Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/2414/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant is a boy born on 29 January 2008 with autistic spectrum disorder who was awarded the highest rate of care component of disability living allowance from 30 June 2010 to 28 January 2013.  A supersession application was made on 23 February 2011 seeking in addition an award of higher rate mobility component, for which the claimant would have been eligible if he satisfied the entitlement conditions from the date of his third birthday, on 29 January 2011.  The application was refused on 22 March 2011 and the claimant, acting through his mother and appointee, appealed against that decision on 16 May 2011.

2. The case for higher rate mobility component which was put to the tribunal was that the claimant satisfied the conditions of entitlement in section 73(3)(a) of the SSCBA 1992 of being severely mentally impaired and displaying severe behavioural problems, as defined in regulations 12 (5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991. The tribunal accepted that the claimant “suffered from a state of arrested development or incomplete physical development of the brain” (regulation 12(5)).  However, they found that that did not result in “severe impairment of intelligence and social functioning”, because in their view: “in comparing [the claimant] to a normal child of his age it was not probable that…he had severely impaired intelligence and social functioning”.  The tribunal also found that the claimant needed physical restraint, but not for most of the time.

3.  The claimant appealed on the grounds that in considering regulation 12(5) the tribunal had misdirected itself in comparing the claimant to a normal child of the same age, and also in failing to make sufficient findings of fact in relation to the claimant’s sense of danger in deciding the extent to which his intelligence was impaired.  I gave permission to appeal on those grounds on 29 August 2012 and the Secretary of State has supported the appeal in a submission dated 3 December 2012.

4.  I am satisfied that the appeal must be allowed for the reasons given in my grant of permission.  Regulation 12(5) does not require a comparison between a claimant and a child of the same age, but does require an evaluation of a claimant’s ‘useful intelligence’, including what the Court of Appeal in R(DLA) 2/00 called “insight and sagacity”.  Mrs Dean, on behalf of the Secretary of State has in my view helpfully and accurately equated those qualities to “the ability to function in real-life situations”, and I agree with her that in order to assess that ability the tribunal ought to have taken into account the very considerable body of evidence in this case concerning the claimant’s lack of sense of danger.

5. The tribunal’s decision therefore involved the making of an error of law and I set it aside.  The claimant has apparently now received an award of higher rate mobility component from 22 February 2012 (although this date needs to be checked) to 29 January 2019, but because this case involves medical issues it ought in my view be remitted to the First-tier Tribunal for a complete rehearing rather than be re-decided by the Upper Tribunal.  The new tribunal should apply the guidance in the recent decision in Secretary of State for Work and Pensions v MG (DLA) [2012] UKUT 429 (AAC) and in applying regulation 12(6) should note in particular that the claimant’s behaviour indoors as well as outdoors should be taken into account-see para. 13..

E A L BANO

1 February 2013