“He sustained very severe head injuries and was not expected to survive. He fractured his left temporal bone and suffered multiple intracerebral haemorrhages with significant brain damage. He also suffered severe left sided facial injuries with a fracture to the floor of his left orbit.”
“He has been left with severe permanent brain damage causing a chronic confusional state. He has severe cognitive impairment with disorientation in place, time and situation. He has no short term memory and his long term memory has also been affected. He needs continuous prompting and supervision for all tasks of daily living. In functional tasks he has difficulty with initiation, persistence and sequencing. He has no appreciation of danger. He will never drive and will never be able to use public transport unaccompanied. Though his physical injuries have improved his severe irreparable brain damage has led to permanent disability with no prospect of improvement. Another consequence of the brain injury is emotional lability with occasional aggressive outbursts. Unfortunately his stepfather died unexpectedly in January 2009. There have been significant behavioural problems since then and a deterioration in his function. His short term memory is so poor that he has to be reminded regularly of his step-father’s death thus causing a daily reliving of the bereavement.”
“As this 43 year old man suffered RTA [road traffic accident] after the age of 30 years of age he does not qualify under rules of SMI. As this is the case there is no reason to answer IQ or behavioural questions.”
“(5) 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.”
“What is now understood by medical scientists by the expression ‘a state of arrested development or incomplete physical development of the brain’? Further, to what extent does the brain develop throughout life?”
“the current state of the medical authorities indicated that the brain was fully developed before a person reached the age of 30. Alzheimer’s disease caused a gradual but inevitable loss of brain cells, eroding an already developed brain. Thus a sufferer from it did not fall within regulation 12(5).”
“13. On the medical evidence, I am not satisfied that it does. I prefer the approach of Professor Taylor, that the brain, like all physical attributes of a human being, reaches a point of ultimate development, and goes no further. Dr. Rossor admitted that modern researches were at the very frontiers of knowledge in this field, and was not prepared to say with unequivocal conviction that the brain could develop throughout life by reason of the acquisition of new skills. Although he was inclined to take the view that, on balance, such was the case, he did so with no complete confidence, and on the balance of probability I am satisfied that it has not yet been established that the brain develops after it has achieved its maximum size and weight. I consider that, in so far as the brain changes to reflect the acquisition of new skills, this is but the exercise of the brain, not its further development. The brain is equivalent to the “hardware”, and although its function may be improved by the introduction of “software”, the hardware is constant and cannot be improved. Moreover the processes and connections would seem to me to be in the nature of repairs to and maintenance of the brain rather than it development. It follows that, if the brain cannot be developed after it has achieved its maximum size and weight, there can be no question of a sufferer from Alzheimer’s disease being subject to "incomplete physical development of the brain". I am reinforced in this conclusion by the fact that any other view would result in there being no restriction imposed by regulation 12(5). Everyone by definition would during his life have a brain which could never be said to have been completely developed, and the restriction of regulation 12(5) would be meaningless, something which should only be accepted if no other interpretation were possible.”
“(a) Advances in brain imaging technology, in particular magnetic resonance imaging, have allowed neuroscientists to examine the human brain at all ages to track developmental changes in the brain’s structure [para 3]; (b) This has revealed that development does not stop in childhood as had previously been thought, but continues throughout adolescence and well into adulthood [para 3]; (c) Several brain regions continue developing into adulthood most of which are situated in the cortex. The prefrontal cortex, temporal cortex and parietal cortex all undergo protracted development [para 4]; (d) White matter volume throughout the brain increases during the first four decades of life [para 4]; (e) A further finding of MRI studies is that grey matter – which contains a mix of cell bodies, blood vessels and connections between cells/synapses (i.e. physical matter) declines during childhood and adolescence and in fact that declines continue into adulthood and only level off between the late twenties and up to 50 years [para 6]. This finding is explained later in the report in which Professor Blakemore states that changes in the number of synapses throughout development probably, at least, in some part, underlie the pattern of change in grey matter volume [para 9]; (f) Experience-expectant plasticity may be defined as the readiness of the brain to respond to sensory input from the environment during development e.g. the readiness of a young child to be exposed to sounds and thereby to learn a language [para 10]; (g) Sensitive periods of development in this respect may be due to synaptic reorganization: which synapses are strengthened and which are pruned depends on environmental input [para 10]; (h) It is possible that this experience-expectant process might continue into adolescence for certain functions and certain brain areas. However, this is not to say that the brain is incapable of change in adulthood. The question of when the brain stops developing is misleading because the brain does not cease being capable of change [para 11]; (i) The plasticity that occurs into adulthood is known as experience-dependant plasticity e.g. learning to play a musical instrument or to play tennis later in life would involve experience-dependant plasticity. There is no age limit to this type of learning [para 11].”
