DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Coventry First-tier Tribunal dated 14 September 2012 under file reference SC015/11/02919 involves an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 21 July 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	     The re-hearing should be at an oral hearing. 

(2)	The new Tribunal should not involve the tribunal judge or other members who sat on the Tribunal that considered this appeal at the hearing in Coventry on 14 September 2012.

(3)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service (HMCTS) in Birmingham within one month of the issue of this decision.  

(4)	The new Tribunal should apply the guidance below in deciding whether or not the Appellant qualifies for the higher rate of the mobility component of disability living allowance (DLA) under section 73(3) of the Social Security Contributions and Benefits Act 1992.

(5)	The new Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous Tribunal. Depending on the findings of fact it makes, the new Tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

REASONS FOR DECISION
The issue in this case
1.	The Appellant, who has been ably represented by her husband in these proceedings, suffers from a severe schizoaffective disorder. The issue for the First-tier Tribunal was whether she qualified for the higher rate of the mobility component of disability living allowance (DLA) under the “severe mental impairment” (SMI) rules. The appeal is therefore concerned with the same complex set of eligibility criteria considered in my recent decision in NMcM v Secretary of State for Work and Pensions (DLA) [2014] UKUT 0312 (AAC), although in a different factual context.

The oral hearing of this Upper Tribunal appeal
2.	I held an oral hearing of this appeal at Field House in London on 21 January 2015. The Secretary of State was represented by Mr Jeremy Heath, Solicitor, of the Office of the Solicitor to the Department for Work and Pensions (DWP). The Appellant herself did not attend but was represented by her husband. I am grateful to them both for their helpful written and oral submissions. I feel I must also record at the outset my deep admiration for the remarkable commitment and devotion over many years that the Appellant’s husband has shown for her care.

3.	The Appellant’s husband asked a particularly telling question at the Upper Tribunal oral hearing. Why, he asked, does a person with a bad leg who cannot walk 50 yards get the higher rate of the DLA mobility component when his wife, who in practice has no independent mobility outside at all, does not? Why, as he put it, is the man with the gammy leg more deserving? The answer to that question lies in the very narrowly defined SMI rules. These rules are not defined in the same open-textured way that the legislation adopts for defining being “virtually unable to walk”.

The severe mental impairment rules
4.	A claimant must satisfy each of three conditions to qualify for the higher rate mobility component of DLA by the SMI route. The first condition is that the claimant is “severely mentally impaired” (Social Security Contributions and Benefits Act [“SSCBA”] 1992, section 73(1)(c) and (3)(a)). Regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890; here “the 1991 Regulations”) defines “severe mental impairment” as follows:

		“(5) A person falls within subsection (3)(a) of section 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.”

5.	The second condition is that the claimant “displays severe behavioural problems” (SSCBA 1992, section 73(1)(c) and (3)(b)). According to regulation 12(6) of the 1991 Regulations:

	“(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 whenever he is awake.”

6.	The third condition is that the claimant qualifies for the highest rate of the care component of DLA (SSCBA 1992, section 73(1)(c) and (3)(c)).

The background to the appeal
7.	It is not in dispute that the Appellant is seriously ill and has been so for many years. The Appellant is now aged 52. As a child she had attended mainstream schooling but, as her husband explained “she had a tough time; she was always being picked on as different.” There is a family history of mental illness, with an uncle having a diagnosis of schizophrenia and other close family members having mental health problems. The Appellant herself had been diagnosed with paranoid schizophrenia when aged about 21, had set fire to her mother’s flat at 23 and had then had the first of many admissions to hospital under the Mental Health Act. Her husband told me that he thought she had been sectioned 13 times. She has a history of self-harming and violence to others. Her children had been taken into care (and one of them put up for adoption) as she had been unable to look after them. According to the local mental health team, she “experiences command hallucinations that tell her to perform negative and destructive actions. These are controlled to some extent by her medication but she still hears voices on a daily basis which she is able to control with support from her husband.”

8.	The Appellant had married her husband when she was 30; he had to give up work 15 years ago, the last occasion on which she had been sectioned, to become her full-time carer. I have little doubt that the main reason she has not been sectioned in the last 15 years is because of the remarkable level of care and support that he selflessly provides. He told me that she had no sense of danger, and needed to be restrained both for her own safety and for the safety of others. He described particular problems when out and about. Social workers had been instructed not to travel by car with the Appellant. Indeed, she always had to be accompanied by another passenger when travelling by car as she would try and wrench the steering wheel away from the driver. She had also been asked to get off buses because of her unacceptable behaviour. As her husband explained, “I have had to restrain her from attacking other passengers, especially black people, who she thinks are putting voodoo curses on her.”

9.	Since the age of 30 the Appellant has been entitled to the highest rate of the care component and the lower rate of the mobility component of DLA. In 2006 that award was renewed for an indefinite period. In 2011 a supersession application was made. A decision maker confirmed the existing level of the DLA award. The Appellant’s husband completed an appeal form for her, describing how her “mental health problems make it impossible to travel independently and even with help I can become uncontrollable  ... especially if I hear voices to do bad things”. 

