DECISION OF THE SOCIAL SECURITY COMMISSIONER
- I dismiss the appeal by the claimant. For the reasons below, the decision of the tribunal is not erroneous in law.
- The claimant is appealing, with permission of the chairman, against the decision of the Bolton appeal tribunal on 28 March 2001. The tribunal's decision was that the appellant was not incapable of work from and including 29 September 2000.
- I held an oral hearing of this appeal at Bury County Court on 10 April 2002. The appellant attended and was represented by Mr Robert Williams of Bolton Welfare Rights. The Secretary of State was represented by Mr Huw James, instructed by the Solicitor to the Department for Work and Pensions. I am grateful to both for their submissions.
The facts
- The claimant has substantial and permanent visual problems. The question is whether his visual limitations are such that he is incapable of work on the relevant date for this appeal. The facts are not in dispute. The claimant is blind in his right eye. His left eye has twice been the subject of operations to replace a detached retina. He has had the lens replaced in that eye because of a cataract. The eye is also myopic. He has limited daytime near and distance vision in the eye. As tested by the descriptors for vision in the personal capacity assessment, he could see the shape of furniture in a room, and he could see well enough to recognise a friend across a room. The examining medical practitioner put the sight in his left eye as 6/6, but noted that this could not be sustained. The claimant accepted that he could see large print at normal reading distance. What he could not do was continue to look at large print for any sustained period. I put this in the past tense as the decision under appeal was made in September 2000, but the problems are permanent. I add one fact confirmed at the oral hearing before me. The claimant is registered as partially sighted with the local authority.
The decision under appeal
- The key parts of the statement of reasons of the tribunal are:
"The BAMS doctor found that he could read 16 point print at a distance greater than 20 centimetres, and that opinion was borne out by both the appellant's general practitioner and, indeed, the appellant in oral evidence.
The issue before the tribunal was whether the period during which the appellant could read such print, before having to cease by reason of head pains or interference with vision, was such as to satisfy the reasonable frequency test.
The tribunal accepted that the appellant had a finite limit to his ability to read and also that he only spent a few seconds reading at the medical examination. The appellant's evidence was that he could read for about ten minutes before discomfort or loss of vision when he had to stop. His ability to read again was governed by how tired he got. Sometimes he could start again in ten minutes and sometimes he needed to wait for one hour.
...
The tribunal found, in the light of the above evidence, that the appellant was able to read 16 point print with reasonable frequency and, although his periods of ability would not be useful in his previous clerical occupation, in the context of the personal capacity assessment the particular descriptor was not satisfied. No other vision descriptors were appropriate and as a consequence, the appellant scores no points and his appeal must, therefore, fail."
Grounds of appeal
- On behalf of the appellant, Mr Williams challenged this on the grounds of the issue of reasonable regularity and by reference to CSIB 17 1996. This is a decision of Commissioner Walker QC about the capacity of someone with limitations to the use of his hands caused by Dupuytren's contracture. The descriptors about manual dexterity were subject to argument before the Commissioner. Mr Williams argued that the application of the vision descriptors to his client had to be approached in the same way, and that the tribunal had not done this.
- Commissioner Walker endorsed guidance from the Chief Commissioner of Northern Ireland in C 1/95 (IB) on the general approach to physical descriptors:
" The real issue is whether, taking an overall view of the individual's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it would be of no consequence if, for most of the time, and in most circumstances, he could not do so."
On the specific issue of use of a pen or pencil, Commissioner Walker directed:
"That an individual managed to complete a form does not necessarily and simply mean, as the tribunal seem to have concluded, that a pen or pencil could be used. Applying the Northern Ireland Chief Commissioner's approach, that has to be determined in the light of reasonableness and some regularity. The evidence before the tribunal was that the claimant did complete the form using a pen - "but it took a while". That qualification should have been explored. It may be that even so the claimant was in a general way able to use a pen or pencil. But if the "while" was sufficiently long or there were breaks of rests it may be that the answer should be otherwise..."
Can he see to read 16 point print?
- The personal capacity assessment assesses vision "in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn". The critical test for the claimant is physical descriptor 12(c) in the Schedule to the Social Security (Incapacity for Work)(General) Regulations 1995 (as amended):
Cannot see well enough to read 16 point print at a distance greater than 20 centimetres
(I have set the text in 16 point print to give the wording its full context.).
- Commissioner Pacey, who directed the oral hearing, drew attention to the decision of Commissioner Brown of Northern Ireland in C12/00-01 (IB) on this descriptor. This referred to decision CIB 4988 1997 of Deputy Commissioner Warren, to which the secretary of state's representative also referred. Reference is also made to decision CIB 333 1998 of Deputy Commissioner Street. Mr James submitted that I should follow these decisions, that in the light of these decisions the argument presented by Mr Williams was not relevant, and that the tribunal was not wrong in law in its approach.
- In C12 /00-01 (IB), the tribunal concluded that the test in descriptor 12(c) involved sustained reading activity - of several paragraphs of reading rather than several chapters. Commissioner Brown decided that this was wrong in law, and that on the facts the appellant could "see to read" 16 point print. The Commissioner stated the test (at paragraph 14) to be:
"The visual ability to distinguish 16 point print characters so as to be able to decipher and distinguish individual words. It does not import any sustained reading ability."
