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CIB 2584 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1 I allow the appeal.
2 The claimant and appellant is appealing with permission of a Commissioner against the decision of the Liverpool appeal tribunal on 8 February 2002 under reference U 06 064 2001 01961.
3 For the reasons below, the decision of the tribunal is wrong in law. I cannot decide it myself, so I refer it to a new tribunal to consider in the light of this decision (section 14(8) and (9) of the Social Security Act 1998).
4 I held an oral hearing of this appeal at Bury County Court on 8 January 2003. The claimant attended with her husband. The Secretary of State was represented by Ms D Haywood of the Office of the Solicitor to the Department for Work and Pensions.
Background to this appeal
5 The original decision under appeal was a decision of the Secretary of State on 24 August 2001 that the claimant was not incapable of work from and including that day. The claimant appealed this and it went to an appeal tribunal. The tribunal accepted that the claimant was suffering from dry eye syndrome, facial neuralgia, hiatus hernia and damaged ligament. But the tribunal considered that the claimant was not incapable of work so confirmed the decision. The tribunal concluded its statement of reasons in the following terms:
[the claimant’s] main problem is that after a time in the proximity of intensely bright lighting she suffers nausea, headache, eye irritation and difficulty of focus. There is no objective measurement of the degree to which this is so, and the tribunal’s view is that she could accomplish the visual descriptor tasks in the environments stated, and that no other physical descriptors were applicable.
A Commissioner granted permission to appeal specifically about the visual limitations of the claimant, and this was the issue considered at the oral hearing. I do not in this decision consider any other aspect of the tribunal decision.
The environment for testing vision
6 The vision descriptors for the personal capacity assessment are in paragraph 12 of Part 1 of the Schedule to the Social Security (Incapacity for Work)(General) Regulations 1995.
There are two aspects to that descriptor, the relevant context or environment, and the level of ability within that environment. The environment is:
Vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn.
7 It seems that Commissioners have not previously had to consider the nature of the lighting environment for the purposes of incapacity benefit. However, the issues of the use of that environment were considered thoroughly by Commissioner Brown of Northern Ireland in C 12/00-01 (IB). That case was concerned with the length of time to be taken into account when considering specific descriptor 12(c), that someone cannot see well enough to read 16 point print at a distance greater than 20 centimetres. The Commissioner’s view took into account other decisions of Commissioners on the point to conclude that the test was “see to read” not a test of sustained reading. I agree. This is a vision test, not a reading test. But an individual must nonetheless be able to see effectively to the set standard in the set environment. Someone who cannot look at anything for more than a brief period in a much longer period in the appropriate lighting environment may not meet those standards.
8 The reference to “normal daylight” imports a wide range of light intensities in Britain, where light conditions normally vary considerably. That may include, on a bright sunny day, brilliant light levels. But the reference to bright electric light is, in my view, a much clearer standard and is concerned with the sort of lighting that complies with general health and safety standards. I do not accept that this test should be considered against a background environment that is in breach of any relevant regulations or standards. If an individual has no problems in the standards of lighting to be found, say, in a modern office or public building lit to current standards, and on a normal day for daylight lighting, then problems they have in less bright lighting are not relevant to the test. Conversely, if someone does have problems on a bright sunny day or in ordinary modern office lighting, then that is relevant to the test. One general point was raised by the claimant. The environment refers to daylight or bright electric lighting. I do not see those as exclusive alternatives. If it is shown that the claimant cannot meet the visual descriptors in bright artificial light, then the fact that she can meet them in some natural daylight conditions is in my view not enough of itself to allow her limitations to be ignored. As the claimant argued, this follows from the emphasis that Commissioners have placed on the personal capacity assessment not being a “snapshot”.
9 How far can the environment be affected by aids? Any aids to help vision are relevant if they are “worn.” In this case there was evidence about shielding by baffles and other devices that were part of, or fixed to, the structure of the places that the claimant used. They do not count as devices to aid the claimant’s vision. So the fact that for some time this claimant was able to work in a brightly lit office because her part of it was not brightly lit means that she was not to that extent working within the environment set for this descriptor.
