Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1899/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before E A L BANO

 

Attendances:

 

For the Appellant: Mr Jeremy Heath, Solicitor, DWP Solicitors’ Department

 

For the Respondent The claimant’s parents

 

Decision:  This appeal by the Secretary of State succeeds.  The decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

 

REASONS FOR DECISION

 

1. Since the decision of the House of Lords in Lees v Chief Adjudication Officer [1985] AC 930 that a blind person who was capable of putting one foot in front of another was not entitled to mobility allowance, there have been a number of different schemes aimed at providing mobility benefits for people who are visually impaired.  Entitlement to mobility allowance was extended in 1990 to claimants with both visual and hearing impairments of specified levels of disablement, although no indication was given of the way in which the degree of disablement was to be assessed.   When disability living allowance was introduced in 1991, visually impaired claimants who required guidance or supervision most of the time in order to take advantage of the faculty of walking out of doors became entitled to the new lower rate of mobility component.

 

 2.  Most recently, entitlement to higher rate mobility component has been extended to people who are severely visually impaired, with the intention of benefitting those whose visual impairment is so severe that they have “no useful sight for orientation purposes”-see the explanatory memorandum to the SSAC accompanying the draft regulations SI 2010/1651. Section 14 of the Welfare Reform Act 2007 added a new subsection (1AB) to section 73 of the Social Security Contribution and Benefits Act 1992, as follows:

 

“A person falls within this subsection if-

(a)  he has such severe visual impairment as may be prescribed; and

(b)  he satisfies such other conditions as may be prescribed.”

 

Regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991, as added by the Social Security (Disability Living Allowance) (Amendment) Regulations 2010, provides with effect from 11 April 2011:

 

“(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 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.

 

3. The Snellen Scale provides a measure of an individual’s visual acuity by means of a test in which a person reads rows of letters of decreasing size on a chart from a distance of 6 metres.  Each line on the chart corresponds to a distance at which a person with normal eyesight can read the letters on that line, so that, for example the letters on the second line from the top can be read by a person with normal eyesight from a distance of 36 metres.  A person who can read the letters on that line but no smaller letters is described as having 6/36 vision, that is, the person can only read from 6 metres what a person with normal vision can read from a distance of 36 metres.  Different units of distance may be used; so that a person described as having 6/6 vision (normal vision) can also be described as having 20/20 vision using feet instead of metres as the unit of measurement. Visual acuity can also be expressed by means of a logarithmic scale called the Logmar scale, which is generally used for statistical rather than clinical purposes.

 

4. The question in this case is how to apply those provisions to a claimant whose visual acuity was measured as being better than 3/60 indoors, but which is likely to be worse than 3/60 when the claimant is out of doors in bright light.  The claimant is a girl now aged 14 with a rare inherited condition called achromatopsia, which causes colour blindness and marked sensitivity to light.  She also has nystagmus, or rapid involuntary movements of the eye.  The claimant has been certified as blind by a consultant ophthalmologist and, although she wears tinted glasses, she closes her eyes when walking outdoors in order to protect them from the light.  The claimant has visual field defects as well, but since they do not satisfy the conditions in regulation 12(1A)(a)(ii), this case is concerned with subparagraph (i) of regulation 12(1A)(a) alone.

 

5.  The claimant had an award of lower rate mobility component and middle rate care component of DLA, in respect of supervision needs, which ended on 15 May 2011.  On 18 April 2011 the claimant’s mother made a renewal claim on her behalf seeking higher rate mobility component, but on 21 April 2011 a decision was made refusing that claim and awarding DLA at the same rate as previously on the basis that the claimant’s recorded visual acuity was 6/60.  The claimant’s mother asked for the decision to be reconsidered and in support of that request she sent a letter dated 6 June 2011 from the claimant’s consultant at Moorfields Eye Hospital, Professor A T Moore.  The letter stated:

 

“[The claimant] has a rare inherited condition called achromatopsia.  In this condition there is bilateral visual impairment, marked sensitivity to light and nystagmus.  The vision is much worse outdoors than it is under controlled light conditions of the consulting room.

 

When [the claimant] was seen last on 20 May, the visual acuity was 0.8 Logmar in each eye with correction of her long sighted and astigmatic refractive error.  Her near vision was N8 but only by holding print close to her eyes.  She has minimal nystagmus and marked sensitivity to light.

 

In summary therefore [the claimant] is severely visually impaired and her vision is much worse outdoors in natural daylight and sunlight.  There is unfortunately no treatment for this condition at the present time apart from low vision aids.”

 

The DWP then requested a hospital report, in which Professor Moore stated that the claimant’s binocular visual acuity was not less than 3/60, but he added:

 

“not in the eye clinic but outdoors the vision is likely to be less than 3/60 as the vision is much worse in sunlight”.

6. Following a refusal to reconsider the decision, the claimant’s mother appealed on 25 July 2011, specifically putting in issue entitlement to higher rate mobility component on the basis of the new legislation.  On 8 December 2011 the tribunal unanimously allowed the appeal, giving the following reasons for their decision:

 

 “1. The Tribunal is required to make its decision on the balance of probabilities.

 

2. The Tribunal recognised that the medical evidence [set out above] was from a senior and expert professor of ophthalmology at the country’s foremost specialist hospital for eyes.

