Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/4126/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Nicholas Paines QC

 

Decision:  I have to dismiss this appeal as the decision of the First-tier Tribunal did not involve any error of law.

 

 

REASONS FOR DECISION

 

1.               This appeal concerns the route of entitlement to the higher rate of the mobility component of disability living allowance for severely visually impaired people that was introduced in April 2011.  At the time the First-tier Tribunal heard the appeal, in September 2012, both they and the claimant’s representative could find no case-law on the new provisions; the tribunal themselves suggested that the claimant seek a ruling from the Upper Tribunal on the issue in this appeal, and the claimant appeals with the permission of a First-tier Tribunal judge.  Since then Judge Bano has given a decision on a different issue arising under the provisions, [2012] UKUT 0267 (AAC), which contains a valuable summary of the working of and background to the new provisions.  I shall not repeat what he said, except to the extent necessary to explain my decision.

2.               The claimant, who was born in 1960, has suffered a brain haemorrhage and, more recently, a condition of the auto-immune system which have left her with impaired vision as well as other problems.  In 2009 her award of DLA was increased to the middle rate of the care component (which she still receives and is not in issue in this appeal) together with the lower rate of the mobility component on the basis of her need for guidance and supervision when out of doors.  At that time her ophthalmic consultant certified her as being sight impaired (partially sighted), with very little visual acuity in her right eye and an acuity measured at 6/24 in her left eye, with extensive loss of visual field.

3.               In February 2012 the claimant’s consultant examined her again and found that her eyesight in her left eye had deteriorated to a measurement of 6/60; she still had extensive loss of visual field.  He certified her as severely sight impaired (blind).  In March a representative of the claimant asked the DWP for a decision on whether the claimant was entitled to the higher rate of the mobility component, but a DWP decision-maker decided that she was not.

4.               The new provisions on entitlement for severely visually impaired people are set out in Judge Bano’s decision.  In summary, a new subsection in section 73 of the Social Security Contributions and Benefits Act 1992 entitles a person to the higher rate of the mobility component if she “has such severe visual impairment as may be prescribed” by Regulations and “satisfies such other conditions as may be prescribed”.  A new paragraph (1A) in regulation 12 of the Disability Living Allowance Regulations 1991 says that a person is  to be taken as being severely visually impaired if they have been certified as being severely sight impaired or blind and have

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

(ii) 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.

5.               The references to visual acuity are to visual acuity measured on the Snellen scale, which Judge Bano describes in paragraph 3 of his decision.  My understanding of the test (but see further below) is that the patient is seated at a distance of 6 metres from a brightly lit or back-lit chart showing eight rows of capital letters of decreasing size.  A person with normal vision can read (for example) the single letter in the top row at a distance of 60 metres and the seventh row at 6 metres.  If the patient (at a distance of 6 metres) can read the letter in the top row but nothing else, their visual acuity is measured as 6/60: they can make out at a distance of 6 metres a letter that a person with normal vision would be able to read at 60 metres.  If the patient can read the seventh row, they are assessed as having normal vision, measured as 6/6.  If they can read the eighth row, their vision is better than average normal vision. 

6.               If the patient cannot read any letters at a distance of 6 metres, they are moved to a distance of 3 metres.  If, at that distance, the patient can only read the top row letter, their visual acuity is measured as 3/60: they can see at 3 metres what a person with normal vision can see at 60 metres.  A Snellen measurement is therefore a ratio, in which the first figure is the distance at which the patient can read a letter of a particular size and the second figure is the distance at which a person with normal visual acuity can read it.

7.               The practical effect of the new provisions is that a person is entitled to the higher rate of the mobility component if they cannot read the top row letter on the Snellen chart at 3 metres or if they cannot read it at 6 metres and their visual field is restricted to 10 degrees.  The claimant’s consultant found in February 2012 that the claimant’s visual acuity in her right eye was restricted to an ability to count fingers and that of her left eye was 6/60. The DWP refused to award the higher rate of the mobility component since the claimant’s visual acuity was not “less than 6/60” as required by the Regulations. 

8.               The claimant appealed; the decision was reconsidered but not changed.  The appeal came before the First-tier Tribunal in August 2012.  The claimant was represented by a barrister; the only issue raised was her entitlement to the higher rate of the mobility component.  The claimant’s representative relied on a factsheet on the website of the RNIB, the well-known charity that supports blind and partially sighted people.  This said

“If your visual acuity is:

1. less than 3/60, meaning you can only read the top line of an eye test chart from 3 metres away, you will qualify for the higher rate

2. more than 3/60 but less than 6/60, meaning you can only read the top line of the eye test chart from 6 metres away, your visual field will need to be considered as well.

…..

If your visual acuity is better than 6/60 you will not qualify, for example if your visual acuity is 6/36 or 6/18.”

9.               The representative relied on that final sentence as indicating that a person with visual acuity of 6/60 would qualify.  The tribunal rejected that, holding – correctly in my view – that the expression “less than 6/60” does not include a person with visual acuity of 6/60.  They added that there was no evidence as to whether the claimant’s loss of visual field, whilst described by the consultant as “extensive”, was such as to satisfy the further condition in the regulation.

10.           The grounds of appeal to the Upper Tribunal rely on the same argument.  I am certain that the tribunal were correct. As a matter of language, a visual acuity of less than 6/60 – which implies a figure lower than 6 in the first half of the ratio – does not include an acuity of 6/60.

11.           The tribunal did not therefore need to consider the claimant’s visual field any further than they did.  The form of certificate of visual impairment that the consultant used, which only provides for they ticking of boxes against the formulas “total loss” or “extensive loss” of visual field and “primary loss” of either the peripheral or the central field, does not appear to be designed to provide the information necessary to decide upon entitlement in a case of visual acuity of 3/60 or more but less than 6/60.  If the claimant’s had been such a case, it would probably have been necessary for the tribunal to adjourn pending further evidence.

12.           The RNIB factsheet does not exactly follow the language of the regulation.  It says “more than 3/60” where the regulation says “3/60 or more” and leaves unclear the position of someone whose acuity is measured at 3/60 or at 6/60.  I am also not sure – though I hesitate to disagree with a specialist organisation on a technical point – whether the RNIB are correct to say that a visual acuity of less than 3/60 means that you can only read the top line of an eye test chart from 3 metres away; my understanding is that an acuity of less than 3/60 means that a person cannot read the top line of an eye test chart from 3 metres away.  The same goes for what they say about acuity of less than 6/60.  Whether I am right or wrong in that does not affect my decision, which is simply that “less than 6/60” does not include a measurement of 6/60, but those advising the claimant may care to take this up with the RNIB who (if I am right) might wish to amend the factsheet.

 

 

 

 

 

Judge Nicholas Paines QC

16 September 2013