Appeal Under Section 13 Of The Tribunals Courts And Enforcement Act 2007 By The Secretary Of State For Work And Pensions Against Yvette Robertson
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Smith,Lady Clark Of Calton |
| Date | 24 November 2015 |
| Court | Court of Session |
| Published date | 24 November 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 82
XA83/14
Lady Smith
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD BRODIE
in the appeal
under
section 13 of the Tribunals Courts and Enforcement Act 2007
by
THE SECRETARY OF STATE FOR WORK AND PENSIONS
Appellant;
against
YVETTE ROBERTSON
Respondent:
Act: Johnston QC, Gill; Office of the Solicitor to the Advocate General
Alt: Mitchell QC, Cobb; Drummond Miller LLP
Ailsa Wilson QC, Amica Curiae
24 November 2015
Parties to the appeal and issue to be determined
[1] This is an appeal to the Court of Session under section 13 of the Tribunals Courts and Enforcement Act 2007 at the instance of the Secretary of State for Work and Pensions against a decision of the Upper Tribunal dated 7 February 2014. The respondent is Ms Yvette Robertson. Because of its doubts as to the competency of an appeal by the appellant against a decision which, in its result, finds for the appellant, the court appointed an amica curiae in the person of Ms Wilson QC. In the hearing before us on 23 October 2015 the appellant was represented by Mr Johnston QC and Mr Gill. The respondent was represented by Mr Mitchell QC and Mr Cobb. Ms Wilson QC also appeared.
[2] The hearing on 23 October 2015 was restricted to the issue of the competency of the appeal and so, accordingly, is this opinion. While the issue is a relatively narrow one, in order to give it context it is necessary to say something about the decision that the appellant wishes to bring under appeal and the factual and procedural history leading up to that decision.
The respondent’s entitlement to the higher rate of the mobility component of Disability Living Allowance as at the date which is relevant for the purposes of this appeal
[3] The respondent suffers from a condition known as retinitis pigmentosa. She is virtually, albeit not completely, blind.
[4] Visual acuity may be measured on the Snellen Scale. The Snellen Scale is a measure by reference to a test in which a person reads rows of letters of decreasing size on a chart from a distance of 6 metres. The lower the row on the chart that a person can read, the better his visual acuity. Normal vision is denominated as 6/6 and lesser degrees of visual acuity are denominated by lower numerators and higher denominators. Thus, a person whose visual acuity is denominated as 6/36 can only read from 6 metres what a person with normal vision can read from 36 metres. On the relevant date for the purposes of this appeal the respondent had a visual acuity of a maximum of 6/36 in both eyes. At all relevant dates she has been in receipt of Disability Living Allowance (DLA).
[5] A feature of the respondent’s condition is that she is photophobic in bright light. This difficulty in coping with bright light means that her visual acuity outdoors is materially less than when she is indoors in artificial ambient lighting. It is only possible to take a measurement on the Snellen Scale in an indoor clinical setting. Accordingly, the level of the respondent’s visual acuity outdoors cannot and has not been measured by reference to the Snellen Scale.
[6] As provided by section 71 of the Social Security Contributions and Benefits Act 1992, DLA has two components, a care component and a mobility component. Entitlement to the mobility component of DLA is determined by section 73 of the 1992 Act, as amended by section 14 of the Welfare Reform Act 2009. As is provided by section 73 (10) and (11) there are two weekly rates at which the mobility component of DLA may be paid, the higher rate and the lower rate.
[7] Among the conditions of eligibility for the mobility component of DLA is that provided by section 73(1AB), which is that a person “has such severe visual impairment as may be prescribed.” Subsection (1AB) is one of several provisions of section 73 which create conditions under which a person who (despite other disabilities) is physically capable of walking, may nevertheless be entitled to the mobility component of DLA at the higher rate: 1992 Act section 73(1)(ab).
