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DLA HR Mobility - SMI
I’m dealing with a lost appeal at the FtT for the highest rate of the mobility component to DLA, for Child of 3 years old with ASD.
He has an inability to regulate his behaviour in the school and often hits others; he screams; constant flapping (as a result of his ASD) and his over-excitement with his environment means that he runs around without consideration of furniture, other children or his safety.
He hits himself when frustrated and loves getting involved in dangerous activities.
On the road he is held with a leash to avoid him running into the road.
He is non-verbal and does not really understand what is being said to him – he responds to gesture and touch and has a very limited sense of danger and places himself in dangerous situations on playground equipment. During these episodes, adults needed to safely physically intervene by standing between him and children or furniture, holding his hands or using a ‘comfort hold.
The tribunal held that his behaviour is NOT “extremely disruptive” and does not satisfy the tripartite test in Reg 12(6 )DLA Regs 1991 –
(6) A person falls within subsection (3)(b) of [F2section 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.
Does anyone know of case law that deals specifically with the definition of extremely disruptive behaviour?
Thanks
You might want to cite CDLA 2054 1998 in any challenge.
This held that “The word “extreme” is an ordinary English word, connoting behaviour which is wholly out of the ordinary. However, the claim is for the mobility component of disability living allowance and it is the claimant’s behaviour when taking advantage of the faculty of mobility, generally outside the home environment, which needs to be considered;-”
Without knowing anymore about your case, I have to say that your description of this child’s behaviour would strike me as reaching the benchmark of being extreme by a long chalk and it’s difficult to understand how a tribunal could disallow an appeal on the basis that it wasn’t.
Which part of the test is the tribunal saying isn’t met?
In any case, a reasonable starting point is probably SSWP v MG (DLA) [2012] UKUT 429 (AAC) where Judge Wikeley goes through most of the caselaw on reg 12(6) including the case cited by Paul above.
Which part of the test is the tribunal saying isn’t met?
In any case, a reasonable starting point is probably SSWP v MG (DLA) [2012] UKUT 429 (AAC) where Judge Wikeley goes through most of the caselaw on reg 12(6) including the case cited by Paul above.
The tribunal were of the view that the behaviour was not “extremely” disruptive in nature and was more in line with children of the same age (three year olds) and that he did not regularly require retraining (because there was little mention of retraining in the papers).
The tribunal was also overly concerned with paper evidence and would not listen to me as the Rep wanting to give evidence of my observations of the child needing restraining. The Judge said where does it say in the papers?.
“The diagnostic report prepared by Dr xxxx contains the concerns of xxxxx parents.
At that time they were about Gianluca’s progress, they stated that he screamed a lot and
climbs without a sense of danger (p. 25). This report was completed following a clinic on
3 October 2019. The remainder of the report sets out very little if anything which amount
to disruptive behaviour. Again, if extremely disruptive behaviour were being exhibited by
xxxx the tribunal would have expected it to be recorded”.
“The last question relating severe behavioural problems requires the tribunal to examine
whether xxxx behaviour was so unpredictable that he requires a person to be
present and watching over him whenever he is awake. The EHCP at its .p. 9 which is p.
55 of the bundle sets out that xxxx “is an active boy with little sense of danger and
needs constant supervision.” This conclusion can be traced back through the
recommendation of Dr xxxx for the EHCP (p. 35), and the previous diagnostic report (pp.
24 and 28). The tribunal found that xxxx behaviour was relatively predictable.
Sudden loud noises and supermarkets could trigger dysregulation. Much of the behaviour
displayed by xxxx, as is set out, the tribunal attributed to age. The heightened level
of supervision outlined within this part of the test was unlikely to be met. In any event the
level of supervision, even if it did satisfy DLA regulation 12(5)(c), was not required to
address extreme disruptive behaviour, which was not present.”
of supervision outlined within this part of the test was unlikely to be met. In any event the
level of supervision, even if it did satisfy DLA regulation 12(5)(c), was not required to
address extreme disruptive behaviour, which was not present.”
I think in terms they are saying that on the facts found, there was not disruptive behaviour which could be described as “extreme” as the only disruptive behaviour found as a fact was “screaming” and “climbing without a sense of danger”. The Tribunal seems to have concluded that this did not come within the ballpark of ‘extreme’. That is the end of the case, but the Tribunal then has given as alternative reasons that the behaviour, such as it was, did not require watching over within the meaning of reg 126(c) and/or that even if it did, this was as a result of primarily age related behaivour rather than manifestations of disability.
You can never really be sure about these things without seeing the papers or at least the whole SOR, but I think what I would be considering in your position is a possible facts and reasons style challenge in relation to the apparent rejection of the evidence of the parents and others that the behaviour was more significant simply on the basis that it wasn’t mentioned in the medical report referred to. Perhaps there are good reasons elsewhere in the SOR as to why the parents or whomever else gave evidence were not reliable witnesses.
The Tribunal’s apparent refusal to consider your evidence might also amount to a freestanding error - see e.g. SK v SSWP (ESA)[2014] UKUT 141 (AAC).
Whilst it isn’t necessarily material, the other point which jumps out is that the Tribunal’s conclusion that watching over was not required is not really explained and seems to be at odds with the EHCP. The EHCP says that “constant supervision” is required. The Tribunal seems to doubt that conclusion but doesn’t really say why. It also says that the need for supervision was due to age, which seems to me unlikely as surely it would only make it to the EHCP if it wasn’t just age related?
Just a few quick thoughts - others may have different views.
[ Edited: 9 Dec 2020 at 05:35 pm by Elliot Kent ]Just to follow up on the last point of Elliot’s response. Although the ECHP plan can include health or social care needs, your child will not get a plan if they only have health or social care needs that do not affect their education. As such, you’re already starting from the position that the child has needs which are higher than other children. These things aren’t easy to get at the best of times, and again as Elliot notes, the fact that they’ve found the child as needing “constant supervision” really doesn’t sit well with the remainder of their reasoning, such as it is.
