Secretary of State for Work and Pensions (PIP) v SS (Personal independence payment – mobility activities : Mobility activity 1: planning and following journeys) [2015] UKUT 240 (AAC)

UKUT-AAC
Secretary of State for Work and Pensions (PIP) v SS (Personal independence payment – mobility activities : Mobility activity 1: planning and following journeys)
[2015] UKUT 240 (AAC) · 2014-08-18
[1]The First-tier Tribunal (“the Tribunal”) allowed the Appellant’s appeal following a hearing in August 2014. In doing so, the Tribunal set aside the Secretary of State’s earlier decision, made in January 2014, that the Appellant was not entitled to personal independence payment (PIP). Instead, the Tribunal decided that the Appellant scored 12 points for the mobility activity “planning and following journeys” and so was entitled to the mobility component of PIP at the enhanced rate from 28 June 2013 to 27 June 2015.[2]The Secretary of State has appealed to the Upper Tribunal with my permission. However, for the reasons that follow, I have decided that there is no error of law in the Tribunal’s decision. An appeal to the Upper Tribunal can only succeed if there is a legal error in the Tribunal’s decision. Simply disagreeing with the Tribunal’s assessment of the facts is not enough. It follows that the Tribunal’s decision stands. The background to the PIP appeal[3]At the Tribunal hearing on 18 August 2014 the Secretary of State was represented by a presenting officer. The Appellant did not attend. He had written to the Tribunal office during July to explain that he was due to have major eye surgery, involving the removal of his left eye, on 4 August 2014, and so would be unable to attend. The Tribunal decided it had sufficient evidence and was able to hear the appeal fairly in his absence. No point is taken on that.[4]The Appellant was aged 46 at the date of the Secretary of State’s decision. The Tribunal summarised the history and effect of the Appellant’s eye condition in the following terms (statement of reasons at [4.2]; I have simply added some details, e.g. as regards dates, in square brackets):
“In 1986 he suffered an injury to his left eye which was repaired at the time. Subsequently he had a cornea transplant and an interior chamber lens implant. He has suffered from chronic pain in the left eye with sensitivity to bright light and reduced vision. He had three unsuccessful cornea transplants [the last two in 2010 and 2011] but he continued to suffer from pain and sensitivity to light. He had increased pressure in the eye and cyclodiode laser was tried [in August 2010] followed by left glaucoma tube surgery [in November 2010]. Ultimately [the consultant] advised removal of the eye which was done in [August] 2014. [The consultant] confirms that the appellant suffers from pain, increased sensitivity to light and poor vision. Also, that the appellant felt that he was unable to go out independently.”
[5]I emphasise that this account was simply a summary of the Appellant’s history of left eye problems. It does not include all surgical interventions, especially in recent years. I intend no criticism of the Tribunal when I say that. The Tribunal was plainly entitled to find that “the fact that the appellant had by the time of the hearing had his left eye removed was in our opinion an indication of the severity of the problem” (statement of reasons at [8]). That surgery was obviously a development after the decision under appeal but the Tribunal could have regard to it as an indication of the Appellant’s circumstances before (and at) the date of the decision. The First-tier Tribunal’s decision[6]On its Decision Notice the Tribunal awarded the Appellant 12 points for descriptor (f) “cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid” in the activity “planning and following journeys”. In its summary reasons it stated that “by reason of chronic eye pain [the Appellant] is significantly limited, in particular reduced vision”. The score of 12 points meant that the Appellant qualified for the enhanced rate of the mobility component.[7]The Secretary of State requested a statement of reasons from the Tribunal. In its statement the Tribunal set out the issues it had to determine and reviewed the evidence. The nurse who conducted an assessment on behalf of the Secretary of State had concluded that there was no evidence to suggest a significant functional restriction as regards mobility. The Appellant’s evidence was to the contrary; in particular, he said he could not go out alone owing to the pain and light sensitivity.[8]The Tribunal summarised its conclusions as regards the mobility activity in these terms: “8. The tribunal found that the condition from which the appellant suffers is consistent with his description of his difficulties when out of doors. The evidence from [the consultant] confirmed that the appellant suffered from the symptoms which he described and that, in particular, he was unable to go out by himself. The fact that the appellant had by the time of the hearing had his left eye removed was in our opinion an indication of the severity of the problem.