Secretary of State for Work and Pensions v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 24 November 2015 |
| Neutral Citation | [2015] CSIH 82 |
| Date | 24 November 2015 |
| Docket Number | No 42 |
| Court | Court of Session (Inner House) |
[2015] CSIH 82
Extra Division
Upper Tribunal (Administrative Appeals Chamber)
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Process — Review — Appeal from Upper Tribunal — Competency of appeal — Jurisdiction — Question of vires of regulation raised by Upper Tribunal — Whether error of law arising from decision made by Upper Tribunal — Tribunals, Courts and Enforcement Act 2007 (cap 15), sec 13
Yvette Robertson appealed to the First-tier Tribunal (Social Entitlement Chamber) against an assessment of her entitlement to disability living allowance. By a decision issued on 31 October 2012, the FTT upheld her appeal. The Secretary of State for Work and Pensions appealed to the Upper Tribunal. By decision dated 7 February 2014, the UT upheld the appeal and revised the FTT's decision. The Secretary of State for Work and Pensions appealed to the Court of Session under sec 13 of the Tribunals, Courts and Enforcement Act 2007.
Section 13 of the Tribunals, Courts and Enforcement Act 2007 (cap 15) (‘the 2007 Act’) provides for a right to appeal against a decision of the Upper Tribunal (‘UT’) to the Court of Session on any point of law arising from that decision.
The respondent was virtually blind as a result of suffering from retinitis pigmentosa. Her visual acuity was measured and she was found not to have severe visual impairment as prescribed by reg 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) for the purposes of sec 73(1AB) of the Social Security Contributions and Benefits Act 1992 (cap 4). She therefore did not meet the statutory criteria for the higher rate of the mobility component of disability living allowance (‘DLA’). She was assessed as entitled to the lower rate of the mobility component. She applied to the Secretary of State for Work and Pensions for a review of the assessment of her entitlement. On review it was decided that having regard to her level of visual acuity measured by reference to the Snellen scale, she was not entitled to the higher rate. She remained entitled to the mobility component at the lower rate. The respondent appealed to the First-tier Tribunal (Social Entitlement Chamber) (‘FTT’) which upheld the appeal and revised the decision of the Secretary of State for Work and Pensions by finding the respondent entitled to the higher rate of the mobility component. The Secretary of State for Work and Pensions appealed to the UT. The UT set aside and remade the FTT's decision. The UT considered the effect of reg 12(1A) to be ultra vires in terms of the respondent's rights under Art 14 of the European Convention on Human Rights and Fundamental Freedoms, but recognsied that it did not have jurisdiction to reduce the regulation or set it aside. The Secretary of State for Work and Pensions appealed to the Court of Session under sec 13 of the 2007 Act. The court doubted the competency of an appeal by the appellant against a decision in his favour and appointed an amica curiae.
Held that: (1) if on a proper construction of reg 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991 the respondent had the degree of severe visual impairment which the regulation prescribed, she was entitled to payment of the mobility component of DLA at the higher rate and if the respondent was not, she did not; this was the only basis upon which the UT could decide the appeal and it was the only basis upon which the UT had decided the appeal (para 46); (2) the UT's views on the legality of the regulation were irrelevant when it came to deciding the respondent's entitlement to benefit; as the tribunal correctly observed, it did not have jurisdiction to reduce or set aside the regulation (para 46); (3) the UT's excursion into the question of vires of the regulation was obiter; it was not involved in the making of the decision, and the making of the decision concerned did not involve the making of an error of law (para 48); and appeal dismissed as being incompetent.
The cause called before an Extra Division, comprising Lady Smith, Lord Brodie and Lady Clark of Calton, for a hearing on the summar roll, on 23 October 2015.
At advising, on 24 November 2015, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] This is an appeal to the Court of Session under sec 13 of the Tribunals Courts and Enforcement Act 2007 (cap 15) (‘the 2007 Act’) at the instance of the Secretary of State for Work and Pensions against a decision of the Upper Tribunal (‘UT’) 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.
[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 six 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 six 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 sec 71 of the Social Security Contributions and Benefits Act 1992 (cap 4) (‘the 1992 Act’), DLA has two components, a care component and a mobility component. Entitlement to the mobility component of DLA is determined by sec 73 of the 1992 Act, as amended by sec 14 of the Welfare Reform Act 2009 (cap 24). As is provided by sec 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 sec 73(1AB), which is that a person ‘has such severe visual impairment as may be prescribed.’ Subsection (1AB) is one of several provisions of sec 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, sec 73(1)(ab)).
[8] What amounts to ‘severe visual impairment’ for the purposes of sec 73(1AB) of the 1992 Act is prescribed by reg...
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