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[2004] UKSSCSC CDLA_1545_2004 (02 September 2004)

CDLA 1545 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision. (Social Security Act 1998, section 14(8) and (9)).

The claimant and appellant is appealing with my permission against the decision of the Colchester appeal tribunal on 10 December 2003 under reference U 42 132 2003 01066

DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The appointee and representative should note the comments I have made on further evidence at the end of this decision. If the appointee and representative have further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision (or if there is some unavoidable delay, then an indication should be given within that time limit of when that the evidence is to be produced).

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

The claimant, L, is claiming through his mother as appointee. His is now 24. He was awarded the highest rate of the care component and lower rate of the mobility component of disability living allowance from and including 22 August 2003 on a renewal claim. That is not in dispute. The appeal relates only to the further claim for the higher rate of the mobility component. L had previously been awarded this. The issue is whether L, who is clearly severely disabled, meets the particular tests for the higher rate of the mobility component for those with severe mental problems rather than physical problems. He is able to walk and can do so without severe discomfort though not without restraint.

The medical evidence

According to his general practitioner (writing in July 2003) L is severely mentally impaired. He has Tourette Syndrome and is on the severe mental illness register. When the claim was made for him in 1998, his problems were said to be learning difficulties, epilepsy and psychosis. This was confirmed by his consultant clinical psychiatrist, Dr Rajapakse, who also confirmed that L exhibited extremely disruptive behaviour including aggression, destructiveness and self injury. The adjudication officer took medical advice on whether L was severely mentally impaired and was advised that he was.

The picture was broadly the same when the 2003 renewal application was made. A different consultant psychiatrist, Dr Khine, reported moderate learning disability with additional handicaps including Tourette Syndrome and mental health problems. L remained extremely aggressive. Dr Khine indicated that regular intervention and restraint was needed but added that physical restraint was required on occasions only. It was also noted that L would always require close supervision and support day and night. The local office again sought medical advice and was told that L had moderate learning difficulties only.

When L's mother was told that his award was to be restricted to the lower rate of the mobility component, she appealed, stating that Dr Khine had been shown the criteria and did consider that L did meet the criteria for higher rate of the mobility component. She added that nothing had changed since 1998. The general practitioner commented as noted above. This was put to another Departmental adviser who accepted the "clear, authoritative view that this claimant does not have a severe learning difficulty due to arrested brain development and his learning ability is not likely to be limited to life skills". Following this, another report was submitted by Dr Khine, countersigned by the community nurse. This confirmed that L had moderate learning disability but "he has severe mental health problems associated with his Tourette syndrome and non-specific psychoses … he is severely handicapped in his daily functioning." The Department declined to increase the award and an appeal was made.

The law

A claimant is entitled to the higher rate of the mobility component if he or she is severely mentally impaired, displays severe behavioural problems, and receives highest rate of the care component (Social Security Contributions and Benefits Act 1992 s. 73(1) and (3).

Regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 defines severe mental impairment as covering someone who:

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) defines severe behavioural problems as covering someone who:

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.

The tribunal decision

The tribunal dismissed the appeal for two reasons. The first was:

The decision maker submits that the evidence does not support the claim that L suffers from a state of arrested development or incomplete physical development of the brain, which the requirement in law. The tribunal have considered the medical evidence and accept that opinion, having particular regard to page 97 that is the evidence of the consultant psychiatrist.

The other was that restraint was, according to Dr Khine, needed on occasions only and that L's condition was stabilised. This was confirmed by L's father's evidence that was accepted.

Applying the law

Regulation 12(5) and (6) tend to be considered together, and have been considered in a number of cases. In R(DLA) 7/02, decided by Commissioner Turnbull in April 2001, the need to make clear findings on each of these points was stressed. The case mainly concerned regulation 12(6). On the facts, the claimant only needed watching over for part of the time, and the Commissioner found that the conditions were not met. He cited CDLA 2054 1998 as authority for the view that "extreme" is an ordinary English word. But he did not accept the further view of that Commissioner that it was the behaviour when walking that needed to be considered. Commissioner Turnbull considered that it was the claimant's behaviour whenever awake that was relevant. In CDLA 996 2002 I emphasised that "there is nothing in section 73 requiring any specific mobility aspects to claim the mobility component under subsection (3), despite its name." In that case the tribunal found that the claimant was severely mentally retarded. R(DLA) 9/02 also emphasised that it was continual watching over that was necessary. It was a case involving Asbergers syndrome and autism. There were similar facts also in CDLA 3244 2001, and a similar decision.

