Decision No: C6/03-04(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 1 April 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Department, with the leave of the Legally Qualified Member, against the decision of an Appeal Tribunal.  The Tribunal, allowing the claimant’s appeal, decided that, from and including 1 February 2002, the claimant is to be considered as incapable of work and therefore entitled to incapacity benefit (IB) from that date.

2.	The claimant became unfit for work on 22 August 2001 by reason of thyrotoxicosis and an eye disease and was paid IB from and including 25 August 2001.  Later doctor’s statements received in support of his claim apparently, according to the Department, referred to “thyroid”, although I personally have been unable to read the handwriting of the doctor who has made the relevant diagnosis.  The claimant was subject to the Personal Capability Assessment test and, on 1 February 2002, a decision maker, after examining a report dated 13 December 2001 from the Department’s medical support services, decided that the claimant did not satisfy that test from and including 1 February 2002.  Accordingly the decision maker superseded the award and disallowed benefit.  The claimant then appealed to the Tribunal which heard the case on 6 May 2002.  However at this hearing the Tribunal arranged for the appellant’s consultant ophthalmic surgeon (referred to as an ophthmologist in the adjournment terms) to prepare a report for the Tribunal.  This report was produced by Mr L... FRCOphth dated 16 October 2002.  Then on 1 April 2003 the Tribunal, which had the same members as at the 6 May 2002 hearing, gave the claimant a score of 3 points for the activity of walking up and down stairs (descriptor 2(d)) and 12 points for the activity of vision (descriptor 12(d)).

3.	The Department applied for leave to appeal on the grounds that the Tribunal had erred in law in awarding 12 points in respect of descriptor 12(d).  On 2 June 2003 the Legally Qualified Member granted leave to appeal.  
4.	In this case the relevant test that decides whether the claimant is entitled to incapacity benefit is the Personal Capability Assessment (see part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).  The Assessment is applied by measuring prescribed activities using descriptors which, when given the relevant numerical scoring value, have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.  The present case is concerned with the threshold of 15 points for physical disability descriptors.  

5.	The Legally Qualified Member made the following record of proceedings of the oral hearing of the case in which Miss K... was the Presenting Officer, Councillor T... represented the claimant and Dr C... was the medical member of the Tribunal: -

	“1.	DOCUMENTS CONSIDERED:
1.	New report from Dr L..., Consultant Opththalmologist, dated 16 October 2002.
2.	Submission papers prepared by Department.

2.	RECORD OF TRIBUNAL PROCEEDINGS [including evidence considered and details of the adjournment application (if any)]

	[The claimant] attended with his representative Mr T....  Miss K... attended for Department.

Chairman said that last hearing on 16 May 2002 was adjourned so that a report could be obtained from Dr L... of M... Hospital, Appellant’s opththalmologist.  This report is now on file and will be discussed later said chairman.

Appellant had identified only 2 problem areas in Personal Capability Assessment – 1. Stairs and 2. Vision.  3 points has already been awarded for stairs 2d = 3 points (Appellant needs to hold on) and panel does not propose to discuss this further.  Miss K... in agreement.

The area of vision discussed.

Chairman said new medical report was at Tab 2 and she invited Dr C... to make his interpretation of the report to all present.

Dr C...
Key sentences in report are as follows “… While both eyes are working well independently and are not at threat of visual loss at any time, they are not working together in a useful way and he has disabling double vision whenever he opens his right eye”.

From a purely practical point of view it would appear to chairman and myself that Appellant with this disabling double vision should qualify for a score of 12d = 12 points – cannot see well enough to recognise a friend across the room at a distance of at least 5 metres.

Chairman, to Ms K...
We were proposing to award an addition 12 points to existing score, what would your view be?

Ms K...
Although I accept [the claimant] has a serious eye problem, the vision test I would suggest is one of monocular vision.  If [the claimant] has perfectly good eyesight with his left eye, then he should not be awarded any points for vision.

[The claimant], took off his dark glasses so all present could see his right eye, with drooping eyelid.

Chairman:  Is your right closed all the time by itself or does it sometime open?

[The claimant]:  At times the eye is closed by itself but most of the time it only partially closed and I have to deliberately close it myself in order to see clearly.  This all started 3 years ago.  It’s Grave’s disease.

Chairman:  This is a case where I feel I should prepare a detailed “Reasons for Decision” report in light of Ms K...’s comments.

Nothing else by all parties.”

6.	The Tribunal gave the following reasons for its decision: -

“A previous hearing was adjourned so panel could have a comprehensive report from Dr L... in the M... Hospital, who is presently treating [the claimant].

Mainly from Dr L...’s report, the panel make these initial findings of fact, prior to decision giving reasons for:

1.	[The claimant] has a very serious disease affecting his eyes and his general health, ie Thyroid Disease with associated orbitopathy.