[9]The tribunal were not satisfied that the reason for not awarding the points for the planning and following a journey descriptor quoted above did not adequately deal with the issues. And the points in Regulation 4(2A) were not covered at all. For example, being able to walk by himself from the waiting room to the assessment room is no indication of whether he can plan and follow a journey out of doors. The tribunal found it more likely that the light sensitivity and visual impairment together with a fear of falling were more likely to prevent the appellant from being able to follow the route of a familiar journey unless he had someone with him, especially reliably and safely.” The grounds of appeal before the Upper Tribunal 9. The Secretary of State sought permission to appeal to the Upper Tribunal on the basis that the Tribunal had failed to find sufficient facts or give adequate reasons to explain its decision. The District Tribunal Judge who had presided at the Tribunal hearing refused permission on the ground that the Secretary of State was seeking “a second bite of the cherry”. However, I gave the Secretary of State permission to appeal to the Upper Tribunal, in large part because at that stage I considered the Tribunal may not have made sufficient findings as to the Appellant’s ability to see adequately with his other eye. In doing so I was conscious, for example, that one-eyed drivers need not inform DVLA of their condition, assuming there is no problem with their good eye. The proceedings before the Upper Tribunal[10]I have considered the detailed and helpful written submissions by Mrs Helen Hawley, who now acts for the Secretary of State in these proceedings, and by Mr Frank Durnion of Quality Solicitors Jackson Canter, who now acts for the Appellant (but did not before the Tribunal). Neither party has sought an oral hearing and one is not necessary for the fair disposal of this appeal. The Upper Tribunal’s analysis[11]I bear in mind that this is not an appeal where the facts are re-investigated by the Upper Tribunal. An appeal limited to error of law means precisely that; I have to be satisfied that the Tribunal’s decision involves such a legal error before I set it aside. The assessment of evidence, and especially the medical evidence, is a matter of fact for the Tribunal to determine. I also have to read the Tribunal decision as a whole, rather than just focus on any particular paragraph in isolation. Reading the statement of reasons as a whole, I am satisfied the Tribunal applied the correct legal tests and reached conclusions which were open to it on the evidence. It may be that the Tribunal’s interpretation of the evidence was a shade generous in certain respects, but it displays no error of law.[12]The Secretary of State’s representative has four principal criticisms of the Tribunal’s decision and statement of reasons which she argues amount to an error of law. I am persuaded by Mr Durnion’s careful arguments that this is not the case.[13]First, it is said that the Tribunal made no mention of the fact that the Appellant’s vision in his right eye was normal. It is perfectly true that this fact was not referred to in the statement of reasons. However, that matter was referred to in two of the consultant’s three letters, and the Tribunal clearly placed considerable reliance on that expert evidence. In any event, this was not simply a case of a person with very poor vision in one eye and normal vision in the other. It was a case of a person experiencing considerable pain and light sensitivity in one eye (confirmed by the treating physician) and normal vision in the other. The complicating factors that were present were highly relevant to the Tribunal’s assessment of the position under regulation 4(2A), namely the ability to undertake the task safely and to an acceptable standard. That, ultimately, was a question of fact for the Tribunal. The Tribunal’s reasons may have been succinct but they were adequate.[14]Second, the Secretary of State argues that the Appellant has suffered from the condition since 1986 and so, given its longstanding nature, he could be reasonably expected to have learned coping strategies to manage when out and about. This really is a “second bite of the cherry” argument. It is an issue of fact which should have been raised before or at the Tribunal hearing. In any event, as Mr Durnion points out, the Appellant’s problems with his left eye have developed over time, and deteriorated significantly in the past five years, with extensive surgical intervention being repeatedly necessary since 2010. This fact fatally undermines the suggestion that the Appellant has had 30 years to get accustomed to the problem.