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Neutral Citation Number:
Reported Number:	R(DLA)1/08
File Number:	CDLA 1256 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge C. Turnbull
Date Of Decision:	17/09/2007
Date Added:	11/10/2007
Main Category:	DLA, AA: personal care
Main Subcategory:	cooking test
Secondary Category:
Secondary Subcategory:
Notes:	Care component – ability to prepare a cooked main meal – whether nausea relevant The claimant suffered from primary biliary cirrhosis which resulted in symptoms of lethargy, arthralgia and nausea. She was refused disability living allowance although she had previously been in receipt of the lowest rate of the care component. On her appeal the tribunal again awarded her that component on the basis of her inability to prepare a cooked main meal, having satisfied itself that her nausea was an overwhelming problem. The Secretary of State appealed to the Commissioner, relying on the interpretation in CSDLA/854/2003 of Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 (reported as R(DLA) 7/03) as authority for the proposition that experiencing nausea when cooking could not entitle a claimant to the lowest rate of the care component. In the alternative, the Secretary of State submitted that the case should be referred to a new tribunal for further findings on the question whether the nausea caused by actually preparing food could be alleviated by using the available ventilation in her kitchen. Held, dismissing the appeal, that: 1. R(DLA) 1/97 and other authorities, holding that a person qualifies under the cooking test if, by reason of his disability, he cannot reasonably be expected to prepare a cooked main meal, were still good law (paragraph 6); 2. in applying the “notional test” or “thought experiment” referred to by Lord Hoffmann in Moyna, the potential or actual effect on the claimant of cooking could not be left out of account. The claimant’s nausea was a symptom of her disability and to have discounted it would have led to failure to calibrate the severity of her disability accurately (CDLA/1471/2004 preferred to CSDLA/854/2003) (paragraph 7); 3. it was not sufficiently probable that the nausea could have been alleviated by ventilation to warrant remitting the matter to a new tribunal (paragraph 8).
Decision(s) to Download:	R(DLA) 1_08ws.doc