The proceedings before the First-tier Tribunal 
10.	On 25 May 2012 the First-tier Tribunal held an initial hearing. The tribunal adjourned with a request that the Appellant’s consultant psychiatrist (Dr J) should prepare a report addressing the question as to whether the Appellant had “arrested or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning”. Dr J replied by way of a short letter, rather than a report, the substance of which read as follows:

“In my opinion [the Appellant] does not have arrested or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning. However, the chronic and enduring mental illness (Schizoaffective Disorder) does severely impair her social functioning and limits her ability in many day-to-day functioning.”

11.	In a follow-up letter Dr J added that the Appellant had a severe mental disorder, displaying severe symptoms and associated behaviour, some of which “like hearing voices, getting paranoid, experiencing persecutory thoughts make her more vulnerable for self harm/injury or aggressive and violent outbursts.” He recommended that she receive the highest rate of the DLA care component (which is not in issue).

12.	A differently constituted tribunal then convened to consider the appeal on 14 September 2012. Both the Appellant and her husband attended. From the record of proceedings it appears that the tribunal took no oral evidence – this unusual feature of the proceedings was confirmed by the Appellant’s husband at the Upper Tribunal hearing. The full record of proceedings for that hearing read as follows:

“Judge: Adj[ourned previously] for psychiatric report; now received (2 reports). What do you want to say?
		Husband: Wife is severely mentally impaired.
		Judge to Appellant: Do you wish to speak?
		Appellant: No.
	Judge: We will have to refuse your claim for HR mobility as no evidence of arrested development or incomplete physical development of brain but I will consider whether to dissent on legal grounds (regs too restrictive and/or human rights). The decision will be sent to you by post.”

	13.	I can perhaps understand why the tribunal conducted such a short hearing. First, I am sure the panel will have previewed the case thoroughly on the papers and identified the areas of agreement and disagreement. Second, they may (wrongly as it transpires) have regarded “their hands as tied” by Dr J’s response to the question posed by the original tribunal. Third, they doubtless did not wish to add to both the stress and distress experienced by the Appellant (and her husband). However, an unfortunate consequence of this approach was a deficiency in the tribunal’s subsequent fact-finding. This means that although I can allow the appeal and set aside the tribunal’s decision, I cannot re-make the decision under appeal.

	The First-tier Tribunal’s decision
	14.	In its decision notice, the First-tier Tribunal made three unanimous findings. First, they concluded that, although the Appellant was severely mentally impaired, she did not suffer from “a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning”; thus the tribunal unanimously concluded that regulation 12(5) was not satisfied. Second, they unanimously found that the Appellant displayed “severe behavioural problems” within the meaning of regulation 12(6). Third, they concluded – and this has never been in dispute – that the Appellant qualified for the highest rate of the DLA care component.
	
	15.	The majority of the tribunal (the medical member and disability member) found that the first SMI condition (see [4] above) was not met – this was because of the unanimous finding on regulation 12(5) and having regard to section 73(6), which provides that “Regulations shall specify the cases which fall within subsection (3)(a) and (b) above”. The Appellant’s appeal was accordingly dismissed by a majority.

	16.	The dissenting member of the tribunal (the Tribunal Judge) stated that he would have awarded the higher rate of the DLA mobility component for three reasons. First, the finding that the Appellant was severely mentally impaired was itself sufficient for the purpose of section 73(3)(a). Second, regulation 12(5) was unduly restrictive and could not stand with the wording of section 73(3)(a). Third, regulation 12(5) involved unlawful discrimination, given the nature of the Appellant’s severe mental impairment, and so constituted a violation of the Appellant’s human rights.

	17.	The tribunal’s subsequent statement of reasons made limited findings of fact but otherwise did little to amplify the divergent views of the panel members as expressed in the detailed decision notice. Understandably enough, the Appellant’s husband adopted the reasoning of the minority as the basis for his application for permission to appeal to the Upper Tribunal. Equally understandably, a District Tribunal Judge gave the Appellant permission to appeal. The case was then stayed pending the outcome of NMcM v Secretary of State for Work and Pensions (DLA). 

	The Secretary of State’s response to the appeal
	18.	The Secretary of State’s response to the Appellant’s appeal to the Upper Tribunal has gone through several iterations. In the initial written submissions, the Secretary of State’s representative argued that the First-tier Tribunal majority had been entitled to conclude, given Dr J’s evidence, that the Appellant did not satisfy regulation 12(5) (i.e. severe mental impairment). The Secretary of State’s representative also argued that, despite the tribunal’s finding, the evidence on file did not actually justify a conclusion that regulation 12(6) (i.e. severe behavioural problems) was met (although there was no formal cross-appeal on the point). On that basis the Secretary of State did not support the appeal. However, those written submissions did not address the human rights arguments that had been raised.

	19.	That deficiency was made good by Mr Heath in his written submissions and at the oral hearing. In outline his submissions on the human rights aspect of the appeal proceeded through four stages. First, he acknowledged that an award of DLA was capable of being a “possession” for the purposes of Protocol 1, Article 1 of the European Convention on Human Rights. Second, however, Mr Heath argued that it had yet to be demonstrated that the Appellant had a clearly-defined “other status” so as to fall within the scope of Article 14. Third, Mr Heath contended that the Appellant was the victim of neither direct nor indirect discrimination in the application of regulation 12(5). Fourth, and if he was wrong about that, he argued that any discrimination or differential treatment was justified, applying the “not manifestly without reasonable foundation” test derived from the European jurisprudence.

