CDLA/57/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.		This is an appeal by the claimant, with the leave of the chairman, against a decision of the appeal tribunal sitting at Wigan (“the appeal tribunal”) on 14th October 2002.  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted appeal tribunal (“the new tribunal”) for rehearing in accordance with the guidance given below.  

2.		The claimant is a little girl who was born on 9th August 1996.  The decision which gives rise to this appeal was given on 7th August 2001, when she was two days short of her fifth birthday.  Her mother has been appointed by the Secretary of State to represent her in social security matters.  However, for simplicity, I shall in this decision simply refer to the claimant and not to her appointee even though the appeal has been prosecuted, and all steps have been taken, by the latter.  

3.		The appeal has, unfortunately, been outstanding for some time.  As indicated, the original decision was given in August 2001.  That was a decision awarding the claimant the lower rate of the mobility component and the middle rate of the care component.  The claimant appealed and her appeal came before tribunals on 13th March 2002 and 20th May 2002.  On both those occasions the matter was adjourned to enable further evidence to be lodged.  The relevant tribunals were clearly right to take the view that the evidence was deficient and the adjournments were intended to assist the claimant.  The appeal was finally heard on 18th July 2002.  The tribunal which sat on that occasion awarded the claimant the lower rate of the mobility component and the highest rate of the care component for the period from 9th August 2001 to 8th August 2004.  The claimant, therefore, had succeeded in increasing the award of the care component.  She did not, however, succeed in obtaining an award of the higher rate of the mobility component.  She applied to set aside the decision and was successful.  See the decision dated 12th August 2002.  The appeal was reheard on 14th October 2002.  Once again the claimant was partially successful in that she was awarded the highest rate of the care component but only the lower rate of the mobility component.  She applied for, and obtained, permission to appeal to a Commissioner from the chairman.  

4.		Her grounds of appeal are that, when considering entitlement to the higher rate of the mobility component, the appeal tribunal failed to have regard to, and apply, the guidance given by the Court of Appeal in a case called M (a child) v. Chief Adjudication Officer.  For convenience, I shall call this decision the M case.  It was an appeal to the Court of Appeal from a decision of Mr Commissioner Rice, given on 1 May 1998, under number CDLA/6219/1997.  The decision of the Court of Appeal is reported as R(DLA) 1/00.  The claimant’s appeal is supported by the Secretary of State who submits that I should allow the appeal and remit the matter for rehearing. 

5.		The claimant, on the other hand, has asked me to give a final decision.  Although I have considerable sympathy for her and her family, given the chronology which I have recounted, I do not consider that I am in a position to do so. I shall explain why at the end of this decision.

6.		It will have already become apparent that the principal issue in this appeal is whether or not the claimant is entitled to the higher rate of the mobility component. 

7.		A great deal of evidence has been lodged in support of the appeal.  I do not think it is necessary to review this evidence.  For the purposes of this decision it is sufficient to state the following facts.  The claimant is, as indicated, a small girl.  She suffers from a form of autism which has sometimes, in the papers, been called autistic spectrum disorder.  There is no dispute about this.  It is accepted that she suffers from this particular disability.  That is a considerable misfortune both for her and her parents.  It is clear that the claimant’s parents, who have three other children, are loving and caring parents and that they are under a great deal of stress.  The difficulties which they encounter caring for the claimant, as a result of her disability, have been well documented in the papers.  That evidence is not, so far as I am aware, disputed.  Two tribunals have awarded the claimant the lower rate of the mobility component and the highest rate of the care component.  It has not been suggested before me that those awards are excessive or overgenerous.  The hearing before the new tribunal will be a complete rehearing.  This means that the whole of the decision given on 7th August 2001, will be before the new tribunal.  In theory, the claimant must prove her entitlement even to lowest care and lower mobility.  Nevertheless, I direct the new tribunal to focus on the question of higher rate mobility unless, in good time to allow everyone to consider their positions and prepare submissions and evidence, the Secretary of State indicates that he is challenging the previous awards of lower mobility and highest care.  In other words, subject to the Secretary of State indicating to the contrary, the claimant should start with her existing awards secure.  

