THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

Before: D. J. May QC, Judge of the Upper Tribunal

 

Attendances:

 

For the Appellant: Mr Creally, Advocate instructed by Miss McCurry, Solicitor, of the Office of the Solicitor to the Advocate General

 

For the Respondent: Miss Leishman, Falkirk Council

 

The appeal is allowed.

 

The Judge of the Upper Tribunal gives the decision he considers appropriate in light of the findings in fact set out in the Reasons.  The awards made in the decision of 26 May 2009 are upheld.  The claimant is not entitled to the higher rate of the mobility component from 15 August 2009.

 

REASONS FOR DECISION

 

1.               The Secretary of State has appealed against the decision of the tribunal which awarded the claimant the highest rate of the care component and the higher rate of the mobility component from 15 August 2009 for an indefinite period.  The grounds of appeal are related to the highest rate of the mobility component only.  The claimant was born on 15 August 1993.   

 

2.               The conditions for the allowance relied upon by the tribunal in awarding the higher rate of the mobility component were those contained in section 73(3) of the Social Security Contributions and Benefits Act 1992 which is in the following terms

 

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

(a) he is severely mentally impaired; and

(b) he displays severe behavioural problems; and

(c) he satisfies both the conditions mentions in s. 72(1)(b) and (c).

 

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.

 

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.”

 

3.               The Secretary of State submitted that the tribunal erred in law in two respects.  The first was that the findings and reasons for the conclusion reached by the tribunal that the claimant satisfied the definition set out in regulation 12(5) of the above regulations in respect of severe impairment of intelligence and social functioning were inadequate.  The second was that the tribunal did not properly apply the test set out in regulation 12(6)(c).

 

4.               In respect of the first ground of appeal, I accept Mr Creally’s submission that it was necessary for the claimant to demonstrate that the result of the state of arrested development or incomplete physical development of his brain was severe impairment of intelligence and social functioning.  That this is so is quite clear from the decision of the Court of Appeal in R(DLA) 1/00.  It was uncontested by Mr Creally that the claimant had a state of arrested development or incomplete physical development of his brain and I accept that.  However, I do not agree with Mr Creally’s submission that the findings and reasons for the tribunal’s conclusion relating to the severity of the impairment of intelligence and social functioning were inadequate. 

5.               It was the issue of severe impairment of intelligence that Mr Creally concentrated on.  The tribunal’s findings in fact upon which this was based can be found in the report by Mrs Stirling contained at pages 100 to 124 of the bundle.  The tribunal referred to this report for its terms and adopted the report as part of its findings in fact.  In these circumstances the tribunal concluded

 

“9. ….

(c) It is accepted that [the claimant] condition results in a severe impairment of intelligence.

(d) It is accepted that this severe impairment impacts on his social functioning.  His parent’s evidence supports this comment and in addition the comments made by Mrs Stirling on pages 105 to 107.

(e) [The claimant] continues to display severe behavioural problems.  Again, this is reflected in the evidence provided and comments made by Mrs Stirling.”

 

6.               Mr Creally submitted that the report was not supportive of the claimant suffering from severe impairment of intelligence.  He pointed out that the report indicated that the claimant could read out his timetable and was very competent in searching on the internet.  I consider that the report at pages 100 to 124, when read as a whole, clearly indicates that the claimant has a mental impairment.  The report clearly demonstrates that on a whole range of intellectual and social functions his abilities and actings fall very far short of what could reasonably be expected of someone who was sixteen shortly after the decision appealed against to the tribunal was made.  It is also apparent that the tribunal did not accept the opinion of the departmental doctor who gave the advice set out at pages 133 and 134.  That was a matter within their province.

 

7.               Whether the impairment was severe was a jury question for the tribunal.  In R(DLA) 7/03 Lord Hoffman in his speech in the case of Moyna indicated in relation to the approach that the appellate jurisdiction should take to such questions, that

 

“What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgement.”

 

Having regard to the evidence which was before the tribunal, I am not persuaded that on the issue of the severity of impairment of intelligence the conclusion reached by the tribunal was outwith the bounds of reasonable judgment.  In these circumstances I consider that there is no merit in the first ground of appeal.

