[2007] UKSSCSC CSDLA_202_2007 (08 June 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of an appeal tribunal sitting in Edinburgh on 19 December 2006 (the tribunal) is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing to a fresh tribunal.  This means that the tribunal’s award of the highest rate care component of disability living allowance (highest care) also falls to be considered afresh by the new tribunal, which is neither precluded from following the inferences on care drawn by the tribunal nor bound to do so.

2.	Leave to appeal was given by the district chairman.  The appeal is not supported by the Secretary of State and there has been no further response from the representative who lodged the appeal on behalf of the appellant (the representative).  However, the submission from the Secretary of State does not sufficiently address the matters raised in the appeal relating to entitlement to the higher rate of the mobility component of disability living allowance (higher mobility).

Error of law

Incorrect approach to higher mobility

3.	The appellant is a child, aged three at the date of claim, who is autistic.  A claimant with behavioural problems may qualify for higher mobility under S.73(1)(a) of the Social Security Contributions and Benefits Act 1992 (the Act) and regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (the regulations) (route 1) or through s.73(1)(c) and (3) of the Act and regulation 12(5) and (6) of the regulations (route 2).  The appellant’s submission to the tribunal suggests entitlement through either of these routes and therefore both required to be addressed if the first alternative considered does not so satisfy.

Route 1: virtual inability to walk

4.	Behavioural problems can qualify a claimant under route 1, provided they stem from his “physical disablement” and his “physical condition as a whole”.  If behavioural problems stemming from physical disability limit a claimant’s walking out of doors to an extent, such that he can be described as virtually unable to walk, then route 1 is satisfied without recourse to route 2. 

5.	Commissioners have accepted in individual cases that the evidence showed that autism has a physical cause.  Such findings of fact are not binding on tribunals, although a tribunal is entitled to adopt the same approach if it wishes to do so.  Thus, for example in CDLA/1678/1997, the Commissioner accepted medical evidence that the predominant expert view is that autism has a physical cause because it is a disorder of brain development.

6.	The correct approach, under route 1, to behavioural problems affecting a claimant’s walking which stem from physical disability, was set out by a Tribunal of Commissioners in R(M)3/86, particular at paragraphs 8 and 9:

“…. First, one should ask whether his ability to walk out-of-doors was so restricted ‘as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort’ that he had to be treated as virtually unable to walk.  All the various elements …. had to be considered separately … However if the claimant was unable to walk or virtually unable to walk in accordance with the above criteria, then the next question was whether this condition was attributable to some physical impairment such as damage to the brain.  The criterion was whether the claimant could not walk, as distinct from would not walk.  We agree with the importance of that distinction.  Manifestly, if a child, who has been walking perfectly satisfactorily decides to stop, but his refusal to continue further can be overcome by the promise of a reward or the threat of punishment there can be no question of his stopping having arisen out of a physical condition over which he has no control.  In the case postulated, he was making a conscious choice, and on no footing could his refusal to walk be identified with a physical disablement.  It is, of course, for the tribunal as a medical matter to determine whether a child’s propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement.

9.  We are conscious that tribunals may often have very difficult cases.  For example, there may be instances where the person concerned, who can otherwise walk perfectly well, is sometimes prevented from so doing by a physical disability, but only on rare occasions.  It will in those circumstances be a matter of degree as to whether or not that person can be regarded as virtually unable to walk, and it is for the tribunal to make the relevant assessment.  Accordingly, they will frequently need to know the relevant history of the walking capacity of the person concerned and they will have to make a judgement as to what evidence they will accept.  These issues may prove difficult, but they will have to be resolved by the medical tribunal.  In any event, we do not consider that hyperactivism in itself qualifies the sufferer for mobility allowance.  If a person can run, as hyperactive children normally can, manifestly they can walk.  What is relevant is whether or not they suffer from temporary paralysis (as far as walking is concerned) and, if so, to what extent.”  (Emphasis is the Tribunal’s own.)

7.	Some autistic children do manifest the above problems.  If a tribunal is satisfied that the claimant suffers on occasions from “temporary paralysis”, then it will have to make appropriate findings about time, speed, distance and manner of walking out of doors.  Moreover, it is to be expected that his condition varies.  Therefore, a tribunal, if it accepts that, must look at both good and bad days and, taking a common sense approach, determine whether or not he satisfies the statutory criteria under route 1 for the relevant period, having regard to the proportion of good and bad days, and his usual behaviour on each type of day.  These are matters for the good sense of a tribunal which must explore this thoroughly.  The tribunal erred in failing to give adequate consideration to whether there were in fact sufficient refusals to walk, and whether these refusals arose from physical disablement, to a degree such that the claimant is virtually unable to walk.

