Moyna v The Secretary of State for Social Security

For the lowest-rate care component of disability living allowance, the cooking test is not satisfied or defeated by isolated daily fluctuations viewed mechanically. The statutory test requires a broad assessment of whether disability prevents the claimant from regularly preparing a cooked main meal, without assistance, over the prescribed qualifying periods.

Occasional inability will ordinarily be insufficient. A clear, recurring pattern of inability, such as inability on one or more days in most weeks, may satisfy the test. Tribunals must apply the statutory standard consistently to their factual findings. Where accepted findings establish such a regular pattern, rejecting entitlement may constitute an error of law.

Mrs Munira Moyna claimed the lowest-rate care component of disability living allowance under section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992. Her claim was refused by a Disability Appeal Tribunal, which found that she could prepare a cooked main meal on most days, although she required assistance on one to three days a week.

The Social Security Commissioner dismissed her appeal, holding that the tribunal was entitled to reach its conclusion. The appeal concerned whether, on the tribunal’s factual findings, the appellant satisfied the statutory cooking test and whether the tribunal had applied the correct legal approach.

1. Appeal allowed. The Court of Appeal held that the tribunal had erred in law and that the Commissioner was wrong not to recognise the error.
2. The proper factual starting point was that the tribunal had accepted the appellant’s evidence that, during the relevant period, she could not prepare a cooked main meal for herself on one to three days a week. That finding was consistent with the tribunal’s statement that she could do so on most days.
3. The cooking test in section 72(1)(a)(ii) requires a broad and practical assessment of regular ability, rather than a rigid inquiry into whether the claimant could or could not cook on every individual day. The reference in R(DLA)2/95 to the test operating on each day was not part of the statutory language when read in context.
4. Occasional inability will not normally satisfy the test, and occasional ability will not necessarily defeat it. The relevant question is whether there is a clear and recurring pattern of inability. The prescribed three-month retrospective and six-month prospective periods reinforce the need for permanence and recurrence.
5. The appellant’s inability to prepare a cooked main meal on a regular basis, including on up to almost half the days in some weeks, established the degree of disability contemplated by the legislation. It was not permissible to treat the same factual findings as capable of producing arbitrary and inconsistent legal outcomes between tribunals.
6. Lord Justice Potter and the President agreed with Lord Justice Kay. The appeal was allowed with costs.

• Court of Appeal (Civil Division): Moyna v The Secretary of State for Social Security [2002] EWCA Civ 408. Appeal from the Social Security Commissioner allowed with costs.
• Social Security Commissioner: Mr Howard Levenson dismissed the appeal from the Disability Appeal Tribunal on 13 November 2000.
• Disability Appeal Tribunal: The appellant’s claim for the relevant care component was refused on 27 January 1997.