APPEAL FROM DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW 

Commissioner’s Case No:  CDLA/3244/2001  

1.	This appeal, brought with my leave, fails.  The decision of the Appeal Tribunal on 6 4 01 was not erroneous in point of law, as explained below.  

2.	The appeal concerns entitlement to higher rate mobility component of DLA under s73(3) of the Contributions and Benefits Act 1992 and regulations 12(5) and (6) of the DLA Regulations.  The appellant, born on 13 11 81, has severe learning difficulties and is accepted as severely mentally impaired under s73(3)(a) and regulation 12(5).  He also has a subsisting award of highest rate care component on supervision grounds, which the tribunal confirmed, so he satisfies s73(3)(c).  The only issue was whether he displayed severe behavioural problems under s73(3)(b), defined in regulation 12(6) as disruptive behaviour which

(a)	is extreme,
(b)	regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
(c)	is so unpredictable that he requires another person to be present and watching over him whenever he is awake. 

3.	The tribunal fairly set out the evidence given at the hearing by the appellant’s mother and uncle and also noted that the appellant had not exhibited any form of disruptive behaviour during the hearing, where he was recorded as making an observation which seemed appropriate to its context.  The pattern was one of satisfactory behaviour in school or day centre but very difficult behaviour at home.  The tribunal decided that at times the appellant exhibited disruptive behaviour at home that could be said to be “extreme”, but on the evidence of his behaviour in a controlled environment he did not “regularly” require another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another or damage to property. Nor, since the disruptive behaviour centred round three identifiable “flash points” during his time at home, could it be said to be “unpredictable”.

 4.	The ground of appeal was initially that the tribunal had not explored whether the appellant needed physical restraint at school, eg when he was being “stubborn” as his former headmaster put it.  I indicated in giving leave to appeal that I was unlikely to accept that the tribunal should have inquired into matters that were not in evidence before it and which, I add, could only have been done via a second adjournment.  I am fortified by the 31 10 00 evidence at page 79 from the Social Services Care Manager.  She had observed the appellant both at school and at home, and said that he “presents as quiet and cooperative with no apparent behavioural problems in settings such as school”, and that his behaviour at home was “vastly different”.  The representative has made valiant attempts to persuade me that further information from the school or day centre is needed before this appeal can be disposed of, but I remain entirely unconvinced.  

5.	I am very ready to accept that the appellant’s behaviour at home is capable of bringing him within regulation 12(6)(b) when it occurs.  When he has temper tantrums or does not know his own strength, and could otherwise cause physical injury to himself or another or damage to property, his father has physically to restrain him.  He is too big now for his mother to do it, and he hit out at her when she was trying to control him at a party.  He has put his hand through a double-glazed unit simply by knocking on it, he kicks the dog when he thinks it has looked at him, and the grandchildren are at risk when they are around, even though he may not intend to hurt them.  It does not seem to me to matter whether he hits out intentionally or merely uncontrollably.  I am satisfied on the evidence that the restraint needed is a good deal more than physical contact without any significant physical force, which was (to my mind somewhat controversially) held by the deputy commissioner in CDLA/2054/98 to be sufficient.  I am also willing to accept that when the disruptive behaviour does occur, it is “extreme”.

6.	But with this pattern, on the evidence, of different behaviour at school or day centre from at home, I asked for submissions on whether a claimant who arguably fulfilled regulation 12(6)(b) at home but behaved better at school or in a day centre could in law qualify for this particular benefit.  Further submissions (hence the delay) dealt with CDLA/6701/99 and with the meaning of “regularly” in the context of regulation 12(6)(b).  The Secretary of State’s officer initially supported the appeal, but then withdrew her support.  I am grateful both to the representative and to the Secretary of State’s officer for their well-researched and well-focused submissions, which are a model of what appeal submissions should be.

7.	The representative, who argues that the only issue is the meaning of “regularly” in regulation 12(6)(b), submits that it is an ordinary English word, of which he supplied some dictionary definitions and also a reference to R(U)2/88, where the commissioner rejects any attempt to import a scale placing “regularly” somewhere between “always” and “frequently”, and also disagrees that the opposite of “regular” is “exceptional”.  The commissioner thought “regularly” imported “the concept of uniform re-occurrence or repetition as distinct from that which occurs casually or intermittently, or of course irregularly”. The representative also invoked the expression “in the ordinary course of events” used by the commissioner in CDLA/2054/98.  He further cited regulation 4 of the Invalid Care Allowance Regulations providing that a carer is to be treated as “regularly and substantially engaged in caring, on every day of the week” if he is or is likely to be engaged or regularly engaged for at least 35 hours a week. 

