Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the Secretary of State.

 

The decision of the London Fox Court First-tier Tribunal dated 11 March 2010 under file reference 242/10/00680 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the claimant’s appeal against the Secretary of State’s decisions dated 16 September 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new tribunal should not involve the tribunal judge or other members who sat on the tribunal that considered this appeal at the hearing at the London Fox Court venue on 11 March 2010.

 

(3) If the claimant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service in Sutton within one month of the issue of this decision. Any such evidence will need to relate to M’s position as it was in September 2009, not as it is today.

 

(4) The new tribunal should follow the guidance at paragraphs 19-37 below.

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

 

Summary of Upper Tribunal’s decision

1. This is an appeal about the “severe mental impairment” conditions (“the SMI rules”) for entitlement to the higher rate of the mobility component of disability living allowance (DLA). The case is about M, a young boy born in December 2004, who has autism. The First-tier Tribunal (FTT) made an award of higher rate mobility based on the SMI rules. The Secretary of State’s appeal to the Upper Tribunal against that FTT decision is allowed. The case will have to go back to a fresh FTT for a re-hearing.

 

The proceedings in the Upper Tribunal

2. I held an oral hearing of the Secretary of State’s appeal at Field House, London on 22 October 2012. The Secretary of State was represented by Mr Jeremy Heath of the DWP Solicitor’s Office. M was represented by Mr Paul Stagg of Counsel. I am indebted to both Mr Heath and Mr Stagg for their careful submissions.

 

3. M’s mother was understandably anxious that the matter be resolved if at all possible at the Upper Tribunal hearing and was willing to give oral evidence before me to that end. I appreciate her concerns. However, my view is that the evidence needs to be considered by a new FTT with its range of legal, medical and disability experience. I also bear in mind that the file before the Upper Tribunal does not include a copy of the original record of proceedings (which were, it appears, digitally recorded), putting both M’s mother and myself at a disadvantage in these proceedings.

 

The background to this appeal

4. M is now nearly 8. As a child with autism, he very much lives “in his own world”, as his mother put it on the DLA claim pack. His behaviour can be challenging. He was awarded the highest rate of the care component of DLA from the age of 3 to 5. At the age of 5, on a renewal claim, he was awarded the highest rate of the care component and the lower rate of the mobility component for 3 years.

 

5. M’s mother appealed against the decision to award him only the lower rate of the mobility component. As she explained in her letter of appeal (the emphasis is hers), “even though he can walk, he often won’t walk because of his autism ... he often wants to go in the opposite direction and his understanding is so limited this can become very difficult, he will have a tantrum or pull away strongly the other way.”

 

6. M’s appeal was heard by the FTT at the London Fox Court venue on 11 March 2010. The tribunal heard from M’s mother, and found her evidence to be “clear, objective and credible”. The FTT also took into account the DLA renewal claim pack that M’s mother had completed, along with a speech and language therapy (SALT) report and OT reports. The FTT correctly identified that three conditions had to be satisfied to qualify for the higher rate of the mobility component under the SMI rules. First, M had to be in receipt of the highest rate of the care component, which he plainly was. This left the two further requirements: that he was “severely mentally impaired” and that he displayed “severe behavioural problems”.

 

7. The FTT found that M was severely mentally impaired within the meaning of that term in the legislation. As the FTT explained, autism is now regarded “as a condition caused by arrested or incomplete development of the brain (lay people, possibly unscientifically but graphically sometimes call it a ‘wiring fault’).” There has, entirely properly, been no challenge to that finding in these proceedings.

 

8. The FTT next considered whether M satisfied the “severe behavioural problems” test under regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890). This provides as follows:

 

“(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.”

 

9. The FTT expressed its approach in the following way:

 

“We have also taken the view that the severity of behavioural problems should, in their application to the Mobility Component, be that displayed and observed in the context of going out and about. It should not be ‘diluted’ by evidence of comparatively docile or compliant behaviour in a secure and structured indoor environment, whether school or home.”

 

10. The FTT noted that the Department’s decision to refuse to make an award of higher rate mobility had been based on the SALT and OT reports, which were in turn focused on the nursery school environment. The FTT, however, stated that “we have already indicated above, moreover, that we are specifically concerned to discover what level of control and indeed physical restraint is required when M is mobile outside”. Then, having accepted the evidence of M’s mother, the FTT summarised it thus (with the tribunal’s original emphasis):

“at all times when out M has to be physically held on to and restrained. He reacts strongly, inappropriately and unpredictably to a wide range of stimuli, both inanimate and animate, which makes taking him anywhere ‘a nightmare’. It is almost always necessary to have two adults, or at least an adult and a responsible teenager, in order to control him. It is often necessary for one of them to pick him up and carry him, though this is becoming less practicable as he gets bigger.”

