Upper Tribunal (Administrative Appeals Chamber), February 07, 2014, [2014] UKUT 80 (AAC)

Resolution Date:February 07, 2014
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:Secretary of State v YB
 
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CSDLA/235/13

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: Sir Crispin Agnew of Lochnaw Bt QC

Attendances:

For the Appellant (Secretary of State): Brian Gill, Advocate instructed by Helena Janssen, Solicitor, of the Office of the Solicitor to the Advocate General

For the Respondent (Claimant): David Hornell

The appeal is allowed.

The decision of the tribunal given at Irvine on 19 August 2012 is set aside.

The Judge of the Upper Tribunal remakes the decision that the First Tier Tribunal ought to have given. It is as follows:

(1) the appeal is refused;

(2) the appellant remains entitled to the care component at the middle rate with effect from 10/08/2011 for an indefinite period.

(3) the claimant has no entitlement to the higher rate of the mobility component, but remains entitled to the lower rate from 10 August 2011 for an indefinite period.

REASONS FOR DECISION

Summary

  1. The claimant, who has a severe visual impairment, was awarded the lower rate of the mobility component. She appealed to the First Tier Tribunal, which allowed the appeal and awarded the higher rate of the mobility component.

  2. The claimant's severe visual impairment is worse out of doors than it is indoors in ambient light. She does not qualify under the Snellen Scale on a reading in doors, but the tribunal held that her visual acuity would qualify out of doors on the assessment of the evidence and allowed the appeal. The Secretary of State appealed to the Upper Tribunal.

    Statutory background

  3. This appeal concerns Regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991 (the 1991 Regulations) and the entitlement of a severely visually impaired person to claim the higher rate of the mobility component of DLA. It raises the question of whether or not the regulation is ultra vires if it is discriminatory in breach of convention rights and/or if the Secretary of State has failed to have regard to his equality duties.

  4. The regulation is in the following terms:

  5. (1A) (a) For the purposes of section 73(1AB)(a) of the Act (mobility component for the severely visually impaired) a person is to be taken to satisfy the condition that he has a severe visual impairment if--

    (i) he has visual acuity, with appropriate corrective lenses if necessary, of less than 3/60; or

    (ii) he has visual acuity of 3/60 or more, but less than 6/60, with appropriate corrective lenses if necessary, a complete loss of peripheral visual field and a central visual field of no more than 10° in total.

    (b) For the purposes of section 73(1AB)(b), the conditions are that he has been certified as severely sight impaired or blind by a consultant ophthalmologist.

    (c) In this paragraph--

    (i) references to visual acuity are to be read as references to the combined visual acuity of both eyes in cases where a person has both eyes;

    (ii) references to measurements of visual acuity are references to visual acuity measured on the Snellen Scale;

    (iii) references to visual field are to be read as references to the combined visual field of both eyes in cases where a person has both eyes.

    Factual background

  6. The claimant is registered blind. She claimed the higher rate of mobility DLA, but was only awarded the lower rate. She appealed to the tribunal which allowed her appeal. The Secretary of State has appealed to the Upper Tribunal.

  7. The claimant's claim comes under regulation 12(1A)(a)(ii). It is accepted that she has a complete loss of peripheral visual field and a central visual field of no more than 10° in total. She has a visual acuity of a maximum of 6/36 in both eyes on the Snellen Test and therefore on a straight reading of the regulation does not qualify as a person who has a visual acuity of 3/60 or more, but less than 6/60, with appropriate corrective lenses if necessary.

  8. The speciality of this case is that the claimant suffers from Retinitis Pigmontosa (RP). The nature of this condition is ``that a person who has this condition would be photophobic in bright light and would have extremely poor vision in bright light. ... The consultant ophthalmologist confirmed at page 78 that (the claimant's) vision is virtually non-existent in dark or dim light and that she has extreme photophobia in bright light''. The claimant requires to maintain ambient light in her house ``in order to maximise what little vision she has in order to avoid falls and injury''. The tribunal went on to hold ``in any other environment her vision including her visual acuity would be virtually non-existent ... as lighting conditions are likely to be too bright or two dim.'' (See Statement of Reasons § 10). The tribunal concluded ``it is likely that (the claimant's) visual acuity would come within the correct spectrum as stated in Regulation 12(1A) if she tried to walk outdoors'' - Statement of Reasons § 11.

  9. The other agreed fact is that the Snellen test required to be done indoors with specific ambient lighting and that it could not be done in any other light, so there was no means of measuring the claimant's visual acuity outside in bright or dim lighting.

    Tribunal's reasoning

  10. The tribunal's reasoning is set out in § 11 of the Statement of Reasons:

    ``11. For these reasons the tribunal decided that [claimant] is de facto virtually unable to walk as a result of her severe sight impairment due to Retinitis Pigmontosa in anything other than artificial ambient lighting. In an eye condition in which lighting is of particular relevance to visual acuity in ambient conditions indoors are misleading in terms of [claimant]'s true visual acuity when trying to walk outdoors. The tribunal accepts the opinion of the consultant ophthalmologist that her visual acuity is worse in poor or bright light. In light of this opinion it is likely that [claimant]'s visual acuity would come within the correct spectrum as stated in Regulation 12(1A) if she tried to walk outdoors. This evidence was supported by the evidence of [claimant] herself whom the tribunal found to be consistent and credible in her evidence. The tribunal therefore accepted the cogent evidence of the consultant together with the credible evidence of [claimant]. The intention behind the higher rate of the mobility component of DLA is to benefit people who are unable to walk or virtually unable to walk outdoors. It is accepted that the rolling out of the mobility component to the severely visually impaired was by way of a subsequent amendment, however the philosophy behind the mobility component ought to apply to this amendment also. Whilst the tribunal did not dispute the arithmetic in relations to Snellen presented by the Secretary of State of the Department of Work and Pensions (though for slightly different reasons as the tribunal did not appreciate why a denominator approach was used in relation to what is otherwise fairly straightforward logic once one understands how the Snellen test works), it decided that no consideration had been taken in account by the decision maker of the specific condition of Retinitis Pigmontosa and the effect of lighting on the sufferer's ability to see. Notwithstanding the exact terms of regulation 12(1A)(a) the test contained therein is of little value if it does not accurately test a person's ability to see and therefore to walk whilst outdoors. Given that [claimant]'s consultant tells us that her vision is even worse in dim or bright light the tribunal concluded that her combined visual acuity outdoors, or in any environment in which ambient lighting was not maintained, would be less than 6/36 and, on the balance of probabilities, also `less than 6/60'. For these reasons the tribunal finds that [claimant] meets the requirements of regulation 12(1A) and is entitled to the higher rate of mobility component of DLA.''

    Secretary of State's appeal

  11. The Secretary of State appealed on the ground that the tribunal had no discretion under Regulation 12(1A) and that as the claimant had a visual acuity of 6/36 as measured in the Snellen test she did not qualify for the higher rate of the mobility component. That this was an objective test was confirmed by the decision of Judge Bano in Secretary of State for Work and Pensions v MS (DLA) [2013] UKUT 0267 (AAC) [CDLA/1899/2012].

    Directions

  12. I directed an oral hearing and raised the question, if Judge Bano's decision was correctly decided, did this raise an issue of discrimination in the application of the test ``to a person such as the claimant who has Retinitis Pigmontosa which is sensitive to light and therefore that in bright light the visual acuity is affected in circumstances were other persons suffering from visual impairment would not be affected.'' I asked for submissions on:

    ``1. Is the regulation, as construed by Judge Bano in...

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