GB v SSWP (DLA)

The "blind" limb of the blind-and-deaf route to higher-rate mobility Disability Living Allowance is a functional test. It asks whether the claimant's loss of vision leaves them able to perform any occupation for which eyesight is essential.

Certification as severely sight impaired, visual-acuity measurements and visual-field evidence may be relevant. They are neither the statutory test nor necessarily conclusive evidence of its outcome. "Work" means a paid occupation or employed-earner's employment, rather than isolated work tasks. The blindness, deafness and outdoor-mobility conditions are cumulative, but the blindness test must be decided separately from the combined-effects outdoor-mobility condition.

The appellant, who was profoundly deaf and partially sighted, sought a supersession of his lower-rate mobility award to the higher rate under the blind-and-deaf route. It was accepted that he met the deafness condition. The Secretary of State and the First-tier Tribunal treated the disputed blindness condition by reference to whether he could carry out individual sight-dependent activities.

The First-tier Tribunal dismissed the appeal on 19 December 2013 under reference SC102/13/05354. It held that the appellant could perform some work for which eyesight was essential. The appellant appealed to the Upper Tribunal, challenging both the use of visual-impairment certification as a proxy and the tribunal's understanding of "work".

The central issue was the meaning of 100 per cent disablement resulting from loss of vision under Social Security (Disability Living Allowance) Regulations 1991, regulation 12(2)(a).

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the appeal was remitted for a fresh oral hearing before a differently constituted First-tier Tribunal.

2. Under section 73(2) of the Social Security Contributions and Benefits Act 1992 and regulation 12(2)(a) of the Social Security (Disability Living Allowance) Regulations 1991, the question is not whether the claimant is 100 per cent blind. The question is whether the degree of disablement caused by loss of vision is 100 per cent. Read with R(DLA) 3/95, R(DLA) 3/95, this is a functional inquiry into whether there is any work for which eyesight is essential that the claimant can do.

3. A severe-sight-impairment certificate, Snellen visual-acuity results and visual-field evidence can inform that inquiry. They do not supply its legal test and cannot be treated as decisive without a properly reasoned evidential basis showing that they answer the occupational question. All relevant evidence must be considered.

4. "Work" means a paid occupation, job of work or employed-earner's employment. It does not mean individual tasks such as photocopying or assembling simple components. When drawing inferences from activities in an educational, leisure or supervised setting, a tribunal must carefully assess whether they demonstrate an ability to perform a sight-dependent job with the necessary skill, speed, safety and reliability.

5. The blindness, deafness and combined-effects outdoor-mobility requirements are cumulative. The blindness condition in regulation 12(2)(a) must be assessed separately from the condition in regulation 12(3), which concerns the combined effect of blindness and deafness on outdoor mobility. The Upper Tribunal expressed no definitive view on whether travel to and from work forms part of the blindness inquiry.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal's decision for material error of law, and remitted the case for a fresh hearing.
• First-tier Tribunal: On 19 December 2013, under reference SC102/13/05354, dismissed the appeal after finding that the appellant could perform some work for which eyesight was essential.