 

11. The FTT accordingly found that all three sub-conditions in regulation 12(6) were satisfied and made an award of higher rate mobility under the SMI rules to run alongside the existing award of the highest rate care component.

 

12. The Secretary of State applied for permission to appeal. The sole ground of appeal was that the FTT had misapplied regulation 12(6). In particular, it was argued that there was no limitation as to the time when the behaviour occurs or the type of activity undertaken, and the FTT had erred in law by disregarding M’s behaviour at other times when not out and about. I subsequently gave the Secretary of State permission to appeal.

 

The error of law in the FTT’s decision

13. Mr Heath, for the Secretary of State, argued that the FTT’s statement of reasons displayed a plain error of law. The FTT, he submitted, had erred in law by its exclusive focus on M’s behaviour when “out and about”, rather than whenever he was awake (and wherever he was). Mr Heath relied in particular on the decision of Mr Commissioner (now Judge) Turnbull in R(DLA) 7/02. In the earlier decision of CDLA/2054/1998, Mr Deputy Commissioner Bano (as he then was) had given the appeal tribunal the following guidance (at paragraph 7a): “it is the claimant’s behaviour when taking advantage of the faculty of mobility, generally outside the home environment, which needs to be considered.” This would, of course, have supported the FTT’s reasoning and conclusion in the present appeal. In R(DLA) 7/02, however, the Commissioner ruled as follows (at paragraph 19, emphasis added):

 

“... it seems to me that the requirement in Regs. 12(6)(b) and (c) that the claimant must need watching over, for the purpose of restraining potentially   disruptive behaviour, ‘whenever he is awake’ indicates that the watching over must be required at home just as much as outside it, and must be required whether or not the claimant is ‘seeking to take advantage of the faculty of mobility.’ It is plainly not sufficient if the claimant only requires watching over when outside the home. I accept that it may be difficult to see that reg. 12(6) really falls within the scope of the rationale behind the other heads of entitlement to the mobility component (whether at the higher or lower rate). But that cannot justify giving Reg. 12(6) a meaning other than that which it plainly has.”

 

14. The reasoning in paragraph 19 of R(DLA) 7/02 was followed by Mrs Commissioner (as she then was) Parker in CSDLA/202/2007 (at paragraph 10), a decision which the FTT in the present case purported to follow. R(DLA) 7/02 was also followed on this point by Mr Commissioner (now Judge) Rowland in CDLA/2470/2006 (at paragraph 10) and by Judge Mesher in CDLA/2167/2010 (at paragraph 13: “regulation 12(6)(c) required consideration of all the time that U was awake, not just the time when he was in the care of his parents”). I also note that in MMcG v Department for Social Development (DLA) [2012] NICom 292 Mr Commissioner Stockman, substituting his own decision for that of the tribunal below, relied on the child’s behaviour both indoors and outdoors in concluding that he displayed severe behavioural problems (at paragraphs 61-66).

 

15. Mr Stagg, for M, very fairly conceded, as he had to, that the FTT in the present case had exclusively (and not just principally) focussed on M’s behaviour when out and about in deciding whether regulation 12(6) was satisfied. He also accepted that the weight of authority was against him on this point. He gamely argued that, given that we were concerned with entitlement to the mobility component, consideration of regulation 12(6) could only sensibly be carried out with regard to what happens out of doors.

 

16. I agree with Mr Heath’s submission on this issue. Mr Stagg’s contextual point was recognised by the Commissioner in R(DLA) 7/02, but as was said there this “cannot justify giving Reg. 12(6) a meaning other than that which it plainly has” (paragraph 19). In addition, as Mr Heath pointed out, the principal route by which a person may qualify for higher rate mobility component includes express reference to the person’s “ability to walk out of doors” (regulation 12(1)(a)(ii); see also, as regards the lower rate, the reference to an ability to “take advantage of the faculty out of doors” in section 73(1)(d) of the Social Security Contributions and Benefits Act 1992). There is no such qualifying term in the context of the SMI rules under either section 73(3) of the 1992 Act or regulation 12.  

