“8. In that case, there was evidence on which Judge Levenson relied that the claimant required constant supervision in all circumstances because of her disruptive behaviour. He held that the fact that there were circumstances in which there was no need to intervene and physically restrain her because of the structured environment in which she was did not mean that she did not need to be watched over there whenever she was awake because of the unpredictability of her behaviour. 9. I fully accept that one must not confuse the requirements of 12(6)(b) with those of 12(6)(c). There must be a regular need actually to intervene and physically restrain the claimant to prevent him causing physical injury to himself or another, or damage to property, to satisfy 12(6)(b). There be unpredictable disruptive behaviour requiring another person to be present and watching over him whenever he is awake to satisfy 12(6)(c). The issues for the tribunal to address in this case for the purpose of 12(6)(b) are that of regularity, physical restraint and physical injury or damage to property. The issues for the tribunal to address for the purpose of 12(6)(c) are unpredictability of disruptive behaviour giving rise to the need for a person to be present and watching over him whenever he is awake. Interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant. 10. If, however, the structured environment is such that there is no real risk of unpredictable violence or not such a risk as to make it reasonable for somebody to be present and watching over him whenever he is awake, then he cannot be said to need another person to be present and watching over him because of his unpredictable disruptive behaviour. If, in practice, he is regularly left alone in his room for lengthy periods while awake, or is not watched over at school because of his unpredictable disruptive behaviour, then that would suggest that his behaviour is not unpredictable, or at least is not unpredictable to such an extent as to require another person to be present and watching over him whenever he is awake.” 10. On the other hand, in JH v Secretary of State ,[2010] UKUT 456 (AAC) , Judge May QC, as he had then become, disagreed with Mr. Commissioner Levenson as follows: “11. It is apparent that the tribunal did not have cited to it my decision in R(DLA) 9/02 nor did the Upper Tribunal Judge [Levinson][ sic ] make reference to it in his decision. In paragraph 12 of my decision I said “12. I find it difficult to accept the asserted proposition contained in the letter of30 November 2000 that in respect of watching over all that was required was for the carer to 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”
“13. The Upper Tribunal judge in CDLA/2955/2006 was correct to point out that the claimant’s behaviour has to be unpredictable for the requirement for presence and watching over by another person whenever he is awake to be satisfied. 14. However, I cannot accept that the requirement for presence and watching over whenever the claimant is awake is somehow obviated or unnecessary in a well-controlled environment which seems to be the thrust of what was said by Mr Levinson. He is suggesting a test which is less stringent than the terms of the legislation import and the view of Mr Turnbull and myself as to its application. In these circumstances I decline to follow what is said by Mr Levinson. 15. In this case even if there is unpredictability in behaviour, if the claimant can be left for substantial periods on his own this would tend to support a conclusion that unpredictability was not such as to give rise to the requirement. There was evidence in relation to baby monitors being placed in his room which suggests that presence and watching over in the sense suggested by myself in R (DLA) 9/02 was not required. In my view the tribunal erred in law by misinterpreting the legislation. “A routine for supervising his behaviour” as disclosed in the evidence was not, in my view, sufficient for the purposes of regulation 12(6)(c). They erred in law by not following what is said in R (DLA) 9/02, though I accept that it was not cited to them.” 12. I do not read Mr. Commissioner Levenson as finding that the requirement for presence and watching over is obviated in a well controlled environment, as Judge May suggests. The point that I understand him to be making, as explained in the passage from my decision in Secretary of State v DM, cited above, is that while there must be there must be a regular need for intervention as required by regulation 12(6)(b), there can be periods each day in a well-controlled environment where, although the claimant needs somebody present and watching over him or her because of the unpredictability of his or her disruptive behaviour, a need for actual intervention may be small. 13. In R(DLA) 9/02, it was held that the carer had to be both present and watching over the claimant, and that that was not the case if the claimant’s bedroom door was closed and he was on one side of it and the carer was on the other. In that case, the claimant was in sheltered accommodation. He had his own room. At night one member of staff would be awake all night. The claimant would be checked on every 1.5 to 2 hours each night. He would regularly get up and would cause damage both inside and out of his room. It was the norm for him to cause trouble in one form or another 4 or 5 times a night. However, he was allowed to use his room with the door closed to afford him privacy. It was this last finding that was said by Mr. Commissioner May QC, as he then was, to be the crucial finding, and was the basis on which the tribunal determined that the claimant did not require another person to be present and watching over him whenever he was awake, and the conclusion which the tribunal had reached that the claimant did not require another person to be present and watching over him whenever he was awake was a conclusion on the finding of fact which they were entitled to reach on the evidence before them. 14. Mr. Commissioner May further stated at paragraph 12 of his decision that it did not seem to him that a carer could be said to be present and watching over a claimant when the claimant’s bedroom door was closed and the claimant was on one side of it and the carer was on the other. It appears to me that he may not have had in mind CCTV when expressing his views as to the effect of a shut door, there having been no CCTV in that case. I can see no reason why the person present and watching over a claimant should not do so in the adjoining room, if they can see and hear what is going on using CCTV or similar electronic means and are in a position to intervene promptly if needed. 15. Although that decision was reported and thus must have commanded the broad support of a majority of commissioners at the time, some doubts have been raised since. In CDLA/2470/2006, Mr. Commissioner Rowland observed in paragraph 11 that he was inclined to accept the submission made by the claimant’s parents that he fell within regulation 12(6)(c). He accepted that the claimant in that case was allowed to do some things by himself at home, but, he said, “it is also clear that his parents are in a permanent state of apprehension as to what he will do whenever he is out of sight. I am not convinced that the very strict approach taken to regulation 12(6)(c) by the tribunal with whose decision the Commissioner declined to interfere in R(DLA) 9/02 is not liable to deprive section 12(3) of the Act [ presumably a mistaken reference tosection 73(3) of the Social Security Contributions and Benefits Act 1992 ] of any practical effect.” 16. In my judgment, the wording of regulation 12(6)(c) is clear to the extent that it must be shown that the disruptive behaviour of the claimant must be “so unpredictable that he requires another person to be present and watching over him whenever he is awake”