8.		The claimant, or rather her parents, were at one point extremely anxious to obtain higher rate mobility so that they could apply to the Motability scheme and obtain a car on favourable terms.  The reason why they were anxious to obtain a car was to enable them to transport the claimant.  It appears from the evidence that she is extremely difficult to control when out walking with someone.  It also appears that using public transport can be a stressful and difficult exercise.  If the higher rate of the mobility component could be awarded on the grounds of that sort of need, then there would be no problem.  The claimant would have demonstrated a strong case for an award.  However, that is not the basis on which this benefit is awarded.  Social security benefits are awarded on the basis of strict criteria laid down by Parliament and set out in statute or regulations made under statute.  Parliament provides the money and Parliament makes the rules under which the money is paid out.  Merely demonstrating a need for a car is not enough.  The higher rate of the mobility component is normally only payable to those who are suffering from physical disablement such that they are either unable to walk or virtually unable to do so.  See section 73(1)(a) of the Social Security Contributions and Benefits Act 1992.  The test of inability to walk or virtual inability to do so is a strict one.  Those who can walk a short distance will not usually qualify.  In the claimant’s case, there is no suggestion that she is unable to walk.  Quite the contrary in fact because one of the problems in controlling her when outside is to stop her running away when the fancy takes her.  Prima facie, therefore, she is not entitled to an award of higher mobility.

9.		There is, however, another route to entitlement.  This is to satisfy the conditions set out in section 73(3) of the 1992 Act.  Again the test is a strict one because all the various conditions set out in the subsection must be satisfied.  The subsection provides as follows.  
	“	(3)	A person falls within this subsection if –
			(a)	he is severely mentally impaired; and
			(b)	he displays severe behavioural problems; and 
			(c)	he satisfies both the conditions mentioned in s.72(12)(b) and (c) above.”
On the basis that she is entitled to the highest rate of the care component, the claimant satisfies the third of these conditions.  It is in issue whether she satisfies the other two.

10.		Guidance in respect of these conditions is provided by regulation 12(5) and regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890).  Severe mental impairment is defined by regulation 12(5) in the following terms.
	“	(5)	A person falls within subsection (3)(a) of s.73 of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning.”
Regulation 12(6) then deals with what is meant by “displays severe behavioural problems”.  
	“	(6)	A person falls within subsection (3)(b) of s.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 whenever he is awake.”

11.		Regulation 12(5) was considered by Mr Commissioner Rice in decisions CDLA/8353/1995, CDLA/1678/1997 (decided on 23 March 1998) and CDLA/6219/1997 (decided on 1 May 1998).  The last of these three decisions was appealed to the Court of Appeal as the M case.  In all three appeals, the Commissioner proceeded on the basis that the words “which results in severe impairment of intelligence and social functioning” postulated two tests.  An applicant for benefit must show that, as result of arrested development or incomplete physical development of the brain, he suffers severe “impairment of intelligence” and also of “social functioning”.  They are two separate tests.  In the M case, the Court of Appeal agreed.  Simon Brown LJ, having asked himself whether it was one test or two, said this:
	“Although I do not pretend to have found this an altogether easy question, what in the end has persuaded me in favour of the respondent’s contended for construction is that the two elements of intelligence and social functioning, certainly in the great majority of cases, will be widely disparate.  Take a claimant with Downs’ Syndrome.  He may well have a very low IQ but suffer little if any social dysfunction.  How is one to decide whether in a given case the extensive impairment of one function, taken with the limited impairment of the other, is sufficient overall to categorise the impairment of both as severe?  In short, the appellant’s approach, if not actually unworkable, would clearly be very difficult to apply.”

12.		In all three appeals and in particular, CDLA/1678/1997, the Commissioner, on the basis of medical evidence to which he referred, was of the view that a person with an IQ of 55 or less was suffering from severe impairment of intelligence.  Again, the Court of Appeal agreed with him.  The Commissioner was, however, faced, at any rate in the latter two appeals, with the fact that there was no evidence before him about the appellants’ IQs.  In approaching the problem, he accepted the medical evidence that few sufferers from autism have an IQ below 55.  Statistically more than 90% of sufferers had an IQ above 55.  Again, this is a question of medical evidence and I do not think the conclusions just stated were controversial.