But the hat and tinted glasses she wears out of doors are relevant.
The claimant’s visual limitations
10 The claimant suffers from dry eye syndrome. Consultant ophthalmic surgeons have confirmed that it causes her nausea, headaches and focussing difficulties and that it is chronic and cannot be cured. In her submission to the tribunal the claimant explained that she shields her eyes when out of doors by wearing tinted glasses with side screens and a hat. But she has difficulties indoors in bright electric lighting. She did not indicate any particular descriptor in her answers to the standard questionnaire for incapacity benefit, but at some point she has to shut her eyes because of the pain, and at some point she loses focus.
11 The examining medical practitioner took the view (in the unhelpful words of the standard form) that she had “no problem with vision”. The practitioner also reported that the claimant said that artificial light caused her headaches, nausea, difficulty with focusing. No specific clinical finding was made beyond “inspection of eyes - no apparent abnormal but see report from Oxford Professor” [a reference to Professor Bron, see below]. At the end of the report the examining medical practitioner added a note to the decision maker:
“At a recent tribunal hearing, [the claimant] was told that her condition was covered by the Disability Discrimination Act and that she is disabled within the meaning of that Act. Her disability is detailed in the report from the professor of ophthalmology. There does not appear to be provisions for her disability within the confines of the AWT”.
Grounds of appeal
12 The claimant criticised the tribunal decision for finding that she was only affected by “intense” lighting, and because the tribunal did not have before it a decision of the Employment Tribunal concluding that the claimant was a disabled person. She submitted that the tribunal had failed to take full account of the evidence before it (particularly that of another consultant). And she argued, on the basis of authority, that the test has to be applied not on a one off basis but on the basis of what she could do regularly. She accepted that, with the specific aids of hats and special glasses, she could go out in natural daylight, but she argued that she did not have effective vision in artificial light unless it was dimmed.
13 The secretary of state's representative in a written submission did not support the appeal and considered that the tribunal had dealt adequately with the issue of the context within which the claimant had to see.
14 While I can see why the claimant makes a critical comparison of the decision of the appeal tribunal with that of the employment tribunal, I do not think it helps her case. It is not so important a document that the appeal tribunal should not have gone ahead without it. The decision of the employment tribunal was not about the immediate question facing the appeal tribunal. And it is for a party to put before a tribunal all the evidence that the party wishes the tribunal to consider. I do not therefore accept that ground of appeal.
15 However, I do accept the claimant’s grounds of appeal with reference to the findings on “intense lighting” as against bright lighting and also the issue of regularity. The tribunal refer to the question of the lighting being intense twice, and contrast it with bright lighting. The phrase is, I assume, taken from the letter of Professor Bron, Professor of Ophthalmology in the University of Oxford:
Since around about 1991 she had been troubled by photophobia so that any source of intense lighting such as that encountered in offices, department stores, chemists, supermarkets, post offices and a number of shops induce after a short period of time headaches, difficulties with focusing, and nausea.
Professor Bron went on to confirm the diagnosis of dry eye syndrome and to add:
Since the nature of [the claimant’s] disability is symptomatic this had to be judged purely from her own account of her symptoms. Listening to her story, I strongly felt that she is severely disabled in conditions of what would be tolerable illumination levels for other individuals. … I sensed during the interview that [the claimant] is a retiring individual and that there may be some personality aspects to her disability. But they are nonetheless real.
16 I do not know whether ophthalmologists have a special meaning for “intense”, but in the context of the other evidence I do not accept that the lighting he describes (in offices and so forth) is of such a nature as to take it beyond the environmental test of “bright electric lighting” in the descriptor in the personal capacity assessment. Otherwise it would be excluding most modern workplaces and public buildings from the test. Further, the professor has expressly indicated that the claimant was severely disabled in conditions when others would not be limited, and that is not consistent with the restrictive interpretation that the tribunal has adopted on the issue of “intense” as against “bright”. Put another way, the tribunal failed to explain why it did not accept the claimant’s evidence on her experience in bright light while, inconsistently, it accepted the consultant’s report that did accept it. The only qualitative references in the record of proceedings of the evidence considered are to “strong” lighting in shops and the lighting of Manchester Airport.
