DS v Secretary of State for Work and Pensions (DLA) [2010] UKUT 201 (AAC)

UKUT-AAC
DS v Secretary of State for Work and Pensions (DLA)
[2010] UKUT 201 (AAC) · 2010-06-14
[24]According to regulation 12(5) of the 1991 Regulations, a person is “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.” As the tribunal rightly identified, the leading case is the decision of the Court of Appeal in M (a child) v Chief Adjudication Officer , also reported as R(DLA) 1/00, involving a 9 year old autistic child. The Court of Appeal held that a claimant must establish both severe impairment of intelligence and severe impairment of social function in order to come within regulation 12(5). The Court also held that while the claimant’s IQ, as conventionally tested, is likely to be the essential starting point for considering the impairment of intelligence, and whilst it is reasonable to take an IQ of 55 or less as the prima facie touchstone of severe impairment, that test and that score will not invariably prove decisive and other evidence must be admitted and considered. 25. In the present case the tribunal was, in my view, entirely justified in reaching the conclusion that as a matter of fact D displayed “severe impairment of intelligence and social functioning”. True, there was no IQ evidence before the tribunal, but M (a child) v Chief Adjudication Officer demonstrates the importance of taking a holistic approach. However, the Court of Appeal in that case was solely concerned with the construction of the statutory expression “severe impairment of intelligence and social functioning”. The Court was not directly concerned with the preceding statutory phrase, namely that the person concerned “suffers from a state of arrested development or incomplete physical development of the brain”, which results in such severe impairment.[26]In Social Security Commissioner’s decision CDLA/1545/2004, the appeal concerned a young man (“L”) with Tourette Syndrome who exhibited extremely disruptive behaviour including aggression, destructiveness and self injury. The issue was whether he met the test for severe mental impairment. According to Mr Commissioner (now Judge) Williams, “With regard to the application of regulation 12(5), the question is whether L is severely mentally impaired as defined. This must essentially be a medical question ” (at paragraph 18). Similarly in CDLA/2288/2007, a case involving an autistic claimant, Mr Commissioner (now Judge) Jacobs indicated that it would be difficult to “make such a finding other than by reasoning from a recognised medical condition ” (at paragraph 11).27. In my judgment the tribunal in the present case failed to address that issue in sufficient depth. The tribunal certainly summarised D’s troubled educational history. They noted the GP’s evidence that D had a “moderate learning difficulty” and that tests in 2003 had not identified any genetic syndrome. Whilst a definitive medical diagnosis may not be necessary in all cases for a finding of “ a state of arrested development or incomplete physical development of the brain”, the question remains ultimately a medical issue, as the authorities above indicate. In the absence of clear medical evidence, the tribunal here needed to go further in exploring the evidence to satisfy itself that the opening words of regulation 12(5) were indeed met. Despite the delays that had already occurred, it may also have been appropriate to consider adjourning to obtain further evidence on the point, not least as it had not been raised at any earlier stage in the case.28. It is entirely possible that the non-medical evidence in the present case pointed towards a finding of “ a state of arrested development or incomplete physical development of the brain” . For example, the tribunal agreed in their Statement of Reasons with the mother’s assessment that D’s mental age was that of an 8 year old. Given that the brain does not reach maturity until adulthood (see for example R(DLA) 2/96), this might have been consistent with a finding of “ arrested development or incomplete physical development of the brain”. However, the mother was by definition not giving an expert opinion on the medical issue, but a lay opinion based on her own day to day experience.29. The tribunal also needed to consider all the relevant evidence in the case, given the absence of expert evidence on this particular point. In particular, the tribunal made no findings about the level of D’s literacy, an important indicator in the absence of IQ scores. In her letter of appeal D’s mother had said that he had difficulty reading and writing and “he neither can fill in forms or even read them”. She also stated in the renewal claim form that “he has difficulty reading any letters and he cannot write a letter”. Later in the same document she stated that “he can only read and write a little”. The EMP confirmed D “cannot read or write very well”, but noted that he used a computer. The condition in section 73(3)(b): severe behavioural problems30. The severe mental impairment criteria are cumulative. So if the test of severe mental impairment under regulation 12(5) is met, the tribunal will then have to consider whether D “displays severe behavioural problems”. This is also a demanding test, as shown by regulation 12(6), which states that a person meets the test “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.”