8.	The Secretary of State’s officer, on the other hand, submits that “regularly” in regulation 12(6)(b) must not be considered simply in the light of the various dictionary definitions supplied, ie simply as an ordinary English word.  Regulation 12(6) must be read as a whole.  Given the requirement in subparagraph (c) for a claimant to require another person to be present and watching over him whenever he is awake because of the unpredictability of his [extreme] behaviour [requiring physical intervention], “regularly” in this context must be taken to mean regularly, in the sense of habitually, normally, customarily or usually, whenever he is awake”.  It is at this point that she withdraws her previous submission that the tribunal erred in concentrating too much on the appellant’s behaviour when he was outside the home.       

9.	In view of my decision on subparagraph (c), I do not have to resolve this difference of opinion.  Unlike the tribunal, I should be inclined to say that I am satisfied that the restraint in the present case is required “regularly”, in the Chambers sense  of “at regular intervals in...time”, and also in the sense of “not casually or intermittently or irregularly” favoured by the Commissioner in R(U)2/88.  Neither of these definitions seems to require any defined quantum of intervention, whether by amount or by time.  I do not find helpful in the present context either the Chambers sense of “governed by or according to the ordinary course of things” or the formulation “in the ordinary course of events”, because both these seem to beg the question of what the ordinary course of events actually is, that being what the tribunal has to decide.  And the ICA provision is a deeming provision, carrying its own definition by reference to quantum, whether this occurs on every day or only a few days a week, and so is of no assistance.

10.	But as may be inferred from my references to it, regard must always be had to the context in which a word occurs, ordinary English word though it may be.  This is essentially a matter of fact for the common sense of the tribunal.  The representative submits that perhaps the tribunal in the present case had at the back of its mind when assigning a meaning to “regularly” some idea of “frequently”, as in the care component tests; he may be right, but this is only speculation, and I am not prepared to set aside the decision on this ground, since I agree with its overall outcome.  

11.	I record my agreement with CDLA/6701/99 that the reference in regulation 12(6)(c) to watching over a person “whenever he is awake” means that the test cannot apply only to outdoor mobility, but also that it cannot apply where a claimant is, by supervision short of physical restraint,  prevented from being disruptive.  Reading paragraph (6) as a whole can, and does in the present case, produce the result for which the Secretary of State’s officer contends in her argument on the meaning of “regularly”: all three conditions must be satisfied, so even if the dictionary definitions of “regularly” are applied, if the claimant does not fulfil all those conditions, he will lose.   
        
12.	I find that the appellant does lose.  The tribunal found that the occasions of his disruptive behaviour were not unpredictable because they happened at home at defined times, and this is an interpretation that was open to it on the evidence; but more to the point, on the evidence he does not require another person to be present and watching over him to intervene and physically restrain his extreme behaviour whenever he is awake.  He needs this at home, but not at school/day centre.  The representative may be right in suggesting that staff at special schools need to be able to restrain pupils if they become disruptive; but the appellant has no history of restraint being needed for him.  School/day centre provides supervision, including close attention; but in the absence of a history of disruptiveness requiring physical restraint, it is not the same as watching over for purposes of regulation 12(6).  The appellant’s award of highest rate care component for day and night attention and supervision (which the tribunal was entitled to confirm) is under s73(3)(c) a necessary, but not a sufficient, condition for higher rate mobility without physical disablement.

13.	This result may seem hard for parents who have to exercise physical restraint at home where, as they point out, the appellant is for a greater part of any 24-hour period than he is at school/day centre.  But it underlines what I take to have been the intention behind s73(3) and regulations 12(5) and (6), that they should apply only in the most exceptional circumstances.  They were introduced at the same time as the lower rate mobility component, which provided for those who required guidance or supervision to exercise their faculty of walking outdoors in unfamiliar places.  This assists those who can walk but who by reason of mental difficulties cannot go out alone, and it might have been supposed this would be sufficient remedy for what had previously been a gap in the law.  But it was clearly felt that in cases of the most severe mental disablement, causing constant serious social and behavioural problems for carers, the higher rate should be available, whether or not the problems occurred outdoors.  But the criteria were correspondingly stringent, and the appellant does not fulfil all of them.  That he received the benefit for some previous time does not give him a vested right to continue receiving it.  It is clear that he had it for a spell when he should not have done, because he did not have the necessary award of highest rate care component.     

14.	The tribunal made a time-limited rather than a life award, and it is argued that the appellant’s condition is not now likely to change.  That may be so, but time-limiting the award does provide for an automatic chance to make a renewal claim, perhaps with the further evidence the representative exhorted me to obtain.  Serious consideration will have to be given on the renewal claim (or indeed on any supersession application made before the expiry date of the present award) to making a life award, if the evidence bears it out.

15.	I accordingly dismiss the appeal.

						(signed)	Christine Fellner
								Commissioner

								2 May 2002