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DLA high rate mobility: when identifying ‘severe behavioural problems’, ask ‘what is the extent of the impulsivity or unpredictability of the claimant’s action that require responding interventions from a carer to avoid danger'.

16th September, 2021

SM v. Department for Communities (DLA) [2021] NI Com 21 (C1/21-22)

Background

The claimant was born in November 2013. Her mother claimed DLA on her behalf on the basis of needs arising from developmental delay, learning disability, impaired hearing and speech/language problems.

The Department awarded middle rate care in April 2016. In October 2018, the Department superseded this award and awarded high rate care from August 2018 and low rate mobility from November 2018. The claimant’s mother acted as her appointee.

Following an unsuccessful request for reconsideration, the claimant’s appointee appealed. The appeal was disallowed. While the existing award was maintained, the tribunal refused to award high rate mobility. The appointee appealed to the Social Security Commissioner.

Legal issue

The claimant’s entitlement to high rate care and low rate mobility were not in dispute. The issue on appeal was whether the claimant satisfied the conditions of entitlement to high rate mobility under section 73(1)(c) of the Social Security Contributions and Benefits (NI) Act 1992.

Section 73 states:

‘73 – (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age[1] and throughout which –

(a) He falls within subsection (3) below;

(3) A person falls within this subsection if-
(a) he is severely mentally impaired; and
(b) he displays severe behavioural problems; and
(c) he satisfies both the conditions mentioned in section 72(1)(b) and (c)[2] above.’

Regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992 specifies the cases which fall within section 73(3)(a) and (b):

‘(5) A person falls within section 73(3)(a) (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

(6) A person falls within section 73(3)(b) (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.’

The tribunal accepted that the claimant’s behaviour was challenging and disruptive, but it was not satisfied that the claimant’s behaviour was so extreme as to satisfy regulation 12(6). The tribunal followed a decision of Commissioner Rowland in CDLA/2470/2006 which held that ‘extreme behaviour is of a type that regularly requires a substantial degree of intervention and physical restraint.’ The tribunal considered the level of restraint needed for a child of the claimant’s age and size, and declined to award high rate mobility.

Before the Commissioner, the claimant’s appointee argued that the tribunal set the bar too high in deciding that the claimant’s behaviour does not meet the criteria under Regulation 12(6). In particular, she cited a UNOCINI[3] report which stated that the claimant met the ‘Priority One – Critical’ threshold in terms of challenging behaviour and that the claimant required an ‘intense level of supervision within and outside the home to ensure her safety’.

Decision

The Commissioner observed that CDLA/2470/2006 addresses the case of a 16 year old child with Downs Syndrome who would regularly sit down when walking outside and refuse to walk further. Restraint does not actually arise in the case. The Commissioner, agreeing with decisions in CDLA/2617/2010 and SSWP v. MG [2012] UKUT 429, decided that CDLA/2470/2006 does not lay down a hard and fast rule about levels of restraint.

At paragraph 30, the Commissioner stated:

‘From the statement of reasons in the present case, however, it is evident that the tribunal has addressed itself to the level of restraint required in the case of a [then] 4 year-old. It appears to me that this approach was focused on a matter that does not go to the heart of the legislative test. The real question in a case like the present one is what is the extent of the impulsivity or unpredictability of the claimant’s action that require responding interventions from a carer to avoid danger, as opposed to any particular degree of physical restraint required in those interventions. It seems to me that the tribunal approached the meaning of ‘extreme’ in a manner which misconstrued the relevant statutory test.’

The Commissioner agreed that the tribunal’s misinterpretation of the statutory test amounted to an error in law. He allowed the appeal and set aside the decision of the appeal tribunal.

The Commissioner went on to decide the case himself. It was not disputed that the claimant is diagnosed with autistic spectrum disorder and therefore satisfies the criteria under regulation 12(5) of the 1992 Regulations and section 73(3)(a) of the 1992 Act. The Commissioner also decided that the claimant is entitled to the high rate care component of DLA and therefore satisfies the criteria under section 73(3)(c) of the 1992 Act. Finally, the Commissioner decided that on the basis of evidence, particularly the UNOCINI report, the claimant’s behaviour is extreme, unpredictable behaviour that requires regular intervention and therefore meets the requirements of section 73(3)(b) of the 1992 Act.

The Commissioner superseded the decision of April 2016 on the ground of change of circumstances. He awarded the claimant high rate mobility and high rate care from August 2018 until November 2025.

For a full copy of the Judgment: click here

[1] The relevant age for low rate mobility component is 5 and the relevant age for high rate mobility component is 3. See Regulation 73(1A) 1992 Act.

[2] Entitlement to the high rate care component of DLA.

[3] Understanding the Needs of Children in Northern Ireland.