[31]In the present case the tribunal certainly heard evidence of extreme disruptive behaviour on D’s part. The EMP had reported that there was “frequent loss of control. He gets into fights, pushes and smashes things regularly”. The tribunal’s findings of fact certainly justified a conclusion that the condition in regulation 12(6)(a) was met. As Mr Commissioner Williams observed in CDLA/1545/2004, “Unlike regulation 12(5), the issue in regulation 12(6) is not one essentially of medical expertise but of weighing all the evidence ” (at paragraph 18). It follows that the evidence of D’s mother and other family members was highly relevant. 32. However, it is not obvious that the further condition in regulation 12(6)(b) was necessarily satisfied. True, in the context of getting around, the EMP reported that D “needs someone with him as he tends to get into fights, loses temper easily and [acts] inappropriately”. The EMP also reported more generally that he “can still fly off the handle and loses temper; occurs daily. Anything can trigger off, e.g. his being refused something. D kicks, throws and breaks things.” However, the tribunal did not make a specific finding that D regularly required another person “ to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property”. In fact the mother’s evidence was that the only way to calm him down was to give in to him. Indeed, it is not clear if there was any evidence that as a matter of fact D regularly required another person to intervene by way of actual physical restraint. In fact, his size and strength might make that impossible in practice.[33]It is also not clear that the remaining condition in regulation 12(6)(c) was necessarily satisfied. The claimant’s extreme disruptive behaviour must be “so unpredictable that he requires another person to be present and watching over him whenever he is awake”. This is a high threshold to meet, beyond the level of involvement required for an award of the care component on the basis of the day time supervision test. For example, in R(DLA) 9/02, Mr Commissioner (now Judge) May QC held that a tribunal, which had made a finding of fact that the claimant was allowed to use his room with the door closed to afford him privacy, was entitled to conclude that the claimant did not require another person to be present and watching over him. The Commissioner concluded (at paragraph 11):
“I find it difficult to accept the asserted proposition … that in respect of watching over all that was required was for the carer be awake and available to intervene but not that the carer required to be actually watching the claimant all the time. I say that because the statutory provision appears to me to be specifically restrictive and the words used are 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. ” 34. The strictness of regulation 12(6)(c) was also stressed by Mr Commissioner (now Judge) Turnbull in R(DLA) 7/02 (at paragraph 16), where he stressed that it “requires that the claimant's disruptive behaviour is so unpredictable that another person is required to be present at all times in order to deal with the claimant should he become disruptive ” (original emphasis). 35. The tribunal did not make specific findings of fact on this issue. Given the guidance in R(DLA) 7/02 and R(DLA) 9/02, the tribunal needed to make explicit findings about D’s daily routine and in particular how often he was left by himself in a room , even if others were in the house . The tribunal had found that he was sometimes “of necessity” left alone in the house for up to 2 hours, relying on the mother’s oral evidence at the tribunal. However, the tribunal made no findings as to whether this happened once a year, once a month or at some other interval. The tribunal did not refer to her earlier telephoned comment (as recorded in an office note) that “he can be left alone at home for a couple of hours watching TV, he is told not to touch appliances as he leaves them on but can be safely left alone”
. In addition, they made no clear findings as to how D spent his time when there were others at home with him – did he really have someone literally both “present and watching over him” at all times? 36. In this context I note that in the DLA renewal claim pack D’s mother had indicated that D did not need help washing, bathing or dressing. The case for care was put in terms of general overall supervision rather than attention and help with bodily needs. The EMP reported that D was “able to attend to himself at the toilet; needs encouraging to shave”. However, if D can go to the toilet, have a bath or shower and shave himself unaccompanied (albeit he may well need reminding to shave), and if he can watch TV or play on a computer in a room by himself, it is difficult to see how he “ requires another person to be present and watching over him whenever he is awake” within the terms of regulation 12(6)(c). The new tribunal will need to explore those sorts of issues. The condition in section 73(3)(c): highest rate care 37. Even if both regulations 12(5) and 12(6) are satisfied, that is not the end of the matter. The severe mental impairment criteria also require that the claimant satisfy the conditions of entitlement for receiving the highest rate care component of DLA – in other words, both the day and night time care tests must be met. As indicated above, Mrs Camponi for the Secretary of State argues that the tribunal failed to give adequate reasons for their decision to award the highest rate care component. As also mentioned above, I am by no means satisfied that the tribunal did err in that regard. In the circumstances I do not need to address the point further, as the decision is being set aside for the reasons set out above as regards the severe mental impairment issue. 