[15]Third, the Secretary of State criticises the Tribunal for not considering whether the Appellant could wear an eye patch over his left eye and so rely on his good right eye. The fact that, as Mrs Hawley argues, there is no mention in the consultant’s letter that “an eye patch could not be worn” is hardly to the point. First, as Mr Durnion argues, this is another attempt to re-argue the case on its facts by making a new submission which could easily have been made earlier. Second, the consultant was doubtless not asked that particular question so his omission to deal with the point is neither here nor there. Third, I recognise that in any event nowadays medical advice is very often to the effect that eye patients should not wear an eye patch, except in the immediate aftermath of an operation, and especially as regards certain conditions such as glaucoma.[16]Fourth, it is argued that as the Appellant could manage self-care activities which involved depth perception (e.g. self-administration of eye drops), then depth perception should not be an issue outdoors, e.g. as regards raised kerbs. This is, again, a pure question of fact. There may, in any event, be a considerable difference between depth perception indoors and out, given lighting conditions.[17]I am therefore not persuaded by the Secretary of State’s grounds of appeal and dismiss his appeal. There is, however, one other lurking question which, although it need not be resolved in the context of this appeal, may be material in another case. A lurking question[18]The lurking question is whether an eye patch is an “aid” and/or an “orientation aid”.[19]When I gave the Secretary of State permission to appeal, I raised the question as to whether an eye patch was an “aid or appliance”. The reason I raised the point was because a claimant’s (C’s) ability to carry out any relevant activity is to be assessed “as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use” (Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377, regulation 4(2)(b); all statutory references are to these Regulations). I have not received any submissions on that issue.[20]Regulation 2 defines an “aid or appliance” as “any device which improves, provides or replaces C’s impaired physical or mental function” and includes a prosthesis. This is, obviously, a very broad definition. On that basis an eye patch might surely be an ‘aid’. If a person simply has blurred vision in one eye, then an eye patch over that eye may improve their impaired physical function overall. Whether it is reasonable to expect a person to wear a patch is another matter, and will depend in part on the medical advice for the condition and patient in question.[21]However, the fact that a person is to be assessed wearing any aid they normally wear, or could reasonably be expected to wear, does not mean they fail to score any points. On the contrary; a person may score points if they can only manage an activity when using an aid or appliance. So, for example, under the “preparing food” activity, a person scores 2 points if he or she “needs to use an aid or appliance to be able to either prepare or cook a simple meal” (descriptor (b)). Conversely, a person who can “plan and follow the route of a journey unaided ” (i.e. for these purposes without the use of an aid or appliance) scores nil points.[22]Mr Durnion raises a separate point. Descriptor (f) in the activity “planning and following journeys” refers to a person who “cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid”. Mr Durnion argues that an eye patch is an orientation aid and so if the Appellant can only follow the route of a familiar journey when wearing an eye patch then he qualifies in any event.[23]A n “orientation aid” is defined (rather loosely and not entirely helpfully) as “a specialist aid designed to assist disabled people to follow a route safely” (Schedule 1, Part 1, paragraph 1). There is no further statutory definition of what is meant by a “specialist aid”. Presumably the expression is meant to include a long cane. That would certainly be consistent with the stated policy intention (see DWP, The Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations (December 2012) p.42 para. 6.7). It is unclear whether “orientation aid” covers a more technologically sophisticated but readily available device (e.g. a satnav or a mobile phone app). Be that as it may, if a long cane is an orientation aid then it must surely be at least arguable that an eye patch is as well.[24]I repeat that I have had no detailed submissions on this lurking issue and so do not express a decided view, as the point is not material to the outcome of this appeal. Conclusion[25]For the reasons above, the decision of the First-tier Tribunal does not involve any material error of law. I must therefore dismiss the Secretary of State’s appeal (Tribunals, Courts and Enforcement Act 2007, section 11). Signed on the original Nicholas Wikeley on 13 May 2015 Judge of the Upper Tribunal

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