 

17. In the present case the FTT’s decision involves a clear error of law in its exclusive focus on M’s behaviour when out and about in concluding that regulation 12(6) was satisfied. The FTT’s decision must be set aside for that reason. There will have to be a fresh hearing before a new tribunal.

 

18. I had the advantage of detailed further argument by both Mr Heath and Mr Stagg on the proper construction and application of regulation 12(6). These submissions centred on the difference of opinion that has emerged in the case law of the Social Security Commissioners and now the Upper Tribunal on the significance of a claimant’s behaviour in a “structured environment” for the purposes of the SMI rules. I accordingly give the following guidance to the new tribunal.

 

Directions to the new First-tier Tribunal

19. The first and most obvious point is that the new FTT, in considering whether M displays disruptive behaviour within the meaning of section 73(3)(b) of the 1992 Act and regulation 12(6), must have regard to his behaviour both indoors and outdoors. As regulation 12(6(c) requires, the issue of unpredictability must be such that the presence of another watching over him must be “whenever he is awake” and so wherever he is awake.

 

20. The second general point is that the three sub-conditions in regulation 12(6) are separate but cumulative and take their colour from each other (see CDLA/2470/2006 at paragraph 13).

 

21. In his further submissions Mr Stagg invited me to address a series of questions for the guidance of the new tribunal. In the light of both his arguments and those of Mr Heath, I give the new tribunal the following further guidance, given that these questions are almost certainly going to have to be addressed at the re-hearing.

 

What does “extreme” signify in the context of regulation 12(6)(a)?

22. Mr Deputy Commissioner Bano described the word “extreme” as “an ordinary English word, connoting behaviour which is wholly out of the ordinary” (CDLA/2054/1998 at paragraph 7a). Although the rest of that passage, which concerned the “indoors/out of doors” point has been disapproved in R(DLA) 7/02, I am not sure that this definition of “extreme” can be usefully improved upon very much. However, as Mr Commissioner Rowland observed in CDLA/2470/2006, reading the sub-conditions cumulatively, “extreme” behaviour is “of a type that regularly requires a substantial degree of intervention and physical restraint” (at paragraph 13). In other words, the behaviour must be extremely disruptive. Furthermore, the disruptive behaviour must result from the severe mental impairment: “insofar as such problems are primarily a manifestation of a claimant’s age rather than of such mental impairment, they are irrelevant to entitlement” (CSDLA/202/2007 at paragraph 11). This is ultimately a question of fact for the tribunal, involving “a large element of judgment” (CDLA/2167/2010 at paragraph 8).

 

What does “regularly” mean in the context of regulation 12(6)(b)?

23. The claimant’ extreme behaviour need not occur constantly, continuously or all the time. That would be to set the threshold for eligibility too high. Rather, it must be such that it “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”. The word “regularly” is a protean one, so taking its meaning from its context. The Commissioner in CDLA/2470/2006 commented that “such a degree of intervention and restraint is likely to be required on a significant proportion of occasions when the claimant walks moderate distances outdoors”. I agree with that observation as far as it goes.

 

24. I do not agree with Mr Stagg’s further submission that this means that regularity under regulation 12(6)(b) can be met by such incidents occurring just outdoors. Such an analysis seems to me to be inconsistent with R(DLA) 7/02. Rather, that sort of intervention to deal with extreme disruptive behaviour will also need to be required sufficiently often indoors as well such that, taken overall, one can say that it is required “regularly” or “in the ordinary course of events” (see CDLA/2054/1998 at paragraph 7d). When the claimant is outdoors, the need for intervention in the proximity of traffic is the obvious example. The indoors intervention may take any number of different forms: in MMcG v Department for Social Development (DLA) the claimant had to be stopped from jumping off the top step of the household stairs. Other examples – and they are no more than that – might be the need for physical restraint to stop the claimant trying to put his fingers in electrical sockets or to stop him damaging internal doors, walls or household furniture when frustrated. As Mr Deputy Commissioner (now Judge) Warren noted in CDLA/17611/1996, the requirements of regulation 12(6) “fall to be answered in respect of the claimant’s condition generally and not with any special emphasis on behaviour when walking out of doors” (at paragraph 11). However, I also agree with Judge Mark’s helpful formulation that “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” (Secretary of State for Work and Pensions v DM (DLA) [2010] UKUT 318 (AAC) at paragraph 9).

