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Mike,
I think the issue here is whether children (or indeed adults) with ADHD could qualify under the section 73 (3) 'severe mental impairment' route rather than the Section 73 (1) 'virtually unable'.
Deni,
I've looked at the decision, there seem to me to be two sides to it:
1) Commissioner Howell says there are two separate tests of
'severe impairment of intelligence' and 'sever impairment of social functioning' under section 73 (3) and Reg 12 (5). I think that this is satifactorily dealt with by R/DLA/1/)O1 (Megarry) and CDLA 2315/2001. Indeed, following the reasoning in CDLA 2315/2001, in a case where Mike's decription of a child haivng a'complete lack of any sense of danger' was satisfied, Commissioner Levenson would accept that they did have a 'severe impariment of intelligence'.
2) He also draws a distinction between the medical aetiology of autism which he says (following CDLA/1678/1997) IS a state of 'arrested' or 'incomplete' development and ADHD which he describes as merely a chemical imbalance (my charicature of a much more qualified distinction on his part, but bascially I think you will have to overturn this distinction to get anwhere).
This might be more difficult to get around. But it should be noted that he bases this on medical evidence from the same expert, Doctor McKinley as Commissioner Rice had relied on in CDLA/1678/97. (Incidentally this was also the basis for the decision overturned in Megarry, another Commissioner Rice Decision which followed CDLA./1678/97).
If you examine what Commissioner Rice actually says about Dr McKinley's evidence:
'7. Dr. McKinley explained that, when infantile autism was first described some 50 years ago, it was postulated that the condition might be psychogenic and related to child-rearing practice. This view had now been rejected, and it was presently accepted that the condition had a physical cause, in that it was a disorder of brain development. The biological cause might be discoverable by investigation. For example it might arise out of a chromosome abnormality, or a genetic disorder or a biochemical disorder. However, sometimes no physical cause could be detected, in which event the condition was described as idiopathic. Nevertheless, although, in a particular case, the condition might be idiopathic, Dr. McKinley explained that there would still be a physical origin connected with development of the brain; there would simply be an inability to identify it. In the light of that evidence, I am satisfied that the claimant does suffer from a state of arrested development or incomplete physical development of the brain within regulation 12(5).'
I don't really see that there is that any significant difference between this and the sum of the evidence before Commissioner Howells, from the same doctor which also indicated that the there are 'genetic predispotitions'and 'biochemical disorders' giving rise to ADHD as well. So I'd feel that it could be challenged... But you would have to have the right case, ideally one where the impairment of social functioning WAS siginificant, and perhaps one where there was also at least some impairment of intellectual functioning by reference to IQ testing, and I'd suspect that at tribunal level you'd have real difficulty.
Paul.
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