DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Secretary of State.  The decision of the Sheffield First-tier Tribunal dated 16 October 2009 under file reference 138/09/00973 involves an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the claimant’s appeal against the Secretary of State’s decision dated 6 March 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.  

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS 

(1)	The rehearing will be at an oral hearing.  

(2)	The new tribunal should not involve any judge or member who sat on the tribunal that considered the claimant’s appeal at Sheffield on 23 July 2009 or 16 October 2009.

(3)	The new tribunal can only deal with the appeal as at the date of the original decision under appeal.  This means the tribunal must look at the claimant’s position as it was on 6 March 2009, not as it is at the date of the re-hearing.

(4)	If the claimant has any further written evidence to put before the First-tier Tribunal, in particular medical evidence, this should be sent to the Tribunals Service’s regional office in Leeds within one month of the issue of this decision. 

(5)	The Secretary of State should arrange for the claimant’s disability living allowance file to be checked to see if there was any medical or other professional evidence accompanying any of the earlier claims.  If so, a copy of such evidence should be sent to the Tribunals Service’s regional office in Leeds within one month of the issue of this decision. 

(6)	The new tribunal and the parties should bear in mind the various matters identified in the Secretary of State’s submission to the Upper Tribunal dated 29 January 2010.  That submission (pages 162-166 of the Upper Tribunal papers) should be added to the bundle for the First-tier Tribunal re-hearing the case.

(7)	The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 
REASONS FOR DECISION

The decision in summary

1.		This is (unusually) an appeal by the Secretary of State against the decision of the Sheffield First-tier Tribunal dated 16 October 2009.  I allow the Secretary of State’s appeal to the Upper Tribunal.  The decision of the Sheffield First-tier Tribunal dated 16 October 2009 under file reference 138/09/00973 involves an error on a point of law.  The case needs to be reheard by a new tribunal.

	2.		I must emphasise that this does not mean that I think the First-tier Tribunal necessarily came to the wrong conclusion overall.  They may or may not have arrived at the right outcome.  I have decided only that there is a legal error in the way they arrived at that decision.  I cannot decide the question of the claimant’s proper entitlement (if any) to disability living allowance myself, so the matter has to go back to a different First-tier Tribunal in Sheffield for a re-hearing.

3.		The new First-tier Tribunal in Sheffield should take account of the following points and particularly the Directions on the previous page of this Decision.  They will have to form their own judgement as to the claimant’s proper entitlement (if any) to disability living allowance, based on all the evidence before them.  So the new tribunal may come to the same conclusion as the last tribunal.  Or they may come to the same conclusion as the Secretary of State did last time he made an award of disability living allowance (in 2006).  Or they may come to the same conclusion as the Secretary of State did when he refused to make any award of disability living allowance at all in 2009.  Or they may come to some different conclusion as to the right level of disability living allowance payable.  It all depends on what they make of the evidence.

The background to the appeal to the tribunal

4.		The claimant (D) is a young man now aged 19.  He has learning difficulties, behavioural problems and asthma.  Nobody has suggested that his asthma is a serious problem.   However, there is certainly evidence that his learning difficulties present significant and challenging problems both for himself and for his immediate family.  

5.		D’s learning difficulties and behavioural problems appear to have started being a major problem from the age of about 7.  He had a disrupted education, going to and being excluded from various special schools and also receiving home tuition for a while.  There was also some input from Social Services until he was aged 14.  Since then it appears that his mother and his immediate family have had to cope largely by themselves.  D’s brother also has learning difficulties and sadly his father suffered from motor neurone disease and died in 2009.

6.		Since the age of 11, D has had a series of awards of disability living allowance (DLA).  These awards, all for time-limited periods as is common with children, were all for the highest rate of the care component and the lower rate of the mobility component (see page 94).  The most recent award was made for the period from 23 March 2006 to 14 May 2009.  The renewal claim pack for that award was in the papers before the First-tier Tribunal (pages 4-42).  It appears to have been completed by D’s sister (D cannot read and write properly).

7.	It is unclear from the tribunal file whether there was any medical or other professional evidence supporting any of these earlier awards, or whether they were based solely on the DLA claim packs. The Secretary of State should arrange for D’s DLA file to be checked to see if there was any medical or other professional evidence accompanying any of the earlier claims.  If so, a copy of such evidence should be sent to the Tribunals Service’s regional office in Leeds within one month of the issue of this decision, as it may assist the new tribunal.  I direct accordingly.

8.	D’s mother completed a DLA renewal pack on his behalf in December 2008 (pages 47-85).  D’s GP completed a short questionnaire (pages 86-89), which said little other than that D had not been seen by the surgery for almost 2 years and that he had a “moderate learning disability”.  A decision maker telephoned D’s mother, who acts as his appointee, and asked her various questions (page 90).

9.	On 6 March 2009 a decision maker concluded that D was not entitled to an award of either the care component or the mobility component of DLA with effect from 15 May 2009 (D’s 18th birthday).  D’s mother has repeatedly made the point that although D’s DLA may have stopped at his 18th birthday, his problems have not.  That was, in essence, the issue before the tribunal: was the Secretary of State right to refuse the renewal claim?

10.		D’s mother lodged an appeal against the decision to refuse his renewal claim for DLA.  In her letter she accepted that D might not qualify for the mobility component, “as he can walk”, but that he still needed a lot of care.

The proceedings before the Sheffield First-tier Tribunal

11.		The appeal unfortunately had a lengthy history.  First a tribunal considered the case as a paper appeal on 7 May 2009 (pages 100-101).  That tribunal understandably decided it needed more evidence, and directed that a report by an examining medical practitioner (EMP) be prepared (see pages 105-133).