[8] What amounts to “severe visual impairment” for the purposes of section 73(1AB) of the 1992 Act is prescribed by regulation 12(1A)(a) of the Social Security (Disability Living Allowance) Regulations 1991. Regulation 12(1A) was inserted into the 1991 Regulations by the Social Security (Disability Living Allowance) (Amendment) Regulations 2010. It prescribes “severe visual impairment” as follows:
“(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 if 3/60 or more, but less than 6/60……
....
(b) For the purposes of section 73 (1AB) (a), 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.”
Accordingly, the entitlement to the higher rate of the mobility component of DLA of a visually impaired person who is physically capable of walking, such as the respondent, is dependent on her visual acuity, as measured on the Snellen Scale, being less than 3/60.
[9] As indicated above, at the relevant date, when the respondent’s visual acuity was measured indoors by reference to the Snellen Scale, it was denominated as 6/36. So measured the respondent did not have “severe visual impairment” as that expression is to be understood for the purposes of section 73(1AB) of the 1992 Act and, therefore, the respondent did not meet any of the relevant statutory criteria for entitlement to the higher rate of the mobility component of DLA, notwithstanding that her visual acuity outdoors was materially less than that indoors .
Later developments
[10] Without conceding their relevance to the issue of whether the appeal was competent, parties drew the attention of the court to two developments which have occurred subsequent to the relevant date.
[11] The first development is that by reason of a deterioration of the respondent’s visual acuity she has been awarded the higher rate of the mobility component of DLA with effect from 31 March 2014 by virtue of a supersession decision dated 2 June 2014.
[12] The second development is that with effect from 8 April 2013, by virtue of section 77 of the Welfare Reform Act 2012, DLA has been in the process of replacement by a new benefit known as Personal Independence Payment (PIP). Eligibility for PIP is determined by the Social Security (Personal Independence) Regulations 2013. Over time the majority of those currently in receipt of DLA will be in receipt of PIP.
Procedural history prior to the appeal to this court
[13] The respondent applied to the appellant for a review of the assessment of her entitlement to DLA. An assessment had been previously made on 29 June 2010 when it had been determined that she was entitled to the mobility component but at the lower rate. By decision dated 7 December 2011 the appellant decided, inter alia, that although she remained entitled to the mobility component at the lower rate, having regard to her level of visual acuity measured by reference to the Snellen Scale, the respondent was not entitled to the higher rate. The respondent appealed the decision of 7 December 2011 to the First-tier Tribunal (Social Entitlement Chamber). Following a hearing at Irvine on 19 September 2012, by decision dated 29 October and issued on 31 October 2012, the First-tier Tribunal upheld the respondent’s appeal and revised the decision of the appellant by finding the respondent entitled to the higher rate of the mobility component of DLA. The First-tier Tribunal felt able to arrive at this conclusion while not disputing “the arithmetic in relation to Snellen” and “notwithstanding the exact terms of regulation 12 (1A)”, because having regard to the evidence from the respondent and the consultant ophthalmologist’s report which had been produced, the respondent’s visual acuity outdoors would be “less than 6/36 and, on the balance of probabilities, also ‘less than 6/60’”.
[14] The appellant appealed to the Upper Tribunal 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 had been confirmed by the decision of Judge Bano in Secretary of State for Work and Pensions v MS (DLA) (2013] UKUT 0267 (AAC) [CDLN1899/2012].
[15] The Upper Tribunal (as constituted by Upper Tribunal Judge Sir Crispin Agnew of Lochnaw Bt QC) directed that there should be an oral hearing and had 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 [where] other persons suffering from visual impairment would not be affected.”?
Sir Crispin had given directions in which he had asked for submissions to be made, at the oral hearing, on the following issues:
“1. Is the regulation, as construed by Judge Bano in CDLA/1899/2012, compatible with the claimant's rights under Article 14 of the ECHR?
2. Does the regulation comply with the Secretary of State's equality...
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