IN THE UPPER TRIBUNAL Case No: CDLA/1034/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Bexleyheath on 11 September 2013 under reference SC154/13/06245 involved the making of an error on a point of law. The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in the final paragraph of the Reasons below.

 

 

REASONS FOR DECISION

 

Factual Background

 

1.        The Appellant is a six year old boy: he was four years and ten months at the time of the relevant decision on 17 October 2012. In a report from the community paediatrician treating him in February 2012, the Appellant was described as having both significant problems with social communication at home and school and severe delay in his speech and language skills. He was diagnosed with autistic spectrum disorder in October 2012, the same month as the relevant decision.

 

2.        He lives with his parents and twin brother who also has similar problems. He attends a special opportunities unit in a local primary school which caters for young children with severe and complex needs.

 

3.        On 9 February 2012 his parents made a claim for Disability Living Allowance (DLA) and on 9 March 2012 he was awarded the highest rate of the care component of that benefit. It was, and indeed is still, accepted that he needs attention in connection with his bodily functions several times for short intervals during the day. In addition he needs attention in connection with his bodily functions either more than once a night or once for a prolonged period. He was not awarded any benefit for help with getting around (the mobility component).

 

4.        On 25 September 2012 the Appellant’s parents applied for a supersession of his entitlement to benefit, because the Appellant needed constant supervision and sometimes restraint when outside. The claim form highlighted that he had no awareness of danger and would chase after animals or birds irrespective of the road conditions. He was also reported to be scared of loud noise and traffic which made his behaviour even more unpredictable. This application was, in effect, an application for the higher rate of the mobility component on the grounds of severe mental impairment.

 

5.        On 17 October 2012 the Respondent confirmed the Appellant’s entitlement to the highest rate of the care component and also awarded him the lowest rate of the mobility component. He was considered not to satisfy the criteria for the higher rate of the mobility component on the grounds of severe mental impairment. This award was made from 22 December 2012 (the date of the Appellant’s fifth birthday) until 21 December 2013.

 

6.        The Appellant’s parents asked the Respondent to look at the decision again and this was done in February 2013. The decision made on 17 October 2012 was not revised. The Appellant’s parents appealed on his behalf on 25 March 2013.

 

7.        A tribunal hearing took place on 11 September 2013 at which both the Appellant’s parents were present with a support worker. The tribunal refused the appeal and confirmed the existing award made on 17 October 2012. It did however extend the award until 21 December 2014 when “it might be easier to determine [the Appellant’s] progress in comparison to his peer group” [decision notice dated 11 September 2012].

 

8.        The tribunal found that, although the Appellant probably suffered from a state of arrested or incomplete development of the brain, his impairment of intelligence and social functioning was not extreme. Similarly the evidence showed restricted social functioning but not to an extent that might be described as severely impaired.

 

9.        Having been refused permission to appeal by the First-tier Tribunal on 16 December 2013, the Appellant’s parents sought permission to appeal from the Upper Tribunal.

 

10.     On 8 May 2014 Upper Tribunal Judge Mitchell granted permission to appeal on three grounds which I will address below.

 

11.     The Respondent supports this appeal on the basis that the First-tier Tribunal erred in law and invites me to remit the appeal for rehearing by a differently constituted First-tier Tribunal with appropriate directions for its determination.

 

 

The Relevant Law

 

12.     In order for the Appellant to be awarded the higher rare mobility component on the grounds of severe mental impairment, he needs to satisfy a number of entitlement conditions set out in the substantive law and the explanatory regulations.

 

13.     Section 73(3) of the Social Security and Benefits Act 1992 states that a person can be awarded the higher rate mobility component on the grounds of severe mental impairment 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) above”

Satisfying the condition mentioned in sections 72(1)(b) and (c) means that the person has been awarded the highest rate of the care component.

 

14.     Regulations 12(5) and 12 (6) of the Social Security (Disability Living Allowance) Regulations 1991 clarify the meaning of the above provisions. Regulation 12(5) states that:

“A person falls within subsection 3(a) of Section 73 of the Act (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.”

 

15.     Regulation 12(6) states that:

“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”.

 

 

16.     Case law has established that autism or autistic spectrum disorder constitutes “arrested development or incomplete physical development of the brain” [see CDLA/1678/1997]. In the case of M (A Child) v Chief Adjudication Officer reported as R(DLA) 1/00, the Court of Appeal held that, contrary to the reasoning in CDLA/1678/1997, an intelligence test should not be regarded as a definitive measure of whether a child has a severe impairment of intelligence. An intelligence test is a useful starting point to assess a claimant’s “useful intelligence” but should not be conclusive – other evidence will be required.  Lord Justice Simon Brown stated that:

“…in most cases, no doubt, the measurement of IQ will be the best available method of measuring intelligence. But amongst the dictionary definitions of intelligence one finds reference not merely to the functions of understanding and intellect but also to the qualities of insight and sagacity. It seems to me that in the case of an autistic child those qualities may well be lacking and, to the extent that they are, there will be a functional impairment which overlaps both limbs of the regulation i.e. both intelligence and social functioning…”

 

17.     Thus R(DLA) 1/00 is authority for the proposition that evidence about a person’s insight and sagacity can satisfy both the test of severe impairment of intelligence and severe impairment of social functioning required by regulation 12(5).