	20.	All that said, in the course of oral argument Mr Heath resiled somewhat from the Secretary of State’s original arguments on those aspects of the appeal which were not directly concerned with the human rights ground. In doing so, Mr Heath very fairly recognised there was an argument that the tribunal had failed adequately to make and explain its findings of fact on the central issue of whether the Appellant was “severely mentally impaired” for the purpose of section 73(3)(a) and regulation 12(5).

	The Upper Tribunal’s analysis: the reasoning of the First-tier Tribunal	
	The First-tier Tribunal’s unanimous finding on regulation 12(5) 
	21.	The first unanimous conclusion of the tribunal actually comprised two separate findings (see [14] above). 

	22.	The first finding was that the Appellant was “severely mentally impaired”; given the way that the decision notice and statement of reasons were structured, this was presumably intended as a finding based on the ordinary English meaning of that expression, ignoring any special gloss imposed on that term by the combined effect of section 73(3) and regulation 12(5). Certainly, as the tribunal found as a fact, the Appellant suffered from schizoaffective disorder and her mental state was unstable. That finding, although sustainable on the “plain English meaning” assessment of the evidence, was of limited value when considered in the context of the narrowly defined and very specific legislative requirements.

	23.	The second finding was the tribunal’s unanimous conclusion that the Appellant did not suffer from “a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning”. It was plain that the tribunal reached this finding by accepting Dr J’s evidence, in the form of the letter he wrote in reply to the first tribunal’s inquiry, there being, as the tribunal found, “no evidence to the contrary”.

	24.	This amounts to an error of law by the tribunal as a whole. The error of law in question can be put in two ways, which Mr Heath helpfully characterised as the “strong” and “weak” view of the tribunal’s error. The strong view – to which I incline – is that the tribunal in effect abdicated its responsibility for deciding a question of fact, following the application of the relevant legal principles, by simply adopting Dr J’s opinion without further ado. Dr J, of course, as the Appellant’s husband confirmed (as he had himself queried the issue with the consultant), was doing no more than expressing his own opinion. It appears that this expression of opinion was in part based on the fact that the Appellant had never had a brain scan. Dr J cited no evidence or clinical findings in support of his expression of opinion. Furthermore, Dr J doubtless interpreted the question as put to him by the original tribunal in the light of his own expert medical and scientific understanding of the terminology used. But Dr J can hardly be expected to be familiar with the DLA jurisprudence on the meaning of the expression encapsulated in regulation 12(5). The weak view – the mast to which Mr Heath was more inclined to nail his colours – was that, in acting as it did, the tribunal had failed to make sufficient findings of fact or to provide adequate reasons for its decision on the application of regulation 12(5). The difference between these strong and weak views may ultimately be a question of fact and degree, but either way the tribunal’s unanimous decision on this point involves an error of law.

	25.	However, assuming for the moment that the tribunal’s unanimous finding on regulation 12(5) had been properly based on a sound evidential and factual analysis, I would have found no error of law in the conclusion by the non-legal majority of the tribunal that section 73(3)(a) was not satisfied. As the majority correctly identified, section 73(6) gives the Secretary of State the express authority to specify by way of regulations the types of cases which are to fall within the scope of section 73(3)(a). Regulation 12(5) does precisely that. In addition, as Mr Heath correctly identified, section 175(3) of the SSCBA 1992 in any event further empowers the Secretary of State to exercise any such regulation-making power “in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case”. It follows that the first two reasons given by the Tribunal Judge for dissenting (see [16] above), which both concerned the linkage between section 73(3)(a) and regulation 12(5), do not hold good as a matter of statutory construction.

The dissenting human rights argument and regulation 12(5)
26.	This leaves the Tribunal Judge’s third reason in his dissenting judgment for finding that an award of higher rate mobility component should have been made, namely the human rights argument. This was, of course, the basis of the Appellant’s appeal. However, it is by no means obvious to me that the human rights issue is actually determinative in this case. The First-tier Tribunal in effect unanimously regarded itself as boxed in by Dr J’s expression of opinion. Yet once those shackles are removed, it does not seem to me inevitable that the Appellant’s claim for the higher rate mobility component under the SMI rules will necessarily fail. The outcome of that process depends on the new tribunal’s evaluation of the evidence and its fact-finding. If the claim does happen to fail, then it is only at that stage that the basis for the unsuccessful claim will become apparent and the potential human rights arguments will come into proper focus. At the present stage it can only be said that the Appellant’s claim faces a number of difficulties, not that she must automatically fail. However, in the light of the submissions that have been made a number of observations are in order.

27.	Given the Secretary of State’s entirely proper concession that DLA is a “possession” for the purpose of Article 1 Protocol 1 of the European Convention on Human Rights (see Stec v United Kingdom (2006) 43 EHRR 47), and the fact that any human rights challenge is realistically going to have to be premised on that provision in conjunction with Article 14, there are three key steps in the human rights argument. 