 

What does “physically restrain” signify in the context of regulation 12(6)(b)?

25. The ‘regularity’ requirement under regulation 12(6)(b) is for “another person to intervene and physically restrain” the claimant. In CDLA/2470/2006 Mr Commissioner Rowland qualified that expression by the comment “i.e. something much more than merely taking the person by the arm”. I note that the facts of that case concerned a young man with Down’s Syndrome who was aged 16 at the date of the tribunal hearing. However, more recently Judge Mesher expressed the view that the Commissioner in CDLA/2470/2006 was not intending “to lay down any hard and fast rule of general application” (CDLA/2167/2010 at paragraph 15). Judge Mesher found that on the facts of that case the tribunal was entitled to conclude that “what was needed was a very firm grip to stop U from rushing off towards whatever caught his attention and that that constituted physical restraint to prevent injury” (also at paragraph 15). In CDLA/2617/2010 the boy U was aged 11 at the date of the FTT hearing.

 

26. I agree with Mr Stagg’s further submission that the nature of the intervention and physical restraint required to satisfy regulation 12(6)(c) will be fact- and context-specific. Obviously a strapping 16-year-old may require a considerably higher level of physical restraint than a slight 5-year-old. A firm grip on the arm of such a 5-year-old may well be sufficient to avert danger, whereas it may have no effect at all on a 16-year-old who may have the strength of an adult. I therefore agree with Judge Mesher in CDLA/2617/2010 that Mr Commissioner Rowland should not be read as imposing some categorical rule by way of the illustration given on the facts of that case.

 

What does “watching over” mean in the context of regulation 12(6)(c)?

27. The new tribunal should bear in mind the guidance in the leading case of R(DLA) 9/02. As Mr Commissioner (now Judge) May noted there, the test is “specifically restrictive” and the carer must be 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” (at paragraph 12). Both Mr Heath and Mr Stagg agreed, as I do, that this proposition is subject to a de minimis rider, so that for example “very short intervals without watching over” e.g. for a carer’s ‘comfort break’ (but not, for example, a leisurely cup of tea and a prolonged respite break in the garden whilst the claimant is inside) can be ignored for this purpose (see CDLA/2714/2009 at paragraph 10, cited in JH v Secretary of State for Work and Pensions (DLA) [2010] UKUT 456 (AAC) at paragraph 11).

 

28. Since the oral hearing of this appeal, Judge Mark has issued his decision in AH v Secretary of State for Work and Pensions (DLA) [2012] UKUT 387 (AAC). Judge Mark held that “requires” in regulation 12(6)(c) means “reasonably requires” (at paragraph 16). That seems to be uncontroversial. Judge Mark also expressed the view that if the carer is present close enough to hear what the claimant is doing and so to intervene if necessary, and is either looking in with sufficient regularity or (conceivably) observing the claimant on CCTV, then the fact that the claimant’s bedroom door is shut does not inevitably mean that the carer is not present and watching over the claimant whenever he is awake (at paragraphs 14 and 19). This is at the very least a significant gloss on the Commissioner’s ruling in R(DLA) 9/02, although Judge Mark sought support from the observations in CDLA/2167/2010 (at paragraph 13). I considered whether to seek further submissions from both representatives on this issue in the light of the newly available decision. I decided not to, given that the question was not central to this appeal and the case has gone on long enough already.

 

29. I simply make the following observation. It seems to me that there is some force in Judge Mark’s qualification. Obviously the statutory language must take its ordinary meaning from its context, in the absence of any indication to the contrary. ‘Watching’ means observing, being on the lookout, keeping someone or something in sight, or keeping vigil. However, ‘watching over’ may carry a slightly different nuance in meaning, of exercising protective care over someone or something. After all, regulation 12(6)(b) does say “watching over” and not “looking at”. It is arguable that the Commissioner in R(DLA) 9/02 may have elided the meanings of ‘watching over’ and ‘watching’ (see e.g. at paragraph 12). That is not to say that the meaning of “watching over” can be stretched like a piece of elastic, not least as it is coupled with the restrictive requirement that the carer be “present”. That, of course, is ultimately a question of fact for the first instance tribunal.

 

What is the significance of a ‘structured environment’ in the context of regulation 12(6)(c)?

30. As noted at paragraph 18 above, the submissions of Mr Heath and Mr Stagg were principally concerned with the significance of the claimant’s behaviour within a “structured environment” for the purpose of the regulation 12(6) conditions. Both advocates recognised that there appeared to be a divergence of opinion in the case law on this issue.