2.	Appellant suffers from ptosis of right upper lid and marked double vision on lifting the right eye lid associated with restriction of his eye movements particularly in down gaze.

3.	The degree of ptosis, or drooping of right eye lid varies.  Sometimes the right eye lid is practically fully closed, but more generally, the right eye has partial sight when the right eye lid is not fully closed.

4.	The panel accept that if [the claimant], for example, wore a patch completely covering his right eye that his vision would be adequate and he would not score any points under the descriptor relating to vision.  This is because [the claimant] has good vision 6/6 in the left eye (page 1 of Dr L...’s report).

Although we accept that [the claimant] would have excellent vision in his left eye if he were monocular, this is not the case in everyday life for Appellant.  Appellant has binocular vision and we fell it is totally artificial to suggest that [the claimant] could keep his right eye closed for most of the day, and thereby see clearer.  We accept that [the claimant’s] right eye is more often than not slightly open (naturally) for most of the day and during these times as Dr L... says, “they – (the eyes) are not working together in a useful way and he has disabling double vision whenever he opens his right eye”.

Panel feel that a score of 12 points under the descriptor “Cannot see well enough to recognise a friend across the room at a distance of at least 5 metres” is appropriate for Appellant.  Using binocular vision we accept that with [the claimant’s] disabling double vision he could not recognise a friend indoors at a distance of 5 metres.

[The claimant] also has a score of 3 points for stairs – he needs to hold on going up stairs for safety reasons.  This score was awarded by decision maker and Ms K..., representing the Department today did not dispute this score awarded for stairs.

Total score is 12 points for vision plus 3 points for stairs, making a final total of 15 points.  Having scored 15 points from physical descriptors, [the claimant] has satisfied the Personal Capability Assessment and appeal is allowed.”

7.	The relevant activity (12) set out in Part I of the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 is “Vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn” and the relevant descriptor (12(d)) is “Cannot see well enough to recognise a friend across the room at a distance of at least 5 metres.”

8.	Although neither party sought a hearing of this appeal, having considered all the circumstances of the case I arranged a hearing.  At this hearing before me the claimant, who was present, was represented by Councillor T... while the Department was represented by Mr Toner of the Decision Making and Appeals Unit.

9.	In granting leave to appeal the Legally Qualified Member of the Tribunal stated that the point of law at issue was whether the claimant should be obliged in the circumstances to wear a patch over his bad eye (his right eye), thereby having monocular as opposed to binocular vision.

10.	The Department’s basic legal argument was that the Tribunal had erred in law by not considering the claimant’s ability to see with his left eye.  In addition the Department submitted that the Tribunal erred in law by not considering the claimant’s ability to see with his left eye when using a patch over his right eye.

11.	Mr Toner specifically submitted that the Commissioner’s decision C33/00-01(IB) (a decision of Mrs Commissioner Brown which concerns the effect of diet on continence) was relevant.  In that case the Commissioner endorsed the Great Britain decision of Mr Commissioner May QC in CSIB889/99 (which I have referred to in paragraph 21 herein) and stated as follows at paragraph 10:

“I am in agreement with Mr Commissioner May that the Tribunal can take into account fact that any problems can be controlled by way of diet.  If following the proper diet would give a claimant control and if it would be reasonable and practicable for him to be expected to follow this diet then the functional ability, with the diet being followed, is what should be assessed.  If the claimant has the means of acquiring a better measure of control over bowel and or bladder and does not adopt this measure it is doubtful if it could be said that he has an actual loss of control coming from a specific disablement.  It appears much more to be a matter of choice and that is not what the descriptors are intended to embrace.”

12.	Mr Toner also relied on Commissioner’s decision C76/98(IB) (a decision of Mrs Commissioner Brown concerning hearing disability) in which the Commissioner stated at paragraph 9:

“As regards the matter of the hearing descriptor I am also of the view that some reasonable adjustment of position can be included within the descriptor.  For example if the claimant could hear well enough to understand someone talking in a normal voice on a busy street by turning his good ear toward the person then such adjustment is certainly permissible.”  

13.	Mr T..., in his oral submissions, relied on the fact that there was written evidence from Mr P... FRCS that he felt that “if [the claimant] had to wear a patch over one eye say eight hours per day, it could lead to difficulty in him using his eyes together in the future”.  Accordingly the conclusion must be that the claimant should not be required to wear a patch.

14.	However, it must be noted that the letter containing this information was dated 22 August 2003, i.e. more than three months after the Tribunal hearing, and therefore the Tribunal could not have had the benefit of this evidence.  

15.	It is important to appreciate that the adjudicating authorities are normally not concerned whether a claimant has monocular vision as opposed to binocular vision.  None of the descriptors ((12)(a)-12(f)) require a lack of binocular vision before a particular descriptor is held to be appropriate.  In relation to 12(d) in particular, it will probably be comparatively rare for the lack of binocular vision to be an effective cause of someone being unable to “see well enough to recognise a friend across the room…etc”.  In addition the activity that is being assessed is “vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn”.  Again binocular vision is not referred to.  

