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M (a child) v. Chief Adjudication Officer [1999] UKSSCSC CDLA_6219_1997 (29 October 1999)

R(DLA) 1/00

(M (a child) v. Chief Adjudication Officer)

CA (Simon Brown, Otton and Mummery LJJ) CDLA/6219/1997
29.10.99

Mobility component - whether claimant "severely mentally impaired" - whether IQ test result determinative

The claimant, a child who was autistic, claimed the higher rate mobility component of disability living allowance on the basis that he met the conditions in section 73(3) of the Social Security and Contributions Act 1992. A disability appeal tribunal decided that the claimant was not "severely mentally impaired" within the meaning of section 73(3)(a) of that Act, as defined by regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 by virtue of which a person fell within section 73(3) "....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." The claimant appealed to a Commissioner who dismissed the appeal because the evidence before the tribunal did not show that the claimant's IQ was 55 or less. The claimant appealed to the Court of Appeal.

Held, allowing the appeal, that:

a claimant must show severe impairment both of intelligence and of social functioning to bring himself within the definition in regulation 12(5);

in deciding that the claimant must demonstrate that he had an IQ of 55 or less in order to meet the first of these conditions ("severe impairment of intelligence"), the Commissioner had taken too narrow a view because intelligence includes not merely the functions of understanding and intellect but also the qualities of insight and sagacity and IQ tests are therefore not a true indication of useful intelligence;

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 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 and other evidence must be admitted and considered.

The Court of Appeal set aside both the Commissioner's decision and the tribunal's and referred the case to a different tribunal for determination.

_________________________________________________________________________________

DECISION OF THE COURT OF APPEAL

Mr. S. Cox (instructed by Solicitor for Disability Law Service, High Holborn, London WC1) for the Appellant.

Mr. J. R. McManus QC (instructed by Solicitor for Department of Social Security, 48 Carey Street, London WC2A 2LS) for the Respondent.

LORD JUSTICE SIMON BROWN:

The appellant is an autistic child aged nine. At issue in these proceedings is his entitlement to the higher rate of the mobility component of a disability living allowance as from January 1995. Amongst the qualifying conditions for this higher rate are that the claimant suffers from "severe impairment of intelligence and social functioning" within the meaning of regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 (the Regulations). The true construction and application of that provision lies at the heart of the appeal.

On 21 May 1997 the Disability Appeal Tribunal found the appellant entitled to the highest rate of the care component, and to the lower rate of the mobility component of the benefit. But they rejected his claim to the higher rate of the mobility component. On 1 May 1998 the Social Security Commissioner (Mr. Commissioner Rice) dismissed the claimant's appeal against that decision. With the leave of Mr. Commissioner Goodman, following Mr. Commissioner Rice's retirement, the claimant now appeals to this court.

With that brief introduction let me turn to the legislative provisions in play. The appellant's claim to the higher rate of the mobility component is made under s.73(3) of the Social Security Contributions and Benefits Act 1992:

"(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(1)(b) and (c) above."

There is no dispute here that condition (c) is met; the two conditions to which it refers concern entitlement to the higher rate care component.

Regulation 12(6) of the Regulations specifies who falls within paragraph (b) of s.73(3):

"(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."

No decision has yet been reached whether the appellant satisfies that condition. Thus far he has fallen at the earlier fence - for the purposes of this appeal the all-important fence constituted by s.73(3)(a). It is regulation 12(5) of the Regulations which specifies who satisfies this condition:

"(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."

It will readily be seen that regulation 12(5) has two limbs. The claimant must first establish that "he suffers from a state of arrested development or incomplete physical development of the brain". He must then establish that that "results in severe impairment of intelligence and social functioning."

As to the first limb, there is no dispute before us (although there was perhaps some ambiguity in the Disability Appeal Tribunal's conclusions on the point) that it is satisfied in the case of those who suffer autism. Critically, therefore, the question arising for an autistic claimant such as this appellant is: does his autism result in "severe impairment of intelligence and social functioning"?

Although I shall have to return later to certain particular passages in Mr. Commissioner Rice's decision, in substance it may be summarised as follows:

To satisfy this condition the appellant had to establish that his autism resulted in both (i) severe impairment of intelligence, and (ii) severe impairment of social functioning. There are, in short, two discrete conditions to be satisfied.

To establish that he suffered "severe impairment of intelligence", the appellant had to show that he has an IQ of 55 or less.

There was "absolutely no evidence in this case to that effect" and accordingly the claim failed.

Since the appellant had failed to establish that he suffered "severe impairment of intelligence", it was unnecessary to consider whether he suffered "severe impairment of social functioning".

Two central arguments are advanced by Mr. Cox on this appeal. First he submits that it is wrong to construe the expression "severe impairment of intelligence and social functioning" as implying two distinct requirements. Rather he submits that it should be read as a whole, the word "and" being conjunctive and thus requiring a single composite assessment of the impairment both of "intelligence and social functioning". Second, he submits that, even if that be wrong, then nevertheless it cannot be right, least of all in the case of an autistic claimant, to decide whether he suffers "severe impairment of intelligence" solely by reference to whether his IQ exceeds 55.