R(DLA) 1/00 contains the report of the Court of Appeal decision in M (a child) v Chief Adjudication Officer on regulation 12(5). This confirmed that the tests of severe impairment of intelligence and severe impairment of social function are separate tests, and that severe impairment of intelligence is not to be measured purely by a specific level of IQ. That was a case of autism. R(DLA) 3/98 explored the entitlement of someone suffering from schizophrenia, but where there was no severe impairment of intelligence. Finally, CDLA 3215 2001 concerned a case of a child with autistic spectrum disorder. In that case the Commissioner found, after detailed consideration of the decision in R(DLA) 7/02, that a young claimant who had no sense of danger "lacks such a fundamental aspect of basic human intelligence that is must be the case (certainly here) that his intelligence is severely impaired."

The other case mentioned in the papers is R(M) 1/96. Para 13 is cited by the submission writer as authority for the proposition that "an adjudicating authority is not bound in anyway by the decision made on a previous claim. I submit therefore that the decision maker was entitled to reach the decision made and that there is no requirement for the decision maker to show that there has been any improvement. " This is false logic. The linked second and third propositions do not follow automatically ("therefore") from the first, or the third from the second, in every case. Whether there is a requirement for the decision maker to show some change will depend on all the facts. This is made clear by paragraph 13 itself, of which the submission writer's brief summary is somewhat misleading. Commissioner Howell QC sets out four rules in that paragraph. In summary they are: 1) that the decision must show adequate facts and reasons; 2) that these must be sufficient for the claimant or representative to see why the result has gone against them and why specific contentions have gone against them; 3) that this applies to medical facts and opinions; 4) that on a renewal claim the new tribunal is not bound by any past decision nor does any different standard of proof apply. But, as the Commissioner adds in paragraph 15, it must either be obvious from the tribunal's findings or from its explanation why an award is not renewed.

Did the tribunal err in law in this case?

One of the problems in this case is that slightly unfocussed language is used in the various medical enquiries made and opinions given. There is talk within the Department and its medical advisers of "severe mental impairment " or "SMI". Dr Khine and others were not asked to consider this or the criteria in regulation 12(5) specifically but other questions put to them, no doubt with the best of intentions, that approached the issues in a slightly different way. I can see no specific evidence of the point about arrested development or incomplete physical development of the brain being put to the doctors in precisely those terms. Instead, the key questions (and, in italics, Dr Khine's answers) are:

2 Is the patient's learning ability likely to be limited to basic life skills, such as washing, dressing, feeding and using the toilet?

No. His functional skills are relatively good.

3 If you have answered "no" to question 2 but still consider the patient to have a severe learning disability please give a brief explanation.

Patient has moderate learning disability of non specific cause. Additional handicaps due to – Tourette syndrome and mental health problems.

5 Does this person exhibit extremely disruptive behaviour?

Yes

6 Does the behaviour regularly require someone else to intervene and physically restraint the patient, in order to prevent them causing physical injury to themselves or another, or damage to property?

Yes. [physical restraint required} on occasions only – stabilised on medication – prone to high levels of anxiety and can be impulsive and explosive – responds to medication and behavioural approach – ie management strategies.

This is the evidence ( on page 97) on which the tribunal relied. Similar questions were asked in 1998, but the tribunal paid not attention to the answers given then. The expert answer to question 6 was "Yes" in 1998 also. No elaboration was then asked for and none was given.

While taking that into account, I consider that the tribunal decision is inadequate for several reasons.