28.	The first step is to identify whether the Appellant has an “other status” for the purpose of Article 14. Mr Heath, in his written and submissions, argued that it was by no means clear that the Appellant had such a protected characteristic. I have to say I do not share Mr Heath’s doubts, even to the smallest degree. It is plain, as Mr Heath acknowledged, that as a matter of principle a person’s disability may be an “other status” under Article 14 (see AM (Somalia) v Entry Clearance Officer [2009] EWCA 634 and Burnip v Birmingham CC [2012] EWCA Civ 629). Indeed, as Elias LJ explained in AM (Somalia) (at [36]), “The concept of status is a broad one, but as the ECHR has said on a number of occasions, it must relate to a ‘personal characteristic’, which may, however, also include social characterisations including some acquired by a voluntary act, such as the status of being a trade unionist”. Given that jurisprudence, it seems to me that having a long-term, severe schizoaffective disorder is a deep-rooted personal characteristic and a significant disability, and as such obviously an “other status” for the purpose of Article 14.

29.	The second step, assuming that the Appellant has such an “other status”, is whether, in the event that her claim for higher rate mobility does not succeed, there is any unlawful discrimination in the SMI rules. There is no suggestion that the SMI rules in section 73 of the SSCBA 1992 and regulation 12 of the 1991 Regulations involve any direct discrimination against people who suffer from schizoaffective disorder (or indeed other disabilities). So the question then turns on whether there is any indirect discrimination. Indirect discrimination is where an apparently neutral provision, criterion or practice adversely affects a group to which the person in question belongs. Mr Heath submitted that the test of severe mental impairment in regulation 12(5) does not necessarily involve any disparate effect on claimants in the same position as the Appellant. I agree with Mr Heath that regulation 12(5) cannot readily be seen as involving indirect discrimination on this conventional test. It does not involve the application of an apparently neutral policy yet one which has a disproportionate and unlawful impact on a particular group of claimants, such as to amount to unlawful indirect discrimination. 

30.	Mr Heath also argued that this was also not an instance of indirect discrimination on the alternative principle as set out in Thlimmenos v Greece (2001) 31 EHRR 15, where it was held that Article 14 can be invoked where “states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” (at [44]). The distinction between these two forms of indirect discrimination was identified by Elias LJ in AM (Somalia) (at [46]):

“The traditional concept of indirect discrimination is related to the concept that different cases should be treated differently to this extent: in both the applicant is saying that he or she is adversely affected by a rule which is framed to apply equally but which in fact fails to have regard to a material feature of his or her situation. In the case of traditional indirect discrimination, however, the complaint is that the alleged discriminator could be expected to adopt a different rule which does not have that effect and that it is unreasonable for him not to do so. By contrast, in the case where it is alleged that different cases should be treated differently, it is accepted that the rule itself may serve a legitimate function and be capable of justification in most circumstances but it is contended that a different rule should be adopted for the claimant and those in a similar situation, specifically ameliorating the effect resulting from their special features or characteristics.”

31.	I did not have the benefit of detailed argument on this point. That said, however, a challenge of indirect discrimination based on the alternative principle in Thlimmenos v Greece seems problematic. The usual criterion for higher rate mobility is whether the claimant is either unable or virtually unable to walk because of physical disablement. The legislator has provided for a number of alternative routes to obtain an award of higher rate mobility, of which the SMI rules are one such route. So to that extent it is plainly arguable that Parliament has already acknowledged that the usual criterion is not appropriate for all cases, and that different cases should indeed be treated differently. The argument then revolves around the terms of that different treatment. I therefore foresee some difficulty in how a Thlimmenos challenge could be successful if the Appellant fails to meet the SMI rules (and in particular regulation 12(5)) and so does not qualify for the higher rate of the DLA mobility component by that route.

32.	The third step is whether such indirect discrimination, assuming it does indeed exist, can be shown by the Secretary of State to be justified. Mr Heath’s argument was that the intention of Parliament, as demonstrated by the legislative history of the SMI rules, was to target access to the higher rate mobility component on a very narrowly-defined group of disabled claimants. The SMI legislative provisions were devised following extensive consultation with relevant voluntary sector organisations such as Mencap (now Scope). Mencap’s estimate was that there were approximately 8,000-9,000 potential claimants who were severely mentally impaired and had severe behavioural problems, such that they needed physical control, and not simply guidance and supervision, for most of the time when out of doors. This target group was distinguished from a larger group of perhaps 150,000 people who were thought to need guidance and supervision when out of doors, but not close physical control, and for whom the lower rate of the DLA mobility component was intended. Mr Heath’s detailed written submissions referred extensively to the Parliamentary debates on what was then the Disability Living Allowance and Disability Working Allowance Bill 1991, the relevant provisions of which were consolidated in section 73 of the SSCBA 1992. Mr Heath also relied on the analysis in my article entitled              “Severe mental impairment and the higher rate mobility component" in (1999) 6 Journal of Social Security Law 10-32.