 

8.               I am however satisfied that there is substance in the second ground of appeal. 

 

9.               The manner in which the tribunal approached paragraph 12(6)(c) was as follows

 

“10. The Tribunal considered the arguments put forward by the Department and in particular Mr Rogers’ view on the test contained in the Social Security Disability Living Allowance Regulations 1991, Regulation  12 6(a), (b) and (c).  It appeared to be accepted by all parties that 12 6 (a) & (b) were applicable.  Mr Rogers’ arguments however related to 12 6(c) in which the behaviour is so unpredictable that it requires another person to be present and watching over him while he is awake.  In Mr Rogers’ submission there was no scope for flexibility.  The presence of another person to watch over was an essential element.  In his view the person supervising [the claimant] would have to be with him at all times when awake.  He argued that Commissioner’s decision R(DLA) 7/02 would only be satisfied if the constant presence of an adult is necessary in order to intervene and deal with the claimant and if and when he actually starts to become disruptive.

 

11. The Tribunal considered this argument and the definition of the word “presence”.  Chambers Free English Dictionary defines it as “a situation or activity demonstrating influence or power in a place”.  Mr Rogers argued that to satisfy the test there must be someone present in the room with [the claimant] at all times.  The Tribunal felt however that the supervision system and structure set by [the claimant’s] family demonstrated a controlled influence over [the claimant], sufficient to satisfy the test.

 

12. The Tribunal also considered the comments of Commissioner Levingson [sic] C (DLA) 2955/2008 [sic], in paragraph 10 Commissioner Levingson [sic] considered the comments contained in R(DLA) 7/02 and suggested that in his view there was a potential confusion from 12 6(b) and 12 6(c) of the DLA Regulations 1991.  In his view the point about 12 6(c) is “the unpredictability not the intervention”.  Thus if a claimant is sometimes in an environment so well controlled intervention is unnecessary and that other times an environment where intervention is regularly required it is still possible for the claimant to fall within Section 73 of the Act.

 

13. The views of Commissioner Levingson [sic] were given weight by the Tribunal.  They considered this definition relevant to [the claimant’s] circumstances.  The evidence implied that [the claimant] was not aware of common dangers to a level of appropriate of his age and that he had dangerous tendencies.  It went on to state on page 105 that “when [the claimant] experiences confusion, frustration, fear or anxiety he will often panic and this can cause him to physically resist any intervention”.  The family have dealt with this within the basis of the family and have introduced CCTV security systems to watch and supervise [the claimant’s] behaviour within the environs of the house.  In addition, in the home they have a routine for supervising his behaviour.”

 

10.            The Upper Tribunal Judge [Levinson] in CDLA/2955/2006 awarded the higher rate of the mobility component on the particular facts of the case.  He said

 

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).”

 

He then went on to say

…………….

 

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 [sic] 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.”

 

These paragraphs and the other evidence in that case set out in paragraphs 11 to 15 of the decision, including that the claimant there behaved appropriately towards the psychiatrist and the tribunal and there were no reported problems at school demonstrates the factual basis upon which he made the award of the allowance in that case. 

 

11.            It is apparent that the tribunal did not have cited to it my decision in R(DLA) 9/02 nor did the Upper Tribunal Judge [Levinson] make reference to it in his decision.  In paragraph 12 of my decision I said

 

“12. I find it difficult to accept the asserted proposition contained in the letter of 30 November 2000 that in respect of watching over all that was required was for the carer to be awake and available to intervene but not that the carer required to be actually watching the claimant all the time.  I say that because the statutory provision appears to me to be specifically restrictive and the words used are both “present” and “watching over”.  It does not seem to me these conditions can be fulfilled when the claimant’s bedroom door is closed and he is on one side of it and the carer on the other.”