38. The previous tribunal did not need to consider the possibility of an award of the lower rate of the mobility component of DLA. However, if the new tribunal finds that the severe mental impairment criteria are not met, it will need to consider the question of potential entitlement under section 73(1)(d) of the 1992 Act. The new tribunal will note that this rate was payable from the age of 11 up until 18. 40. If relevant, the tribunal will need to consider all the evidence and make careful findings of fact, bearing in mind of course that the test under section 73(1)(d) involves disregarding routes which are familiar to the person concerned. It may well be that the combination of D’s literacy problems and his potential for getting into trouble are sufficient to warrant a finding that he cannot walk outdoors “without guidance or supervision from another person most of the time”, but that is a matter for the new tribunal to decide. The request for an oral hearing before the Upper Tribunal 41. D’s mother asks for an oral hearing before the Upper Tribunal so that she can put the case on behalf of her son. For the reasons that follow, I have decided that that course is not appropriate in this case. There will, however, be an oral hearing before a new First-tier Tribunal. 42. If an appeal to the Upper Tribunal is allowed, then the Upper Tribunal has three options open to it. First, it can, in the exercise of its discretion, leave the First-tier Tribunal decision unchanged (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). Second, it can set aside the tribunal's decision and substitute its own decision, or "re-make" the decision in the language of the statute (section 12(2)(b)(ii) of the 2007 Act). Third, it can set aside the tribunal's decision and send the case back with directions for re-hearing by the same or a different First-tier Tribunal (section 12(2)(b)(i) of the 2007 Act). 43. The first of these options might be appropriate if the Upper Tribunal was entirely confident that the error of law by the First-tier Tribunal had no material effect on the outcome of the original appeal. I cannot say that with any certainty in this case. The tribunal may or may not have reached the right decision on the merits of the case. I simply cannot be sure. So the First-tier Tribunal's decision must be set aside. 44. The Upper Tribunal is then faced with the choice between the second and third options described above. There are sometimes good reasons for adopting the second course of action and for the Upper Tribunal to dispose of the underlying appeal as well. However, the First-tier Tribunal sits with members who have specific expertise in both medicine and disability issues. It is also important for the Upper Tribunal to recognise that fact-finding is the province of the First-tier Tribunal. That is why an oral hearing before the Upper Tribunal is not appropriate. The case must go back for re-hearing. This way that hearing will take place quicker than a hearing before the Upper Tribunal. It can also be arranged at a venue which is more convenient for the claimant (such as Sheffield). 45. For the reasons explained above, the decision of the tribunal involves an error of law. I must therefore allow the Secretary of State’s appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above. 46. I stress that I am making no decision nor indeed expressing any view on the issue of whether D is properly entitled to any award of DLA, and if so which component or components and at what rate(s). That is a matter for the judgment of the new tribunal, which includes members with the necessary expertise on issues other than law. I should also remind the tribunal that if the decision they make is different from the previous award of highest rate care and lower rate mobility, they will need to explain why that is the case (see the observations of Mr Commissioner Howell QC in R(M) 1/96 on decisions following renewal claims). 47. I must also draw attention to section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “ shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added). This means that the new tribunal will have to focus on the D’s care and mobility needs as at 6 March 2009, the date on which the Secretary of State refused the renewal claim for DLA, and not the position as at the date of the new hearing. I mention this point specifically as it seems that D has now been put on new medication. Signed on the original Nicholas Wikeley on 14 June 2010 Judge of the Upper Tribunal

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