33.	Ultimately the question to be resolved at this third stage is whether the means chosen by Parliament and embodied in what is now section 73(3) and regulation 12 were reasonable and proportionate. Putting the matter more precisely, if the Appellant’s claim to the higher rate mobility component fails because it is found that she does not meet the terms of (say) regulation 12(5), the question is whether or not that test is “manifestly without reasonable foundation” (see Humphreys v Secretary of State for Work and Pensions [2012] UKSC 18 at [15]-[21]). The test is not where I would happen to have drawn the line between entitlement and non-entitlement. For the reasons that Mr Heath advances, and summarised in the previous paragraph, I find it difficult to see how the SMI rules as laid down in section 73 and regulation 12 could be said to be “manifestly without reasonable foundation”.

34.	Thus, although the question is at present somewhat academic, I would not have allowed this appeal on the human rights arguments relied upon by the dissenting First-tier Tribunal Judge. Whilst I accept that the Appellant’s disability is a status and so a protected personal characteristic, I doubt very much that there is any indirect discrimination and, in any event, I conclude that any such discrimination that may be inherent in the SMI rules is justified in that the Secretary of State has shown that it is “not manifestly without reasonable foundation”.

Conclusion of the Upper Tribunal’s analysis of the grounds of appeal
35.	The First-tier Tribunal’s unanimous decision involves an error of law in that (at the very least) it failed to find sufficient facts and/or give an adequate explanation for its conclusion that the Appellant did not “suffer from a state of arrested development or incomplete physical development of the brain” within the meaning of regulation 12(5). There was, however, no error of law in the tribunal’s majority decision that it could not use human rights arguments in effect to disapply regulation 12(5). 

36.	I therefore allow the Appellant’s appeal. It is appropriate to set aside the tribunal’s decision. There are insufficient facts found for me to be able to re-make the DLA decision under appeal. It follows that a new First-tier Tribunal will need to re-hear the Appellant’s appeal. In the rest of this decision I proceed to give the new tribunal some guidance on how to apply the SMI rules in the circumstances of the present case.

The possibility of a claim for Personal Independence Payment
37.	Before doing so, however, I would strongly advise the Appellant and her husband to seek advice on the possibility of a claim for Personal Independence Payment (PIP). This may provide an alternative route to what is, in effect, the higher rate mobility component. Thus even if the Appellant does not qualify for the higher rate of the mobility component of DLA under the SMI rules, she may be able to abandon her DLA claim and instead claim the new benefit PIP. Like DLA, PIP has “daily living” (i.e. care) and “mobility” components, but these are subject to different rules. In particular, the SMI rules are not replicated in the PIP scheme. 

38.	Under the PIP scheme a claimant who is severely limited by either her physical or mental condition may score a total of 12 points for mobility activities. If so, this qualifies for the “enhanced” rate of the PIP mobility component (equivalent in cash terms to the higher rate mobility component of DLA). Although there is no equivalent to the SMI rules, a claimant who “cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid” scores 12 points under the PIP scheme. The Appellant may well meet that condition, given the nature of her disability. 

39.	The rules governing transfers of awards from DLA to PIP are complex. In general terms it is also anticipated that fewer people will qualify for PIP than DLA. However, some people may be better off claiming PIP than DLA, and the Appellant may be such a person (I put it no higher than that). A Citizens Advice Bureau or law centre should be able to give the Appellant and her husband detailed advice on the prospects of making a successful PIP claim for the enhanced rate of both the daily living and mobility components. There is, of course, nothing to stop them pursuing this DLA appeal at a First-tier Tribunal re-hearing while at the same time exploring the possibility of making a PIP claim. However, a person cannot simultaneously have the benefit of both a DLA and a PIP award.

40.	If the Appellant is able to make a successful claim for the enhanced rate of the PIP mobility component, this may also have the happy advantage of acting as a “passport” to getting a blue badge from the local authority. The same, of course, would be true if the Appellant is found to meet the SMI rules and so qualify for the higher rate of the DLA care component.

	The Upper Tribunal’s guidance to the new First-tier Tribunal	
Introduction
41.	The new First-tier Tribunal will need to consider the evidence afresh and make its own findings of fact having applied the proper legal tests at each stage. The new tribunal will be aware that the Appellant will only satisfy the SMI rules and thereby qualify for the higher rate mobility component of DLA if she meets each of the three conditions set out in section 73(3)(a)-(c) of the SSCBA 1992 (see [4]-[6] above). The Appellant is already entitled to the highest rate of the care component of DLA under her existing award, and so the third condition is not in issue. Accordingly the new tribunal will need to focus on the first and second conditions.

The first condition: severe mental impairment
42.	The new tribunal must first establish whether or not the Appellant “is severely mentally impaired” for the purpose of section 73(3)(a). This is not the same as asking whether or not she is seriously mentally ill. Rather, the expression “severely mentally impaired” is exclusively and exhaustively defined by regulation 12(5). It may help to see this as a three stage test.

Stage 1: does the Appellant suffer from “a state of arrested development or incomplete physical development of the brain”?
43.	The meaning of this statutory expression was explored in NMcM v Secretary of State for Work and Pensions (DLA) (see [1] above). In that decision I held that the “age 30 cut-off rule” – namely that a person could not qualify under the SMI rules if their severe mental impairment first manifested itself after the age of 30 – was no longer good law, and so declined to follow the decision of Commissioner Rice in reported decision R(DLA) 2/96 in that regard. That particular issue does not arise in the present appeal, as the Appellant’s difficulties arose well before the age of 30.

