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URL: http://www.bailii.org/uk/cases/UKUT/AAC/2012/387.html
Cite as: [2012] UKUT 387 (AAC)
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AH v Secretary of State for Work and Pensions [2012] UKUT 387 (AAC) (12 October 2012)
DLA, MA: mobility
other
IN THE UPPER TRIBUNAL Case No. CDLA/965/2012
ADMINISTRATIVE APPEALS CHAMBER
1. Decision: The appeal is allowed. I set aside the decision of the tribunal and the decision of the decision maker dated 3 December 2010 and I substitute my own decision that the claimant is entitled to the higher rate of the mobility component and the highest rate of the care component of disability living allowance from 30 January 2011 to 29 January 2015 (both dates inclusive).
REASONS FOR DECISION
2. This is an appeal by the claimant with the leave of an Upper Tribunal judge from a decision of a First-tier Tribunal that the claimant was not entitled to the higher rate of the mobility component of disability living allowance. The claimant, who was born in 2001, is autistic and suffers from ADHD. There is no dispute that she 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 she 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 she (a) is severely mentally impaired, and (b) she displays severe behavioural problems, and (c) she satisfies both the conditions mentioned in section 72(1)(b) and (c) of that Act.
3. 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.
4. 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 (a) must be disruptive and extreme, (b) must regularly require another person to intervene and physically restrain her in order to prevent her causing physical injury to herself or another, or damage to property, and (c) must be so unpredictable that she requires another person to be present and watching over her whenever she is awake.
5. The tribunal accepted that the claimant displayed behavioural problems, but not that they were severe within the meaning of Regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991. The statement of reasons explained that this was because it was clear that the claimant could be left alone at some times during the day when she was awake. The evidence as to this was that there was a sensory room in the claimant’s bedroom in the house in which she lived with her grandparents. There was a bubble tube to help calm her down and a padded area, with padding on the floor and walls. The claimant was left alone in her bedroom whilst her grandparents were either downstairs or in another bedroom within earshot. Her grandmother spent most of her evenings in one bedroom while the claimant was in another.
6. In seeking permission to appeal, it was contended on behalf of the claimant that the periods when her bedroom door was closed were so short that they could be considered as de minimis. It is also contended that the layout of the house was such that the grandparents remained able to supervise the claimant and monitor her activities closely when she was in the bedroom as they could hear what she was doing.
7. In giving permission to appeal the Upper Tribunal Judge asked if the tribunal had conflated limbs (b) and (c) of regulation 12(6). Also, as regards regulation 12(6)(c), he asked if R(DLA) 9/02 should be followed or if the doubts expressed in CDLA/2470/2006 were justified.
8. In R(DLA) 7/02, it was held that the claimant must need watching over, for the purpose of restraining potentially disruptive behaviour whenever she is awake and whether or not in connection with walking. It was pointed out in paragraphs 15 and 16 of that decision that 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. This approach was criticised by Judge Levenson in LM v Secretary of State, [2008] UKUT 24 (AAC), where he stated at paragraph 10 that
9. This approach was followed by me in Secretary of State v DM, [2010] UKUT 318 (AAC), where I stated at paragraphs 8 to 10:
“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.”
10. On the other hand, in JH v Secretary of State, [2010] UKUT 456 (AAC), Judge May QC, as he had then become, disagreed with Mr. Commissioner Levenson as follows:
“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][sic] 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.””
11. Judge May went on to say in paragraphs 13 to 15:
“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.”
12. I do not read Mr. Commissioner Levenson as finding that the requirement for presence and watching over is obviated in a well controlled environment, as Judge May suggests. The point that I understand him to be making, as explained in the passage from my decision in Secretary of State v DM, cited above, is that while there must be there must be a regular need for intervention as required by regulation 12(6)(b), there can be periods each day in a well-controlled environment where, although the claimant needs somebody present and watching over him or her because of the unpredictability of his or her disruptive behaviour, a need for actual intervention may be small.
13. In R(DLA) 9/02, it was held 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. In that case, the claimant was in sheltered accommodation. He had his own room. At night one member of staff would be awake all night. The claimant would be checked on every 1.5 to 2 hours each night. He would regularly get up and would cause damage both inside and out of his room. It was the norm for him to cause trouble in one form or another 4 or 5 times a night. However, he was allowed to use his room with the door closed to afford him privacy. It was this last finding that was said by Mr. Commissioner May QC, as he then was, to be the crucial finding, and was the basis on which the tribunal determined that the claimant did not require another person to be present and watching over him whenever he was awake, and the conclusion which the tribunal had reached that the claimant did not require another person to be present and watching over him whenever he was awake was a conclusion on the finding of fact which they were entitled to reach on the evidence before them.
14. Mr. Commissioner May further stated at paragraph 12 of his decision that it did not seem to him that a carer could be said to be present and watching over a claimant when the claimant’s bedroom door was closed and the claimant was on one side of it and the carer was on the other. It appears to me that he may not have had in mind CCTV when expressing his views as to the effect of a shut door, there having been no CCTV in that case. I can see no reason why the person present and watching over a claimant should not do so in the adjoining room, if they can see and hear what is going on using CCTV or similar electronic means and are in a position to intervene promptly if needed.
15. Although that decision was reported and thus must have commanded the broad support of a majority of commissioners at the time, some doubts have been raised since. In CDLA/2470/2006, Mr. Commissioner Rowland observed in paragraph 11 that he was inclined to accept the submission made by the claimant’s parents that he fell within regulation 12(6)(c). He accepted that the claimant in that case was allowed to do some things by himself at home, but, he said, “it is also clear that his parents are in a permanent state of apprehension as to what he will do whenever he is out of sight. I am not convinced that the very strict approach taken to regulation 12(6)(c) by the tribunal with whose decision the Commissioner declined to interfere in R(DLA) 9/02 is not liable to deprive section 12(3) of the Act [presumably a mistaken reference to section 73(3) of the Social Security Contributions and Benefits Act 1992] of any practical effect.”
