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DLA: Appealing against award of lower rate mobility
I am looking into appealing a decision to award a client the lower rate of mobility. The client has been awarded the higher rate of care.
Is it necassary to fit in to Severe mental impairment ‘and’ behavioural problems?
Our client has a history of attempted suicides and self harming but is not mentally impaired as set out by Disability Rights Uk Fact Sheet.
‘severe mental impairment and disruptive behaviour - Severe mental impairment refers to someone who “has arrested or incomplete physical development of the brain resulting in severe impairment of intelligence and social functioning”. Conditions that start later in life, such as recent brain damage or the onset of Alzheimer’s disease which affect people whose brains are fully developed, do not count’
The Cpag book referes to displaying severe behavoural problems -
- exhibit extreme disruptive disruptive behaviour; ‘and’
- you regularly require some one else to intervene and physically restrain you in order to prevent you causing injury to yourself or others ...;‘and’
- you are so unpredictable that another person has to be present and watching you when ever you are awake ; and
: you qualify for the highest rate of of DLA care component.
Does the above ‘and’ mean as well as?
I am trying to establish what is consider ‘regular’, and ‘unpredicatable’ Cpag goes in to some detail about what is meant by ‘physical restraint’.
Thank you
Graham
hi -
it is necessary to be both severely mentally impaired and display severe behavioural problems - s73(3) of the social security contributions and benefits act - so it doesn’t seem that your client with qualify for higher mob under that route.
cheers ros
My normal interpretation of LRM is that the person needs someone to guide them outdoors in unfamiliar places to keep those and others around him/her safe.
People who cannot find their way around such places (due to perhaps visual impairment or cognitive disfunction - learning difficulties, wanders, gets lost easily, unable to ask for help/directions etc) may qualify.
If a person puts himself or others at risk if unsupervised can also fit the criteria. I have a client with severe tourettes who shouts and yells profanities, so is therefore at risk of assault outdoors as strangers don’t understand his condition and therefore gets into all sorts of shenanigans.
Another client with a personality disorder will attempt to beat the living daylights out of other people who simply look at him funny (in his opinion) and therefore needs someone with him to keep himself out of dodgy social situations to keep him and others free from harm.
I normally ask a client who may want LRM : “If i picked you up and put you in the middle of a town 40 miles down the road then what would actually happen to you?”
Some people “prefer” someone with them while some people “need” someone with them. The onus these days unfortunately is establishing need over preference.
The High rate mob thing is rarely granted for mental health issues as you need to prove the client physically cannot walk the specified distance (which has not a lot to do with MH) or their health would be at significant risk if they were not classed as virtually unable to walk.
Based upon your post I think HRC and LRM seems appropriate.
Check for SDPs though, as that may give the client up to an extra £58 per week on top of other means tested benefits
[ Edited: 18 Sep 2012 at 05:05 pm by benefitsadviser ]The Cpag book referes to displaying severe behavoural problems -
- exhibit extreme disruptive disruptive behaviour; ‘and’
- you regularly require some one else to intervene and physically restrain you in order to prevent you causing injury to yourself or others ...;‘and’
- you are so unpredictable that another person has to be present and watching you when ever you are awake ; and
: you qualify for the highest rate of of DLA care component.Does the above ‘and’ mean as well as?
Yes. All the “ands” are cumulative, so you have to satisfy all of them at once.
Ros has it bang on: the key is Reg 73(3)(a). Severe mental impairment applies if ‘he suffers from a state of arrested development or incomplete physical development of the brain’ (Bonner, Hooker Poynter et al, aka Sweet and Maxwell). Your client would fail on that leg alone. There is the additional risk, however small, of losing the HRC in the appeal hearing.
I agree with what’s been said so far but to clarify one thing. The term severe mental impairment is the umbrella term used if all the legislative criteria are met. It is not a requirement that the claimant has a separate diagnosis of severe mental impairment, in medical terms. I currently have a case where the decision maker has fallen into precisely that trap, stating that the claimant is not severely mentally impaired as it is stated that he only has a moderate learning disability. The distinction is nuanced but it is there nevertheless. The SMI case law on autistic children with reasonably high IQ’s illustrates the difficulties in taking that approach. SMI is defined in reg 12(5) of the DLA Regs.
While I agree that SMI can be present regardless of IQ,it is reasonable to take an IQ of 55 or less as the prima facie touchstone of severe mental impairment.The DWP appear to have erred in law in not understanding that anyone who has a medical diagnosis of moderate learning disability should thereby be regarded as being severely mentally impaired.Here is why:
A Social Security Commissioner has established that for DLA purposes the term Severe Mental Impairment can apply to anyone with an IQ of 55 or less provided that SMI was present before the age of 30 by which time the brain is fully developed (so ruling out anyone with Alzheimer’s Disease or other adults who sustain brain injuries).This is based on the premise of being at least 3 standard deviations below the norm of 100. 1 standard deviation = 15, so 3 standard deviations = 45. 100 minus 45 = 55.
Note however thet this is not the same as the medical convention established by the World Health Organisation in the International Classification of Diseases:
Profound Learning Disability IQ 0-19 Mental Age below 3 years
Severe Learning Disability IQ 20-34 Mental Age from 3 to under 6 years
Moderate Learning Disabilty IQ 35-49 Mental Age from 6 to under 9 years
Mild Learning Disability IQ 50-70 Mental Age from 9 to under 12 years
Therefore a doctor might say thet someone with an IQ of 50 has a mild learning disability but for DLA purposes they would be regarded as having a Severe Mental Impairment.
IQ is only one way of measuring Severe Mental Impairment but it is useful because it can be shown to be objective.It has been held that persons on the autistic spectrum may have much higher IQ’s but may still be regarded as Severely Mentally Impaired because they may have islands of intelligence which they are not able to translate into useful social functioning.
Update
Had tribunal several weeks ago. PO came down and argued the “he’s only got a moderate learning disability and therefore doesn’t have a severe impairment of social and intellectual functioning”. Tribunal were having none of that. Appeal allowed.
If anyone hasn’t seen it, there’s now this.