Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/831/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the case to be reheard by a new tribunal in accordance with the directions given below.  I have rejected the application by the claimant for an oral hearing of her appeal as I am allowing the appeal and she will have the opportunity, which she should take, of presenting her case and dealing with any issues the new tribunal may have, at the rehearing of her appeal which I am directing.

REASONS FOR DECISION

1.      This appeal is brought with the permission of a Judge of the Upper Tribunal.  The claimant has been registered blind since 2000 and has been in receipt of the lower rate of the mobility component and the middle rate of the care component of disability living allowance from and including 27 April 2005.  Following the introduction of the Social Security (Disability Living Allowance)(Amendment) Regulations 2010, she sought to have the award superseded and the mobility component increased to the higher rate on the principal ground, as it emerged, that her visual acuity was less than 3/60.  Her evidence in this respect was that it was less than 3/60 without corrective lenses, although the evidence of her optician and ophthalmologist were that it was more than 3/60 with contact lenses.  She explained that she could not wear contact lenses day to day and 4 days out of 7 she had sore itching eyes (file, p.3).  Her eyes water and feel like grit is in them.

2.     In addition, her form DLA434, sections 2 and 2A, completed in April 2009, and included in the tribunal bundle, stated that she suffered from dizziness and could not walk more than 19 yards with help.  She needed help because she was blind and dizzy, and lost her footing.  She was dizzy all the time, felt sick and sometimes vomited and needed to hang onto things to move.  She could not balance.  Despite these claims, in 2009 a decision maker concluded that the claimant was not virtually unable to walk, and there does not appear to have been any appeal against that decision.

3.     A decision maker reconsidered the award but by a decision dated 7 March 2011 did not alter it.  The decision notice stated that the claimant’s vision was between 3/60 and 6/60, so that she did not qualify for higher rate mobility on the grounds that it was less than 3/60, and she did not qualify on the grounds that it was between 3/60 and 6/60 because she did not satisfy the additional requirement that she should have a complete loss of peripheral visual field and a central visual field of no more than 10 degrees in total.

4.     A disability benefits telephone note dated 13 July 2011 stated that the claimant had called and was unhappy with the decision. She again explained that she had another medical problem which meant that she could not wear her lenses some of the time.  Again this did not lead to a revision of the original decision.

5.     In preparation for her appeal, the claimant stated that she did not want an oral hearing, but she submitted a print out of her prescription drugs dated 18 November 2011 (p.97) which showed that she was then prescribed sodium chromoglicate, eye drops used for eye irritation caused inter alia by contact lenses, and Prochlorperazine Maleate tablets, a drug used for the alleviation of the symptoms of vertigo and for the treatment of nausea.  She also had prescribed migraleve and codeine phosphate tablets 30mg.

6.     The claimant also wrote (p.98) that she could not wear contact lenses as it was now very painful and she had had them since she was 12 years old.  She had eye drops and painkillers.  Her eyes felt constantly sore and gritty and she also had blackouts and dizzy spells and falls. 

7.     The tribunal concluded that it could make a decision without a hearing as the issue raised by the claimant was that she “disagreed with the finding by the [decision maker] that her vision was so poor that she was entitled to the higher rate of the mobility component.  The Tribunal had reliable evidence on which to make findings of fact.”  Plainly the statement of reasons was intended to state that “her vision was not so poor that…”.  The tribunal then went on to accept the clinical findings as to her vision using contact lenses, stating that it preferred the clinical findings to her untested assertions.

8.     In doing so, the tribunal wholly failed to deal with the point being made by the claimant that the level of her vision with contact lenses should be disregarded because she was no longer able to wear them.  Her assertion to this effect was supported to a degree by the medical prescription of the eye drops and was not contradicted anywhere.  It is plain that when the 2010 Regulations refer to “appropriate corrective lenses” they are referring to lenses which it is appropriate for the claimant to wear and it is not normally appropriate for a claimant to wear such lenses if she cannot do so without considerable discomfort. 

9.     In totally failing to address that point, the tribunal was in error of law and its decision must be set aside.  The tribunal was also, in my judgment, in error of law in not considering the effect of her dizziness and nausea on the claimant’s ability to walk.  The statements made by the claimant in her 2009 forms, her continuing references to her dizziness in relation to her walking, and the prescription of medication for her dizziness, ought to have led it to consider whether her dizziness and nausea were of such an extent that in general they left her virtually unable to walk unsupported by another person.  Had the tribunal considered these points, it would, I think, have been apparent that it should have adjourned and fixed an oral hearing which she should have been strongly advised to attend.

10. The claimant would be assisted on any new hearing by medical evidence as to her inability to wear contact lenses at around the date of the original decision of the decision maker in March 2011, and ophthalmic evidence that without them her vision was then less than 3/60, this last evidence being apparently to be found at p.117 of the file for this appeal as at February 2012.  The new tribunal will need to consider the position at the date of the decision under appeal in March 2011 and in relation to discomfort wearing contact lenses will need to decide whether at that time the claimant was in general unable comfortably to wear them because of her eye problems.

11. The claimant has also stated on this appeal that she could not wear glasses and has never been able to do so Her explanation, by a letter received here on 31 August 2012, following a direction of a Judge of the Upper Tribunal, was that glasses could not be made strong enough and also caused her to feel dizzy, so that there were no glasses she could wear and that this had been the case since childhood.  The new tribunal will need to consider whether that was the case around March 2011 and again the claimant should try to get her optician or ophthalmologist to confirm this.

12. As I have indicated, the new hearing should be an oral one and the claimant should attend it to put her case.

(signed)

Michael Mark

Judge of the Upper Tribunal

8 October 2012