44.	On the basis of the case law, it would appear to be open to the new tribunal to conclude that the Appellant does indeed suffer from a state of arrested development of the brain. In another case, R(DLA) 3/98, involving a claimant aged 60 who had suffered from schizophrenia since the age of 16, Commissioner Rice concluded that the first limb of regulation 12(5) was satisfied. This was on the basis of expert medical evidence which had confirmed that some forms of schizophrenia were constitutional (rather than environmental) in origin, and that a significant proportion of sufferers experienced neuro-developmental damage.

45.	The formal diagnosis of schizophrenia in R(DLA) 3/98 was at an age a few years earlier than the present case, but that does not seem to me to be a material distinction on the facts. Mr Heath, in the course of oral argument, suggested there was no clear evidence in the present case to show whether the Appellant’s schizophrenia was constitutional or environmental in origin. However, as previously noted, the Appellant’s husband explained that no brain scan had ever been conducted, so far as he was aware. He also referred to a family history of schizophrenia, a factor which had not previously emerged in the appeal (in part because of the lack of fact-finding at first instance).

46.	In R(DLA) 3/98 Commissioner Rice concluded that the claimant “experienced schizophrenia at a very early age, her condition has been unremitting throughout her life, and she has displayed all the features associated with schizophrenia in its severe form” (at [14]). As such, the claimant there was found to suffer from arrested development of the brain. By the same token, it seems to me perfectly open to the new tribunal to conclude that in the present case likewise the Appellant suffers from a state of arrested development of the brain. That question has to be resolved on the balance of probabilities. Clearly Dr J’s evidence is to the contrary, but the new tribunal must not lose sight of the point that Dr J is expressing an opinion, based on his understanding of the terminology, and not making a statement of fact which is in any way binding on the tribunal.

Stage 2: does the Appellant have severe impairment of intelligence and social functioning?
47.	The previous tribunal reached the unanimous conclusion that the Appellant had a severe impairment of intelligence and social functioning. However, it made no primary findings of fact that supported that overall conclusion. The new tribunal will have to remedy that omission.

48.	The new tribunal must accordingly approach this aspect of regulation 12(5) afresh and make its own findings of fact based on the evidence it receives. Although it is entirely a matter for the assessment by the new tribunal, it may have little difficulty, on the evidence so far, in concluding that the Appellant suffers from severe impairment of social functioning. The requirement to show severe impairment of intelligence may be more problematic. The fact that the Appellant attended a normal (not special) school and can read (but does not enjoy reading) might imply that this aspect of the test is not met. Likewise, the Appellant’s husband told me how she loved music, and while she could not manage an MP3 player, she could operate an old-style Walkman. That might suggest an impairment of intelligence rather than a severe impairment of intelligence. 

49.	In this context it must be noted that in R(DLA) 3/98 Commissioner Rice concluded that, although the claimant there suffered from arrested development of the brain as a result of her schizophrenia, there was no evidence that she suffered from impairment of intelligence, let alone severe impairment of intelligence, and the claim foundered on that basis (at [16]). However, this conclusion was reached on the absence of any evidence to suggest the claimant’s intelligence was three standard deviations from the norm (an IQ of 55 or less). But it is now recognised that a crude measure of intelligence is not the proper test. As I explained in NMcM v Secretary of State for Work and Pensions (DLA) at [79]-[82]:

“79. In this context the Court of Appeal’s decision in M (a child) v Chief Adjudication Officer (reported as R(DLA) 1/00) is authority for two propositions. The first is that a claimant must establish both severe impairment of intelligence and severe impairment of social functioning. The second is that a standard IQ intelligence test alone should not be regarded as a definitive measure of whether an individual has severe impairment of intelligence. This overruled earlier Commissioners’ case law to the effect that only people with an IQ of 55 or below were regarded as having severely impaired intelligence (e.g. CDLA/1698/1997). According to Simon Brown LJ, giving the leading judgment in the Court of Appeal in M (a child), “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”. Thus:

“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.”

80. I note also that in CD v Secretary of State for Work and Pensions [2013] UKUT 068 (AAC), Judge Bano held that regulation 12(5) requires:

“an evaluation of a claimant’s ‘useful intelligence’, including what the Court of Appeal in R(DLA) 2/00 called “insight and sagacity”. Mrs Dean, on behalf of the Secretary of State has in my view helpfully and accurately equated those qualities to “the ability to function in real-life situations”, and I agree with her that in order to assess that ability the tribunal ought to have taken into account the very considerable body of evidence in this case concerning the claimant’s lack of sense of danger.”

81. In the present case, although it is a matter for the new Tribunal, there appears to be ample evidence of the Appellant’s lack of any sense of danger in real-life situations. For example, his GP reported that he had “absolutely no appreciation of danger and seems oblivious of injury when he sustains it” (letter dated 18 November 2009). Thus the simple fact that the Appellant can read and do crosswords does not necessarily preclude him from suffering from severe impairment of intelligence and social functioning, looking at both those matters in the round.”