 

31. Mr Heath’s argument was that if the claimant was subject to a “structured environment”, whether e.g. at home or at school, such that he did not become extremely disruptive, then by definition regulation 12(6) was not satisfied. He relied in particular on the following passage of Mr Commissioner Turnbull’s reported decision in R(DLA) 2/07:

 

“14. The first finding of importance for this purpose was that ‘he is not disruptive at school, where it is structured and safe.’ That finding clearly came from the evidence given by the claimant’s mother to that effect before the Tribunal (p.166 of the case papers). The claimant’s mother has since confirmed its correctness (see p.195: ‘He is well behaved at school due to the extreme structure and teacher/children ratio’).

 

15. Now it is no doubt the case that while the claimant is at school there is always an adult ‘watching over’ him. It may be (although this is unclear) that it is the presence and active interest of a teacher which results in the claimant not being disruptive at school – i.e. that he would become disruptive if left alone there or if left unsupervised with other children. But that is in my judgment not sufficient to satisfy Reg. 12(6)(c). Limb (c) of Reg. 12(6) is in my judgment only satisfied if the constant presence of an adult is necessary in order to intervene and deal with the claimant if and when he starts actually to become   disruptive. Giving a fair reading to Reg. 12(6)(c) in the context of Reg. 12(6) as a whole, I think the clear meaning is that the ‘watching over’ must be necessary in order that the person watching (or, I suppose, someone who can be summoned immediately by the person watching) can intervene when the claimant actually does become disruptive. If the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive, Reg. 12(6)(c)   is in my judgment not satisfied. I reach that conclusion for three main reasons. First, that is simply how the provision strikes me. Secondly, the presence of limb (b), referring to physical restraint, before limb (c), leads naturally to the meaning that the presence must be necessary in order actually to deal with   unpredictable disruptive behaviour, and not merely (by presence short of physical restraint) to avoid it. Thirdly, Reg. 12(6) can only apply if the claimant does in fact regularly require physical restraint. That means that if a particular claimant were, by supervision short of physical restraint, prevented from ever   being disruptive, or from being disruptive on a regular basis, Reg. 12(6) would plainly not be satisfied.

 

16. The same consequence in my judgment flows from the Tribunal’s findings that at home he only becomes disruptive if his mother leaves the room, or her attention is diverted away from him, or he does not get his own way. (The correctness of that finding has in my view again since been confirmed by the long letter from the claimant’s mother at pages 195 to 197 of the case papers). Reg.12(6)(c), again read in the context of Reg.12(6) as a whole, requires that the claimant’s disruptive behaviour is so unpredictable that another person is required to be present at all times in order to deal with the claimant should he become disruptive. It is not sufficient that the presence and active interest of the claimant’s mother at home is sufficient to prevent disruptive behaviour occurring at all.”

 

32. Mr Stagg, in contrast, relied on Judge Levenson’s unreported decision in LM v Secretary of State for Work and Pensions [2008] UKUT 24 (AAC) (also known as CDLA/2955/2006). Referring to Mr Commissioner Turnbull’s discussion, in paragraph 15 of R(DLA) 7/02, of regulation 12(6)(c), Judge Levenson stated as follows (at paragraph 10):

 

“... 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).”

 

33. In Secretary of State for Work and Pensions v DM (DLA) [2010] UKUT 318 (AAC) Judge Mark then sought to square that circle by both following paragraph 15 of R(DLA) 7/02 and recognising Judge Levenson’s point in LM v Secretary of State for Work and Pensions that one must not confuse the requirements of regulation 12(6)(b) with those of regulation 12(6)(c). Judge Mark concluded as follows (at paragraph 10):

 

“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.”

 

34. In JH v Secretary of State for Work and Pensions (DLA) [2010] UKUT 456 (AAC) Judge May QC nailed his colours firmly to the mast of R(DLA) 2/07 in preference to LM v Secretary of State for Work and Pensions (at paragraph 14). Similarly, in CDLA/1498/2011 Judge Turnbull, remitting an appeal for re-hearing, directed the new tribunal in the following uncompromising terms (at paragraph 10):

 

“10. I refer the new tribunal to what I said in paras. 15 and 16 of R(DLA) 7/02. I held that reg. 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, and therefore that if the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive, reg. 12(6)(c) is not satisfied. In so far as Judge Levenson departed from that in CDLA/2955/2008, I direct the new tribunal not to follow Judge Levenson’s decision.”

