accordingly was one within their province and in my view they have set out a sufficient reasoned basis for the assessment which they made.  The grounds of appeal set out other potential explanations for weight gain. It is not for the Commissioner to consider these explanations along with the evidence led before the tribunal and consider whether he would have reached a different conclusion on the facts.  There are no grounds for the Commissioner to interfere.  

5.	I do not accept that, as is asserted in the grounds of appeal and the support for them, the tribunal erred in law by virtue of a breach of section 12(8)(b) of the Social Security Act 1998.  Both the grounds of appeal and the support for them have confused for the purposes of applying section 12(8)(b) the difference between the circumstances pertaining at the date of the decision and whether the evidence given in support of the circumstances pertaining at the date of the decision is evidence which should be accepted for the purpose of making findings in fact. 

6.	The claimant was not asserting that his position in relation to the preparation of food and the eating of it had changed since the date of the decision which was made and appealed to the tribunal.  In assessing the claimant’s credibility and reliability the tribunal were entitled to look at all the evidence given by him in respect of the preparation and taking of food.  Evidence of recent weight gain, which the tribunal considered contradicted his position of nausea when preparing or eating food was evidence the tribunal could properly take into account for the purposes of assessing his credibility and reliability.  That is sufficient to dispose of the appeal as there was no factual basis found by the tribunal for an award under section 72(1)(a)(ii) of the Act.

7.	However I did raise in a direction to the Secretary of State the issue as to whether if accepted, a feeling of nausea when cooking has any bearing on the capacity to do so for the purposes of the statutory test.  In response to that direction the Secretary of State submitted:-

	“6.	Turning to whether a feeling of nausea when cooking has any bearing on the capacity to do so, I submit that in the recent case of the House of Lords v Moyna (R(DLA)7/03), the House of Lords held that the cooking test is a notional test, a thought experiment to ascertain the severity of the claimant’s disability.  It does not matter whether the claimant actually needs to cook.

	7.	Having regard to R(DLA)7/03, I submit the cooked main meal test is a hypothetical test of a claimant’s mental and physical ability to prepare a cooked main meal for himself.  In the instant case, it is not clear from the evidence before the tribunal, whether the nausea experienced by the claimant is caused by either the sight or smell of cooking food.  However, I submit that, having regard to the decision of the House of Lords V Moyna, that that aspect of preparing a cooked mean meal is outwith the scope of the notional test envisaged by the House of Lords, and as such it is submitted that experiencing nausea when cooking has not bearing upon the claimant’s notional capacity to do so, for the purposes of the lowest rate of the care component of DLA.”

In response to that submission the claimant’s representative said:-

“The Secretary of State relies on the case of the Secretary of State for Work and Pensions v Moyna (R(DLA)7/03) to support the contention that feelings of nausea (affecting the ability to cook) are outwith the scope of the “cooking test..”  I can find no support in Moyna for this contention.  The test set out by Section 72(1)(a)(ii) is whether the claimant is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients.  Disability may manifest itself in a range of ways: pain, breathlessness, confusion, or indeed nausea.  I cannot see why nausea should be distinguished from other physical symptoms such as pain in this context.
8.	I find myself in agreement with the Secretary of State on this issue and do not accept the submission made by the claimant.

9.	This issue would only have arisen had the tribunal accepted the claimant’s evidence in respect of the effect of cooking and a link established with disability found.  As is pointed out by the Secretary of State, the House of Lords in Moyna v the Secretary of State for Work and Pensions [2003] 4 ALL ER 162 determine the scope of the cooking test.  The circumstances in that case were somewhat different to the present and were related to the physical capacity to carry out the tasks involved in cooking a main meal.  Lord Hoffmann gave the leading speech, to which the other members of the Judicial Committee agreed.  He said in paragraph 17 of the report at page 167 in respect of the condition:-

	“….its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance.  It is a notional test, a thought experiment to calibrate the severity of the disability.”

It is in my view important to give that test a context.  The context in my view, having regard to the approach set out by the House of Lords, is related to the capacity, in the light of the disability found to carry out the tasks of cooking.  It is not the potential or actual effect on the claimant of carrying out these tasks.  Thus the effect, if it had been accepted, of the claimant being nauseous when cooking would have been an unpleasant one but that does not affect the capacity to do the tasks.  It would not to use the phrase of Lord Hoffmann, “calibrate the severity of the disability found”.

10.	The appeal fails.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  23 March 2004