Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  CDLA 1044 2013

ADMINISTRATIVE APPEALS CHAMBER

 

MG v Secretary of State for Work and Pensions (DLA)

 

DECISION

 

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

 

Appeal allowed. The appellant is entitled to the higher rate of the mobility component and highest rate of the care component of disability living allowance from and including 3 02 2012 to 5 01 2017.

 

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii). 

 

 

REASONS FOR DECISION

 

1 This appeal concerns a claim that a child is both severely mentally impaired and has severe behavioural problems and is entitled to the higher rate of the mobility component for those reasons. The child was awarded the highest rate of the care component and lower rate of the mobility component but not the higher rate of the mobility component of disability living allowance. An application for the higher rate of the mobility component was refused. It was not in issue that the child is not virtually unable to walk. The claimant and appellant is appealing, through her mother and appointee, against a decision of the First-tier Tribunal sitting at Manchester on 28 11 2012 under reference SC 946 12 06638 that confirmed the refusal of the higher rate of the mobility component. The parties have agreed that I set aside the decision of the tribunal, and replace it with the decision set out above, for the reasons given when I granted permission to appeal. These are as follows.

 

The legislation

2 The relevant legislation to be applied is in section 73(3) of the Social Security Contributions and Benefits Act 1992 read with regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991. Section 73(3) provides;

 

“(3) A person falls within this subsection if –

(a) she 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) above.”

 

Regulation 12(5) of the Regulations provides:

 

“A person falls within subsection (3)(a) … if she 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) provides:

 

“A person falls within subsection (3)(b) … if she exhibits disruptive behaviour which –

(a) is extreme,

(b) regularly requires 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) is so unpredictable that she requires another person to be present and watching over her whenever she is awake.”

 

3 The child clearly meets the condition (c) in section 73(3) as she has been awarded the highest rate of the care component and lower rate of the mobility component. That is the starting point for this appeal. Both the other conditions, themselves consisting of sets of subsidiary conditions, must also be met.

 

The claim for increased allowance

4 This was made on 3 02 2012. At that time the appellant had been awarded the allowance as indicated above. The parents applied to have the award increased because the appellant was gradually getting worse. In particular, the parents stated that she was now always in danger from running out of the house and into the road and of putting things into her mouth. She suffered regular nose bleeds and did nothing about them but let the blood flow. She increasingly suffered from drop fits, dropping to the floor without notice. As a result she now wore a protective helmet at all times. She also had multiple small “absences” – lapses in consciousness - every day, sometimes up to 40 times a day.

 

Severe mental impairment

5 This was not disputed by the decision maker acting for the Secretary of State in refusing to award the higher rate of the mobility component. The tribunal appears not to have noticed this and considered the matter not established. It found that

“From the information we were given … she appears to have met the normal development milestones until nursery … there was in our view no evidence available to show that she was suffering from a state of arrested development or incomplete physical development of the brain, although she clearly has severe impairment of intelligence and social functioning.”

 

This was based on oral evidence given to the tribunal that “up until she went to nursery, walking and talking development milestones ok. When went to nursery became apparent that there were issues.”

 

6 It is, as a generalisation, often an error of law in complex factual cases like this to say that “there is no evidence” of something, particularly when the Secretary of State or other party has not taken the point. Further, it requires a complete reanalysis of the full evidence to establish that negative when it is challenged, as here. This is because, if there is any evidence, the tribunal is stating either that it was not aware of the evidence or that it ignored it. The question at this stage is therefore whether there was evidence that arguably could have affected the decision to a material extent. If there was, the tribunal erred in law in saying there was none, because it thereby failed to consider whether the evidence was significant.  

 

7 The tribunal found that the appellant was severely mentally impaired in the relevant ways. So the only question of fact to be determined was the cause or causes of that impairment. It is clear that the appellant is subject to a statement of special educational needs. The statement is in evidence. It is perhaps a pity that all the detailed evidence listed in the statement and assembled for it is not in evidence here. That evidence may provide a clearer answer on this point. But equally it may not, as the statement was written in the 2008-09 academic year, when she was 5. It shows some of the appellant’s age-related skill levels already falling way behind her chronological age. Further, some of these are described formally in the statement as “difficult to explain”. The prediction was then that problems would diminish with treatment. Later evidence shows that they did not. Indeed, it suggests that things have gone into reverse. The consistent evidence from the parents and their advisers is that the appellant’s age-related skills are now significantly further behind her chronological age that a few years ago. In lay terms that suggests that something has stopped developing at the speed at which it should have developed – or, in other words, development has been arrested.

