Potential danger by third parties

I wonder if anyone can help, I’m looking for opinion and case law if possible to help a client.
We are arguing that as a very vulnerable young adult, working with Social Work, that she faces many risks due to her capacity to make decsions, her understanding, social boundries and vulnerablity to all forms of explotation etc that place her at further risk.
We have been asked to provide opinion and caselaw in relation to “subtantial danger” being an act from a 3rd party

Any help appreciated

Hi,

Its a UT appeal for DLA - we made a case for Middle Care and Low mobility

The judge asks whether Section 72 (1) (b) (ii) SSCBA 1992 envisages a requirement for continual supervision throughout the day in order to avoid “substantial danger” where potential danger involves acts by third parties. The relates this also to section 73 (1) (d) for mobility component.

Caselaw he felt relevant CSDLA/860/00 which was over ruled by R(DLA) 1/07

Thanks

CSDLA/806/2000 was overruled by R(DLA) 1/07 only in so much as the former decision held that the functioning of the brain was not a ‘bodily function’. It did not deal at all with the proposition in CSDLA/806/2000 that;

“The statutory condition for the day time supervision condition is that a claimant is so severely physically or mentally disabled that by day he requires from another person continual supervision throughout the day in order to avoid substantial danger to himself or others.  It is clear to me that the treatment of the claimant by other pupils or children does not fall within that statutory parameter.  The fact that the claimant may be picked upon or bullied by other pupils because he is either vulnerable or different from other pupils at the school by virtue of his disability does not in my view provide the necessary connection between disability and the requirement for supervision.  This is because it is the behaviour of others for which protection is required rather than that of the claimant himself.  It is the behaviour of the claimant himself with which the statutory conditions are concerned. ” (para. 10)

I am not convinced that as a general proposition that Commissioner May was correct here - he may have been correct in the context of that particular case, but there may well be other cases where the individual is so trusting, so suggestible, so lacking in any ability to ‘read’ others and so vulnerable that the danger posed to them by others may be substantial (I’m sure you are aware that it is danger, as opposed to the risk of danger that has to be substantial).  But this will almost certainly turn on the specific facts - actual concrete examples of where your client has found themselves in situations of substantial danger would be required.

The age of the individual may also be of relevance - the child in CSDLA/806/2000 could have been no older than 13 at the time and their interaction with individuals who might pose a substantial danger would likely to have been limited by that fact. A 16 or 17 year old who wants to take part in the social activities that are considered ‘normal’ for their peers might well be encountering very different sorts of individuals and situations.

i agree that your client’s case is distinguishable from CSDLA/860/2000 because in that case the child was passive whereas i think in your case it’s her actual behaviour which is the cause of danger - i.e. if someone asks her to do something she may say ‘yes’ where someone else would sense danger and say ‘no’.

so, since her mental disablement is the cause of the danger, she needs supervision to avoid the danger as set out in the legislation - in this case the danger is from other people but, if her mental disablement took another form, it could be from traffic, fire or whatever.

i think therefore that you can argue that the source of the danger isn’t the important thing, it’s that her mental disablement is the cause of it.