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DLA - Severe mental impairment - arrested development of brain

PeterCAS
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I’m helping with a child DLA appeal. I believe the child probably qualifies for Higher Rate Mobility on the basis of Severe Mental Impairment. They are highly autistic - exhibiting disruptive, unpredictable behaviour that regularly requires intervention. The condition that I’m struggling with is “arrested development (or incomplete physical development) of the brain”.

Scans so far appear not to reveal any physical problems.  From the fact that “arrested development… of the brain” is distinguished from “incomplete physical development”, it appears that it is NOT physical.

So my questions…
1) What constitutes arrested development of the brain?
2) What would be considered satisfactory evidence of this?

Thanks in advance for any insights.

C Browne
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Hi Peter,

Is this of any use. It is in the Rightsnet lists: CDLA/1427/2017 Concept of severe impairment of intelligence and social functioning should be considered as a whole taking into account all of the evidence
[2017] UKUT 391 (AAC)

Cheers

Chris

Elliot Kent
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If you have the Sweet and Maxwell books there is quite a lot on this in Vol 1.

The direct answer to your question is that autism can potentially be the basis of higher rate mobility on the grounds of SMI. There are a number of reported cases where this has been held to be the case. In CDLA/1678/97 for example:

6. I have had the benefit of the expert medical evidence of Dr. Ian McKinley B.Sc (Hons), MB, ChB, DCH, FRCP, FRCPCH, who is presently Senior Lecturer in Child Health at the University of Manchester, the Paediatric Member of DLAAB, the Co-Editor of three text books on childhood neurodevelopmental disabilities including autism, and was previously a consultant paediatric neurologist at the Manchester Children’s Hospital. Dr. McKinley handed to me a written report compiled by him on the nature of autism, and in his oral evidence elaborated thereon. He explained to me in some detail the characteristics of autism, that being the condition from which the claimant suffers, and illustrated the ways in which a sufferer reacted to the condition. I do not think it necessary for me to recite the features normally associated with autism, as the parties are only too familiar therewith. What I am concerned with is whether autism stems from a state of arrested or incomplete development of the brain.

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 chromisone 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).

 

nevip
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I’ve done quite a few SMI cases over the years for kids with autism.  Not once has the question come up.  Each time the tribunal took it as a given that the condition was satisfied and moved straight into questions about behaviour, restraint, supervision etc.  Every case won and never questioned afterward by the DWP.

Brian Fletcher
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PeterCAS - 08 October 2020 03:45 PM

I’m helping with a child DLA appeal. I believe the child probably qualifies for Higher Rate Mobility on the basis of Severe Mental Impairment. They are highly autistic - exhibiting disruptive, unpredictable behaviour that regularly requires intervention. The condition that I’m struggling with is “arrested development (or incomplete physical development) of the brain”.

Scans so far appear not to reveal any physical problems.  From the fact that “arrested development… of the brain” is distinguished from “incomplete physical development”, it appears that it is NOT physical.

So my questions…
1) What constitutes arrested development of the brain?
2) What would be considered satisfactory evidence of this?

Thanks in advance for any insights.

These are arguments I regularly recycle on this issue. Autism is in fact a physical disability in its own right.

2. Appellant contends that she does satisfy the criteria for an award of the high rate of the mobility component within the ambit of two separate provisions.
a. First, that she is virtually unable to walk under reg.12 (1) The Social Security (Disability Living Allowance) Regulations 1991 (SSDLAR 1991); and secondly,
b. ...

3. Under section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 a person qualifies for higher rate mobility component if she is suffering from physical disablement such that she is either unable to walk, or virtually unable to do so, and reg.12 (1) SSDLAR 1991 states that a person is to be taken to satisfy that condition if her physical condition as a whole is such that she is; unable to walk (s1(a)(i)), or; her ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which, or the manner in which she can make progress on foot without severe discomfort, that she is virtually unable to walk (s1(a)(ii)).

4. In CSDLA/894/01 Commissioner Parker under the heading ‘the correct test’ stated that ‘physical’ means of concerning the body, and that there must be some physical condition which restricts a Claimants walking to a sufficient degree, and that limitations on walking ability resulting from autism are to be regarded as due to physical disablement because autism is due to a chromosomal abnormality. In conditions like autism, the immediate cause of restricted walking in such claimants is usually behavioural problems, such as lying down, holding on to an object, refusing to walk. In the past, such claimants failed to be awarded higher mobility. Now, however, it is recognised that autism is due to a chromosomal abnormality so that the necessary physical disablement is accepted.  (Para’s. 56-58).