“15. Neuroscience research carried out in the past 15 years indicates that the human brain undergoes protracted development until at least the third decade of life. Different brain regions develop at different rates and cease developing at different ages. The precise age at which an individual’s brains stops developing probably depends on multiple factors, including genetic and environmental influences, and the question as to when the brain stops developing is in some way unanswerable. However, my understanding of the extent literature leads me to conclude that the brain will have ceased developing, in terms of experience-expectant changes in grey matter and white matter, by the thirties or early forties in most people. It might be useful to consider the age at which brain development ceases as a broad age range rather than a specific number of years. Moreover, we do not know how this relatively protected brain development corresponds to functional development in terms of cognition and behaviour. Even though brain development seems to level off at some point, neuroplasticity, the way the brain adapts to changing environmental stimuli, is a baseline state that happens whenever learning takes place and has no age limit.”
“3. Until about 15 years ago it was assumed that the vast majority of brain development takes place during the first few years of life. Up until that point, scientists did not have the technology to look inside the living, developing human brain. In the past decade, however, mainly due to advances in brain imaging technologies, in particular magnetic resonance imaging (MRI), neuroscientists have started to examine the living human brain at all ages in order to track developmental changes in the brain’s structure...”
“12. It is important to point out that experience-dependent plasticity is a baseline state – it is occurring all the time in the brain, whenever a new memory is laid down or a new face is seen. An example of experience-dependent plasticity is found in the hippocampus, which is a structure deep inside the brain that is essential for spatial navigation and spatial memory. Researchers have compared the hippocampus in London taxi-drivers, whose spatial memory of the lay-out of London has to be extremely advanced, with that of non-taxi drivers. The posterior hippocampus was significantly larger in taxi drivers and its size was related to the number of years the person had been driving taxis, suggesting that its size depends on the degree to which an individual uses their spatial memory. 22 In summary, experience-dependent plasticity occurs throughout life and occurs wherever you learn something new.”
“does the Appellant suffer from arrested development of the brain or incomplete physical development of the brain”? On the other hand Meaning 2 might be expressed in this way: “does the Appellant suffer from either (1) a state of arrested development; or (2) incomplete physical development of the brain?”
“... where a child’s brain failed to grow in the proper way, and this could be physically seen, then there was ‘incomplete physical development’. Where, however on examination of a child’s brain there was nothing which appeared to be physically wrong with it, but the function of the brain was nevertheless deficient, then it was said that there was an ‘arrested development’. What was missing was not apparent physically, but the consequences of the deficiency were only too apparent.”
“ Severely Mentally Impaired 28. The meaning of severely mentally impaired is found in regulation 12(5), which is set out above. The First-tier Tribunal found that there was no evidence of ‘arrested or incomplete development of the brain’. However, this is a common but mistaken paraphrase of regulation 12(5), which refers to ‘arrested development’ or ‘incomplete physical development of the brain’. There are two aspects to this error. One is that a distinction is drawn between arrested development generally (not limited to the brain, although there must still be a physical cause) and incomplete physical development of the brain. The other is that ‘arrested development’ does not mean arrested physical development (otherwise the regulation would say so, as it says ‘incomplete physical development’). Thus, regulation 12(5) can apply to a person who has arrested emotional or functional development which has a physical cause even if that cause is not related to the development of the brain.”
“It is also arguable that the Tribunal erred in law in failing to consider and/or apply SC v SSWP[2010] UKUT 76 (AAC) [CDLA/1621/2009] in which Upper Tribunal Judge Levenson interpreted regulation 12(5) in a novel way to apply to a person who had arrested emotional of functional development through a physical cause, even if that cause is not related to the development of the brain. If this decision is correct, it substantially widens the applicability of the severe mental impairment (SMI) provisions for the higher rate of the mobility component. It is by no means clear that Judge Levenson’s interpretation is sustainable, and I am not necessarily to be taken to agree with the decision.”
“I conclude that whilst in every case 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 perfectly 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. Rather it should be recognised that an IQ result may give a misleading impression of the claimant's useful intelligence and that in some cases at least an impairment of social functioning will shade into an impairment of intelligence. Tribunals and Commissioners will accordingly need to admit and consider evidence other than a mere IQ score.”
“an evaluation of a claimant’s ‘useful intelligence’, including what the Court of Appeal in R(DLA) 2/00 called “insight and sagacity”
“(6) 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.”