Virtually unable to walk – behavioral problems

I have a client who has a daughter aged 10. She has Autistic Spectrum Disorder, with challenging behaviour. 

Client has always received high rate mobility and high rate care for her when we have helped with the forms in the past.  However, on this occasion the mobility component has been reduced from high to low. 

The decision states that the reports show that the child’s learning difficulty and mental health is moderate. 

She has to be supervised constantly and two adults need to be with her at all times when outdoors because of her size and strength, she gets frustrated, bites, spits and refuses to walk.  She gets very anxious and also pulls her own hair or bangs her head on the floor.

She wears peidro boots, but she can physically manage to walk, although she does have poor coordination. I have read parts about behavioural problems - higher rate mobility component can be satisfied on grounds of being virtually unable to walk, provided the walking problems stem from a physical disablement?? Slightly confused!!

I would be really grateful if anyone could provide me with case law to challenge this decision?

Thank you.

On the “can’t walk/won’t walk” issue see CDLA/3839/2007.  However, why not pursue SMI arguments also.

Hi,

As Nevip says, you might want to argue both ‘severe mental impairment’ and ‘virtually unable to walk’ if both could apply.

CSDLA/202/2007 suggests that tribunals should consider both criteria.

For virtually unable to walk have a look at
R(M) 3/86
CM/098/1989
CDLA/3839/2007
CDLA/4565/2003
CDLA/1621/2009

In my experience the DWP rarely award high mob on the basis of ‘virtually unable to walk’ for these sorts of cases, they just seem to ignore it. But tribunals do award on that basis.

Jane

Ah that’s great guys, thank you so much for your feedback…much reading me thinks!!

For SMI have a look at the ‘Megarry’ case, R(DLA)/1/00

Pete C - 23 February 2012 01:08 PM

For SMI have a look at the ‘Megarry’ case, R(DLA)/1/00

Thanks Pete.

Cookie - 23 February 2012 10:20 AM

The decision states that the reports show that the child’s learning difficulty and mental health is moderate.

If looking at SMI grounds for appeal (and your description of her difficulties suggest that they should apply) and the DWP submission includes advice from medical services check carefully the wording of that advice. If is is worded as you indicate that the claimant has moderate learning difficulties/learning disability then you can argue that the DM has applied the incorrect test.

Caselaw has set a severe impairement of intelligence has the claimant haveing an IQ <= 55 - see R(DLA) 1/00. A severe impairement of intelligence is not the same as a severe learning disability, a fact which seems to consistently evade DMs and Medical Services ;-)

The British Institute of Learning Disability follow the WHO in the classification of Learning Disability. IQ is a factor in classifying learning disability and an IQ of 55 or below could be classified as Profound, Severe, Moderate or Mild Learning Disability depending on other factors. See http://www.bild.org.uk/pdfs/05faqs/Factsheet_Learning Disabilities_11.pdf
A classification of moderate learning disability actually implies an IQ of less than 50.

CDLA/4565/2003 in para 39 has a useful passage - “It should have been noticed that the BAMS request sought advice on “SMI” (presumably meanings ‘severe mental impairment’) but elicited the response “…..does not have a severe learning disability” which was wholly inept to determine whether the claimant was severely mentally impaired”.

I’ve used this along with the BILD factsheet to secure HR Mob on SMI grounds at tribunal several times.

With all due respects to S Murphy R(DLA) 1/00 does not define SMI as an IQ of less than 55, it just says that if there is a tested IQ of less than 55 then there is a prima facie case for SMI (this goes back to R(DLA)3/98)  but if the IQ is higher than that other factors may be taken into consideration. It particularly refers to appellants with an autistic spectrum disorder where the IQ test may not be a particularly useful guide to the degree to which the apellant is affected by their condition.

It is the reference to autistic disorders which I have found most helpful, especially if I can get evidence from a consultant to say that in his or her opinion the appellant does have severe mental impairment.

(edited to corect a spelling mistake)