[2005] UKSSCSC CDLA_1212_2005 (24 August 2005)

CDLA/1212/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	 For the reasons given below, this appeal is dismissed.

2.	 This appeal is brought by the claimant with the leave of a commissioner, from the decision of the Burnley Appeal Tribunal, given on 16 December 2004, that the claimant is not entitled to either component of disability living allowance with effect from 11 May 2004.  The appeal is supported by the representative of the secretary of state.

3.	The claimant has Asperger’s Syndrome.  As found by the tribunal, and not challenged on this appeal, his problems are relatively mild.  He has no cognitive impairment and his activities of daily living are not affected by the syndrome.  The sole issue on this appeal relates to the cooking test.  As to this the tribunal found that the claimant was physically and mentally able to do all the tasks in preparing a cooked main meal for himself.  The problems which he explained to the tribunal were that he may be distracted, for instance if the telephone rang, or somebody came to the door.  He would forget that he was cooking and he would leave the pans on unattended.  Or he may burn himself on hot pans because, although he knows in theory that he should not touch hot pans, in practice he would touch them without using heatproof gloves.  The statement of reasons continues:

	“Most of this last danger could be avoided by using saucepans with heatproof handles and not using the oven.  If the appellant got into the habit of using a slotted spoon to lift cooked vegetables out of the cooking water instead of taking hot pans to the sink to drain the cooking water off the vegetables he would minimise the risk of burning himself on hot pans.  Best of all, it would be reasonable for him to cook from scratch in a microwave oven.  This would also mean that there would not be the danger arising from his going away and forgetting that he was cooking, leaving pans on the hob unattended.  If he were cooking in a microwave and went away, forgetting about the cooking, the microwave would turn itself off automatically at the end of the time set and no damage would be done to the microwave, the cooking dishes, the appellant or the meal.”

4.	 The claimant appeals on the ground that he does not have a microwave oven or saucepans with heatproof handles and that commissioners’ decision R(DLA) 2/95 assumes that the claimant will use the equipment available to him and devices and appliances that he does not have should be ignored.  He contends that the tribunal chair clearly acknowledges that he is in danger when cooking but misapplies the law by saying that he can use equipment he does not have.  This, he contends, is totally to ignore R(DLA) 2/95, and assumes that a claimant has a fully equipped kitchen specifically designed to meet their personal needs.

5.	The appeal is supported by the representative of the secretary of state, apparently on the ground that although the tribunal knew that the claimant did not have a microwave oven, it stated that he could use one.

6.	The question under section 72(1)(a)(ii) is whether the claimant is so severely disabled physically or mentally that he cannot prepare a cooked meal for himself if he has the ingredients.  In Secretary of State for Work and Pensions v. Moyna, reported as R(DLA) 7/03, Lord Hoffmann, with whom all the other members of the House of Lords agreed, stated that 