13.		The Commissioner then went on to reason as follows in paragraphs 10 and 11 of CDLA/6219/1997.
	“10.	In the present case, if the claimant’s case was to be made out it had to be shown that he fell within the very rare category of a sufferer from autism who had an IQ of 55 or below, and there was absolutely no evidence in this case to that effect.  Indeed, in a report by Dr. M Cameron in answer to the question “If this person’s IQ was assessed formally would it be likely to be around [effectively, 55] or less? answered “No”.  Dr. Cameron did also state that, in her opinion, the claimant was severely mentally impaired, and to justify this conclusion, in the light of her further assertion as to the claimant’s IQ, she said as follows:-
		‘George has classical autism which severely limits his social capacity and he has very limited language and play skill and has no sense of danger and [illegible line]  He … and care and will need special schooling throughout his school years.’
	As I explained earlier, any limitation on the claimant’s social functioning is wholly irrelevant, and the doctor’s view that the claimant was severely mentally impaired cannot be justified in the face of her categorical assertion that the claimant’s IQ would not be 50 or less.  In short, there was absolutely no evidence before the tribunal that the claimant was the rare type of autistic child whose mental capacity was such that he fell within regulation 12(5).

	11.	Accordingly, I see nothing wrong in law with the tribunal’s decision.  They stated in effect that the claimant’s case had not been made out, and I do not see that they were required to elaborate further.  Moreover on the evidence before them, they could have reached no other conclusion.”

14.		It is at this point that the Court of Appeal parted company with him and allowed the appeal in that case.  It posed the question “Is it permissible to decide whether a claimant suffers “severe impairment of intelligence” solely by reference to whether his IQ exceeds 55?” The answer which the the Court of Appeal gave was “no”.  Simon Brown LJ said this at page 234:
	“What for present purposes is important, however, is that the Commissioner entirely shut his mind to the answers given by Dr. Cameron to Questions 1, 4 and 5.  What he said was this:

		‘As I explained earlier, any limitation on the claimant’s social functioning is wholly irrelevant, and the doctor’s view that the claimant was severely mentally impaired cannot be justified in the face of her categorical assertion that the claimant’s IQ would not be 50 or less.’

	In my judgment that involves too narrow and mechanistic an approach.  In most cases, no doubt, the measurement of IQ will be the best available method of measuring intelligence.  But amongst the dictionary definitions of intelligence one finds reference not merely to the functions of understanding and intellect but also to the qualities of insight and sagacity.  It seems to me that in the case of an autistic child those qualities may well be lacking and to the extent that they are there will be a functional impairment which overlaps both limbs of the regulation i.e. both intelligence and social functioning.

	As Uta Frith explains in her 1989 publication “Autism – Explaining the Enigma”, there is a real difference between “test intelligence” and “world intelligence”.  IQ tests are purposely constructed so as to be as independent of social context as possible.  Some people have difficulty in solving problems in tests for their own sake outside a real-life context; they, therefore, score badly in IQ tests.  Autistics, however, at least in certain tests, score unusually highly just because they are being tested outside the real-life context.  Their success in IQ tests, in short, is not a true indication of what one may call their useful intelligence and it is surely the impairment of the claimant’s useful intelligence to which the regulation is directed.

	In these circumstances it seems to me wrong to regard the limitation on the claimant’s social functioning as “wholly irrelevant”, as the Commissioner here did.  In explaining why, despite her view of his IQ, Dr. Cameron nevertheless regarded the appellant as severely mentally impaired, she referred to the severe limits on his “social capacity”.  In my judgment the Commissioner (and, indeed, the Disability Appeal Tribunal before him) should have had regard to that evidence in deciding whether the applicant’s intelligence was severely impaired within the meaning of this legislation.  The Commissioner was not, of course, bound to accept Dr. Cameron’s view.  He should not, however, simply have ignored it as irrelevant.

	Had the maker of the regulations wished to define “severe impairment of intelligence” exclusively by reference to an IQ score, he could easily have done so – see, for example, Regulation 12(2) which requires 100% loss of vision to satisfy the condition of blindness and 80% loss of hearing to satisfy the condition of deafness.

