R(DLA) 9/02

Mr. D. J. May QC	CDLA/5437/1999
4.4.01
Mobility component - disruptive behaviour requiring another person to be present and watching over claimant when awake - whether requirement satisfied when claimant behind closed door
The claimant applied for an award of disability living allowance. A tribunal awarded the lower rate of the mobility component and the highest rate of the care component, both for life. The claimant appealed to the Commissioner arguing that the tribunal had refused to make an award of the higher rate of mobility component. It was the claimant’s contention that he was entitled to an award of the higher rate of the mobility component under section 73(1)(c) of the Social Security Contributions and Benefits Act 1992 by virtue of severe behavioural problems for the purposes of section 73(3)(b) of that Act, the criteria for which are set out in regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991. Regulation 12(6)(c) provides that the conditions for entitlement can only be satisfied if a person exhibits disruptive behaviour which is so unpredictable that he requires another person to be present and watching over him whenever he is awake. The claimant appealed to the Commissioner.
Held, dismissing the appeal, that:
1.	the tribunal had made a finding of fact that the claimant was allowed to use his room with the door closed to afford him privacy, and had concluded that he did not require another person to be present and watching over him, which was a conclusion which the tribunal was entitled to reach;
2.	regulation 12(6)(c) was specifically restrictive and requires the carer to be both “present” and “watching over” the claimant;
3.	these conditions could not be fulfilled when the claimant's door was closed and he was on one side of it and the carer was on the other.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the Disability Appeal Tribunal given at Barnstable on 4 March 1999 is not erroneous on point of law. The appeal fails. I dismiss it.

2.	The tribunal against whose decision this appeal is taken awarded the claimant the lower rate of the mobility component from 30 September 1998 for life and the highest rate of the care component from 12 January 1998 for life. It is clear from a submission by the Secretary of State recorded at page 162 that these awards are not disputed by the Secretary of State. The grounds of appeal relate to the refusal of the tribunal to make an award in respect of the higher rate of the mobility component. 

3.	The basis upon which the claimant made his case for the higher rate of the mobility component was satisfaction of the condition set out in Section 73(1)(c) of the Social Security Contributions and Benefits Act 1992. Satisfaction of that condition depends upon the claimant satisfying the conditions set out in Section 73(3) and the regulations consequent upon the provisions of Section 73(6) of the Act of which are Regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991. That regulation provides:

“(6)	A person falls within subsection (3)(b) of Section 73 of the Act (severe behavioural problems) if he exhibits 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 when he is awake.”

4.	The tribunal found in fact that the claimant is autistic. The tribunal went on to make the following findings:

“8.	He has his own room.
 9.	At night one member of staff is awake all night. One is sleeping.
10.	The appellant is automatically checked on every 1½ - 2 hours during night.
11.	He regularly gets up during the night – turns taps on. Blocks sink – floods his room. Goes to the kitchen and tries to make food – uses cooker and leaves it on having no idea of danger.
When up he becomes physically agitated and needs physically escorting back to his room.
It is the norm for him to cause trouble in one form or another on 4-5 occasions a night.
12.	At night he will go to the toilet on average 3 times a night – he then has to be guided back to his room because he has no comprehension as to the time it is.
13.	He is not unable to walk.
14.	He is allowed to use his room with the door closed to afford him privacy.”

5.	In giving reasons for their decision the tribunal indicated that they were satisfied in respect of the higher rate mobility component and that the claimant satisfied the conditions set out in Section 73(3)(a) and (b), although it appears in the statement of reasons that there is a typographical error in respect that they transpose (c) and (b) where the context is clearly the opposite when they said:

“There fell to be determined whether or not he fell within Regulations 73(3). He satisfies 73(3)(a) and (c)
As to 73(3)(b) consideration has to be given to Regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991.”

There is no dispute about that the claimant satisfies the conditions in (a) and (b). In dealing with (c) the tribunal then went on to say:

“It is not considered he satisfies 12(6)(c) as the evidence is such that he does not require another person to be present and watching over him whenever he is awake – it being expressly confirmed in evidence during the day he is allowed to be in his room alone and with the door closed.

Thus as he does not satisfy 12(6)(c).

He does not fall within Section 73(3)(b) and thus his award of mobility component cannot be increased from the lower to the higher rate.”

6.	Following the grounds of appeal pages 144 and 145 Mr Commissioner Williams issued a direction in which the claimant’s representative was directed to give details of any errors of law asserted in respect of the tribunal’s decision upon the basis that the letter of appeal disclose no arguable grounds of error of law. 

7.	The response to that came in a letter from the claimant’s solicitors at page 153A and 153B. That letter is in the form of a submission as to why the claimant is asserted to satisfy the statutory condition rather than demonstrating any error in law on the part of the tribunal. In particular it does not deal with these specific conditions in regulation 6(c) which form the basis of the tribunal’s decision. Notwithstanding this leave to appeal to the Commissioner was granted. 

8.	The Secretary of State does not support the claimant’s appeal. In particular in the Secretary of State’s submission it is said:

“The tribunal has said in the Statement of Material Facts and Reasons for Decision that:

‘As to 73(3)(b) consideration has been given to regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991. It is not considered he satisfies (12(6)(c) as the evidence is such that he does not require another person to be present and watching over him whenever he is awake – it being expressly confirmed in evidence during the day he is allowed to be in his room alone with the door closed. 
Thus as he does no satisfy 12(6)(c) he does not fall within Section 73(3)(b).

It is implicit from this that the tribunal consider (a) and (b) of the above regulation to be given satisfied and only part (c) is in question. I submit that it is quite clear the tribunal has given adequate consideration to regulation 12(6)(c). As the three parts of regulation (12)(6) are cumulative the decision given by the tribunal is the only one which could have been reached on the evidence and findings therefrom. I submit that the tribunal does not err in law in this respect.”

