UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CDLA_816_2003 (26 August 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the Workington appeal tribunal dated 17 September 2002 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. Two oral hearings of the claimant's appeal to the Commissioner have been held following the setting aside by Mr Commissioner Henty of his decision dated 1 November 2004. I mention here, as has already been stated, that I have not seen Mr Commissioner Henty's decision. Neither the claimant, nor her appointee, her husband, attended the hearings. She was represented by Mr Ranjiv Khubber of counsel, from the Free Representation Unit. The Secretary of State for Work and Pensions was represented by Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions. The earlier hearing was adjourned to enable Mr Khubber to make the fullest case possible under the Human Rights Act 1998 taking account of decisions of the House of Lords that were then pending. On the view that I have taken of the case I do not need to consider those arguments.
3. The claimant, who was born on 31 May 1943, has the misfortune to be very severely affected by Alzheimer's disease. She had an award, on an indefinite basis, of some rate of the care component of disability living allowance (DLA), I think less than the highest rate, and the lower rate of the mobility component. On 29 April 2002 the claimant's husband made a request over the telephone for the award to be looked at again because her condition had deteriorated over the past few years, leading to increased care and mobility needs. He completed a comprehensive form that was received back by the Department on 8 May 2002. I need to look closely at the answers on that form.
4. The statement on the form from the claimant's husband, as the person who knew her best, about how her illnesses and disabilities affected her was as follows:

"Severe Alzheimer's disease. Cannot dress herself. Cannot wash herself. Cannot feed herself. Cannot go to the toilet unaided day or night. Cannot cook, wash clothes or iron clothes. cannot clean house. Cannot be left alone day or night."

The claimant was stated to have no physical problems walking outdoors, but to need to have someone with her outdoors because of these problems:

"Forget where she was going, or wander off if unattended.

Be a danger to herself and others if left unaided whilst outside.

Needs someone with her at all times to ensure her safety and well-being.

Has no road sense or sense of time or direction.

Might fall or stumble over obstructions, eg kerbs.

My wife could not explain or even read these documents as Alzheimer's disease has destroyed all rational conversation and rational reasoning and therefore lives in her own world talking to imaginary people.

p.s. As I am with my wife at all times when outdoors I am by her side at all times."

In the box for more information in that part of the form (about mobility) was written:

"As my wife is in the later stages of Alzheimer's disease she cannot communicate with anyone rationally and cannot be left alone for any period of time as she has to be watched constantly to assess when it is time to go to the toilet. She has to be taken to the toilet and helped to complete her ablutions.

She cannot walk upstairs to the toilet and bedroom unaided.

In fact we have lived in this house for seven years and now due this debilitating disease she does not know the way to upstairs and has to be constantly showed and guided."

5. In the part of the form specifically about care needs problems were identified with almost all the activities listed. I pick out some of the problems mentioned. She did not know to get in or out of bed unless told and encouraged to. She could not wash, bathe, shower or look after her appearance and, if it was left to her, she would not do any of those things. She had to be shown how to put clothes on. The need for someone to keep an eye on her during the day was described as follows:

"Get confused.

Does not realise any danger.

Does not realise that the condition has got worse.

Might wander off if not constantly watched.

Might hurt herself if left alone.

Needs 24 hour supervision.

Cannot be left alone for any period of time."

At night, the need was put down to help with the toilet. The problems because of mental health were described as follows:

"Gets anxious when talking to imaginary people.

Neglects personal hygiene and appearance.

Hears voices.

As my wife is in the later stages of Alzheimer's disease she cannot communicate to anyone her needs.

Talks to imaginary people.

Cannot communicate how she feels because of this illness.

Lives in her own world."

6. The decision was given on 28 May 2002 to supersede the decision making the existing award and to award the highest rate of the care component and the lower rate of the mobility component from and including 29 April 2002. There had been a relevant change of circumstances, but not one that allowed entitlement to the higher rate of the mobility component. The claimant's husband appealed, saying that she was severely mentally impaired and could not travel anywhere without being accompanied and that she needed more than just supervision whilst walking on unfamiliar routes, needing constant supervision on all routes both for walking and vehicular travel.
7. The Secretary of State's written submission to the appeal tribunal rightly identified that the claimant, having no physical problem in walking, could only qualify for the higher rate of the mobility component through the operation of section 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 section 72(1)(b) and (c) above [ie meets the conditions for the highest rate of the care component]."

Section 73(6) provides that regulations shall specify the cases that fall within subsection (3)(a) and (b). Regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991 provides:

"(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.

(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."