 

That view is supported by the Upper Tribunal Judge [Turnbull] in CDLA/2714/2009 where in paragraph 10 he said

 

“Two points are, I think, clear.  First, that the words “present and watching over” are not necessarily satisfied by what would amount to “supervision” in relation to middle rate care.  The concept of continual supervision throughout the day is of course used by s. 72 of the 1992 Act in relation to the middle rate of the care component, and the use of the words “present and watching over”, rather than of the concept of supervision, seems to me to indicate that a greater degree of presence and alertness is necessary.  Secondly, that the watching must be continuous (“whenever he is awake”), so that it can be predicated that the claimant will be safe, without being watched over, for any significant period of time during the day, the requirement is not satisfied.  Very short intervals without watching over (i.e. the few minutes when it is necessary , for the Claimant’s father to go to the toilet) can of course be ignored as de minimis.”

 

12.            Mr Creally pointed out that the Upper Tribunal Judge in CDLA/2955/2006 makes no specific mention of the particular statutory provision.  It was also his submission that the factual basis in that case was somewhat different to the present case and he referred me to paragraph 16 to 18 of the decision, which are quoted above.

 

On the other hand, in the written submission by Miss Leishman, which she reiterated before me, it is said

 

“15. Given that all parties accept he requires this outdoors and we are potentially just looking at [the claimant’s] circumstances whilst indoors I am referring to the argument indoors only.  In [the claimant’s] case his parents sit in a different room sometimes and it is this area which is contested by Mr Rogers.  The tribunal have considered this point and have taken account of the fact that there is CCTV in place around the home and baby monitors set up which mean [the claimant] is not in the same position as was outlined in the decisions highlighted.  [The claimant] is watched all the time.  His behaviour is so unpredictable he cannot be afforded the luxury of privacy at any time.  At para. 12 of the Statement of Reasons the tribunal considered the definition of “present” and used the Chambers Free English Dictionary definition when applying it’s reasoning, finding “presence” to mean “a situation or activity demonstrating influence or power in a place”.  The Tribunal found that the system set up in [the claimant’s] home demonstrated a controlled influence over [the claimant], sufficiently to satisfy the test.”

 

However, as Mr Creally pointed out the evidence in relation to close circuit television appeared to apply only to outside the claimant’s home where it is noted in the record of proceedings

 

“Always know where he is – lock all doors –

Have CTV outside – surrounding the house – has escaped before,

……

Could be kept in a room by himself.

Baby monitors – 3.30am before he sleeps.

Old cottage – 3 bedroom hard to sleep

Brother his bedroom next door.”

 

Mr Creally also pointed out that in the claim pack at page 67 it is noted

 

“He shuts himself in his room and will neither come out or join a game with us or allow him in to play with him.”

 

It was also said

 

“[The claimant] manages to survive on very little sleep.  He must have his lights on his televisions on at all times.  He falls asleep with the tv on and the lights on and if we try to switch them off he seems to sense it and wakens up to put them back on again.”

 

13.            The Upper Tribunal judge in CDLA/2955/2006 was correct to point out that the claimant’s behaviour has to be unpredictable for the requirement for presence and watching over by another person whenever he is awake to be satisfied. 

 

14.            However, I cannot accept that the requirement for presence and watching over whenever the claimant is awake is somehow obviated or unnecessary in a well-controlled environment which seems to be the thrust of what was said by Mr Levinson.  He is suggesting a test which is less stringent than the terms of the legislation import and the view of Mr Turnbull and myself as to its application.  In these circumstances I decline to follow what is said by Mr Levinson.

 

15.            In this case even if there is unpredictability in behaviour, if the claimant can be left for substantial periods on his own this would tend to support a conclusion that unpredictability was not such as to give rise to the requirement.  There was evidence in relation to baby monitors being placed in his room which suggests that presence and watching over in the sense suggested by myself in R (DLA) 9/02 was not required.  In my view the tribunal erred in law by misinterpreting the legislation.  “A routine for supervising his behaviour” as disclosed in the evidence was not, in my view, sufficient for the purposes of regulation 12(6)(c).  They erred in law by not following what is said in R (DLA) 9/02, though I accept that it was not cited to them. 

 

16.            Although it was submitted by Miss Leishman that if I were to take the view that the tribunal misapplied the statutory test, the case should go for a rehearing before a freshly constituted tribunal I am not persuaded that this would be an appropriate course given that I am following the view expressed by myself and that of Mr Turnbull in relation to the scope of the legislation.  In these circumstances and on the facts of the case I have made the decision outlined above. 

 

 

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 10 December 2010