5. The concept of virtual inability to walk extends this to include only those who, while technically capable of walking in some sense, are still unable to walk to any appreciable extent or practically unable to walk (R(M) 1/78 para 11) or technically walk but only to an insignificant extent (R(M) 1/91 para 6), what is appreciable or significant has to be assessed in the light of the terms of reg. 12, and these clearly contemplate that a person may be able to walk for some distance, (at some speed, and in some manner, etc.) but yet be so limited in these respects as to satisfy the condition of “virtually unable”. A judgment of fact and degree has therefore to be made, and the test under reg. 12(1)(a), which is to be applied by reference to the claimant’s physical condition as a whole.

6. In R(M) 3/86, (citing R(M) 2/78) the consequences of failing to consider the reason why a Claimant stopped walking was explored. The Claimant was capable of walking in the sense of placing one foot in front of the other; the medical appeal tribunal nevertheless considered that she was virtually unable to walk as she had a genetic disorder which was classified as a physical disorder. He was capable of mobilising - he was liable to run, stop, lie down and refuse to go any further; this reaction which seriously impairs mobility was directly due to his genetic physical condition. In other words, although the boy was capable of running, let alone walking, nevertheless from time to time by reason of a physical condition, his walking was affected.

7. The Appellant is physically capable of walking; however, the Appellant submits that her physical disability in the form of her autism and other genetic conditions are the material cause of her affected mobility, and those conditions affect her to such an extent that she does satisfy the criteria for the higher rate of the mobility component.


Hope it helps

 

Chrissum
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I take it he already gets the high rate care component, as this is a pre-requisite if you are looking for the SMI high rate mob. I find CDLA 2288/2007 helps as in this case, Commissioner Jacobs stated that “if the tribunal finds that the claimant has autism (…), it must accept that that was caused by arrested development or incomplete physical development of the brain”. In paras 8-10 he lays out considerations of medical opinions which have yet to be challenged, as far as I am aware. There must also be some evidence of impairment of intelligence and social functioning. This necessitates looking at insight and sagacity i.e. “useful intelligence”, including assessing awareness of danger (see for example CDLA 2414/2012). I seem to recall there is also something about extreme disruptive behaviour, perhaps requiring restraint. Evidence wise, any SEN is always helpful but you may also need any paperwork that outlines the official diagnosis.
Best of luck!

Dan Manville
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Chrissum - 09 October 2020 01:53 PM

. This necessitates looking at insight and sagacity i.e. “useful intelligence"k!

The term “insight and sagacity” came from R(DLA)1/00,... Megarry.

Went to the Court of Appeal as I recall.

I had one of these recently and I was surprised that the repotred decision wasn’t more prominent in the commentary; nor that the Tribunal that considered the case used the IQ as a benchmark.

 

Chrissum
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Thanks Dan. I knew I’d pinched it from somewhere! Tribunals can get hooked up on IQ when assessing these cases and this is where autism cases can fall down, as tribunals tend to take a high IQ result as evidence of intelligence, in the academic sense, when what they also need to explore is social functioning and intelligence in that context (probably best referred to as common sense - maybe we need a CSQ test ; P). Granted I’ve only done a few of these type of cases, but have usually had to fight harder to get the high rate care as an initial hurdle rather then the mobility.

splurge
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In my case the Tribunal was hooked on disruptive behaviour requiring ‘restraint’. Is there any arguments to counter this. The first 2 test were met.

Mike Hughes
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Same boat as nevip. Done lots of autism and DLA for children and never had it come up.

Vonny
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splurge - 16 October 2020 01:11 PM

In my case the Tribunal was hooked on disruptive behaviour requiring ‘restraint’. Is there any arguments to counter this. The first 2 test were met.

I believe there is some caselaw about how just a hand on an arm can count as restraint (but I may have imagined this)

Stainsby
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In [2012] UKUT 429 (AAC)  Secretary of State for Work and Pensions v MG (DLA) Judge Wikeley held at [25]-[26]

What does “physically restrain” signify in the context of regulation 12(6)(b)?
25. The ‘regularity’ requirement under regulation 12(6)(b) is for “another person to intervene and physically restrain” the claimant. In CDLA/2470/2006 Mr Commissioner Rowland qualified that expression by the comment “i.e. something much more than merely taking the person by the arm”. I note that the facts of that case concerned a young man with Down’s Syndrome who was aged 16 at the date of the tribunal hearing. However, more recently Judge Mesher expressed the view that the Commissioner in CDLA/2470/2006 was not intending “to lay down any hard and fast rule of general application” (CDLA/2167/2010 at paragraph 15). Judge Mesher found that on the facts of that case the tribunal was entitled to conclude that “what was needed was a very firm grip to stop U from rushing off towards whatever caught his attention and that that constituted physical restraint to prevent injury” (also at paragraph 15). In CDLA/2617/2010 the boy U was aged 11 at the date of the FTT hearing.

