Moyna v Secretary of State for Work and Pensions: HL 31 Jul 2003

The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook. The test says nothing about how often the person should be able to cook, and it was wrong to try to import the court’s own notions in this regard as part of the test. ‘the question whether the facts as found fall on one side or the other of a conceptual line by the law is a question of fact’. Appeal allowed.
Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so-called ‘cooking test’ for welfare benefits. He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reid’s well known comments on the meaning of the words ‘insulting behaviour’ in Cozens v Brutus . . which Lord Hoffmann thought had been given ‘a much wider meaning than the author intended’ Commenting on the distinction between issues of law and fact, he said: ‘It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61): ‘The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.’
Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd [1995] Ch 241, 254-255.’


Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe


[2003] 4 All ER 162, (2003) 73 BMLR 201, [2003] UKHL 44, Times 11-Aug-2003, [2003] 1 WLR 1929


Bailii, House of Lords


Social Security Contributions and Benefits Act 1992 72(1)(a)(ii)


England and Wales


Appeal fromMoyna v The Secretary of State for Social Security CA 27-Mar-2002
The claimant a former civil servant had retired due to ill health, and appealed refusal of disability living allowance. The court did not accept that one could have facts on which different tribunals could properly reach different conclusions about . .
CitedIn re Woodling; Woodling v Secretary of State for Social Services HL 1984
The question of law was whether cooking meals was ‘attention in connection with bodily functions’ for the purpose of attendance allowance.
Held: Though courts are willing to give ‘bodily functions’ a fairly wide meaning, it did not include the . .
CitedBrutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
CitedGeorge Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
CitedMallinson v Secretary of State for Social Security HL 26-Apr-1994
A blind person needing help (active personal service) in getting about in unfamiliar places may be entitled to attendance allowance. The court was willing to give ‘bodily functions’ a fairly wide meaning. Seeing was a bodily function. . .
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
CitedO’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
CitedIn re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
At tribunalSecretary of State for Work and Pensions v Moyna SSCS 31-Jul-2003
. .

Cited by:

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The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedBeynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
CitedEvans Dorothy, Regina v CACD 6-Dec-2004
The defendant appealed her conviction for having breached a restraining order under the 1997 Act. The order required her not to be ‘abusive by words or actions’ towards her neighbour. She had regularly parked her car so as to block her neighbour’s . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority CA 17-Jun-2005
In 1952, the Minister wrote a leter confirming the planning permissions for four quarries now owned by the claimants. In 1996, two of the quarries were separately included in a list of dormant sites, and in 19999 the applicant began to apply for . .
CitedFogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
CitedSerco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
CitedConnolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
CitedH, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
CitedSugar v British Broadcasting Corporation and Another HL 11-Feb-2009
The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the . .
CitedDay and Another v Hosebay Ltd SC 10-Oct-2012
The Court considered the provisions for leasehold enfranchisement now that the residence requirement had been removed by the 2002 Act, and in particular the extent to which, at all, it had allowed enfranchisement to be available to commercial . .
CitedJones v First Tier Tribunal and Another SC 17-Apr-2013
The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .
Lists of cited by and citing cases may be incomplete.

Benefits, Judicial Review

Leading Case

Updated: 08 April 2022; Ref: scu.185221