 

18.     Sagacity can be defined as the quality of being wise or of having good judgment. What does that mean in practice? Upper Tribunal Judge Bano held in paragraph 4 of CDLA/2414/2012 that regulation 12(5) required:

“…an evaluation of a claimant’s “useful intelligence” including what the Court of Appeal in R(DLA) 1/00 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…”

I note that the above case law was applied in paragraphs 77-81 of  the recent case of N McM v Secretary of State for Work and Pensions (DLA) [2014] UKUT 312 (AAC).

 

 

The Issue in This Appeal

 

19.     The Appellant may satisfy regulation 12(6) but, as the tribunal had held that he did not satisfy regulation 12(5), the tribunal did not consider regulation 12(6) in any detail in its reasons. Given that this appeal is to be remitted for a fresh hearing, it is not necessary for me to consider regulation 12(6) within these reasons. The decision of Upper Tribunal Judge Wikeley in DS v Secretary of State for Work and Pensions (DLA) [2010] UKUT 201 (AAC) provides a useful review of the case law with respect to regulation 12(6).

 

20.     This appeal focuses on the tribunal’s treatment of regulation 12(5) and in particular the assessment of the Appellant’s intelligence and social functioning.

 

 

First Ground of Appeal

 

21.     In paragraph 30 of its reasons, the tribunal commented that there was less evidence about the Appellant’s level of intelligence and went on to state that:

“…it might be considered somewhat difficult to apply the concepts of sagacity and insight to any normal five year old let alone one with [the Appellant’s] difficulties. However the tribunal noted that [the Appellant] appears to appreciate TV programmes, likes being read to, works quietly in a structured environment, likes to indulge in his chosen form of play. He also has good non-verbal problem solving skills…”

It was on this basis that the tribunal apparently decided that the Appellant did not have severe impairment of his intelligence.

 

22.     In giving permission to appeal. Upper Tribunal Judge Mitchell pointed out that the phrase “good non-verbal problem solving skills” appeared to have been taken out of context. The Joint Assessment Report from which that phrase was taken describes those particular skills as “in the below average range” when compared to the Appellant’s peer group. Those skills were much better than both the Appellant’s understanding of language and expressive language skills which scored in the very low range (less than 1% and less than 2% respectively).  The Secretary of State accepts that the tribunal quoted evidence without putting it into context and thereby arguably had its analysis of the Appellant’s intelligence skewed.

 

23.     The flaw in the tribunal’s approach was not just to take evidence about one aspect of the Appellant’s cognitive functioning out of context but also to disregard consideration of the other aspects of his cognitive functioning which arguably gave cause for greater concern about his overall intelligence. Additionally I note that the Joint Assessment Report was undertaken when the Appellant was 3 years and 11 months old. That was in November 2011, some 11 months before the decision date.  Without explanation, the tribunal ignored other more recent material which was arguably germane to the issue of the Appellant’s intelligence such as evidence from his school in May 2013 [bundle page 137] and his statement of special educational needs dated 23 May 2012 [bundle page 109].

 

 

Second Ground of Appeal

 

24.     Upper Tribunal Judge Mitchell also observed that the tribunal appeared to have assumed that the Appellant’s poor language skills could not in themselves be evidence of impaired intelligence. In paragraph 29 of its statement of reasons, the tribunal stated:

“It was quite clear that [the Appellant] had severe delay in his language especially. This may quite likely lead to some impairment of intelligence, but was it severe?”

 

25.     The Secretary of State agrees that the tribunal’s reasoning appears to put the cart before the horse since the Appellant’s poor language/communication skills may be caused by the impairment of his intelligence. The tribunal’s failure to address the Appellant’s communication skills in its reasons [already noted in paragraph 23 above] renders its findings and conclusions inadequate. I agree.

 

 

Third Ground of Appeal

 

26.     In paragraph 30 of its reasons the tribunal addressed this issue and stated:

“…Severe impaired social functioning must also be demonstrated if he is to be entitled to higher rate mobility on SMI grounds. Although Michael does not seem to be as integrated socially as a child of his age without his difficulties, he does have a friend, can get on with adults he knows including his family and teachers, and the teachers do not report significant anti-social activity…”

 

27.     As effective social contact is so reliant on communication, Upper Tribunal Judge Mitchell invited consideration of whether the Appellant’s language difficulties should have been taken into account when assessing the impairment of social functioning. He further wondered whether the assessment of social functioning required consideration to be given to a person’s ability to get on with people who are not familiar to him.

 

28.     In his submission the Secretary of State opines it to be arguable that a child who is not completely socially isolated, who can behave appropriately in structured settings, and can understand and respond to adult command and direction, shows a degree of social functioning that could indeed be called less than severe. He draws attention to the fact that the majority of the time is spent by the Appellant in the structured environment of home and school and thus behaviour in that setting should weigh heavily in the tribunal’s assessment. Nevertheless he accepts that the tribunal’s failure to at least consider the Appellant’s functioning outside highly structured environments was a material flaw in its reasoning.