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.

From the other side
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Brian Fletcher - 09 October 2020 10:17 AM
PeterCAS - 08 October 2020 03:45 PM

I’m helping with a child DLA appeal. I believe the child probably qualifies for Higher Rate Mobility on the basis of Severe Mental Impairment. They are highly autistic - exhibiting disruptive, unpredictable behaviour that regularly requires intervention. The condition that I’m struggling with is “arrested development (or incomplete physical development) of the brain”.

Scans so far appear not to reveal any physical problems.  From the fact that “arrested development… of the brain” is distinguished from “incomplete physical development”, it appears that it is NOT physical.

So my questions…
1) What constitutes arrested development of the brain?
2) What would be considered satisfactory evidence of this?

Thanks in advance for any insights.

These are arguments I regularly recycle on this issue. Autism is in fact a physical disability in its own right.

2. Appellant contends that she does satisfy the criteria for an award of the high rate of the mobility component within the ambit of two separate provisions.
a. First, that she is virtually unable to walk under reg.12 (1) The Social Security (Disability Living Allowance) Regulations 1991 (SSDLAR 1991); and secondly,
b. ...

3. Under section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 a person qualifies for higher rate mobility component if she is suffering from physical disablement such that she is either unable to walk, or virtually unable to do so, and reg.12 (1) SSDLAR 1991 states that a person is to be taken to satisfy that condition if her physical condition as a whole is such that she is; unable to walk (s1(a)(i)), or; her ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which, or the manner in which she can make progress on foot without severe discomfort, that she is virtually unable to walk (s1(a)(ii)).

4. In CSDLA/894/01 Commissioner Parker under the heading ‘the correct test’ stated that ‘physical’ means of concerning the body, and that there must be some physical condition which restricts a Claimants walking to a sufficient degree, and that limitations on walking ability resulting from autism are to be regarded as due to physical disablement because autism is due to a chromosomal abnormality. In conditions like autism, the immediate cause of restricted walking in such claimants is usually behavioural problems, such as lying down, holding on to an object, refusing to walk. In the past, such claimants failed to be awarded higher mobility. Now, however, it is recognised that autism is due to a chromosomal abnormality so that the necessary physical disablement is accepted.  (Para’s. 56-58).

5. The concept of virtual inability to walk extends this to include only those who, while technically capable of walking in some sense, are still unable to walk to any appreciable extent or practically unable to walk (R(M) 1/78 para 11) or technically walk but only to an insignificant extent (R(M) 1/91 para 6), what is appreciable or significant has to be assessed in the light of the terms of reg. 12, and these clearly contemplate that a person may be able to walk for some distance, (at some speed, and in some manner, etc.) but yet be so limited in these respects as to satisfy the condition of “virtually unable”. A judgment of fact and degree has therefore to be made, and the test under reg. 12(1)(a), which is to be applied by reference to the claimant’s physical condition as a whole.

6. In R(M) 3/86, (citing R(M) 2/78) the consequences of failing to consider the reason why a Claimant stopped walking was explored. The Claimant was capable of walking in the sense of placing one foot in front of the other; the medical appeal tribunal nevertheless considered that she was virtually unable to walk as she had a genetic disorder which was classified as a physical disorder. He was capable of mobilising - he was liable to run, stop, lie down and refuse to go any further; this reaction which seriously impairs mobility was directly due to his genetic physical condition. In other words, although the boy was capable of running, let alone walking, nevertheless from time to time by reason of a physical condition, his walking was affected.

7. The Appellant is physically capable of walking; however, the Appellant submits that her physical disability in the form of her autism and other genetic conditions are the material cause of her affected mobility, and those conditions affect her to such an extent that she does satisfy the criteria for the higher rate of the mobility component.


Hope it helps

I would be grateful if anyone can confirm if they have been successful in using the arguments put forward by Brian above that autism is a physical issue thereby not needing to go down SMI route for high rate mobility as the client I have ,the child will not qualify for high rate care as they actually sleep well so SMI will not be considered!

nevip
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I have.

Useful case law (among others) is DLA/3839/2007

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nevip - 08 December 2021 04:09 PM

I have.

Useful case law (among others) is DLA/3839/2007

Thank you, onwards we go…....

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Thanks for the help, successful at appeal in getting HRM on virtually unable to walk grounds despite his physical ability to walk. Hope this will encourage others to try the argument.