50.	If both limbs of regulation 12(5) are met, there is still a further third step in the analysis which must be addressed.

Stage 3: is the necessary causal connection established between Stages 1 and 2?
51.	The third stage in the process of establishing whether regulation 12(5) is made out on the facts of any given case is to assess whether the “state of arrested development or incomplete physical development of the brain” from which the Appellant suffers is a condition “which results in severe impairment of intelligence and social functioning.” It follows that there must be a causal connection between the two limbs of regulation 12(5). This question of causation is ultimately a factual issue for the First-tier Tribunal to determine.

52.	In the particular circumstances of the present case, if the new tribunal is satisfied on the evidence both that the Appellant suffers from both a state of arrested (or incomplete physical) development of the brain and a “severe impairment of intelligence and social functioning”, then the necessary causal connection signified by the requirement that the former “results in” the latter may be readily established. 

53.	However, this link may not always be quite so straightforward. This is particularly so if an adult claimant has both intelligence and social functioning within the normal range, as a result of the entirely unexceptional development of his brain, but then suffers a catastrophic destruction of his brain’s capabilities wrought by some external agency (e.g. physical trauma through an accident or through contracting some serious illness). The claimant may well be of an age where some further development of the brain would normally be expected (based on the expert scientific evidence reviewed in NMcM v Secretary of State for Work and Pensions (DLA)). However, even if such a claimant now has severe impairment of intelligence and social functioning, it does not necessarily follow that the state of arrested development “results in” such severe impairment. In such a case the severe impairment of intelligence and social functioning is arguably not the result of the arrested development of the brain (i.e. the lack of any further marginal development of the brain as might have continued to take place, but for the catastrophic accident or illness), but rather the consequence of the destruction of an already existing capability. In terms of applying this causation test it may therefore be important to distinguish between functional or cognitive impairments that arrest further development and those which remove capacity that is already well developed.

54.	This requires a small but potentially significant correction to the guidance provided to the new tribunal in NMcM v Secretary of State for Work and Pensions (DLA)). The first sentence at [78] of that decision is incorrect in as much as it involves an elision of the statutory test. It is not the severe mental impairment which must result in “severe impairment of intelligence and social functioning”, as stated there. Rather, it is the “state of arrested development or incomplete physical development of the brain” which must result in “severe impairment of intelligence and social functioning.” Whilst that may impose an insuperable problem on the facts for claimants in the position of the appellant in NMcM v Secretary of State for Work and Pensions (DLA), the causation link itself is unlikely to be a significant difficulty for the Appellant in the present appeal.

The second condition: severe behavioural problems
55.	The second condition under the SMI rules is satisfied if the Appellant “displays severe behavioural problems” within the terms of SSCBA 1992, section 73(1)(c) and (3)(b) and regulation 12(6) (see [5] above). The original tribunal was unanimous that the Appellant qualified under regulation 12(6). However, the only findings of fact it made in this regard were that the Appellant had set fire to her mother’s flat, experienced command hallucinations that told her to perform negative and destructive actions, had self-harmed and had thrown a cup of tea at a helper at the day centre she attended. This is an insufficient basis on which to find that regulation 12(6) was indeed met. The fire incident was about 30 years ago. The Appellant’s 2012 care plan confirms “high risk of self harm without support from husband” but does not indicate when the last such attempt was made. It also confirms the incident with the cup of tea, but again gives no date. However, the mental health team’s evidence was that command hallucinations were a daily event, but were managed with support and intervention from the Appellant’s husband.

56.	The new tribunal will have to take evidence and make careful findings of fact as to the nature and frequency of the Appellant’s disruptive behaviour. On the basis of what is on file and what the Appellant’s husband told me at the oral hearing, the new tribunal may have little difficulty in concluding that, when it occurs, the Appellant’s disruptive behaviour (e.g. in cars and on public transport) is extreme within regulation 12(6)(a). However, the tribunal will also have to be satisfied that the precise terms of both regulation 12(6)(b) and (c) are met.

57.	As regards the requirement in regulation 12(6)(b), the new tribunal may also need little persuasion to conclude that the Appellant’s extreme behaviour is such that it requires another person (typically her husband) to intervene and physically restrain her, whether in order to prevent her causing physical injury to herself or another, or damage to property. The crunch point is likely to be whether this requirement arises “regularly”. This is ultimately a question of fact. In this context I draw the new tribunal’s attention to my guidance on this point in Secretary of State for Work and Pensions v MG (DLA) [2012] UKUT 429 (AAC) at [23] and [24] (an appeal in which Mr Heath again appeared for the Secretary of State and Mr Stagg appeared for the claimant, who happened to be a child):

	“What does “regularly” mean in the context of regulation 12(6)(b)?
23. The claimant’ extreme behaviour need not occur constantly, continuously or all the time. That would be to set the threshold for eligibility too high. Rather, it must be such that it “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”. The word “regularly” is a protean one, so taking its meaning from its context. The Commissioner in CDLA/2470/2006 commented that “such a degree of intervention and restraint is likely to be required on a significant proportion of occasions when the claimant walks moderate distances outdoors”. I agree with that observation as far as it goes. 