The fact that they seem to think that the doctor’s report doesn’t go into much detail is odd, given that the doctor was the person who recommended the referral for the ECHP - the doctor was clearly of the opinion that the child did display behaviour that was sufficiently concerning that it was worthwhile passing their assessment over to people more specialised in assessing the level of his needs. And they found he has little sense of danger and needs constant supervision - how does that square with his needs being predictable?
Here is a general tip for gathering evidence in children’s’ cases. In my LA where a child has an ECHP the child is automatically referred to children’s social services for a social care assessment (including safeguarding issues). I know the SW who carries out these assessments and while many don’t require any social services input, some do, as managing children with difficult behaviours is often a struggle for most parents. This is always worth looking into when a child’s DLA case comes your way.
Thanks all for your helpful tips.
The SoR which runs to 11 pages is very detailed and I’m still waiting to receive the transcript of the telephone recording which is now classed as the Record of Proceedings.
I would like to get some feedback on the following;
There was before the tribunal a letter from the school to the EHC planning team in which amongst other matters it was written;
…. “The draft EHCP correctly states that xxxx has “no sense of danger and requires constant supervision” to successfully and safely provide “constant supervision” the school will need support which is greater than the Element 3: Level 3 funding…. The draft EHCP states that “mother reports concerns that xxxx is unable to understand what is happening around him. This leads to frustration which shows [sic] physical ways including hitting himself and others” the school applies a two person rule for safe physical restraint the school required a greater level of funding than Element 3: Level 3 funding would provide to do this safely”
The tribunal’s analysis of the letter from the school;
“39. At p. 44 of the bundle is a letter which is written in support of the EHCP application by xxxx at xxx primary school. This letter has the purpose of clarifying matters contained in a draft EHCP report. It was discussed during the hearing. It was suggested that the reference in this letter to xxxx being violent and the school’s restraint policy meant that xxxx required restraint. The tribunal did not accept this. The letter appears to be [the school] repeating the concerns of [the mother] and the requirement of staff for restraint seems no more that hypothetical. The tribunal felt that this letter was remarkable for the fact that despite xxxx having attended the school since September the preceding year, the school itself offered no evidence of disruptive behaviour or having needed to implement restraint. Had xxxx required restraint, the tribunal would have expected it to be reflected in this letter”.
On that last point, there was a fairly recent decision I recall which was very clear that the fact that something hasn’t happened doesn’t mean the risk of it happening should be ignored by decision makers. Sorry but can’t remember the reference, I’m sure someone else can help you .
Are you thinking of the 3JP’s decision RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP)
[2017] UKUT 105 (AAC)) (Reported as [2017] AACR 32)?
Although its a PIP decision, the question of the likelihood of harm occurring is equally relevant in the DLA context
The reporter’s preamble sums up the argument
an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely
did not require that the occurrence of harm was “more likely than not”, a tribunal must consider whether there was a
real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared
harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences were
relevant (paragraphs 33, 37 and 56);
This is in keeping with what the Tribunal of Commissioners held in R(A)1/83
1. four elements are involved in the continual supervision test
(a) the claimant’s medical condition must be such that it may give rise to substantial danger to himself or others,
(b) the substantial danger must not be too remote a possibility, the fact that an incident may be isolated or infrequent is immaterial,
(c) supervision by a third party must be necessary to avoid the danger,
(d) supervision must be continual;
I think that’s what I was thinking of Derek, thanks.
I’m not sure it is necessarily going to be hugely helpful to comment further on individual paragraphs of the SOR without the wider context.
I would encourage you to get in touch with the CPAG Upper Tribunal Assistance Project here:
https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project
The problem is that some schools have a “non restraint” policy and rely on the ” structured environment” in order to mitigate dangers. That said there may be mileage in what Judge Wikeley said in MG at [39]
It may be significant that on the facts of R(DLA) 7/02 the child in question attended a specialist autistic unit attached to a mainstream school. It may well be that on those facts it was always going to be difficult to meet the necessary statutory criteria. However, for the most severely disabled and vulnerable young people in some special needs schools, I would not agree with the observation in R(DLA) 7/02 that regulation 12(6)(c) is not satisfied if “the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive” (at paragraph 15). It all depends on the nature of the type of supervision that is reasonably required.
The idea of restraint is rather fluid . Again, that t can be illustrated by what Judge Wikeley said in MG at [26]
I agree with Mr Stagg’s further submission that the nature of the intervention and physical restraint required to satisfy regulation 12(6)(c) will be fact- and context-specific. Obviously a strapping 16-year-old may require a considerably higher level of physical restraint than a slight 5-year-old. A firm grip on the arm of such a 5-year-old may well be sufficient to avert danger, whereas it may have no effect at all on a 16-year-old who may have the strength of an adult. I therefore agree with Judge Mesher in CDLA/2617/2010 that Mr Commissioner Rowland should not be read as imposing some categorical rule by way of the illustration given on the facts of that case.
[ Edited: 10 Dec 2020 at 04:14 pm by Stainsby ]
I’ve got a similar issue with a first appeal for HRM
The ECHP for the 5 year old states that he is a lively, happy and cuddly boy, he is outgoing and very intelligent and is able to use PECs /symbols to communicate his needs and wants as well as displaying emotions to indicate what he wants at that particular time..so the decision maker is relying entirely on this for their refusal of HRM
So am I right in arguing that the very fact that an ECHP exists is evidence that there is arrested development of the brain which results in severe impairment of intelligence
And that the phrase very intelligent is ‘relative’ in this case?