Upper Tribunal (Administrative Appeals Chamber)

[2008] UKUT 24 (AAC) (27 November 2008)

 


CDLA/2955/2006

Citation Number – [2008] UKUT 24 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. I grant permission to appeal. In accordance with the provisions of regulation 22(2)(c) of The Tribunal Procedure (Upper Tribunal) Rules 2008 I do not require any further submissions or responses and effectively treat this hearing of the application as the hearing of the appeal. The claimant's parents and the Secretary of State have all agreed to this course of action.
2. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Stratford (London E15) tribunal made on 21^st September 2007 under reference 249/07/01595. I substitute my own decision. This is to the effect that the claimant is entitled to highest rate care component of Disability Living Allowance ("DLA") indefinitely from 6^th November 2006 and also to higher rate mobility component of DLA from 6^th November 2006 to 5^th November 2009. I remit to the Secretary of State questions relating to the calculation and payment of arrears.
3. There is no basis to interfere with the existing award of highest rate care component but I make an fixed award of higher rate mobility component because it is not clear whether the claimant will continue to satisfy the special conditions of entitlement over the longer term. The expiry date should allow time for a further application to be made to the Secretary of State, at which stage it would be appropriate to provide full up to date reports. I have no doubt that on the expiry of my award the claimant will be entitled to at least lower rate mobility component – whether she will continue to be entitled to higher rate mobility component will depend on how the situation develops.
4. I held an oral hearing of this matter on 26^th November 2008. The claimant did not attend in person but was represented by her parents. The Secretary of State was represented by Ms Parker Aranha from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance.
5. Ms Parker Aranha supported the application and submitted that the tribunal was in error of law because it give inadequate consideration to all of the conditions of entitlement. I agree and, with the exception of one matter to which I draw particular attention below, do not need to comment further on this aspect. However, Ms Parker Aranha also submitted that I should substitute my own decision to the same effect as the decision of the tribunal on the basis of the evidence in the file.

Background and Procedure

6. The claimant is a single young woman who was born on 6^th November 1988. It is agreed that she is autistic, has severe learning difficulties, is partially sighted and has speech difficulties. She lives with her parents. On 28^th September 2006, on a renewal claim for DLA, the Secretary of State awarded middle rate care component and lower rate mobility component from 6^th November 2006. On 24^th April 2007 this award was revised and replaced by an award of highest rate care component and lower rate mobility component indefinitely from 6^th November 2006. On 21^st September 2007 the tribunal confirmed the revised decision and refused to increase the award of mobility component to the higher level. On 21^st August 2008 the District Chairman of the tribunal refused to grant an application for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The application was renewed before the Commissioner and on 2^nd October 2008 (as a Social Security Commissioner) I directed that there be an oral hearing of the application. On 3^rd November 2008 this matter was transferred to the Upper Tribunal.

The Relevant Provisions

7. There is no evidence that the claimant is either unable or virtually unable to walk. The only basis for higher rate mobility component in this case is the special rule under section 73(3) of the Social Security Contributions and Benefits Act 1992. This provides:

73(3) A person falls within this sub-section if -

(a) [s]he is severely mentally impaired; and

(b) [s]he displays severe behavioural problems; and

(c) [s]he satisfies both the conditions mentioned in s.72(1)(b) and (c).

Paragraph (c) is met in this case: the two conditions to which it refers concern entitlement to the highest rate care component.

8. Regulation 12(5) of the Social Security (Disability Living Allowance) Regulations specifies who falls within paragraph (a) of section 73(3):

12(5) A person falls within sub-section (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 is explicitly accepted in the present case that regulation 12(5) applies to the claimant and that she falls within the description in section 73(3)(a).

9. Regulation 12(6) of the Social Security (Disability Living Allowance) Regulations specifies who falls within paragraph (b) of section 73(3):

12(6) A person falls within sub-section (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.

