DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CDLA/3215/2001

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Bournemouth tribunal of 15th May 2001. I substitute my own decision. This is to the effect that the claimant is entitled to higher rate mobility component as well as highest rate care component of disability living allowance (DLA) from 22nd January 2001 (the claimant’s 5th birthday) to 21st January 2008. I remit to the Secretary of State questions relating to the calculation and payment of any arrears. 

2. A limited period award is appropriate in this case because children of the age of the claimant, even with his problems, mature and develop. The end date of the award that I have made is the same as that made at earlier stages by the Secretary of State and by the tribunal. It has not been queried or challenged. It is the day before the claimant’s 12th birthday, which is a natural milestone in the development of children. The start date of the award is without prejudice to entitlement to any award that has been made in respect of any earlier date. 
 
3. I held an oral hearing of this appeal on 8th April 2002. The claimant was represented by his mother and by Ms Bailey of counsel. The Secretary of State was represented by Mr Chang from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance. 

4. The claimant was born on 22nd January 1996. He has a range of problems and there is voluminous evidence in the file. The evidence and basic facts are not challenged. The issue is what conclusions are to be drawn from the evidence and facts. There is a particularly full report of 15th June 2000 from a consultant developmental paediatrician (pages 67 to 74) which states:

“ … the situation is not clear cut in terms of diagnostic profiles … but … it can be seen that [he] is experiencing problems over a range of developmental skills which affect his adaptive skills in a number of situations”. 

Eventually he was assessed as having an autistic spectrum disorder (see eg pages 90 and 109).

5. It appears that there was an earlier fixed period award of highest rate care component of DLA, but that the papers relating to that have been lost. I begin the story with a decision made by the Secretary of State on 26th September 2000 awarding highest rate care component of DLA from 22nd January 2001 to 21st January 2008 but refusing to make any award of mobility component. On 2nd November 2000 the claimant’s mother appealed against this decision. On 7th March 2001 the Secretary of State revised that decision so as to award lower rate mobility component of DLA from 22nd January 2001 to 21st January 2008 in addition to highest rate care component. At various places (including in the decision of the tribunal) this award of care component has been stated to run from 2nd February 2001. The parties agreed that this date crept into the paperwork in error. Once the Secretary of State had revised the decision the appeal lapsed by virtue of section 9(6) of the Social Security Act 1998 (and because it did not come within the provisions of regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999). On 9th March 2001 the claimant’s mother appealed to the tribunal against the revised decision on the basis that the claimant was entitled to higher rate mobility component.
6. The tribunal considered the matter on 15th May 2001 and confirmed the decision of the Secretary of State. On 9th July 2001 the Regional Chairman of the tribunal refused to set aside its decision and on 16th July 2001 a chairman of the tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal. The claimant now appeals by leave of Mr Commissioner Heald granted on 22nd October 2001. On 6th January 2002 I directed an oral hearing of the appeal. The Secretary of State opposes the appeal and supports the decision of the tribunal. 

7. Entitlement to highest rate care component is not disputed. The appeal to the Commissioner deals only with entitlement to higher rate mobility component. Before me, Mr Chang argued that the tribunal had indicated its awareness of all of the relevant evidence, had taken account of everything that it should have considered, and was entitled to reach the decision that it reached for the reasons that it gave. Ms Bailey argued that the tribunal had not, in light of the evidence, applied properly section 73(3) of the Social Security Contributions and Benefits Act 1992. Alternatively, it was in error in failing to consider entitlement under section 73(1)(a) of the Act. My decision is based on section 73(3). Without going into details I am bound to say that in my opinion there was no adequate evidence before the tribunal on which it could have found entitlement under section 73(1)(a). Ms Bailey did suggest that the tribunal could have obtained further (medical) evidence in relation to such entitlement. However, the claimant’s mother had every opportunity to obtain such evidence herself. 

8. Section 73(3) of the Social Security Contributions and Benefits Act 1992 provides:

	73(3) A person falls within this sub-section if -
(a) he is severely mentally impaired; and
(b) he displays severe behavioural problems; and
(c) he satisfies both the conditions mentioned in s.72(1)(b) and (c) above.