Issue 1 - Must a claimant establish both severe impairment of intelligence and severe impairment of social function?

This is not a question which is capable of a simple linguistic answer. I cannot accept Mr. McManus QC's submission for the respondent that to regard both elements as a composite whole would involve reading "and" as "or". But nor does it seem to me of much assistance to the appellant's argument that the phrase does not read "severe impairment of intelligence and of social functioning" - although that form of words would have been decisive in the Respondent's favour.

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.

Certainly in the past Social Security Commissioners appear for the most part to have approached this question in the way the respondent contends is correct. Although the point has not previously been argued, it is nevertheless of some interest to see how the provision has struck this highly expert and experienced body of judges.

For the sake of completeness I should perhaps note that the same words "severe impairment of intelligence and social functioning" are to be found in other legislation too, most notably the Mental Health Act 1983 and the Sexual Offences Acts 1956 and 1967. In R v Hall (1988) 86 Cr. App. Re. 159, Parker LJ described them as "ordinary English words. They are not terms of art"- an approach followed in R v Robbins (1988) Crim. LR at 744. Both parties agree, however, that the protection of vulnerable women under the criminal law is such a very different context to the present that no real assistance is to be gained from these authorities.

Issue 2 - Is it permissible to decide whether a claimant suffers "severe impairment of intelligence" solely by reference to whether his IQ exceeds 55?

In adopting the approach that it is, Mr. Commissioner Rice was following an earlier decision of his own (CDLA/1678/1997) in the case of another autistic child, where he said this:

"8. I now have to consider whether this condition results in severe impairment of intelligence and social functioning. I will deal first with the question of severe impairment of intelligence. In CDLA/8353/1995 I considered what constituted severe mental impairment based on the medical evidence given to me in that case by a Dr. Measey. I concluded as follows:

'15. Dr. Measey said that, from a medical standpoint, a person could not be said to be suffering from severe impairment of intelligence, unless he was intellectually 'three standard deviations' below the norm. A deviation was 15%. Dr. Measey explained how the system worked. The average IQ is 100. 72% of the population fall within the range 85-115. Those who have an IQ of 85 are one standard deviation below the norm, those with an IQ of 70 are two standards below; and those with an IQ of 55 are three standards below.'

I asked Dr. McKinley whether he agreed with that analysis. He said that he did, and that this was the accepted way of judging mental capacity.

What is the IQ of the claimant? Unfortunately there is no direct evidence on this issue. The evidence closest is that of the hospital consultant Dr. B.W. Knight, who in answer to the question 'if this patient's IQ was assessed formally, is it likely to be around 50 or less?' answer 'No', adding the qualification 'IQ not known'. Dr. McKinley explained to me that the intelligence of sufferers from autism might vary considerably from one case to another. Out of 10,000 children 94 might be suffering from autism to some degree. Four of them would experience the condition in its severe form, with consequential severe learning difficulties, whilst the other 90 might suffer only moderately or mildly. Those that fell within the latter category would normally have an IQ of between 80 and 90. It follows from these statistics that more than 90% of sufferers from autism have an IQ above 55, and as a result do not have a severe impairment of intelligence. The view of Dr. Knight would appear to suggest that the claimant fell within the majority group of sufferers from autism, and this was the opinion of Dr. McKinley himself after he had studied the file."

Having quoted those paragraphs, the Commissioner then turned to the Appellant's case and said:

"... 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."

The evidence before the Commissioner consisted essentially of a report by Dr. Cameron, a child psychiatrist, in a standard form provided for the purpose by the DSS. Its material parts read as follows:

"About the severity of mental impairment

Question: In your opinion is this person severely mentally impaired? (i.e. suffering from a state of arrested development or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning)

Answer: Yes

Please provide some further information to help us understand the basis for your opinion

Question: If this person's IQ was assessed formally would it be likely to be around 50 or less?

Answer: No

Question: Is this person's learning ability likely to be limited to basic life skills such as washing, dressing feeding and using the toilet?

Answer: No.

Question: If you have answered 'no' to either question 2 or 3 but still consider this person to be severely mentally impaired please give a brief explanation.

Answer: G has classical autism which severely limits his social capacity. He has very limited language and play skills and has no sense of danger.

Question: Is there anything else you think we should know about the nature of this person's mental impairment?

Answer: He needs continual supervision and care and will need special schooling throughout his school years."

Question 1's reference to an IQ of "50 or less" (rather than "55 or less") is explained by internal medical advice received by the Department at the time this form was drafted shortly after the Regulations were made. As the Commissioner observed, however, nothing turns on this: there was no suggestion that the appellant's IQ was between 50 and 55.

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.

For my part I would allow this appeal and remit the appellant's claim to a fresh appeal tribunal for further determination in the light of our judgments.

LORD JUSTICE OTTON:

I agree

LORD JUSTICE MUMMERY:

I also agree.

Order: Appeal allowed. Appellant's claim remitted to a fresh Appeal Tribunal for further determination in the light of our judgment. Respondent to pay the Appellant's costs. Legal aid assessment.