12.		A second tribunal heard the appeal on 23 July 2009, again as a paper case (pages 134-135), having received the EMP report.  That tribunal decided that D was entitled to the lowest rate care component, as he was unable to manage a main meal for himself, and to the mobility component.  However, the tribunal failed to specify which rate of the mobility component – and it is quite possible that they simply omitted the word “not”, and actually meant that D was not entitled to the mobility component at all.  District Tribunal Judge Cracknell very sensibly set that decision aside, pointing out that there was an arguable case for an award of the lower rate mobility component on the basis of the evidence in the papers.

13.		A third tribunal finally heard the appeal on 16 October 2009, chaired by a very experienced tribunal judge.  The Record of Proceedings on file states that the appellant was present at the hearing (page 140), but that may have been a reference to his mother (his appointee) rather than to D himself.  Certainly the Record of Proceedings and Statement of Reasons read as though only D’s mother and sister attended the hearing and gave evidence.

14.		The tribunal’s decision was to allow the appeal.  The tribunal decided that D was entitled to both the highest rate of the care component and the higher rate of the mobility component, the latter on the basis of the special “severe mental impairment” rules.   Those awards were made from 15 May 2009 for an unlimited period.

15.	The tribunal judge subsequently issued a detailed Statement of Reasons for the tribunal’s decision (pages 148-149).  The Secretary of State applied for permission to appeal against the tribunal’s decision.  District Tribunal Judge Cracknell refused permission to appeal on the ground that no error of law had been shown.  

The proceedings before the Upper Tribunal

16.		The Secretary of State’s application for permission to appeal was renewed before the Upper Tribunal.  In short, the Secretary of State’s representative, Mrs J. Camponi, argued that the tribunal had erred in law by (1) making an award of higher rate mobility on the “severe mental impairment” criteria where the medical evidence did not support such an award; (2) failing to give adequate reasons for their decision to award higher rate mobility; (3) relying on the evidence of D’s mother when that evidence was contradictory: (4) failing to give adequate reasons for their decision to award the highest rate care component.

17.		I granted permission to appeal on the basis that the grounds of appeal were arguable, at least as regards the mobility issue.  I also indicated, however, that my initial impression was that the tribunal had found sufficient facts and given adequate reasons to support their award of the highest rate care component

18.		D’s mother has understandably not felt able to deal with the complex legal issues that the appeal raises. As already indicated, she points out that although D’s DLA may have stopped at his 18th birthday, his problems have not.  She frankly admitted that she had not been expecting an award of the top rate of both components of DLA and “would have been happy getting what he had before” (i.e. highest rate care and lower rate mobility).  She also gave further details and practical examples of the difficulties she had in caring for D.  

The error of law in the decision of the Sheffield First-tier Tribunal

19.	I am allowing the Secretary of State’s appeal and setting aside the decision of the Sheffield First-tier Tribunal for one reason and one reason alone.  The reason is that the tribunal did not find sufficient facts or give adequate reasons for their decision to make an award of the highest rate mobility component of DLA based on the “severe mental impairment” criteria.

20.	The First-tier Tribunal dealt with this issue principally at paragraphs 3 and 11 of their Statement of Reasons.  At paragraph 3 they reasoned as follows:

“The higher rate of the mobility component was passported.  On the balance of the evidence put, the Appellant had incomplete development of the brain since birth.  There was severe impairment of intelligence, applying the broad test in M v. Chief Adjudication Officer and taking into account factors such as likely IQ, insight and sagacity.  There was also severe impairment of social functioning.”

21.	It is right to say that in paragraphs 8-10 the tribunal made some extensive findings about D’s behaviour and the problems involved, especially in managing aggression.  They gave several examples of problematic behaviour and incidents of violence.  At paragraph 11 they concluded as follows:

“On a broad view and in the Tribunal’s experience the evidence of loss of function established a severe mental disability giving rise to a requirement for continual supervision throughout the day and for someone to be awake at night for a prolonged period in order to avoid substantial danger to the Appellant and others.  The Appellant had in particular daily and unpredictable outbursts of aggressive, disinhibited and bizarre behaviour the substantial danger being the real threat of causing injury to himself or others.  The history, loss of mental function and social behaviour indicated that the Appellant had incomplete development of the brain leading to severe impairment of intelligence and severe impairment of social function.”

22.	In my view, even taken with the findings of fact contained in paragraphs 8-10, this was insufficient to support and explain an award of the higher rate mobility component on the basis of the “severe mental impairment” criteria. The severe mental impairment test is an extremely demanding one.  It is governed by sections 73(1)(c) and 73(3) of the Social Security Contributions and Benefits Act 1992.  Section 73(3) states that:

“(3) A person falls within this subsection 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.” 

23.	The condition in section 73(3)(c) means that a claimant will only meet this test if they also meet the day and night time care tests and so qualify for the highest rate care component.  The other two conditions, as outlined in paragraphs (a) and (b), are defined further by regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/ 2890).

The condition in section 73(3)(a): severe mental impairment

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 problems

30.	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.

The lower rate of the mobility component

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.

39.		D’s mother indicated in the renewal claim pack that he needed someone with him when he was out, not least as he had no road sense.  She is, however, quoted as telling the decision maker on the telephone that he did not need supervision when out.  On the other hand, the EMP reported that he did need someone with him because of his tendency to get into fights when out.  D’s mother also told the tribunal that he could not find his way about and would panic in strange places.

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).

Conclusion

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