16.	However, it is also relevant that the particular activity is “vision…with glasses or other aid to vision if such aid is normally worn”.  A patch, in my view, certainly is capable of being considered to be an aid to vision if normally worn, if the wearing of the aid makes it easier for a person to see.  

17.	However, the question arises – what is the situation of a person who refuses to use an aid to vision, such as a patch, even if it would be unreasonable not to wear such an aid? (This may not be the present case in light of the evidence now available from Mr P..., even though such evidence is not directly relevant to the Commissioner’s decision in this case as this evidence was not available to the Tribunal or even in existence at the date of the Tribunal hearing).

18.	In my view a Tribunal deciding a case such as the present appeal must be very careful to ascertain the relevant facts, bearing in mind the wording of the relevant descriptors.  In addition it seems to me that there were some obvious issues unresolved when the Tribunal made its decision.  A Tribunal’s inquisitorial role need not be specifically exercised on every occasion where it is possible so to do but it seems to me that there were a number of unanswered questions in this case that cried out to be answered. Has the claimant worn the patch for a period less than 8 hours but not all day?  Has the claimant ever changed the patch from time to time from the right to the left eye?  Has the claimant deliberately preferred poor vision with two eyes as opposed to better vision with one eye and, if so, why?  We do not know the answer to these questions.

19.	Any Tribunal hearing this appeal is bound, by the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, not to take into account any circumstances not obtaining at the time when the decision appealed against was made, namely 1 February 2002.  Nevertheless this does not prevent a Tribunal considering evidence that has come into existence after that date as long as it pertains to the situation or position before that date.  The Tribunal, in my view, in these somewhat unusual circumstances, ought to have endeavoured to ascertain what the relevant factual situation was.

20.	This would require the Tribunal endeavouring, by questioning of the claimant or perhaps seeking additional medical evidence, to find out why, as it appears, the claimant preferred to have poor binocular vision rather than reasonable monocular vision.  There may be a simple answer to this question (although I note incidentally, that it is only answered to a very limited degree by Mr P...’s letter which post-dated the Tribunal hearing).  As stated earlier, obvious relevant questions arise about the effect on the claimant’s vision if patches (or other optical devices) are worn for long, medium or short periods and about the effect of changing the patch (or other optical device) from eye to eye.  The answer to these questions may well decide this case as there may perhaps, be clear and cogent evidence that patches or similar devices should not be worn in any circumstances. 

21.	However, it appears to me likely that the Tribunal may be required to take into account the concept of reasonableness.  In my view there is relevant guidance from Mr Commissioner May QC, in the Scottish case CSIB/889/99 where he states at paragraph 9, in relation to an appeal concerning continence, as follows: -

“To me it is obvious that it would be absurd that if satisfaction of points scoring descriptors could on a reasonable and practical basis be avoided by the claimant controlling his diet then if the claimant fails or neglects to take these steps he could obtain the benefit of scoring points.  The scheme of the legislation is to measure by points whether a claimant is capable or incapable of work.  To hold other than what I have would seem contrary to that scheme.  I do however accept the Secretary of State’s position that the matter is not absolute and I do accept the concept of reasonableness.  Whether the steps are practical and in the circumstances reasonable is a matter for the tribunal.”

22.		In my view the same principles must apply in vision cases if the facts in the case make the issue of “reasonableness” relevant.  If a claimant, by taking reasonable and practical steps in relation to the use of patches or other optical devices, could improve his vision, his vision should be assessed for the purposes of the Personal Capability Assessment as if he used such patch or device.  However, adopting the terminology of Mr Commissioner May in CSIB/889/99, whether the steps are practical and reasonable must be a matter for the Tribunal, taking all circumstances, including relevant medical opinion, into account.

23.		Accordingly I allow the appeal because I hold that the Tribunal erred in law by not dealing with all the relevant issues that have arisen in this case.  Therefore I set aside the decision and refer the case to a freshly constituted Tribunal to re-decide the appeal.  In particular that Tribunal, depending on the evidence available to it, will probably be required to decide whether the claimant will have his vision improved, by taking reasonable and practical steps in the use of patches or similar devices.  The fact that the vision may or may not be binocular, if such a device is used, is not a relevant factor in itself when assessing vision under the Personal Capability Assessment.  In addition, whether the steps that could be taken to improve the vision are practical and, in the circumstances, reasonable must be a matter for the Tribunal, taking all the circumstances, including relevant medical opinion, into account.  The Tribunal is required by legislation (see paragraph 19 herein) not to take into account any circumstances not obtaining on 1 February 2002 but it can still consider relevant evidence as long as it pertains to the situation or position before that date.

(signed):  J A H Martin QC

Chief Commissioner

28 June 2004