There is no dispute here that paragraph (c) is met; the two conditions to which it refers concern entitlement to the higher rate care component.

9. Regulation 12(5) of the Social Security (Disability Living Allowance) Regulations specifies who falls within paragraph (a) of section 73(3):

12(5) A person falls within sub-section (3)(a) of s.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.

10. Regulation 12(6) of the Social Security (Disability Living Allowance) Regulations specifies who falls within paragraph (b) of section 73(3):

12(6) A person falls within sub-section (3)(b) of s.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.

11. It is agreed by the parties (and was found by the tribunal) that regulation 12(6) applies and that section 73(3)(b) is satisfied. It is also agreed that the claimant suffers from a state of arrested development or incomplete physical development of the brain, and that this results in severe impairment of social functioning. The question is whether it also results in severe impairment of intelligence.

12. This issue was considered by the Court of Appeal in Megarry –v- Chief Adjudication Officer (29th October 1999) (reported as R (DLA) 1/00). The Court was concerned, in particular, with whether intelligence and social functioning are to be regarded as strictly separate concepts, and with whether IQ tests and scores are adequate ways of telling whether there is severe impairment of intelligence. Lord Justice Simon Brown, with whom the other members of the Court agreed, said:

“ … 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.”

He also said:

“Had the maker of the regulations wished to define "severe impairment of intelligence" exclusively by reference to an IQ score, he could easily have done so - see, for example, Regulation 12(2) which requires 100% loss of vision to satisfy the condition of blindness and 80% loss of hearing to satisfy the condition of deafness. 

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”.

13. In the case before me the tribunal considered that it was applying the principles set out in Megarry. I do not need to deal with the very detailed argument that it did not do so which were put forward by Ms Bailey but, for the most part, I do not accept the criticisms that she made. However, I allow the appeal because there is one very important aspect of the claimant’s condition of which the tribunal was aware but which it appears not to have taken into account in making its decision. The key passage in the tribunal’s full statement (as reproduced on page 147 of the bundle of papers) is:

“We feel that the activities that [he] is capable of including rudimentary mathematics, playing football, putting together jigsaws and models, and following films, videos and stories are all “useful intelligence” in a child of 5. We appreciate and find that his social functioning is severely impaired, and we accept that he has severe behavioural problems. We have considered his intelligence in the context of social functioning. However, we have to bear in mind that severe impairment of social functioning is an additional requirement over and above the severe impairment of intelligence.”

14. What the tribunal did not take into account was the evidence of the claimant’s total lack of any sense of danger and inability to calculate risk. For example, on 3rd October 2000 a social worker reported (page 57) that the claimant “has no awareness of danger and can be unpredictable”. The report of 15th June 2000 from the consultant developmental paediatrician refers (page 72) to “lack of awareness of safety and the failure to take notice of things he has been told not to do”.  On 14th April 2000 a specialist teacher reported (page 84) that the claimant has “messed his pants frequently showing no signs that he his uncomfortable or that he knows that he has done it”.  On 11th April 2001 the community occupational therapist reported (page 110) that: “ … [He] displays unpredictable and impulsive danger … The main area of concern and intervention is [his] lack of awareness regarding safety/danger … [He] requires close supervision for his safety. He is agile and moves quickly and unpredictably without awareness of danger”. 

15. I have concentrated on the opinions of specialists in the field but there is also a great deal of detailed evidence to the same effect from the claimant’s mother and from a neighbour. In my view the tribunal was in error of law in failing to take account of this strand of the case or, if it did so, in failing to explain why it still concluded that there was no severe impairment of intelligence. There is adequate, uncontradicted, evidence on which I can substitute my own decision and it is expedient that I do so. It seems to me that a child who has no sense of danger (as contrasted with a child who has the ability to take risks deliberately and decides to do so) lacks such a fundamental aspect of basic human intelligence that it must be the case (certainly here) that his intelligence is severely impaired.   

16. For the above reasons this appeal succeeds to the extent indicated.

H. Levenson
Commissioner

9th April 2002