The Commissioner continued (paragraph 15):
"In light of my decision on the interpretation of the descriptor the other arguments relating to reasonableness and reasonable regularity are not relevant. The descriptor does not require the claimant to read for any particular length of time... it is vision which is tested not any sustained reading ability."
- I agree with that test. "Can see to read" means "has visual ability to distinguish". It imports no sustained reading ability or, indeed, any reading ability at all (in the sense of understanding words rather than identifying letters). Descriptor 12(c) appears to be a specific application of the approach of the standard medical test for vision by use of a test card with letters of different sizes on it (the Snellen eye chart used by doctors and opticians). That requires ability to identify individual letters of different sizes rather than to read any meaning into them. That is how the tribunal interpreted the descriptor, and it was right to do so. I hesitate about agreeing with the Commissioner's comment about "the other arguments relating to reasonableness and regularity". I take that as an application of those issues to that case rather than a more general proposition.
- I do not agree with the submission of Mr Williams as to the application of the regularity test from CSIB 17 1996. The question for descriptor 12(c) is whether the claimant in this case has the visual ability to distinguish letters under the required conditions on a reasonably regular basis. The tribunal looked at precisely that issue, and reached a clear conclusion.
Registration as a blind person
- I raised one issue with the parties at the oral hearing that was not considered in the papers or by the tribunal. This was whether it was relevant that the claimant was or could have been registered as either blind or partially sighted with his local authority. Mr Williams told me that his client was registered as partly sighted. Mr James, in response, made the point that this had not been raised at the tribunal hearing and was not directly relevant to my decision. In these circumstances, I do not think the tribunal erred in not dealing expressly with the point. (Had the appellant been registered as blind, I would have held otherwise.) But it is, in my opinion, where consideration of a borderline case like this should start, at least where the claimant is ordinarily resident in England or Wales, and it would have been better practice for the tribunal to check if the claimant was registered with his local authority.
- In every case of application of the personal capacity assessment, it should first be decided if any exemptions or deeming provisions apply. Regulation 10 of the Social Security (Incapacity for Work)(General) Regulations 1995 provides that a person shall be treated as incapable of work on any day in which any of the circumstances set out in that regulation apply to the person. Circumstance (c) in regulation 10(2), as applied to those in England and Wales, is:
"that he is a blind person whose name is on a register complied and maintained by a local authority under section 29 of the National Assistance Act 1948..." .
[Registration requirements do not apply to local authorities in Scotland or Northern Ireland, where there are different provisions, and this point would therefore not have been relevant to the decision of Commissioner Brown.]
- Section 29 of the National Assistance Act 1948 provides for registration by a local authority of, among others, those who are "blind". "Blind" is defined by section 64(1) of that Act as meaning those who are "so blind that they cannot do any work for which eyesight is essential". No other requirement for registration as a blind person is laid down by law, although more precise administrative details are given to local authorities by departmental guidance.
- The current guidance in England is, I understand, Department of Health circular LAC (93) 10. Appendix 2 to that circular sets out the Secretary of State's approvals and directions to English and Welsh local authorities under section 29 in formal terms. The direction at paragraph 2(2) of Appendix 2 is to register "persons who are ordinarily resident in their area". That limit should be borne in mind, but the formal directions include no other relevant limits. A separate circular, LAC (93) 7, deals with ordinary residence. Appendix 4 to LAC (93) 10 gives details of registration practice and related statistics under section 29. Paragraphs 5 and 6 of Appendix 4 refer to visually impaired people. But they do not lay down any definition. Instead, paragraph 6 states:
"There are well established procedures for determining whether a visually impaired person is blind or partially sighted and thus whether the terms of section 29(1) – and registration – apply."
The guidance is that this is to be determined by reference to the (then) district health authorities for certification. The guidance also recognises that registration is a requirement for other advantages.
- The effect of regulation 10, read with section 29, is that if someone is sufficiently blind that he or she cannot do any work for which eyesight is essential then he or she is treated as not capable of work from the date of registration as blind with the local authority. Local authorities in England and Wales are required to keep registers. They are also asked to make the date of registration the same as the date of certification of blindness, to avoid loss of benefits. [As noted, this does not apply elsewhere in the United Kingdom.] In England and Wales, subject to the residence point, I think it right in considering the operation of the personal capacity assessment that it can be assumed that those who should be registered as blind are so registered. If that is the starting point, the physical descriptors about vision then deal only with those who are not "blind" in the National Assistance Act 1948 sense, and who are therefore not so disabled visual impairment as to be prevented from doing any work involving sight. That, in my opinion, is generally relevant to the way in which the visual descriptors are interpreted and applied. I set this out because in my opinion it confirms the approach to descriptor 12(c) I have followed, and it deals in part with the point about regularity Mr Williams pressed before me.
- In this case, the appellant was registered as partially sighted, not blind. An individual can be registered by a local authority as partially sighted rather than blind, and the implication is that the person is not so blind as to meet the section 64 definition. But there is no statutory definition of "partially sighted". Although the language of regulation 10(2)(c) does not make the point entirely clear, I regard registration as "partially sighted" as outside the scope of regulation 10. That registration is directly relevant to any application for work that the appellant is expected to make if claiming jobseeker's allowance, but not to this appeal.
David Williams
Commissioner
18 April 2002
[Signed on the original on the date shown]
