CIB/2952/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.  My decision is that the decision of the tribunal is erroneous in point of law.   I set aside the tribunal's decision and, since it is not expedient for me to make the findings of fact which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.

2.  The claimant suffers from light hypersensitivity, which precipitates forms of migraine when he is exposed to fluorescent lighting or computer screens.  The issue in this appeal is whether he satisfies any of the descriptors in Activity 12 of the personal capability assessment, which prescribe different levels of impairment of vision “in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn”.

3.  On 1 February 2002 the claimant told a disability employment adviser that he could not work under the kind of strip lighting used in shops, offices and factories, or use a personal computer, and in his IB50 he also claimed impairment of vision.  However, although the claimant was awarded 12 points in respect of other descriptors following examination by an examining medical officer on 13 November 2003, he was assessed as having “no problem with vision”.  In a statement supporting his appeal against that finding, the claimant said that when exposed to office lights or computer lights, after 10 minutes he started to suffer from ‘blurriness’, loss of focus, stars in front of his eyes and loss of perception.   He also submitted a report from his consultant neurologist, confirming that he suffered from marked hypersensitivity on the basis of objective tests carried out both by the consultant and by a professor of  optometry.

4.     The tribunal rejected the claim in respect of impairment of the activity of vision for the following reasons:

“We have found, accepting the appellant’s evidence, that he is able to see in normal daylight using his special glasses as necessary.  We consider that indoors, he could not cope with fluorescent light without his glasses.  With his glasses, he could not cope for more than a short period.  We do not consider, however, that fluorescent lights are envisaged by the definition of the descriptor, which refers to bright electric light.  Electric light is normally distinguished from fluorescent lighting.

As regards bright electric light, he told the medical advisor that he could not cope with brightly lit situations.  His optometrist writes that his problems continue, even with special glasses, working under fluorescent lighting and with computer monitors.  The neurologist pinpoints problems with the computer and office environment.  We consider that, in the ordinary office setting, fluorescent lights are normally used.  The appellant told us that at home he used light saving light bulbs, which come on gradually, but did not say that he used dim light bulbs generally.  He described his special glasses as a life-saver.  He did without the lights as much as possible.  (His MP, however, formed the view that he cannot tolerate daylight or bright electric light, though the former is not confirmed by the appellant’s own evidence and the latter is not well-supported by other medical evidence.)

Applying the words of the regulations, we consider that the appellant is able to see normally in normal daylight using his glasses.  This is, indeed, his own evidence.  We consider that he is able to perform all of the vision descriptors with reasonable regularity with the use of his special glasses in normal daylight.  The words defining the circumstances in which the visual descriptors apply are based on being able to perform in one ‘or’ the other circumstance.  As the appellant can perform the descriptors effectively in one of the alternatives, he does not score any points.”

The claimant appealed on the grounds that the tribunal erred in holding that he did not satisfy any of the vision descriptors if he could see normally either in normal daylight or in bright electric light, and in drawing a distinction between fluorescent light and other forms of electric lighting.  Following my grant of leave to appeal on 20 September 2004, the Secretary of State has supported the appeal on both grounds in a submission dated 27 October 2004.

5.  In CDLA/2354/2002 it was held by Mr Commissioner Williams that an inability to meet one of the visual descriptors in either normal daylight or bright electric light will satisfy the descriptor. Although Activity 12 is primarily directed at visual acuity, following the approach taken by Mrs Commissioner Brown in the Northern Ireland case of  C12/00-01(IB), it was also held that:

“The claimant does not need a sustained ability to read in bright artificial light to have adequate vision for these purposes, but if the exposure to bright artificial light for any significant time causes pain and/or stops her focussing and/or makes her shut her eyes to avoid the effects of the light at some point, then from that point presumably she cannot meet the descriptor even for the shortest period.”

Activity 12 specifies the lighting conditions under which a claimant’s visual ability is to be tested, and a claimant satisfies an Activity 12 descriptor if, in such conditions, he or she lacks the level of visual acuity prescribed by the descriptor.  However, a claimant will also satisfy a descriptor if the task specified by the descriptor cannot be performed because of the claimant’s sensitivity to one of the types of  lighting environment specified by activity 12 in which the claimant’s ability to perform the task is to be assessed.

6.  The tribunal held that fluorescent light was not ‘bright electric light’, but I agree with the claimant and the Secretary of State’s representative that that was wrong in law.  In CIB/2584/2002 the Commissioner held that the term ‘bright electric light’ was intended to encompass the sort of lighting which complies with health and safety standards.  Fluorescent light is the form of light now generally provided in workplaces, and I agree with the Secretary of State’s representative that the term ‘electric light’ in its ordinary and natural meaning extends to fluorescent light.  In Tilling-Stevens Motors Limited v Kent County Council [1929] AC 354 it was held that the term “electrically-propelled vehicle” covered a vehicle driven by electricity generated by an internal combustion engine, and in my judgment the term “electric light” must be taken to encompass fluorescent lighting, as well as lighting produced by the electrical heating of a filament.

7.  I am therefore satisfied that the decision of the tribunal was erroneous in point of law and, accordingly, I allow the appeal and set aside the tribunal’s decision.  I agree with the Secretary of State’s representative that the effect of the claimant’s condition on his ability to perform the Activity 12 descriptors has not yet been investigated, and it is therefore necessary to refer the case for re-hearing to a differently constituted tribunal.

8.  For the reasons given by Mr Commissioner Williams in CIB/2534/2001, I consider that the concept of ‘reasonable regularity’ is relevant in this case.  The new tribunal should make findings on how quickly the claimant is affected by migraine in bright fluorescent light when wearing his special glasses and decide, in the light of that finding, whether he is able with reasonable regularity to perform each of the Activity 12  descriptors.  In relation to descriptor 12(c), the tribunal should note that it is the ability to distinguish characters which is being tested, rather than sustained reading ability-see C12/01-(IB)  

(signed on the original)	E A L Bano
Commissioner

		22 November 2004