 

3. The Tribunal finds, on the balance of probabilities, that if Professor Moore states that [the claimant’s] visual acuity is likely to be less than3/60, that this is the best evidence which is available or could be available.  The Snellen’s test, by its nature is conducted in a darkened room where [the claimant’s] acuity will be better due to the fact that natural light makes her vision worse.

 

4.  The tribunal finds that to make use of the faculty of walking outdoors it is an outdoor environment that [the claimant’s] visual acuity must be established.

 

5.  The Tribunal accepts the evidence of Professor Moore in this regard.

 

6. Accordingly, the criteria for the higher rate of mobility component are met and the appeal is allowed”

 

7. The Secretary of State applied for and was given permission to appeal by a district tribunal judge on the ground that the tribunal had erred in law in awarding the claimant  higher rate mobility component when there was no actual Snellen Scale measurement recording the claimant’s visual acuity as worse than 3/60.  In my observations on the appeal, I directed a submission describing how visual acuity is measured on the Snellen Scale and the Secretary of State’s representative responded to that direction by sending a copy of the relevant DWP Customer Case Management guidance.

 

8. Mr Heath submitted that the test to establish acuity on the Snellen Scale requires standardisation of the illumination of the chart and of the distance between the chart and the test subject, together with maximum contrast between the letters on the chart and the background. It is therefore not practicable to perform the test out of doors and accordingly the tribunal erred in considering what the claimant’s Snellen Scale measurement would be in circumstances in which it could not in fact be measured.. The only actual Snellen Scale measurement in this case established that the claimant’s visual acuity was better than 3/60 and the tribunal should therefore have simply dismissed the appeal.

 

9.  The claimant’s parents relied in particular on the tribunal’s reasoning that, since higher rate mobility component is concerned with a claimant’s ability to walk out of doors, it is a claimant’s visual acuity in those conditions which has to be established.  If on the basis of actual Snellen test results it is possible to say on the balance of probabilities that a claimant’s visual acuity on the Snellen Scale will be worse than 3/60 when out of doors, the test of entitlement to higher rate mobility component in regulation 12(1A)(a)(i) will be satisfied.

 

10. In Secretary of State for Work and Pensions v MG (DLA) [2012] UKUT 429 (AAC) Judge Wikeley held that a tribunal had erred in law in only considering a claimant’s behaviour when outside a secure and structured home or school environment in deciding whether the claimant was entitled to higher rate mobility component under regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991 (severe mental impairment).  On this point, Judge Wikeley followed the approach of Mr Commissioner Turnbull (as he then was) in R(DLA7/02 who, in differing from the approach taken by me in CDLA/2054/1998, said:

 

“I accept that it may be difficult to see that reg. 12(6) really falls within the scope of the rationale behind the other heads of entitlement to the mobility component (whether at the higher or lower rate).  But that cannot justify giving regulation 12(6) a meaning other than it plainly has.”

 

11.  As the tribunal in this case recognised, it may equally be difficult to see why entitlement to a benefit which is concerned with mobility out of doors leaves out of account the claimant’s visual acuity in an outdoor environment.  However, I have come to the conclusion that regulation 12(1A)(a)(i) must be read as applying only to an actual, and not a hypothetical, Snellen Scale measurement.

 

 

 

12.  Unlike the previous functional tests of visual disablement, it seems to me that the test in the new regulation 12(1A) of the 1991 Regulations is intended to provide an objective and consistent yardstick of entitlement.  At the cost of penalising some claimants for whom the test does not provide an accurate indication of their visual impairment when out of doors, the new test relies on a scientific measurement of visual acuity carried out in controlled and standardised conditions.  I agree with Mr Heath that it cannot have been intended that the provision should apply to the results of a hypothetical test carried out in conditions in which the test cannot in practice be performed.  For those claimants like the appellant in this case, whose visual acuity varies according to the brightness of the surrounding light, it would in any case be impossible to say what measurement should be used for the purposes of determining the claim.

 

13.  The new regulation 12(2A) of the 1991 DLA regulations specifies in precise detail the conditions which have to be satisfied in relation to both visual acuity and visual field defects in respect of one or both eyes in order for a claimant to qualify as severely visually impaired.  If the regulation were taken as applying to anything other than actual Snellen Scale measurements, it would in my view introduce into the test elements of judgement and interpretation which the very prescriptive terms of the new regulation were intended to exclude.  I therefore uphold Mr Heath’s submission that the decision of the tribunal involved the making of an error on a point of law and, accordingly, allow the Secretary of State’s appeal.

 

14. I have however decided not to substitute my own decision for that of the tribunal since there seems to be some doubt as to the precise test which was used to measure the claimant’s visual acuity.  Professor Moore’s letter of 6 June 2011 expresses the claimant’s visual acuity in terms of the Logmar scale and it has not yet been possible to establish the equivalent Snellen Scale measurement.  The hospital report states that the claimant’s visual acuity is better than 3/60, but the claimant’s mother is not sure how that conclusion was arrived at. This appeal can only take into account circumstances obtaining before 21 April 2011, but the claimant’s condition is stable and it seems to me to be right that the claimant’s parents should have an opportunity of satisfying themselves of the correctness of the Snellen Scale measurement on which the Secretary of State’s decision has been based.  I am therefore prepared to refer the case to the First-tier Tribunal, but would expect the claimant’s mother to withdraw the appeal if it becomes clear that the Secretary of State’s decision was in fact correct in the light of what I have decided.

 

15.  For those reasons, my decision is as set out above.  

 

 

E A L BANO

28 May 2013