The response by the claimant’s solicitors at pages 159 and 160 is one which seeks to present evidence to the Commissioner and make a submission on the merits rather than demonstrate any error of law on the part of the tribunal. At page 160 it is said:

“The Tribunal failed to take the precautions and security measures into consideration when looking at Regulation 12(6)(c), which is the reason that the claimant can be allowed into his own room. As time and money has been invested into adapting the property to ensure that the claimant is safe, it seems unfair and an infringement of the claimant’s human rights that he should be prevented from obtaining the higher rate of the mobility component.”

9.	Following a direction by a legal officer on 26 June 2000 the Secretary of State made a further submission inviting the Commissioner to dismiss the appeal. In that submission it is said:

“It is my submission that the tribunal has adequately considered the requirements of regulation 12(6)(c) of the Social Security (Disability Living Allowance) Regulations 1991. In the tribunal findings of fact that the claimant has his own room and that he is checked on by a member of staff every 1½ to 2 hours during the night normally requiring some intervention from staff around 4-5 times a night. It is clear from these findings that the claimant is not watched constantly during the night whether he is awake or not. In addition the tribunal has found that during the day the claimant is allowed to spend time alone in his room with the door shut. This evidence adequately supports the tribunal’s conclusion that the claimant does not require the continual presence and watching over of another person as required by regulation 12(6)(c). I submit that the tribunal does not err in law in this respect.”

10.	The claimant’s solicitors response is set out in a letter at pages 167 and 168. In that letter it is said:

“The Tribunal is referred to CDLA/2054/1998 which dealt with a claimant with a severe learning disability. Under this reference it was decided that watching over, required that a carer be awake and available to intervene, but the carer did not have to be actually watching the claimant all the time. The Tribunal, in this case, found that 2 carers could not watch over 3 residents but the Chairman found that he could see no reason why a single carer could not watch over more than one person provided that the carer remains in a position to intervene when necessary.

We have already explained to the Tribunal that [the claimant] is an autistic adult; he requires a substantial level of care because he does have severe behavioural problems and mental impairment.

His severe mental impairment is shown by reports from his GP, which have already been given to the Tribunal. He is incapable of carrying out anything but the simplest task and even this requires full supervision to prevent him from harming himself, or injuring other people. 

His mood swings are so unpredictable that 2 or 3 people need to be on hand to control him when these outbursts occur. As stated in Mallinson v Secretary of State for Social Services 1994 1WLR630, [the claimant] satisfies the requirement that physical injury or damage to property would inevitably result without physical intervention, but the purpose for such intervention must be to prevent such injury or damage from occurring.

His outbursts are reduced to 2-3 per week because his carers know him well and are able to diffuse what could be serious and violent outbursts. It is not possible or safe for [the claimant] to live in ordinary accommodation.

If the claimant lived in private accommodation, then it would be necessary for him to be watched 24 hours a day and this is because it is not safe for him to be left on his own; his behaviour is so unpredictable. If he lived in private accommodation, it would be necessary for him to be watched by a carer and someone would have to be awake 24 hours a day to ensure that he did not harm himself, others around him or any property.

Given the special adaptations in the claimant’s bedrooms at the home for autistic adults, he is allowed to go into his room for short periods of time. He is checked frequently during that period, through the day and night. The bedrooms are fire doors and close automatically. The bedroom itself is stripped of all dangers; all furniture is bolted to the walls; there are special electric plugs that are safe to be used; there is reduced water flow in the taps;  there are bars in the windows to prevent him from climbing out. These name a few of the safety procedures and adaptations which have been followed to give [the claimant] some normality.

The Tribunal failed to take the precautions and security measures into consideration when looking at Regulation 12(6)(c).

[The claimant] lives in secure accommodation with carers who are available 24 hours a day to ensure that he is safe.

Given the recent Human Rights Act it seems an injustice that [the claimant] should be denied the right from claiming the benefits that are due to him, simply because he lives in a property that has been adapted for his needs and he should not be penalised for this.”

11.	I am not satisfied that there is any merit in the claimant’s appeal. It was accepted in finding in fact 9 that at night one member of staff in the claimant’s sheltered accommodation was awake all night. However the crucial finding by the tribunal was finding 14 which was to the effect that the claimant was allowed to use his room with the door closed to afford him privacy. It was on that basis that the tribunal determined that the claimant does not require another person to be present and watching over him whenever he is awake. That in my view was a conclusion on the finding of fact which they were entitled to reach. The fact that if it be correct that special adaptations have been made to the claimant’s room and that the accommodation that he lives in is sheltered does not of necessity demonstrate a requirement both for presence and watching over whenever he is awake. The question as to whether he satisfies the requirement was essentially one for the tribunal to determine on the evidence before them. This they did and I can see no basis for me to interfere. 

12.	I should also indicate that the test was properly applied to the factual situation in relation to the conditions in respect of which the claimant lives. An unreported Commissioner’s decision was cited but not produced by the claimant’s solicitors. I find it difficult to accept the asserted proposition contained in the letter of 30 November 2000 that in respect of watching over all that was required was for the carer be awake and available to intervene but not that the carer required to be actually watching the claimant all the time. I say that because the statutory provision appears to me to be specifically restrictive and the words used are both “present” and “watching over”. It does not seem to me these conditions can be fulfilled when the claimant’s bedroom door is closed and he is on one side of it and the carer on the other.

13.	References are made in the last paragraph at page 168 to the Human Rights Act 1998. However no properly formulated ground of appeal is made in respect of the application of that Act and what is referred to as an “injustice” does not focus any error of law.

14.	The appeal fails.

Date: 4 April 2001						 (signed) Douglas J. May
Commissioner