10. Ms Parker Aranha did not accept that the claimant satisfies these conditions, all of which must be met for entitlement to higher rate mobility component on this special basis. She referred to the Commissioner's decision in R (DLA) 7/02 which stated in paragraph 15 that 12(6)(c) is "only satisfied if the constant presence of an adult is necessary in order to intervene and deal with the claimant if and when he actually starts to become disruptive". The Commissioner held that it is not enough if the presence of an adult prevents the claimant from becoming disruptive. In my opinion this is to confuse 12(6)(b) and 12(6)(c). The point about (c) is the unpredictability, not the intervention. If there is no actual requirement to intervene then (b) is not satisfied. Thus, if a claimant is sometimes in an environment that is so well controlled that intervention is unnecessary, but at other times is in an environment where intervention is regularly required, it is still possible for the claimant to fall within section 73(3).

The Evidence

11. There are several reports in the file from a Consultant Psychiatrist for People with Learning Difficulties. That of 9^th June 2006 reports (pages 134 to 135) that:

"Following the birth of her niece … almost one year ago, [the claimant's] behaviour in the home situation appears to have deteriorated. [she] is extremely attached to this child so that when [the child] visits … [the claimant is extremely reluctant to allow family members to hold the child. [The claimant] can become quite aggressive towards the child's father or towards her own mother … [her] aggressive behaviours are long standing but appear more severe of late. She is verbally aggressive but will also spit, kick and push, particularly her mother. She also kicks objects in the environment such as the doors, stairs and other household items. Most of these behaviours occur at home but [she] will also become angry or aggressive if her demands are not met when out shopping".

12. Subsequent reports from the same consultant show a worsening pattern of behaviour. On 5^th June 2007 (page 134) it was noted that the claimant's "outbursts can be quite abrupt and very dramatic. For example she recently kicked a door off its hinges". On 11^th September 2007 the consultant reported (page 133) that:

"She requires constant supervision to ensure that she does not injure herself as a result of common household hazards, for example hot surfaces, sharp knives or boiling water. When out in the community she is at risk of walking into objects or other people and particular vigilance is required near or when crossing roads … There are no circumstances in which it would be safe to leave her unattended."

13. There are no reported problems at school or college and the claimant has behaved appropriately towards the psychiatrist and the tribunal. However, these are all highly structured environments (although there is no actual school or college report as to the precise conditions in those places) and, as I have indicated above, the point is the unpredictability of the claimant's behaviour.
14. In addition to the above matters, the claimant's parents told me that the claimant reacts abusively if she thinks anybody is looking at her the wrong way, she gets a particular look in her eyes and then she "starts", but it is not possible to know when this is going to happen. She has taken to kicking and punching her brother-in-law, she gave her (adult male) cousin a black eye, and has been getting rough with her niece, who is now aged three. When walking outside her mother has to hold onto her otherwise she will run off, as she has sometimes broken away to do, heedless of where she is running or who she is running into, or of the road, and cannot see much and does not look at what she can see. She has run into a lamppost and into rails in a shop. She runs out of the house into the road without looking or seeing what is there.
15. Ms Parker Aranha did not challenge what I was told today and said that there was no reason to doubt it.

The Tribunal

16. The specific error of the tribunal to which I wish to draw attention relates to misunderstanding of the evidence. The record of proceedings has the claimant's mother telling the tribunal as follows (page 138):

"She sleeps in my room. Husband downstairs … Gets up in the night for toilet & goes downstairs & music goes on & TV goes on. No sense of timing … she might go back down and back up".

17. However, the statement of reasons (page 146) reads as follows:

"She does spend time without supervision at home, for instance during the night she may go downstairs and put the television on or music on … Her parents are aware of this but stay in bed ...".

18. The tribunal did not seem to appreciate that the claimant's father is downstairs when the claimant comes down and that he appears to on hand to supervise as necessary.

Conclusions

19. From the totality of the evidence it seems to me that, taking a broad view, from a date at least six months prior to 6^th November 2006 the claimant satisfied all the conditions of entitlement set out in section 73(3) of the 1992 Act, which does not require that disruptive behaviour, or intervention and restraint, are non-stop.
20. For the above reasons I grant this application, allow the appeal and make the award as set out in paragraph 2 above.

H. Levenson

Judge of the Upper Tribunal

27^th November 2008