Moyna v Secretary of State for Work and Pensions [2003] UKHL 44

Disability Living Allowance – cooking test

 

This was an appeal by the Secretary of State from the Court of Appeal’s decision that the M qualified for disability living allowance (DLA) under s72(1)(a)(ii) Social Security Contributions and Benefits Act 1992. M had a number of illnesses and disabilities, including a heart condition, which prevented her from exerting herself for any length of time without bringing on pain and discomfort.

 

She applied for disability living allowance which was refused. The disability appeal tribunal dismissed her appeal concluding that with some planning and careful arrangement of cooking requisites, M could on most days prepare a cooked main meal for herself so that she was not entitled to the lowest level of DLA under s72(1)(a)(ii). That section provides for payment of the “care component” of DLA at the lowest level “…for any period throughout which [a person] is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients”

 

The Court of Appeal concluded that the ‘cooking test’ in s72 of the 1992 Act was not satisfied because the evidence showed that M would be unable to prepare a main cooked meal on  a regular basis.

 

Overturning that decision, the House of Lords held that the Court of Appeal was wrong to construe s72 as if it included the word daily or regularly and to hold that the cooking test was not satisfied unless M could cook more or less every day. The test was a notional one to calibrate the severity of the applicant’s disability. Its purpose was not to ascertain whether the applicant could survive or enjoy a reasonable diet without assistance. It was irrelevant whether the applicant actually needed to cook. Further, the test said nothing about how often the person should be able to cook. Section 72(2) contemplated that one should be able to say of someone throughout a nine-month period that he was a person whose disability was such that he could not cook a main meal. That was an exercise in judgment rather than an arithmetical calculation of frequency. It involved looking at the whole period and asking whether the person could fairly be described as a person who was unable to cook a meal. The evidence in this case was that M was a person who was able to cook a meal, even if she was not able to do so all the time. The decision of the tribunal was therefore within the bounds of reasonable judgment and disclosed no error of law.

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