Route 2: severely mentally impaired and severe behavioural problems

8.	To qualify by route 2, in addition to satisfying the conditions for the highest rate of the care component of disability living allowance, the claimant must satisfy s.73(3)(a) and (b) of the Act and can do so only by satisfying regulation 12(5) and (6) of the regulations.

Regulation 12(5)

9.	On regulation 12(5) the leading case is R(DLA) 1/00, in which the point was not disputed that sufferers from autism satisfy the condition of “arrested development or incomplete physical development of the brain”.  The Court of Appeal also confirmed that “severe impairment of intelligence and social functioning” denotes two distinct requirements, rather than a single composite assessment.  However, in the case of an autistic child, where the condition inherently involves a lack of appreciation of social context, the court recognised that such limitations on the child’s social functioning could be relevant to whether their intelligence was severely impaired within the meaning of the regulations.  The conclusion was that an IQ score of 55 or less is the essential starting point for a consideration that severe impairment may exist, but can in some cases give a misleading impression of the claimant’s useful intelligence where their poor social functioning shades into an impairment of intelligence.  A tribunal must therefore first consider the claimant’s likely IQ and then broaden the scope of its consideration to the evidence as a whole in order to be satisfied that the child has severe impairment both of intelligence and of social functioning.  In other words, the intelligence score is evidentially relevant but not conclusive, and factors such as “insight and sagacity” are also relevant to whether a severe impairment both of intelligence and of social functioning has been established in the particular circumstances of a case.  With a three year old, establishing these matters is clearly going to be difficult.  The new tribunal would be assisted by another report from the consultant paediatrician directed to the specific points.  

Regulation 12(6)

10.	The claimant also has to satisfy the stringent behavioural criteria under regulation 12(6), the three provisions of which are cumulative.  What is involved has been set out by a Commissioner in R(DLA) 7/02.  The Commissioner confirmed that the word “extreme” is an ordinary English word connoting behaviour which is wholly out of the ordinary.  He further held (see paragraph 19):
“… that the requirement in Regs. 12(6)(b) and (c) that the Claimant must need watching over, for the purpose of restraining potentially disruptive behaviour, ‘whenever he is awake’ indicates that the watching over must be required at home just as much as outside it, and must be required whether or not the Claimant is ‘seeking to take advantage of the faculty of mobility’.  It is plainly not sufficient if the claimant only requires watching over when outside the home.

11.	The representative correctly points out that the provisions under regulation 12(5) and 12(6) are not specifically made subject to a comparison with a person of the same age in normal physical and mental health.  These factors have already been considered in the initial question whether the child satisfies highest care.  However, it is clear from the context and purpose of the definition in those paragraphs, linked to the primary condition in s.73(1)(c) and (3) of the Act, that the disruptive behaviour must result from severe mental impairment; insofar as such problems are primarily a manifestation of a claimant’s age rather than of such mental impairment, they are irrelevant to entitlement.  

12.	The same principle applies with respect to satisfaction of the criteria for higher mobility on the grounds of being virtually unable to walk, which is likewise not made subject to an express additional condition for children.  As noted above, in order to qualify, the walking problems must stem from a claimant’s “physical disablement” and “physical condition as a whole”.  Any limitations with respect to which the child’s age is the main cause, (for example, lack of stamina, to which the tribunal expressly referred), rather than due to disablement as at least a material cause of the restrictions, are for this reason not to be taken into account.  However, whereas with respect to entitlement to any rate of the care component or to entitlement to the lower rate mobility component of disability living allowance, even problems due to disablement in a particular child’s case do not assist a claimant in qualifying if it cannot be shown they result in quantitative or qualitative requirements substantially in excess of those of a person of the same age in normal physical and mental health, such does not apply to routes 1 and 2; provided the specific statutory conditions are satisfied and are due to the necessary physical or mental impairment, as appropriate, rather than because of age, that is sufficient.

13.	While I do not consider that the tribunal adopted the wrong approach in how it treated the matter that the claimant was only three years old, I do nevertheless judge that it did not properly distinguish, or make adequate findings on, the two potential alternative routes to entitlement to higher mobility in this child’s case and thereby erred in law.

Summary

14.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

					(signed)
					L T PARKER
					Commissioner
					Date:  8 June 2007