24. I do not agree with Mr Stagg’s further submission that this means that regularity under regulation 12(6)(b) can be met by such incidents occurring just outdoors. Such an analysis seems to me to be inconsistent with R(DLA) 7/02. Rather, that sort of intervention to deal with extreme disruptive behaviour will also need to be required sufficiently often indoors as well such that, taken overall, one can say that it is required “regularly” or “in the ordinary course of events” (see CDLA/2054/1998 at [7d]). When the claimant is outdoors, the need for intervention in the proximity of traffic is the obvious example. The indoors intervention may take any number of different forms: in MMcG v Department for Social Development (DLA) the claimant had to be stopped from jumping off the top step of the household stairs. Other examples – and they are no more than that – might be the need for physical restraint to stop the claimant trying to put his fingers in electrical sockets or to stop him damaging internal doors, walls or household furniture when frustrated. As Mr Deputy Commissioner (now Judge) Warren noted in CDLA/17611/1996, the requirements of regulation 12(6) “fall to be answered in respect of the claimant’s condition generally and not with any special emphasis on behaviour when walking out of doors” (at [11]). However, I also agree with Judge Mark’s helpful formulation that “Interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant” (Secretary of State for Work and Pensions v DM (DLA) [2010] UKUT 318 (AAC) at [9]).”

58.	Even if the regularity requirement in regulation 12(6)(b) is satisfied, the Appellant’s extreme disruptive behaviour must also be such that it “is so unpredictable that [she] requires another person to be present and watching over [her] whenever [she] is awake” within regulation 12(6)(c). This again is a demanding test, and sets the threshold higher than the degree of continual supervision needed for the DLA care component. I refer again to my guidance in Secretary of State for Work and Pensions v MG (DLA) [2012] UKUT 429 (AAC) (at [27]-[29]):
	
	“What does “watching over” mean in the context of regulation 12(6)(c)?
27. The new tribunal should bear in mind the guidance in the leading case of R(DLA) 9/02. As Mr Commissioner (now Judge) May noted there, the test is “specifically restrictive” and the carer must be 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” (at [12]). Both Mr Heath and Mr Stagg agreed, as I do, that this proposition is subject to a de minimis rider, so that for example “very short intervals without watching over” e.g. for a carer’s ‘comfort break’ (but not, for example, a leisurely cup of tea and a prolonged respite break in the garden whilst the claimant is inside) can be ignored for this purpose (see CDLA/2714/2009 at [10], cited in JH v Secretary of State for Work and Pensions (DLA) [2010] UKUT 456 (AAC) at [11]).

	28. Since the oral hearing of this appeal, Judge Mark has issued his decision in AH v Secretary of State for Work and Pensions (DLA) [2012] UKUT 387 (AAC). Judge Mark held that “requires” in regulation 12(6)(c) means “reasonably requires” (at [16]). That seems to be uncontroversial. Judge Mark also expressed the view that if the carer is present close enough to hear what the claimant is doing and so to intervene if necessary, and is either looking in with sufficient regularity or (conceivably) observing the claimant on CCTV, then the fact that the claimant’s bedroom door is shut does not inevitably mean that the carer is not present and watching over the claimant whenever he is awake (at [14] and [19]). This is at the very least a significant gloss on the Commissioner’s ruling in R(DLA) 9/02, although Judge Mark sought support from the observations in CDLA/2167/2010 (at [13]). I considered whether to seek further submissions from both representatives on this issue in the light of the newly available decision. I decided not to, given that the question was not central to this appeal and the case has gone on long enough already.

	29. I simply make the following observation. It seems to me that there is some force in Judge Mark’s qualification. Obviously the statutory language must take its ordinary meaning from its context, in the absence of any indication to the contrary. ‘Watching’ means observing, being on the lookout, keeping someone or something in sight, or keeping vigil. However, ‘watching over’ may carry a slightly different nuance in meaning, of exercising protective care over someone or something. After all, regulation 12(6)(b) does say “watching over” and not “looking at”. It is arguable that the Commissioner in R(DLA) 9/02 may have elided the meanings of ‘watching over’ and ‘watching’ (see e.g. at [12]). That is not to say that the meaning of “watching over” can be stretched like a piece of elastic, not least as it is coupled with the restrictive requirement that the carer be “present”. That, of course, is ultimately a question of fact for the first instance tribunal.”

59.	From the account that the Appellant’s husband gave me, the tribunal may well find that he is with his wife at all times (unless either she is at the day centre or he has a respite break arranged through social services). He described his role as “24/7”, and I do not doubt that it is. He gave as an example that even when he was having a bath, his wife puts the loo seat lid down and sits in the bathroom with him. However, the new tribunal will need to satisfy itself that he is present and watching over her whenever she is awake because of the unpredictability of her extremely disruptive behaviour and not, for example, because she is anxious when alone and simply needs continual reassurance.

My overall conclusion
60.	For the reason explained above, the Tribunal’s decision involves an error of law. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case is remitted for rehearing by a new First-tier Tribunal subject to the directions and guidance above (section 12(2)(b)(i)).  

Signed on the original				Nicholas Wikeley
on 12 February 2015					Judge of the Upper Tribunal