Moyna v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date31 July 2003
Neutral Citation[2003] UKHL 44

[2003] UKHL 44


The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Secretary of State for Work and Pensions
(formerly against the Social Security Commissioner)(Appellant)

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow this appeal.


My Lords,


For the reasons given in his opinion by my noble and learned friend Lord Hoffmann, I would also allow the appeal.


My Lords,


The issue in this appeal is whether the disability appeal tribunal made an error of law in deciding on 27 January 1999 that the appellant, Mrs Munira Moyna, did not qualify for disability living allowance under section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992. Mrs Moyna's condition subsequently deteriorated and she made a fresh claim which was allowed with effect from 14 June 2000. This appeal is concerned with whether it should have been paid before that date.


The Social Security Commissioner, to whom in the first instance an appeal from the tribunal lay under section 34(1) of the Social Security Administration Act 1992, decided that there had been no error of law but his decision was reversed by the Court of Appeal (Dame Elizabeth Butler-Sloss P, Potter and Kay LJJ). The functions of the disability appeal tribunal have since been transferred by section 4(1) of the Social Security Act 1998 to unified appeal tribunals constituted under that Act but the appeal to the commissioner (section 14(1)) and thence to the Court of Appeal (section 15(1)) is still only on points of law.


Disability living allowance was introduced by the Disability Living Allowance and Disability Working Allowance Act 1991 to replace what had been called attendance allowance and mobility allowance. The qualifications for attendance allowance had required a severe degree of disablement: the applicant had to be so severely disabled physically or mentally that he required "frequent attention throughout the day" or "prolonged or repeated attention during the night" in connection with his "bodily functions" or "continual supervision" throughout the day or night in order to avoid substantial danger to himself or others. Although the courts were willing to give "bodily functions" a fairly wide meaning (see for example Mallinson v Secretary of State for Social Security [1994] 1 WLR 630) the House of Lords decided in In re Woodling [1984] 1 WLR 348 that it did not include the performance of domestic tasks like cooking.


One purpose of the new benefit introduced by the 1991 Act was to enable persons with lesser degrees of disability to qualify for allowances at lower rates. In provisions which are now consolidated in section 72 of the 1992 Act, it provided for payment of the "care component" of the allowance at three different levels. The present case is concerned with the lowest level, to which a person is entitled under section 72(1):

"…for any period throughout which?

(a) he is so severely disabled physically or mentally that?

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients"


Paragraphs (b) and (c) of section 72(1) prescribe the conditions for payment of allowances at the two higher levels. In order to ensure that the allowance is paid only for more or less chronic disabilities, subsection (2) provides that:

"…a person shall not be entitled to the care component of a disability living allowance unless?

(a) throughout?

(i) the period of 3 months immediately preceding the date on which the award of that care component would begin… he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection 1(a) to (c) above; and

(b) he is likely to continue to satisfy one or other of those conditions throughout?

(i) the period of 6 months beginning with that date…"


Mrs Moyna was for 21 years a civil servant in the (then) Ministry of Agriculture Fisheries and Food who retired in 1997, aged 58, on grounds of ill health. She has a number of illnesses and disabilities, including a heart condition which prevents her from exerting herself for any length of time without bringing on pain and discomfort. On 20 December 1996 she applied for disability living allowance. There is (or was) a comprehensive form for such applications called DLA 1, which includes a section on "Help that you need during the day - preparing a cooked main meal for yourself". The form said:

"You may never have planned or prepared a cooked main meal for yourself. But try to imagine how much help you would need if you tried to do this.

If you had everything you needed for the meal, roughly how many days a week would you need help

planning a cooked main meal?

peeling and chopping vegetables?

using cooking utensils?

using taps?

using a cooker?

coping with hot pans?"


The boxes to be ticked on the form offered the alternatives of No help needed, 1 to 3 days, 4 to 5 days and 6 to 7 days. Mrs Moyna ticked the 1 to 3 days boxes for help with cooking utensils, taps and hot pans. By way of explanation, she added in the space provided:

"If pans are heavy, I need someone to carry them and put them on cooker or away. I cannot carry anything heavy as if I do it brings on angina attacks."


Mrs Moyna was then visited by an examining medical practitioner, who had his own form to fill in. This starts with a statement of the "disabled person's needs in their own words". Under the heading "Preparing a cooked Meal"" the doctor wrote "Can prepare a cooked meal". In the section for the doctor's own opinions, under the heading "Need for attention: in your opinion can the disabled person safely…", followed by a list of actions, he ticked "Without someone's help" in respect of peeling and chopping vegetables, using taps, using a cooker and coping with hot pans.


The application form and the medical report then went to an adjudication officer, Mrs Roberts, who on 4 February 1997 disallowed the claim. Mrs Moyna wrote on 13 February 1997 requesting a review. The case was reconsidered by another adjudication officer, who reaffirmed the decision:

"I accept the visiting doctor's opinion as it is based on the examination and observation of Mrs Moyna.

The cooked main meal is for one person only, therefore I consider that she could manage the pans for cooking such a meal. I do not accept that she cannot prepare a cooked main meal for herself."


In her more detailed reasons, the adjudication officer said:

"In her claim pack, Mrs Moyna states that she needs help 1-3 days a week, to use cooking utensils and taps and to cope with hot pans. She cannot carry anything heavy as it brings on angina attacks.

In her statement to the visiting doctor, she states she can prepare a cooked meal.

The visiting doctor's opinion is that she does not require help to prepare a cooked main meal."


Mrs Moyna then appealed to the disability appeal tribunal, which dismissed her appeal on 27 January 1999. She told the tribunal that she could cook, although "nothing elaborate". The tribunal concluded:

"Chopping and peeling is sometimes difficult - and always is with hard vegetables if they are large. She can manage a small saucepan for herself. The other difficulty is standing for a long time and the appellant's tactic if she has to cook something for herself is to put it on the cooker then lie down. From this we concluded that, with some planning and careful arranging of cooking requisites and perhaps use of a high chair, appellant can, on most days, prepare a cooked main meal for herself, and that it is not unreasonable to expect her to do so. She therefore does not qualify for the care component on that basis."


Mrs Moyna then appealed to the commissioner, saying that the tribunal has misconstrued the requirements of section 72(1)(a)(ii). The commissioner found no error of law. The test, he said, is whether the claimant can cook a "labour intensive reasonable main daily meal freshly cooked on a traditional cooker". Not all tribunals might have reached the same conclusion but the tribunal was entitled on the evidence to reach the conclusion it did.


In the Court of Appeal the leading judgment was given by Kay LJ and the other two members of the court agreed. He did not accept that one could have facts on which different tribunals could properly reach different conclusions about whether the "cooking test" had been satisfied. The test was intended to be "straightforward" and produce the same answer on the same facts.


Kay LJ said that...

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