DLA HRM severely mentally impaired

Unless there is a demonstrable material error of law the UT will not interfere.  From the facts you state it seems the case looks hopeless.  See CSDLA/356/2010 which discusses the relevant case law on the point, particularly paragraph 11.

I agree.  A closed door scuppered a similar case for me.

Thanks, as I thought

Not necessarily….. see 2012 UKUT 387 AAC on the Upper Tribunal site on just this point - not on briefcase here yet - only added 28/11/12.

It may not help, and there is obviously a lot of disagreement between Upper Tribunal judges, but certainly worth a look - considers “reasonably requires” a person to be present and watching over

Brian

I think Reg 12(6)(c) DLA Regs would be ultra vires if the interpretation given to it by caselaw to date is correct. 

Section 73(3) Contributions and Benefits Act sets out the test for high rate mobility based upon severe mental impairment as follows:

“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)..”

Whilst subsection 3(c) above makes entitlement to high rate care component a pre-condition of entitlement to SMI-based high rate mobility component, it doesn’t require that one of the bases of entitlement to high rate care component be daytime supervision.  It simply asks that both daytime and night time conditions for the care component be satisfied.  It’s worth reminding ourselves what those conditions are:

” 72 (1) Subject to he provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which–
...
(b)  he is so severely disabled physically or mentally that, by day, he requires from another person–

(i)  frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c)  he is so severely disabled physically or mentally that, at night,–

(i)  he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii)  in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”

For those claimants who can function unsupervised behind a closed door, the legal obstacle in the way of qualifying for SMI-based high rate mobility component is Reg 12(6) DLA Regs which provides:

“(6) A person falls within subsection (3)(b) of section section 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.”

It’s sub para (c) which causes the problem.  The caselaw, including the judgment quoted by nevip earlier in this thread, has interpreted that very restrictively so as to require the cared-for person to always be in the line of sight of the carer.  However, if that interpretation were correct it would effectively re-write section 73(3)(c) above to require continual supervision as the daytime basis and watching over for either a prolonged period or repeated periods as the night time basis of the entitlement to HRC.

Section 73(6) Contributions and Benefits Act under which Reg 12(6) is made, could not rationally be construed as authorising such an interpretation whereby Reg 12(6)(c) in the process of defining section 73(3)(b) significantly qualifies 73(3)(c).  Consequently, Reg 12(6)(c) must not be interpreted in that way otherwise it would be ultra vires.

A claimant who is entitled to high rate care the daytime basis of which is frequent attention should not be denied SMI HRM merely because he doesn’t require, eg, continual supervision throughout the day.

Brian, I’ve just seen your post and haven’t read the judgment you refer to.  I assume it doesn’t address the above point which, incidentally, I raised in another thread some time ago.

Edit: to clarify argument

I’ve now read [2012] UKUT 387 (AAC) on the UT site.  It seems there are two important findings in this judgment.  The first is made in para 19:

“..While I accept that, as held in R(DLA) 9/02, a person cannot generally be present and watching over another person if they are not in the same room and the door of the claimants’ room is shut, it appears to me that it is a question of fact for the tribunal whether the grandmother’s being in the adjoining room within earshot and popping around the bedroom door frequently to see what she was up to was sufficient to amount to being present and watching over her.”

I read that as upholding the principle that being present and watching over will normally require the cared-for person to be within sight of the carer.  However, there may be other caring arrangements such as the grandmother’s which are equivalent to being within eyesight and which, therefore, count, as either an exception to, or variation of, the general principle.  However, Judge Mark’s comments on this appear obiter because he finds for the claimant on the second point of his judgment which is delivered in para 22:

“…in any event, given the claimant’s destructive tendencies, her lack of appreciation of danger, and the unpredictability of her disruptive behaviour, she did reasonably require to be watched over by somebody present whenever she was awake even if at times the grandparents felt unable to do so…”

Again, I read this as not departing from the general principle that requires the DLA claimant to be within eyesight of the person watching over them, but incorporating within that principle the broader, more established, principle of reasonable requirement.

I think this judgment is more consistent with the legislative purpose of section 73(3) and should make it easier for severely mentally impaired claimants to qualify for HRM.  However, it still does not address the point I raised in my earlier post about the vires of Reg 12(6)(c) if the generally accepted interpretation of it is correct. 

If being present and watching over does turn out to require the DLA claimant to be within sight of the carer, it raises the question of how you can watch over someone whenever they’re awake unless you also watch over them when they’re asleep; otherwise how would you know when they awoke.  Unless the period between the claimant waking up and starting to be disruptive is regarded as de minimis, which I suspect wouldn’t always be the case.

And the judgment does not consider the effect of section 73(1)’s inclusion of the phrase “for any period throughout which” which governs the interpretation of all the routes to entitlement to HRM, not just the SMI route.  Caselaw on the identical phrase in section 72(1) has interpreted it as not necessarily requiring that care be required every day.  Whereas Judge Mark appears to accept, although the contrary argument appears not to have been put, that being present and watching over will be a daily requirement.

In talyo12’s case I’d be arguing in the application for permission to appeal that the decision of Judge Levenson in [2008] UKUT 24 (AAC) to which Judge Mark refers at para 8 of [2012] UKUT 387 (AAC) should be preferred to the other caselaw.  Judge Levenson’s view that it’s the intervention and restraint which needs to be performed regularly rather than the watching over is in my view the only interpretation of Reg 12(6) which is “within the powers” of section 73(6).  His finding that the condition of watching over and being present may be satisfied by a structured environment despite the DLA claimant being behind a closed door is also going to help.  I’d also submit that Levenson’s approach should be applied “for any period throughout which” as above.

[2012] UKUT 387 (AAC) doesn’t seem to help talyo12’s client who neither reasonably requires being within sight of the carer (ie the definition of watching over that Judge Mark does not depart from) nor has the kind of equivalent arrangement instigated by the grandparents in that case.  Instead, there seems to be ordinary precautionary and anticipatory supervision in place.

It’s possible that the caselaw to date has interpreted “watching over” too literally.  There seems no rationale for supervision during the day and watching over at night to mean different things if the purpose of DLA as a whole is borne in mind.  Yes, it’s arguable that the draftsman would have used the word “supervision” instead of the words “watching over” if his intention had been for there to be no difference between day and night needs, but they are arguably interchangeable terms anyway.  For example, the free online dictionary defines watching over as “to be in charge of; superintend” and Bloomsbury offers “to look after, supervise, or guard somebody or something”.

I think it’s important we don’t lose sight of the fact that ultimately we’re considering the claimant’s mobility needs.  The difference between, on the one hand, the need for regular intervention/restraint and watching over/presence required by Reg 12(6) and, on the other hand, the guidance and supervision required for LRM appears to be that the former is specifically concerned with stopping the claimant causing physical injury to himself or another or damage to property.  Obviously injuring yourself would probably affect your ability to physically walk.  But property?  I recently saw a lad frantically attempting to kick one of those plastic bus shelter windows out.  I was actually surprised at how difficult it was.  By the time I got my phone out to call the police (or at least make him think I was calling them) he’d scarpered.  Mind you, the window was out when I passed the next day.  Still, I suppose the point is that during the time it takes to cause damage your mobility is inevitably restricted.