 

35. However, Judge Levenson’s observations in LM v Secretary of State for Work and Pensions received support from Judge Mesher in CDLA/2167/2010 at paragraph 13:

 

“… Although the report confirmed that U had dangerous tendencies or behaviour problems, the problems were stated mainly in terms of wandering off indoors or outdoors and eating inappropriate items, leading to a need for supervision. It was arguable that in that environment U did not require the quality of close watching over necessary to satisfy regulation 12(6)(c). That is so even if (as I tend to think is right) the approach of paragraph 10 of decision CDLA/2955/2008 (Mr Commissioner Levenson) is preferred to that in paragraph 15 of R(DLA) 7/02 (Mr Commissioner Turnbull) that if "the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive, [regulation 12(6)(c)] is in my judgment not satisfied". Judge Levenson's view was that that was to confuse the conditions in sub-paragraphs (b) and (c), which should be kept separate, as seems also to have been the view of Judge Mark in Secretary of State for Work and Pensions v DM (DLA) [2010] UKUT 318 (AAC).”

 

36. In sum, the case law undoubtedly reveals a divergence of views. Despite Judge Mark’s valiant effort in Secretary of State for Work and Pensions v DM (DLA) I am not sure those authorities can be satisfactorily reconciled. This is demonstrated by the fact that in CDLA/1498/2011 (at paragraph 10) Judge Turnbull regarded Judge Mark as having adopted the same approach to regulation 12(6)(c) as he had done in R(DLA) 7/02, while in CDLA/2167/2010 Judge Mesher found support in Judge Mark’s decision for the view expressed by Judge Levenson in LM v Secretary of State for Work and Pensions. Certainly in his recent decision in AH v Secretary of State for Work and Pensions (DLA) Judge Mark regarded himself as following Judge Levenson’s approach (at paragraph 9).

 

37. Which view should the new First-tier Tribunal prefer? The principles governing precedent in the former Commissioners’ jurisdiction were laid down in R(I) 12/75 (at paragraphs 19-21) and have been adapted for the new tribunal regime in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) (at paragraphs 36 & 37). As a general rule a First-tier Tribunal should follow a reported decision of the Upper Tribunal (or previously of the Commissioners) in preference to an unreported decision, if only because a reported decision is one that necessarily commands the general assent of the majority of relevant judges. However, that presumption does not apply if the reported decision has been carefully considered in a later unreported decision but not followed (see R 1/00 (FC)).

 

38. For myself I prefer what I understand to be the approach of Judges Levenson, Mesher and Mark. In my view an undue focus on labels such as ‘structured regimes’ or ‘structured environments’ runs the risk of losing sight of the plain statutory language. It also obscures the need for the tribunal’s careful fact-finding. In practice there is a diverse range of ‘structured environments’ in both mainstream and special needs schools. What the tribunal must do in applying regulation 12(6)(c) is to start by establishing the predictability or otherwise of the extreme disruptive behaviour. At one extreme, is it solely triggered by readily identifiable factors (e.g. traffic, sudden noise or being denied access to a particular activity)? If so, it may be predictable. Or, at the other extreme, is the behaviour typically random, such that, as it was put in CDLA/2470/2006, the carers are “in a permanent state of apprehension as to what he will do whenever he is out of sight” (at paragraph 11). If so, it may be unpredictable. This will then require consideration of both what happens and what is reasonably required on a regular basis, and whether that amounts to requiring “another person to be present and watching over him whenever he is awake.” Thus the nature, degree and intensity of the supervision involved all need to be examined.

 

39. It may be significant that on the facts of R(DLA) 7/02 the child in question attended a specialist autistic unit attached to a mainstream school. It may well be that on those facts it was always going to be difficult to meet the necessary statutory criteria. However, for the most severely disabled and vulnerable young people in some special needs schools, I would not agree with the observation in R(DLA) 7/02 that regulation 12(6)(c) is not satisfied if “the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive” (at paragraph 15). It all depends on the nature of the type of supervision that is reasonably required.

 

Conclusion

40. For the reasons explained above, the FTT’s decision involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new First-tier Tribunal subject to the directions and guidance listed above (section 12(2)(b)(i)). 

 

 

 

 

Signed on the original Nicholas Wikeley

on 15 November 2012 Judge of the Upper Tribunal