Praparing food: Whether “assistance” can cover doing the entire task or if the claimant has to retain some input

I have an UT case where the Judge has referred to Mesher in AI v SSWP (PIP)[2016]UKUT332(AAC) Para 6.

Specifically in respect to 1e - supervision or assistance to either prepare or cook a simple meal.

In my case the DWP have argued that the FT-T made insufficient finding of fact as to their decision awarding 1f in respect to preparing food as well as cooking food. (i.e. both need to apply).

I have covered that part however, looking also at 1e, as the claimant cannot cook food at all, i.e. heat at waist height, would that mean that assistance does not apply as she has no input and it has to be done for her.

The Judge has made a valid point that if her input is required it could mean that she fails to score at all in activity 1 which cannot be the intention.

Any input greatly received!

I assume that last sentence is missing a ‘not’?

Anyway, two things;

1. why would ‘input’ not encompass the claimant’s stating what she wants to eat (as opposed to the person doing the cooking deciding entirely by themselves what the claimant is going to eat) and how she wants it cooked? i.e. steak rare, medium rare, medium, well done - vegetables al dente etc.

2. There’s surely an argument that 1f “Cannot prepare and cook food.” has to be read conjunctively? Whilst I find it difficult to envisage a situation where a claimant would be able to prepare food but would simultaneously be entirely incapable of taking any part in cooking it, if that were the case I’d be arguing that If applies. All of the lower scoring descriptors result in a meal at the end of the process. But a situation where no meal results unless someone else cooks it attracts no points? Surely not….

Nice, I hadn’t thought about verbal input.

“assistance” means physical intervention by another person and does not include speech;

This unambiguously appears satisfied where another person physically intervenes to cook and prepare the entire meal.  There is no basis for reading in additional requirements of how much the claimant must be contributing.

1(f) may well also be satisfied - where two or more descriptors are satisfied, the higher applies.

This struck me as a bizarre decision when I first read it, perhaps more of an exercise in philosophy than law.

I’m somewhat comforted by UT Judge Mesher’s statement in para 9 that -

“The upshot of that analysis, which must be regarded as provisional because I have had no submissions specifically directed to it,..”

Personally I’ve never had a judge refer to it, thankfully, but if it were raised I’d go back to basics and point out that the context is that of a functional test. I suspect that over time this case will be quietly forgotten.

My understanding of the Mesher decision is that he is confining himself to the question of whether a claimant who needs someone to perform the entire task could nevertheless be left restricted to 1(e), rather than automatically meeting 1(f). I don’t read it as meaning both might be left unmet.

I think that’s what he was asking too - and what I was trying to answer in the second point of my response.

The SoS have requested permission to withdraw which is a shame as I was quite looking forward to the decision however, my client has waiting long enough for payment on her application that was made in September 2015 so doesn’t want to delay further!

People might be interested in this decision which I found in my colleague’s tray.

He will be delighted by paragraph 12, as it considers intervention in terms of a driving analogy.  If there’s one thing Mr Birks likes, it’s changing the subject to driving at each and every opportunity.

So to take the Jacobs reasoning to its full logical conclusion:

i) A person who has a meal fully prepared by another is not being assisted.
ii) Since it is a question of what is needed, not what is being provided, his decision finds that this is a sufficient alternative to eliminate any need to be assisted.
iii) Therefore, even if currently being assisted only partly, anyone who cannot cook a meal unaided for whatever reason could avoid the need to by simply having someone else perform the whole task. 0 points!

My reasoning was as follows:

““Assistance”, for the purposes as PIP is defined as physical intervention by another person and does not include speech. The Cambridge Advanced Learner’s Dictionary and Thesaurus gives the definition of “intervene” as “to intentionally become involved in a difficult situation in order to improve it or prevent it from getting worse” (i.e. to get involved) and also “to happen between two times or between other events or activities”, i.e. (come between).

One could argue that the act of physical intervention from another person comes between the claimant and the act of cooking a simple meal and would imply that input from the claimant is not required.

Likewise, one would argue that the act of intentionally becoming involved in a situation implies pre-emptive action, so another person knowing the claimant’s situation and therefore intervening and becoming involved in the situation, i.e. cooking the meal instead, as they are aware of the claimant’s problems with this activity and the likelihood of the activity not being completed as a result of this.”

Judge Hemmingway agreed with me in that someone who is unable to cook themselves a meal should not score zero points on this activity; “a situation where no meal results unless someone else cooks would attracts no points would arise and this cannot have been the intention.”

It’s interesting that the DWP defines intervention as physical not including speech but they do not mention hat the claimants involvement in the activity excludes just speech, thus I also submitted that “the claimant stating what she wants to eat and how she wants it cooked (i.e. steak medium, vegetables al dente) would amount to input”.

Alas the SoS withdrew so I will never know!

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