The submission relied on the decision of Mr Commissioner Rice in R(DLA) 2/96 for the proposition that a person who has Alzheimer's disease is not suffering from a severe mental impairment for the purposes of the mobility component.

8. A written submission was prepared for the claimant by Mr Michael Plant of Whitehaven Citizens Advice Bureau. This described the only question in the case as being the determination of "severe mental impairment" and argued that Mr Commissioner Rice took a medically wrong view of Alzheimer's disease and of the normal development of the brain in R(DLA) 2/96. It was submitted that there was evidence that the brain continued to create neurons throughout adult life, so that the onset of Alzheimer's disease could be considered as arresting the development of the brain. A copy of a student research paper from the internet was provided.
9. The claimant's husband attended the hearing on 17 September 2002 with Mr Plant. According to the record of proceedings the only discussion was about R(DLA) 2/96 and about whether Alzheimer's disease was an example of arrested development or incomplete physical development of the brain. The appeal tribunal disallowed the appeal. It did not accept Mr Plant's medical arguments and also found that R(DLA) 2/96 was binding on it. The statement of reasons continued:

"We have also considered the wider aspect of the Mobility Component. In order to qualify for higher rate mobility the appellant has to be unable or virtually unable to walk out of doors due to physical disability - cannot walk or is practically unable to do so - Regulation 12(1)(a)(i). The appellant is not unable to walk.

Nor does the appellant display severe behavioural problems and also satisfies the conditions of the highest rate Care Component."