16. In my judgment, the wording of regulation 12(6)(c) is clear to the extent that it must be shown that the disruptive behaviour of the claimant must be “so unpredictable that he requires another person to be present and watching over him whenever he is awake”. However, it appears to me that, as in the provisions of section 72 of the Social Security and Benefits Act 1992, “requires” means reasonably requires. What the claimant reasonably requires may be more or less than he or she gets. To take an extreme example, a claimant who is kept in a straight jacket, or who is administered large quantities of an inappropriate sedative while awake in the evening, may as a result not require in the evening another person to be present and watching over them because of unpredictable disruptive behaviour. That would not normally be an appropriate way of treating that claimant, although it may on occasions be needed if a carer was not available. So too, although a claimant may be very disruptive and in other respects fall within regulation 12(6)(c), there may be nobody available for part of the day to be present and watch over him or her.
17. In CDLA/2470/2006, it could be that the parents of the claimant had no option, because for example of other demands from other children, but to take a chance and leave the claimant at times with nobody present and watching over him, even though as a result they were in a permanent state of apprehension. In such a case the claimant would still require to have somebody present and watching over him, but there was simply nobody available to do it.
18. So too, in the present case, while the claimant was living with her grandparents, their evidence was that she slept only 4 hours a night on average (roughly between 2am and 6am – see p.88 of the file) and one of them had to be up and watching over her the rest of the time. In school holidays, this involved what were described as 20 hour shifts. When the claimant was staying with her mother, she was not allowed to close the bedroom door (p.186). The grandfather was working and the grandmother was in poor health – she stated that she had had a stroke in 2007 and 2 further strokes in June 2011 (p.174) and also suffered from arthritis. The latter strokes were after the date of the decision but it is plain that throughout both grandparents have been under immense strain. The community nurse described the health of both grandparents as poor and the grandmother as having an arthritic condition with increasing levels of pain (pp.151-152). The claimant’s behaviour in her bedroom was unpredictable as it was elsewhere. The grandmother’s evidence referred to the bedroom floor having been damaged by the claimant and ready to snap (p.182), and the need to provide a padded floor and padded walls also shows that the claimant was liable to become violent in her bedroom. The evidence of the claimant’s violence and need for restraint is also summarised at p.170 by her representative.
19. The grandmother’s evidence was that the claimant wanted her bedroom shut for privacy but the grandmother would be in an adjacent room where she could hear what the claimant was doing and would keep popping around the door to see what she was up to (p.186). While I accept that, as held in R(DLA) 9/02, a person cannot generally be present and watching over another person if they are not in the same room and the door of the claimants’ room is shut, it appears to me that it is a question of fact for the tribunal whether the grandmother’s being in the adjoining room within earshot and popping around the bedroom door frequently to see what she was up to was sufficient to amount to being present and watching over her. The tribunal, however, made no findings as to the frequency of such visits and appears to have proceeded on the basis that if the bedroom door was shut, even though the grandmother was within earshot and popped in to see what the claimant was up to, this could not amount to being present and watching over her. It appears to me that looking in with sufficient regularity and being present within earshot at all times would satisfy regulation 12(6)(c). What is sufficient regularity would be a matter for the tribunal but on this occasion the tribunal made no findings as to it and was therefore in error of law.
20. The tribunal also made no findings as to what the claimant reasonably required by reason of her unpredictable behaviour when at home with her grandparents, bearing in mind that the immense demands which she appears to have placed on them, and their limited physical resources, may have meant that while she required a greater degree of somebody’s presence and watching over, they were unable to provide all that was required. On that account as well, the tribunal was therefore in error of law.
21. There does not appear to me to have been any issue as to the accuracy of the grandparents’ evidence in this case. While I agree with the tribunal that the claimant’s conduct when out riding could not have been extreme disruptive behaviour for the reasons it gave, there is no requirement that all disruptive behaviour should be extreme, or that the behaviour on those occasions should require intervention and physical restraint. Overall the description of the claimant’s behaviour includes regular disruptive behaviour which was extreme. She is described as going into meltdown, screaming, kicking and lashing out at anybody (p.99) and having to be restrained (eg, pp.149-50), as having little understanding of danger (eg pp.110, 125), as becoming destructive when frustrated, albeit less frequently (p.129), as having many variables in everyday life that cannot be controlled. She had damaged her bedroom floor and the grandparents were clearly very anxious as to what she might be doing when her door was shut. Her grandmother would check regularly, although the exact frequency was unclear from the evidence.
22. It appears to me that the frequency with which the grandmother would pop in to check what was going on when the claimant was in the bedroom could well be sufficient, given that she was always within earshot, to amount to being present and watching over her, and that in any event, given the claimant’s destructive tendencies, her lack of appreciation of danger, and the unpredictability of her disruptive behaviour, she did reasonably require to be watched over by somebody present whenever she was awake even if at times the grandparents felt unable to do so, and allowed the door of her bedroom to be shut while listening from close by and looking in from time to time to see what she was doing.
23. I therefore conclude that this is a case in which I can substitute my own decision for that of the tribunal by allowing the appeal and setting aside the decision of the decision maker dated 3 December 2010 and substituting my own decision that the claimant is entitled to the higher rate of the mobility component and the highest rate of the care component of disability living allowance from 30 January 2011 to 29 January 2015 (both dates inclusive).
(signed) Michael Mark
Judge of the Upper Tribunal
12 October 2012