	“17. My Lords, there are two points to be made about the ‘cooking test’ in section 72(1)(a)(ii). The first is that 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 does not matter whether the applicant actually needs to cook. As the form DLA1 now DLA1A said, ‘try to imagine how much help you would need if you tried to do this.’ No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods and ready-cooked meals. Not for nothing is the notional meal contemplated by the cooking test described in the authorities as ‘traditional’. It must be remembered that disability living allowance is a non-contributory, non-means tested benefit. A person who cannot cook for himself is entitled to the allowance, now £14.90 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy. On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance: to obtain the ingredients which the test assumes him to have, or because he is culinarily incompetent. So in my view the Court of Appeal was wrong to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life.
18. That leads on to the second point, which is that the test says nothing about how often the person should be able to cook. It would have been easy for Parliament to say that a person should be able to cook daily or six times a week or whatever. Instead, the statute approaches the question of frequency in a different way. Section 72(2) contemplates that one should be able to say of someone throughout a nine month period that he is a person whose disability is such that he cannot cook a main meal. What does this mean? One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so. But the Secretary of State does not contend for this construction and I do not think that it would be right. That is not because one occasion is de minimis but because the test does not in my opinion function at that day to day level. It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal. It is an exercise in judgment rather than an arithmetical calculation of frequency.
19. I therefore agree with the Commissioner that the question involves taking ‘a broad view of the matter’ and reaching a judgment.”
7.	In R(DLA) 2/05 Commissioner Williams observed that “The reference by Lord Hoffmann to “the cooking test described in the authorities as “traditional” is a reference to R(DLA) 2/95 where Commissioner Heggs defined the test as that of “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. … a … meal for one person, not a celebration meal or a snack. ... [T]he test includes all activities auxiliary to the cooking such as reaching for a saucepan, putting water in it and lifting it on and off the cooker.” I take the House of Lords to be endorsing that test, but doing so in its own words and therefore to some extent replacing it. As a matter of both definition and interpretation the test can in my view be taken little further. For that reason, I do not consider any other earlier Commissioner’s decision to be of assistance in this case.  And I see no problem with the wording of the form DLA1A. Essentially, it leaves it to the claimant to explain her or his own problems, and for decision-makers to decide if the test is met.”
8.	In R(DLA)2/05, at paragraph 11, Commissioner Heggs emphasised that the cooking test is objective and “is not dependent on the type of facilities or equipment available to a claimant.”
9.	It appears to me that Lord Hoffmann’s “notional test, a thought-experiment, to calibrate the severity of the disability” cannot possibly depend on what the claimant actually has or does not have in his or her kitchen.  Indeed there will be cases where a claimant does not have a cooker, or a kitchen.  I therefore reject the claimant’s and the secretary of state’s contention that the fact that the claimant does not have a microwave oven (or heatproof saucepan handles) can be relevant.
10.	The question is whether the claimant can prepare a cooked main meal for himself if he has the ingredients.  Just as the ingredients are hypothetical, so to the kitchen in which the preparation is to take place is hypothetical.  In paragraph 11 of R(DLA) 2/95, Commissioner Heggs refers to “normal reasonable facilities (which might include certain devices to assist)”.  If somebody can prepare such a meal using reasonably standard equipment such as saucepans with heat proof handles, then they do not qualify for benefit under section 72(1)(a)(ii).
11.	In paragraph 8 of R(DLA)2/95, Commissioner Heggs refers to the meal as being “a labour intensive reasonable main daily meal freshly cooked on a traditional cooker.”  However, section 72(1)(a)(ii) does not specify how the meal is to be cooked.  There are now a number of commissioners’ decisions that it can be cooked in a microwave oven provided it is prepared and cooked and not simply a pre-prepared meal which is heated up.  Thus, in CDLA/2367/2004, Commissioner Jupp said that the claimant’s ground of appeal that the use of the microwave in preparing a cooked main meal should be disregarded was an oversimplification of the position.  The test is whether a claimant “cannot prepare a cooked main meal for himself if he has the ingredients”.  After quoting from Lord Hoffmann’s judgment in Moyna, she continued:
“Thus we have moved from the position where a claimant might satisfy the criteria if s/he could not, most of the time, prepare a cooked main meal for one on a traditional cooker. The better view now is that it is more a question of what the claimant does with the microwave most of the time which will enable the appropriate decision to be made as to whether s/he satisfies the criteria for an award.  It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one.  If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of the microwave should not be taken into account.  It will be borne in mind that it has long been held that it is not necessary for a claimant to be able to bend to the oven nor hold heavy pans to prepare a cooked main meal for one.”  

13.	This approach accords with the wording of the section, and I follow it, although it does mean that the calibration of the severity of the disability by reference to this test may vary as cooking methods and kitchen equipment change.  The tribunal was entitled to take into account the use of microwave ovens and heatproof pan handles even though the claimant did not have them, its approach was correct and there was no error of law.  It was not concerned with how the claimant actually cooked, but with the hypothetical question of whether he could in a general sense safely prepare a cooked main meal for himself given the ingredients.

14.	I would add that even if the microwave oven and the heat proof pan handles were to be ignored, I am by no means clear, to adapt the words of Lord Hoffmann at the end of paragraph 18 of Moyna, that the claimant could fairly be described in a general sense as a person who was unable, on a day to day basis, to cook a meal because of safety considerations.

15.	For the reasons given the appeal is dismissed.

(signed on the original)	Michael Mark
Deputy Commissioner
24 August 2005