 

8 The appellant’s problems are descried by her parents as “epilepsy; severe behavioural problems; severe learning difficulties” to which mental health problems and the need for hearing aids are added. Her overall behaviour is described by her mother as being at a lower level than her 3 year old sister although she is 9.  This is confirmed by the evidence of the general practitioner. The report confirms severe behavioural problems since the age of 3 and that she has the “function of a 3-4 year old level”. She was nearly 10 at that time. This is separate from the frequent epileptic fits – “up to 4 seizures a day”.  Under the heading Prognosis the general practitioner states: “very uncertain – major unresolved difficulties”. Insight and awareness of danger is described as “poor or non-existent”. The class teacher confirms that when outdoors the appellant has no sense of danger and needs supervision at all times and that she has 1:1 support during school activities.  Evidence from the school provided for the tribunal in November 2012 (when the appellant was 10) was that she was assessed on the P scales at P7 across the curriculum range. That is to be seen against the national scale that has P1 at the head and P8 as the lowest level relevant to Key Stages 1, 2 and 3. That evidence is also that the appellant has regressed at school and confirms that she still has no understanding of danger. While that evidence relates to the position some months after the decision under appeal, it confirms the ongoing nature of the appellant’s limited development.

 

9 This evidence has to be considered against the background of the science involved. I consider that this is fairly stated in general terms in the Decision Maker’s Guide  (DMG) published by the Department for Work and Pensions. This reflects past decisions of the Upper Tribunal and Social Security Commissioners, several of those cases reporting and adopting expert advice about brain development.

 

10 The relevant paragraphs of guidance are:

 

“61352 The disabilities counting towards severely mentally impaired are defined as

1. incomplete physical development of the brain - where a person's brain has failed to grow properly and this can be seen and assessed

2. arrested development of the brain -where a person's brain is not functioning properly but no physical deficiency is apparent.

 

61353 A person's brain is fully developed when it reaches its maximum weight and size. This is accepted to be by the late 20's and invariably before the age of 30.

 

61354 A person cannot satisfy the severely mentally impaired condition unless it can be established that the cause of the mental impairment (for example accident, disease, injury) happened before the person's brain was fully developed. Degenerative diseases such as Alzheimer's disease that begin after the brain is fully developed do not satisfy the severely mentally impaired condition. Difficult cases should be referred to Medical Services for advice.”

 

11 I have quoted that guidance because the appellant’s father (unusually but perhaps wisely) quoted it to the Department when disputing the refusal to increase the award. This is plainly a difficult case in the light of the above evidence. There is no indication, despite that hint, that it was referred by the decision maker to Medical Services.

 

12 That guidance supports the view that the statement of the tribunal is plainly wrong in law in concluding, on this evidence, that there is “no evidence” of arrested development and relying on the child’s development to nursery age to establish this. Brain development plainly does not stop then. There is a genuine difficulty here in that the experts – the consultant; the general practitioner; the experts consulted in connection with the child’s special educational needs - have been unable to put an exact label on the appellant’s problems. But they all find that the child’s skills and development age is significantly behind her chronological age. That is evidence suggesting that there is arrested development of something, and I can see nothing significant suggesting that this does not include development of the brain. In those circumstances it is in my view appropriate to remember that entitlement is determined in disability living allowance on probabilities. Is it more likely than not that this child is suffering, on all this evidence, from arrested development of the brain?

 

13 There is a genuine danger in cases such as this of pitching the standard of proof too high. For example, in this case the only way of going beyond the current knowledge (or lack of it) is to consider obtaining expert medical evidence about the cause of the appellant’s accepted severe impairment of intelligence and social functioning. There must be a cause or causes or that would not be the case. This is the approach taken by a number of social security commissioners and tribunal judges in past cases. But this is not a case of establishing as a matter of evidence whether or not a known cause can in fact be regarded as arrested development of the brain. If that expert concludes of the appellant, as others have, that the cause is partly unknown, what is gained? The case must still be decided on probabilities. This is in my view a case where a tribunal should remember that its decisions are to be taken within the framework of rule 2 of the Tribunal Rules. In particular, what is the proportionate way of dealing with this case fairly and justly? In my view, it is to recognise that the tribunal already has all the expert evidence it is likely to acquire without disproportionate expenditure and delay and that it must take its decision on that evidence.

 

Severe behavioural problems

14 The tribunal found on this:

“We considered that she does display severe behavioural problems … requiring another person to intervene; however we do not consider from the evidence before us that this is extreme … we also did not consider her behaviour to be unpredictable. Her class teacher’s statement effectively shows she has behavioural problems if she does not get what she wants – that is in our view not unpredictable.”

