Social Security Case Law - Autumn 2024

Headnote

Regularity of ‘extreme disruptive behaviour’ and ‘severe mental impairment’ for DLA Higher Rate Mobility

Background

The appellant’s mother (appointee) submitted a renewal application for Disability Living Allowance on behalf of the appellant, who requires constant monitoring and supervision arising from his autistic spectrum disorder (ASD). The appellant was awarded the same high rate of the care component as his previous award, but his mobility component was reduced from high rate to low rate mobility. The decision remained unchanged via mandatory reconsideration and again at the appeal tribunal. The appellant was represented in this case by Advice North West.

Legal Issue

The appellant appealed to the Commissioner on the grounds that the tribunal failed to record material evidence submitted by the appointee, that it made an irrational decision regarding what is ‘severe mental impairment’ and what is ‘extreme behaviour’ in relation to the legislation surrounding these terms and their relationships with Regulation 12(6) of Disability Living Allowance Regulations.

Relevant Legislation

• Section 73, The Social Security Contributions and Benefits (NI) Act 1992
• Regulation 12, The Social Security (Disability Living Allowance) Regulations (NI) 1992

Relevant Case Law

• XTC v Secretary of State for Work and Pensions [2020] UKUT 342
• Secretary of State for Work and Pensions v DM [2010] UKUT 318
• Secretary of State for Work and Pensions v MG [2012] UKUT 429
• C48/99-00(DLA)

Decision

The Commissioner accepted the tribunal erred in law in how it reached the conclusion that, whereas the appellant met the relevant test on rare occasions, it was not regularly enough to satisfy the legislative criteria. The Tribunal should have considered the Appellant’s behaviour as a whole, and made findings as to:

a. how often behaviour meeting the other aspects of the threshold set out in regulation 12(6) had occurred (i.e. behaviour that was disruptive and extreme and required intervention and physical restraint to prevent physical injury or damage to property);

b. over what period that behaviour occurred; and

c. in what circumstances the behaviour occurred.

Then it had to decide, based on those findings, whether the behaviour occurred “regularly”, according to the ordinary meaning of that word.

As the tribunal did not provide adequate reasoning for how they arrived at the conclusion that the appellant met the relevant test for extreme disruptive behaviour only on ‘rare occasions’, it was held that they had not correctly applied the relevant statutory tests and therefore erred in law.