10. The claimant now appeals against the appeal tribunal's decision with leave granted by Mr Commissioner Henty. The application had raised the correctness of R(DLA) 2/96 and the failure of the appeal tribunal to take account of the effect of the Human Rights Act 1998.
11. I look at the case first without considering the Human Rights Act 1998. In doing so I find it completely unnecessary to consider the legal and medical arguments about the correctness of R(DLA) 2/96 or about what comes within the meaning of arrested development or incomplete physical development of the brain. That is because, even if the appeal tribunal was wrong to conclude that the claimant did not come within regulation 12(5) of the DLA Regulations, its conclusion that she did not come within regulation 12(6) was enough to require the appeal to be decided against her. And I am satisfied that its expression of that conclusion in the statement of reasons, although very brief, was adequate in the circumstances.
12. A person can only qualify for the higher rate of the mobility component under section 73(3) of the Contributions and Benefits Act if, in addition to meeting the qualifying conditions for the highest rate of the care component, both of the conditions in paragraphs (a) and (b) are met. There could have been a good deal of uncertainty about what amounts to "behavioural problems" that could be "displayed" under subsection (b). However, that is irrelevant, as section 73(6) requires the cases falling within paragraphs (a) and (b) to be specified in regulations. Thus, no cases would fall within those paragraphs if no regulations had been made and the effect of the specification in the DLA Regulations is that only the cases so specified fall within the paragraphs. In relation to paragraph (b), regulation 12(6) specifies a cumulative series of conditions, most of which the claimant plainly did not satisfy in May 2002.
13. That conclusion is based on the claimant's husband's statements on the May 2002 form, set out above. I know from personal experience how difficult and distressing it can be to have to describe on such forms all the limits on what a person can do, rather than the positive aspects of their life. However, I accept the claimant's husband's statements without hesitation. In my view he described both her condition and the full extent of what he and others have to do for her clearly and with no exaggerations or omissions.
14. The behaviour described there does not in my judgment come within the ordinary meaning of disruptive behaviour. That carries with it a sense of behaviour that either causes disorder or an interruption of the continuity of some activity. It seems to me that that entails something that actively causes disruption, going beyond a mere need for other people to organise their lives so as to be able to take care of the person properly. However, the picture given of the claimant by her husband is essentially passive, of someone who, left to herself, would not be able to carry out the most basic activities of daily living and so needed supervision all the time. But that aspect of her behaviour was not disruptive. The aspects of her behaviour that got closest to being disruptive were that she got anxious when talking to imaginary people and might wander off if left alone. But the anxiety was not described as involving anything disruptive to others, rather than merely in its nature being distressing to experience or watch. Wandering off might be disruptive behaviour, but in the present case I get the impression that the problems were more that if left to herself the claimant would simply sit and do nothing until instructed otherwise. But if wandering off might have been a problem if left alone out of doors, I have no doubt that that behaviour could not be described as "extreme" within regulation 12(6)(a).
15. Nor was there any evidence of any requirement, let alone a regular requirement, for anyone to intervene and physically restrain the claimant to prevent her causing injury or damage to property. The picture given by the evidence was that gentle persuasion, encouragement or guidance was all that was needed. And in my view the restraint must be needed to prevent injury or damage to property being fairly directly caused by the disruptive behaviour. I do not think that the dangers to which the claimant here might have been exposed if she had wandered off on her own out of doors would bring her within the scope of regulation 12(6)(b). Finally, even if I were wrong about all of that and it was accepted that the claimant needed another person to be present and watching over her whenever she was awake, in my view her behaviour was not unpredictable so as to come within regulation 12(6)(c).
16. Accordingly, I have no doubt that, even if the claimant were accepted as severely mentally impaired for the purposes of section 73(3)(a) of the Contributions and Benefits Act, she could not as at May 2002 have been awarded the higher rate of the mobility component because she did not satisfy the condition of displaying disruptive behaviour under section 73(3)(b). Mr Khubber submitted that the appeal tribunal, not having set out any such process of reasoning as above, had not given adequate reasons for its conclusion on regulation 12(6) and that the claimant and her husband should be given the opportunity of producing more evidence on the issue at a rehearing by a new appeal tribunal. A fact-sensitive assessment was required and the appeal tribunal had not shown that it had carried one out. I cannot accept that submission. On the uncontested evidence put to the appeal tribunal, the conclusion against the claimant on regulation 12(6) followed so clearly that the appeal tribunal's decision is not to be disturbed on a point of law merely because it did no more than state the conclusion.
17. Can the Human Rights Act 1998 alter the consequence that the appeal against the appeal tribunal's decision of 17 September 2002 should be dismissed? Despite Mr Khubber's valiant attempts to persuade that it should, I cannot agree with him. His main Human Rights Act submission was aimed at the terms of regulation 12(5) of the DLA Regulations on "severely mentally impaired", if interpreted in accordance with R(DLA) 2/96. He argued that the claimant was plainly severely mentally impaired on any ordinary meaning of those words and that the terms of regulation 12(5) discriminated against those, like sufferers from Alzheimer's disease, whose mental impairment came on in later life, contrary to Article 14 of the European Convention on Human Rights in conjunction with Article 8 or Article 1 of Protocol 1. There was said to be an unfair and unjustifiable discrimination between those who were severely mentally impaired by some disruption of the physical development of the brain up to the age of about 25 and those whose physical brain functions were impaired later in life. However, even if I were to accept that argument and as a consequence interpret regulation 12(5) so as to cover the claimant in this case, I do not see how that could get the claimant any closer to satisfying the conditions in regulation 12(6).
18. Mr Khubber submitted that there was a connection between regulation 12(5) and 12(6) and that, if sufferers from Alzheimer's disease were brought within regulation 12(5), that would have a knock-on effect on how the fact-sensitive assessment under regulation 12(6) was carried out. If R(DLA) 2/96 were to continue to rule, such sufferers were simply excluded from consideration under regulation 12(6). He did not assert that the specified conditions in regulation 12(6) could directly be attacked as unjustifiably discriminatory contrary to Article 14, but said that I ought to decide whether sufferers from Alzheimer's disease were properly to be brought within regulation 12(5) through the effect of the Human Rights Act 1998 before deciding how regulation 12(6) worked. I am afraid that, however Mr Khubber sought to formulate those points, I do not follow their logic. The assessment under regulation 12(6) is indeed fact-specific, but it requires an assessment of the effects of the claimant's condition whether or not that condition falls within regulation 12(5). There is no need to ask the questions under regulation 12(5) before those under regulation 12(6). The answers to the questions under regulation 12(6) are independent of any effect of the Human Rights Act on the terms of the questions to be asked under regulation 12(5).
19. Therefore, the claimant's appeal to the Commissioner must be dismissed.
20. Mr Khubber further submitted that, in the event of my reaching that conclusion in the present case in consequence of the effect of regulation 12(6), I should nevertheless reach and express a judgment on his Human Rights Act arguments on regulation 12(5), as they might be important in other cases where the conditions in regulation 12(6) were satisfied. I decline to do so, despite the detailed submissions that I have had from both parties in relation to regulation 12(5). It would not be helpful to anyone for me to express any opinions on those arguments in a case in which they cannot affect the outcome. Whatever I said would not be authoritative and thus could be no guide to appeal tribunals, claimants or their advisers about what might be decided by a Commissioner when the point of law comes up directly for decision.
21. I am sure that the claimant's husband has already been advised that he may apply at any time for supersession of the decision of 28 May 2002 with a view to obtaining the higher rate of the mobility component if there has subsequently been a relevant change in circumstances, such as a worsening or a change in the nature of his wife's condition. Such an application would be determined according to the circumstances as they are around the date of the application and according to the evidence then available.

(Signed) J Mesher

Commissioner

Date: 26 August 2005