I have a client with severe Autism, Learning Difficulties, disruptive behaviour, regularly needs restraining. He would clearly qualify for the Higher Mobility rate of DLA under the severe mental impairment rules, except that he sleeps through the night and isn't going to qualify for Higher Care. He is already on Middle Care and Lower Mobility.

He is unlikely to qualify under virtual inability to walk, as although he is very disruptive, his refusals to walk aren't often enough to stop him making some progress on foot.

It seems ludicrous that he can't get Higher Mobility because he sleeps through the night, which has nothing to do with his walking ability.

Has anyone else had similar cases or know of any case law that could help with a possible supersession?

He might well sleep through the night, but can he do so safely if left alone. Is there a risk on those occassions where he might wake up? If so, and that risk is substantial then it might still be reasonable for him to require watching over.

It's a very long shot but you must focus on the care component since entitlement to the high rate is unequivocal if one is to establish entitlement to high mobility.

GL

i had a great time at my previous firm with such a case, trying for higher rate care on the grounds you suggested, tony - the child in question having a propensity to start fires! parents took it in turns to stay up at night... 2 tribunals had been lost

unfortunately, you are very much dependent on whether the tribunal believes the carers...

The client is 14 and isn't left alone in the house, but thats to do with his age as much as his disability. He wakes up early in the summer but not in winter. I really can't see any way of him getting Higher Care - may have to give up on this one!

I think the difference in Claire's case may be that the parents actually did spend periods of time awake and watching over, to avoid substantial danger. If, in practice, there is someone available, but no one actually is awake and watching over the person for repeated or prolonged periods at night, it would seem to me to be well nigh impossible to argue that the night time criteria could be satisfied. I had a similar query yesterday when the parent of a 23 year old who had a traumatic brian injury some years ago rang because ILF had been suspended. This in turn was because high rate care had reduced to middle rate on renewal. It turned out that previous problems with epileptic seizures at night had been remedied by medication, and there was no longer any need for attention or watching over between 11pm and 8 am - the son slept soundly through (as did the parents).

Sorry, can't think of anything to help

(Brian)