 

29.     I note that the Secretary of State’s submission does not really answer the first question posed by Upper Tribunal Judge Mitchell: should the Appellant’s language difficulties have been taken into account when assessing the impairment of his social functioning?  I hold that they should have been in the light of the case law set out in paragraphs 16-18 above. The emphasis in R(DLA) 1/00 and CD on “the ability to function in real life situations” or “useful intelligence” invites active consideration of a person’s language difficulties when considering their social functioning for the purposes of regulation 12(5). 

 

30.     In this case, although this will be a matter for the new tribunal, there is ample evidence that the Appellant’s language difficulties impacted significantly on his social functioning. A speech and language therapy report dated 6 September 2013 stated that his “comprehension of language was severely delayed. He needs all instructions and information presented to him in small chunks. When he does not understand what has been said, he rarely asks for clarification. He needs significant time to process what has been said… in structured situations, such as describing pictures, [he] is able to use simple language. However in everyday situations, such as general conversation, he finds it much harder to communicate. He will answer simple questions but needs to be given significant time to respond. However he is rarely able to maintain a conversation. [He] has significant difficulties in interacting with others…” [bundle page 147]. This material, though later than the decision date, accords with the thrust of what is said in other more contemporaneous reports. It is also relevant to the tribunal’s decision making given that one might have expected the Appellant’s language abilities to have improved after nearly a year of full-time school with significant specialist input.

 

31.     Turning to the question of whether the Appellant’s social functioning outside a highly structured environment should be considered, I agree with the Secretary of State that it should have been. Again, applying the concepts of an ability to function in real-life situations and useful intelligence, real life – even for a child of the Appellant’s age - is likely to require the ability to function not just in a protected school or home environment but also on the street or out of doors. In this context I note ample evidence that the Appellant’s functioning is more disruptive, uncontrollable and uncooperative in these less structured settings.

 

32.     Finally, should the Appellant’s abilities to socialise with people he does not know have been a factor for the tribunal to consider? The Secretary of State rightly draws my attention to the fact that many children, including those without the Appellant’s problems, are reluctant to engage with strangers (either adults or peers). He says that it is thus difficult to know whether socialising with strangers is a significant contributor to an assessment of the severity of a child’s social functioning.

 

33.     I am satisfied that exclusion of how a person interacts with strangers is inconsistent with the assessment of an ability to function in real-life situations even in a case concerning a child. Though subsection (4A) imposes conditions on the award of the lower rate of the mobility component to a child – namely that when guidance and supervision is required, it must be substantially more than would be required for a child of that age of normal physical and mental development - there is no provision in the relevant regulations which requires regard to be had to a person’s age in the assessment of either intelligence or social functioning for the purpose of entitlement to benefit pursuant to section 73(3) [see paragraph 13 above]. Many persons who might satisfy the conditions in regulation 12(5) will live in highly circumscribed circumstances which limit their interaction with strangers. This does not mean that their ability to do so should be disregarded though this will be one matter amongst others for a tribunal to consider when assessing the extent to which social functioning is impaired.

 

 

Conclusions

 

34.     For the reasons explained above, the tribunal’s decision involves an error of law.

 

35.     It appears to me that the tribunal fell into error by failing to apply correctly the approach set out by the Court of Appeal in R(DLA) 1/00. What is required for the purpose of section 12(5) is a holistic assessment of both intelligence and social functioning together with a recognition that the same evidence may satisfy the test for severe impairment of intelligence and of social functioning. Attention to the proposition set out in paragraph 17 may well assist the tribunal hearing this remitted appeal. 

 

36.     I am further satisfied that the appropriate order is the setting aside of the tribunal’s decision and the remittal of the Appellant’s case for fresh consideration by a differently constituted tribunal. In my judgment, it would not be in the interests of justice to restrict the scope of the remitted hearing, and so the Appellant’s parents are entitled to advance any and all points they wish on their merits at the fresh hearing.

 

37.     I note that the Appellant is presently unrepresented. His parents would be well-advised to seek advice from a welfare rights organisation or from the Citizens Advice Bureau in connection with the remitted appeal.

 

38.     Though the Appellant has succeeded in this appeal, this should not be taken as an indication that he will be successful at any rehearing.

 

 

Directions

 

39.     The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

 

40.     The tribunal must consider all aspects of the case, both fact and law, entirely afresh. It should apply the guidance given in these reasons to its decision.

 

41.     The rehearing should be an oral hearing.

 

42.     If the Appellant has any written evidence to put before the tribunal, in particular medical evidence and evidence from the Appellant’s school, 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.

 

43.     The Respondent should prepare a supplementary submission for the new tribunal, to be sent to the regional office in Sutton within 6 weeks of the issue of this decision. That submission should address, with reasons, whether the Appellant satisfies section 73(3) and regulations 12(5) and (6).

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

19 September 2014.

 

[signed on the original as dated]