	I conclude that whilst in every case the claimant’s IQ as conventionally tested is likely to be the essential starting point for considering the impairment of intelligence, and whilst it is perfectly reasonable to take an IQ of 55 or less as the prima facie touchstone of severe impairment, that test and that score will not invariably prove decisive.  Rather it should be recognised that an IQ result may give a misleading impression of the claimant’s useful intelligence and that in some cases at least an impairment of social functioning will shade into an impairment of intelligence.  Tribunals and Commissioners will accordingly need to admit and consider evidence other than a mere IQ score.”

15.		As I understand the decision, the important part of the court’s reasoning on this part of the case is contained in the last paragraph quoted above.  Note also the passage quoted above : “It seems to me that in the case of an autistic child those qualities [of insight and sagacity] may well be lacking and to the extent that they are there will be a functional impairment which overlaps both limbs of the regulation i.e. both intelligence and social functioning”. The claimant, supported by the Secretary of State, submits that the appeal tribunal failed to apply this reasoning or guidance to the evidence before it.  Now the appeal tribunal accepted that the claimant did display severe behavioural problems.  However, understandably in view of their other conclusions, they made no findings about this.  That is one of the reasons why I am unable to give a decision finally disposing of the appeal.  The appeal tribunal also accepted that the medical evidence showed that the claimant suffered from a state of arrested development or incomplete physical development of the brain.  The tribunal then addressed the question whether the claimant suffered from severe impairment of intelligence.  It reviewed the evidence in a careful and not unsympathetic manner.  It then concluded as follows:
	“Having considered all of the reports the tribunal then considered that the appellant was not suffering from severe impairment of intelligence.  There were encouraging signs in the statements of special education needs.  There was reference to her condition being moderate or in the words of Dr McArdle she would best be described by the term high functioning autism.  It seemed that on the basis of all this evidence that [the claimant] was not suffering from severe impairment of intelligence.  That being the case it follows that she does not satisfy all of the criteria within section 73 of the Social Security and Contribution and Benefits Act 1992 and cannot therefore qualify for the Higher Rate Mobility on that basis.”

16.		At no point did the appeal tribunal look specifically at the evidence to see what kind and degree of impairment of social functioning the claimant was suffering from.  That would certainly not be an error if the relevant evidence disclosed only a slight degree of impairment or impairment of a kind unrelated to intelligence.  For example, that someone was a messy eater or took his or her time over simple tasks.  However, here the evidence of social functioning certainly required to be considered to see whether it threw some light on the degree to which the claimant’s intelligence was impaired.  That the appeal tribunal failed to do and it thereby fell into error.  I therefore allow the appeal.

17.		It is important to be fair to the appeal tribunal.  It had a difficult task to perform and its decision was not unsympathetic towards the claimant.  Curiously, although the papers had included a copy of the Court of Appeal’s judgment in the M case, the tribunal based itself on CDLA/1678/1999, which was decided about two months before the Commissioner’s decision in the M case.  Although CDLA/1678/1997 was never appealed to the Court of Appeal, it had become a somewhat shaky foundation in view of what was said by the Court of Appeal.  I consider the appeal tribunal was wrong to rely on it without considering it in conjunction with the M case and indicating in its decision that it had done so.

18.		For these reasons I allow the appeal. I remit the case to the new tribunal because I do not feel able to give a final decision without an oral hearing at which the problems from which the claimant suffers can be explained to me by her parents. Since this will involve a further hearing, it seems more appropriate for the matter to be remitted to a tribunal which sits locally. I have already referred to the fact that the appeal tribunal made no findings about severe behavioural problems. Further, I personally do not find the evidence set out in the papers as convincing as the claimant’s representative submits that it is. At least, not without the benefit of seeing and hearing from her parents. In saying this I do not wish to impinge upon the jurisdiction of the new tribunal. That body must reach its own conclusions on the basis of the evidence including the oral evidence given before it.

						(Signed)	J.P. Powell
								Commissioner

						Dated:		9th June 2003