17 I agree with the claimant that the tribunal also failed to consider the regularity issue she raised. The claimant relied on CIB 14857 1996. That was one of a number of Commissioners cases that raise the issue of the need for reasonable regularity to be considered in assessing whether someone met a particular descriptor. For example, in CIB 13161 1996 (linked with CIB 13508 1996) another Commissioner follows this approach, adding that account should be taken of “whatever effects pain and fatigue may have on the claimant’s ability to perform the task so far as they are beyond the normal by reason of his specific disability”. The pain and discomfort confirmed in the medical evidence is relevant in this case and has to be put alongside the precise terms of the relevant descriptors.
18 The relevant descriptor by which the claimant is tested appears to be descriptor 12(c) (reading 16 point print at 20 cms). That descriptor is to be considered as interpreted in the decision in C 12/00-01 (IB). The claimant does not need a sustained ability to read in bright artificial light to have adequate vision for those purposes, but if the exposure to bright artificial light for any significant time causes pain and/or stops her focussing and/or makes her shut her eyes to avoid the effects of the light at some point, then from that point presumably she cannot meet that descriptor even for the shortest period. The question is whether, taking those limits into account, she does or does not have the relevant level of vision.
19 The decision of the tribunal is to be set aside. I do not consider that it has adequately considered, or alternatively explained, how it reached the decision it did in the light of the evidence before it if it properly understood the environment within which the vision test is to be assessed and the evidence before it about loss of focus, pain and discomfort, and the need to shut eyes, in certain lighting environments. The claimant has an unusual problem and the examining medical practitioner is right to comment that it is not expressly dealt with in the descriptor. But there is evidence from two specialist consultants that if the claimant is exposed to certain lighting conditions she suffers pain at some point and loses focus at some point. I see no evidence on which the tribunal could find that those lighting conditions are beyond the range encompassed by the stated environment for this part of the personal capacity assessment. That being so, the tribunal failed to give attention to the evidence about pain and loss of focus and whether the occasions on which she suffers pain and/or loses focus are such that she then cannot meet any of the descriptors and also are such that, taking the broader view that Commissioners have emphasised, the claimant fails to meet the descriptors.
20 Permission to appeal was granted only in respect of this descriptor. I have considered it at some length because it raises the important case of someone who can see well enough to read 16 point print in some lighting conditions but not others. It is important because a claimant who does not meet this test is thereby incapable of work without any other limitation.
21 I refer the matter to a new tribunal because findings are needed about how often, and how quickly, the claimant suffers pain and/or loses focus in bright electric light, or how often, and how quickly, she finds herself needing to shut her eyes and/or unable (rather than unwilling) for some other reason to see 16 point print at the stated distance in those lighting conditions. It is to take fully into account the expert evidence before it, particularly the evidence of both consultant ophthalmologists, as well as the evidence of the claimant herself. If it takes account of the evidence of the examining medical practitioner, it is also to note the proviso that the examining medical practitioner added to that evidence.
22 I emphasise, for the claimant, that the new tribunal is to look at the facts at the date of the original decision, so evidence of any change since then is not relevant to it. If the claimant considers that her condition has become worse, then she may wish to consider making a new claim. Any such claim is not stopped by this appeal. I also emphasise that I have considered only the visual issues in this appeal. It is open to the claimant to raise any other relevant limitation in her abilities with the new tribunal, as the new tribunal will have to form its own views on any other issues.
23 The claimant and her husband did not have representation from a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser in this appeal. They may wish to consider obtaining such help in connection with the new hearing by the tribunal or any new claim.
17 February 2003
[Signed on the original on the date shown]