 

15 This is not a full reflection of regulation 12(6). The focus is on “disruptive” behaviour. That is problematic in this case because the appellant suffers from patterns of behaviour caused by the presence of severe epilepsy as well as by her severe impairments. One relevant pattern of behaviour is of outbursts of challenging behaviour. Another is of falling over without warning because of a fit, accompanied by jerking movements, and then being comatose for a period. Additional behaviours such as ignoring regular nose bleeds may be relevant, as may behaviour occasioned by a total absence of any sense of danger. So might unresponsiveness occasioned by minor fits. The tribunal has plainly focussed on part only of those patterns as the loss of consciousness and unresponsiveness due to fits is shown to be unpredictable on the evidence. Was it right to do so?

 

16 One issue that has caused difficulties for tribunals in other cases is not present here. The consistent evidence is that the appellant needs supervision at all times – in school as well as at home – and receives it. Further, she needs that supervision to avoid injury to herself. For the same reason, she wears a helmet when out of doors. And the evidence is that she has frequent seizures with stiff jerking of the limbs, requiring intervention. This is separate in cause – but not result - from the intervention needed to keep her out of danger and the intervention needed when her behaviour is “challenging”. And in my view it is clear that the continuing supervision is because cumulatively the dangers of injury to the appellant are both genuine and unpredictable.

 

17 That being so, it is necessary to consider whether all those behaviour patterns are “disruptive” relevant to regulation 12(6) or, as the tribunal has implicitly assumed, only some of them.  As it has been put in issue, it is again useful to note the guidance in the DMG:

 

“61376 People are treated as having severe behavioural problems if they exhibit disruptive behaviour that

1. is extreme and

2. regularly requires another person to intervene and physically restrain them

2.1 to prevent them injuring themselves or others or

2.2 damaging property and

3. is so unpredictable that they require another person to be present watching over them whenever they are awake.

It is essential that all three conditions are satisfied. The disruptive behaviour does not need to be displayed at all times but it must be extreme. The word “extreme” is an ordinary English word which here refers to behaviour which is wholly out of the ordinary.

 

61377 People who have severe behavioural problems may

1. be destructive

2. be reckless with dangerous things

3. be aggressive and attention seeking

4. self-mutilate or abuse themselves

5. be hyperactive

6. display persistent body movements

7. disrupt the household during the night.

Note: This list is not exhaustive.

 

61378 The conditions at DMG 61376 can only be satisfied if the disruptive behaviour is

1. a regular occurrence and

2. a constant risk.

Aggression, destructiveness, hyperactivity and self injury may require physical restraint.

 

61379 The claimant’s behaviour must be so destructive and unpredictable that they require the presence of another person to watch over them whenever they are awake. This is in all aspects of the claimant’s life both indoors and out. If a claimant displays behavioural problems at home but elsewhere, for example at school, is well behaved then the test will not be satisfied.

[Example omitted]

61380 The claimant’s condition must be such that the constant presence of another person is required to intervene, and restrain the claimant, to deal with unpredictable behaviour. The restraint must be a regular occurrence. If supervision, or a structured environment, short of physical restraint prevented the claimant from being disruptive, or from being disruptive on a regular basis the test would not be satisfied.

[Example omitted]”

 

I have omitted the examples, both referring to Commissioners’ decisions, as they deal with situations where supervision was not continual. My only disagreement with this commentary is that it appears to elevate “destructive” from being one alternative in paragraph 61377 to being a central element in paragraph 61379. That is an overgeneralisation of the need for destructiveness not justified by the statutory language unless it includes self-injury.

 

18 I am not aware of any previous decision of Commissioners or the Upper Tribunal dealing with disruption caused, as here, by unpredictable behaviour endangering the individual but not others because of sudden collapses caused by fits (that may be at times violent fits) or a total absence of a sense of danger. 

 

Secretary of State for Work and Pensions v MG

19 The most recent decision on regulation 12(6) is that of Upper Tribunal Judge Wikeley in Secretary of State for Work and Pensions v MG [2012] UKUT 429. As that reviews all relevant previous recent decisions I gratefully adopt his full and careful analysis and set it out fully, so far as relevant to the facts of this case. In that case he gave the following directions to the First-tier Tribunal to which he remitted the case. The context was that of a child with problems evidenced outdoors but not indoors. As it is clear, unusually, in this case that the appellant needs continuing supervision at all times when she is awake, I omit the discussion in that case of situations where a claimant is not supervised continuously in this way. That case was referred for rehearing by the First-tier Tribunal with the following guidance: 

 

“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.”

