Wonder if anyone has any thoughts on following, have attended Tribunal today for lady who is right handed but has impairment of right hand, cannot flex fingers or grip, cannot get thumb to any of her fingers. Went on cooking test and she confirmed she cannot peel, chop, safely get hot dishes from oven or grill and is not confident carrying out tasks with left hand only. Decision was she failed the test because she should be able to carry out all activities using gadgets provided by an OT. Use of gadgets was not put to her during hearing, so she was not given opportunity to consider whether she could use them or not.
She seems to have failed a hypothetical test using hypothetical gadgets even though her funtional ability is such that she cannot cook!
Any thoughts??

If the use of gadgets was not put in issue at the hearing and that forms the basis of the tribunals decision then the decision is a straight forward error of law both at common law and under article 6 of the HRA (right to a fair hearing). It does't neeed to get an more complicated than that. Apply for leave to appeal asap.

From CDLA/1714/2005

"8. Since the cooking test is intended to calibrate the severity of a claimant’s disability, and not a claimant’s actual ability to provide a main meal for himself, the focus of the tribunal’s inquiry must be on the effects of any disability on the claimant’s ability to cook a main meal, rather than on ways in which those effects can be overcome. No doubt it is possible to devise aids of one kind or another to overcome virtually any disability-the claimant in this case apparently uses an electric vegetable peeler-but in order to measure the extent of a claimant’s disability, Lord Hoffman’s thought experiment has to be directed at the claimant’s ability to carry out the activities required to cook a main meal, rather than at some imaginary kitchen equipment catalogue. Although the tribunal in this case did investigate the effect of the claimant’s disabilities on her ability to cook, their findings were expressed solely in terms of the aids which would be needed to enable her to cook a main meal without help (although they did not say what “other helpful cooking implements” they had in mind to enable her to do so). I agree with the claimant’s representative that the tribunal therefore misapplied the ‘cooking test’, and that their decision is accordingly erroneous in point of law"

Sounds to me like you have a case of tribunal having "imaginary kitchen catalogue" syndrome.

David

Thanks for both replies to this, have asked for SOR, will be interesting to see if Judge actually puts this as his written reasons or if he realises his mistake and decides her evidence wasn't credible instead! Our organisation has had decision from this Judge in past saying 'she can feed her dog therefore she can feed herself'' so doubt if he will realise mistake with this one.

DRN