With regard to the application of regulation 12(5), the question is whether L is severely mentally impaired as defined. This must essentially be a medical question. In 1998 expert advice, followed by departmental opinion, was taken on the point, and the Secretary of State accepted that the test was met. I can see no change at all in 2003 in the key medical evidence. Nor was it claimed at any point that L's condition was any different. What changed was the departmental opinion about the expert medical advice. In my view, as the point was expressly put in issue, the tribunal should have looked at the 1998 evidence and advice as well as that in 2003, not least because the 2003 evidence was not entirely clear. Or it should have sought further expert evidence or help as this is clearly a matter of difficulty. This aspect of the tribunal decision fails the second test in Commissioner Howell's formulation because it fails to explain how things had changed, given that the challenge to the original decision was precisely that nothing had changed.

Unlike regulation 12(5), the issue in regulation 12(6) is not one essentially of medical expertise but of weighing all the evidence. The first point is that the Secretary of State does not appear to have disputed this part of L's claim on this claim, nor was it disputed in 1998. Further, the presenting officer did not raise it as an issue at the oral hearing. According to the record of proceedings the only issue was that of the application of regulation 12(5). The matter appears to have been put in issue only by the tribunal itself. Nor does the record of proceedings suggest that the point was raised clearly with L's father. Further, Dr Khine's evidence, on which the tribunal relies, is ambiguous. He appears to say yes and then no. But he could later be saying "yes" again in further evidence that the tribunal does not consider. This is when , in an indirect way, he – and other experts – draw attention to the fact that L is under an "Enhanced Care Programme Approach" involving, it would seem, the continuous supervision of L by not one but two helpers. The use of that term in the papers suggests that to those in the know there is a specific kind of programme in operation for L. But, although the experts rely on the application of that Programme Approach in supporting L's claim, there is little detail of what the Enhanced Care Programme Approach is. Does that count as providing what is required by regulation 12(6)? Some of the evidence suggests that it may. The tribunal has given no indication of its views on this aspect of the evidence, although the record of proceedings shows that it was mentioned to the tribunal. Nor is it even clear that L's father was given proper notice by the tribunal that this issue was disputed.

The record and statement suggest that those representing L tried to argue the case on an irrelevant basis. This was that L needed a car and could not use public transport. The tribunal rightly resisted this line of argument. As I have already commented, an award under regulation 12(5) and (6) is - despite the name – not about mobility as such, though help with obtaining a car for the support team to use is an indirect result of its award.

My conclusion is that with regard to both regulation 12(5) and (6) the tribunal's decision fails the test in R(M) 1/96. It appears also to have failed properly to explain to L's father that it was challenging the previous acceptance that L met the test in regulation 12(6).

I do not consider that I can decide the case at this level, not least because L's representatives have yet to deal with the regulation 12(6) point. The case must therefore go to a new tribunal.

To assist L's representatives and the tribunal, I direct the new tribunal to consider the following:

(1) With regard to regulation 12(5), this depends primarily on the medical evidence. As the current evidence is not entirely clear, and is disputed, L's representative should consider getting further specific expert medical opinion on whether L does, or does not, meet the actual terms of section 73(3) "severe mental impairment" and regulation 12(5) (as set out in paragraph 8 above). That advice relates essentially to the date of decision under appeal (April 2003). It would help to have some indication about whether this situation is permanent or can change, as the tribunal should consider whether the award should be permanent or for a fixed period.

(2) With regard to regulation 12(6) the tribunal should first consider whether this is in issue, as the Secretary of State does not appear to contest its application. However, if it is then it should be considered. L's representative should take this as notice that the matter may be considered, and should consider producing any additional evidence accordingly. That evidence must relate to the test set out in paragraph 9 above, as applied to April 2003 (but again with comments on the likelihood of change). That evidence may usefully explain what the Enhance Care Programme Approach means, if it is relevant to this test. And the test should be applied as a matter of the ordinary meaning of the words in the light of all the evidence - not merely that of the medical experts. In particular, the evidence of whether L's parents and carers consider that the test is in fact met will be key evidence.

David Williams

Commissioner

02 September 2004

[Signed on the original on the date shown]