Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CDLA/765/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision: The appeal is allowed. I set aside the decision of the tribunal and remit the case to be reheard by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.     This is an appeal by the Secretary of State with the leave of an Upper Tribunal judge from a decision of the Liverpool Appeal Tribunal that the claimant was entitled to the higher rate of the mobility component as well as the highest rate of the care component of disability living allowance. The claimant, who was born in 2003, is autistic, and there is no dispute that he is entitled to the highest rate of the care component and the lower rate of the mobility component. The issue before the tribunal was whether he was entitled to the higher rate of the mobility component under section 73(3) of the Social Security Contributions and Benefits Act 1992. A person falls within this subsection if he (a) 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) of that Act.

2.     Section 73(6) provides that regulations shall specify the cases which fall within subsections 73(3)(a) and (b). The relevant regulations are regulations 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991.

3.     The only issue before the tribunal and on this appeal is whether the claimant displays severe behavioural problems as specified in regulation 12(6). This sets out three criteria. The behaviour must be disruptive and extreme, it must regularly require 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 it must be so unpredictable that he requires another person to be present and watching over him whenever he is awake.

4.     The tribunal failed to address the question whether his behaviour satisfied the conditions or regulation 12(6). As the Secretary of State’s representative has pointed out on this appeal, the special educational needs assessment before the tribunal indicated (file, p.120-121) that the claimant was usually compliant and not aggressive to peers or adults and rarely showed aggression; and the report from the Liverpool social and communication assessment clinic states that at night the claimant will not infrequently awake during the night several times and will quietly play in his room on his own (p.111). I note that that report contains no reference to any aggressive behaviour. Finally, the report of an educational psychologist indicates (p.135) that the claimant can spend an hour at a time in his room but will return to join his family by choice. Again, there is no reference in the report to aggressive behaviour.

5.     I appreciate that there was other evidence of disruptive and aggressive behaviour and of the need for restraint, but these are matters which should have been investigated by the tribunal and appropriate findings made relative to all three requirements in regulation 12(6). The tribunal was in error of law in failing to address these issues. Its decision must be set aside and the case remitted to a new tribunal.

6.     The Secretary of State’s representative has drawn attention to R(DLA) 7/02, where it was pointed out that the claimant must need watching over, for the purpose of restraining potentially disruptive behaviour whenever he is awake – that is both at home and when elsewhere, such as at school - and whether or not in connection with walking. As pointed out in paragraphs 15 and 16 of that decision, it is not sufficient if either the structured regime of the school or the presence and active interest of the mother at home is sufficient to prevent disruptive behaviour. The representative has also drawn attention to R(DLA) 9/02 where it was pointed out that the carer had to be both present and watching over the claimant, and that that was not the case if the claimant’s bedroom door was closed and he was on one side of it and the carer was on the other.

7.     The claimant’s representative has, however, drawn attention to the recent decision of Judge Levenson in [2008] UKUT 24 (AAC), where, in paragraph 10, he stated as follows:

“Ms Parker Aranha [the representative of the Secretary of State] 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).”

8.     In that case, there was evidence on which Judge Levenson relied that the claimant required constant supervision in all circumstances because of her disruptive behaviour. He held that the fact that there were circumstances in which there was no need to intervene and physically restrain her because of the structured environment in which she was did not mean that she did not need to be watched over there whenever she was awake because of the unpredictability of her behaviour.

9.     I fully accept that one must not confuse the requirements of 12(6)(b) with those of 12(6)(c). There must be a regular need actually to intervene and physically restrain the claimant to prevent him causing physical injury to himself or another, or damage to property, to satisfy 12(6)(b). There be unpredictable disruptive behaviour requiring another person to be present and watching over him whenever he is awake to satisfy 12(6)(c). The issues for the tribunal to address in this case for the purpose of 12(6)(b) are that of regularity, physical restraint and physical injury or damage to property. The issues for the tribunal to address for the purpose of 12(6)(c) are unpredictability of disruptive behaviour giving rise to the need for a person to be present and watching over him whenever he is awake. 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.

10. If, however, the structured environment is such that there is no real risk of unpredictable violence or not such a risk as to make it reasonable for somebody to be present and watching over him whenever he is awake, then he cannot be said to need another person to be present and watching over him because of his unpredictable disruptive behaviour. If, in practice, he is regularly left alone in his room for lengthy periods while awake, or is not watched over at school because of his unpredictable disruptive behaviour, then that would suggest that his behaviour is not unpredictable, or at least is not unpredictable to such an extent as to require another person to be present and watching over him whenever he is awake.

(signed) Michael Mark

Judge of the Upper Tribunal

31 August 2010