 

20 That guidance is a valuable summary of the relevant decisions of this Chamber and its predecessor. I am not aware of any more recent decisions adding to what is plainly a lengthy discussion of a difficult provision. But it does not answer the question here: as a matter of law or of fact, which of this appellant’s behaviour patterns are relevant as being extremely disruptive such that she needs continuing supervision throughout her waking day, every day, indoors and outdoors, at home, at school or indeed anywhere?

 

Extremely disruptive

21 The Oxford Dictionary definition of “disruptive” is that it is something that disrupts. Disruption is “disturbance or problems which interrupt an event, activity, or process.” That does not in my view require disruptive behaviour to be violent or physically aggressive. Talking in a school class is disruptive to the class as is fog to an airport timetable. There is no required issue of violence in that term. The relevance of injury or damage arises from elsewhere in regulation 12(6) and the paragraph must of course be read as a whole. My conclusion is that “disruptive behaviour” is to be treated as an ordinary English term, but that it is to be given its full meaning. If it disrupts, it is disruptive. If it disturbs or causes problems that interrupt what would otherwise happen, it disrupts. That being so, in my view a tribunal should consider all relevant disruptive behaviour to see if the total behaviour patterns of the individual meet the requirements of that paragraph.

 

22 As this tribunal did not do that, it is again in error of law in the way it applied this test.

 

Conclusion

23 The First-tier Tribunal erred in law in making its findings of fact on both regulation 12(5) and regulation 12(6). In both cases it took too narrow a view of what was relevant evidence. Given the complexities of those paragraphs and the weight of jurisprudence in the courts and tribunals that those difficult provisions have caused, its caution is perhaps understandable, Nonetheless, I consider that the case must be redecided.

 

24 However, I see no purpose in sending this back to another tribunal. I have already discussed whether further expert evidence would be appropriate. And if, as I suggest, obtaining further evidence in this most unusual case would be disproportionate to the award in question, then the case is to be decided on the evidence now available. This will also avoid further delay in a case that has been under appeal for over a year.

 

25 In my view the answer to the question set in paragraph [12] above is that there is evidence that the appellant is probably suffering from arrested development of the brain.

The other elements in regulation 12(5) were accepted as present by the tribunal, and in any event had not been disputed by the Secretary of State. I conclude that all the conditions in paragraph 12(5) are met.

 

26 The tests in paragraph 12(6) are more difficult to meet. Was the appellant’s behaviour extremely disruptive? That this is in general terms an extreme case is undoubtedly established. So much of the attention of tribunals to this paragraph has been to cases where individuals are disruptive in some contexts and not others, or require supervision in some contexts and not others. That is not so here. In my view the extreme needs here are evidenced by two simple but serious facts. This appellant is supervised throughout the waking day, indoors and out of doors, and regardless of location. Further, this appellant is not allowed out of doors without a helmet on, even at school, because even with continuous supervision no one can stop the risk of serious self-injury caused by her behaviour. In that context, I have no difficulty in this case in describing a collapse of the appellant without warning or notice and with a loss of consciousness and jerking actions as behaviour even if it is involuntary. I see no reason why involuntary behaviour should not in principle be disruptive if the facts show that it is.

 

27 It is plain from the medical and school evidence as well as that of the parents that when the appellant has a fit she needs and receives continual supervision until she regains consciousness. That is in addition to the continual supervision occurring because she has no sense of danger, can and does present challenging behaviour, and because of the risk of fits. As those fits happen without warning and without limit to location or context on a repeating daily basis, I cannot see how that is anything other than disruptive and unpredictable. That other aspects of her behaviour may be predictable does not make her behaviour as a whole predictable. When this happens, it cannot be ignored. Someone has to be ready to intervene at any time both to attempt to stop injury when the fit occurs and after the fit has occurred. That is in addition to the need to deal with the appellant’s other serious behavioural problems.

 

28 This is an extremely unusual case. It is for that reason that it meets, in my view, the requirements of the very restrictive rules of paragraphs 12(5) and 12(6). And it is for that reason also that I have considered the case fully without either calling a hearing or seeking further evidence and without suggesting that the matter be remitted to another tribunal. The most appropriate course is to suggest that the full higher rate of the mobility component be awarded to the appellant without further delay. As I am suggesting this on a consent basis, it would be appropriate to suggest a limited period of award for five years (over a year of which has already expired). This matches the term of the award already in place. 

 

 

 

 

David Williams

Upper Tribunal Judge

30 07 2013

 

[Signed on the original on the date stated]