Evidence, education and extra needs: DLA and children

 

Despite the introduction of personal independence payment, the Upper Tribunal continues to consider important issues in relation to disability living allowance (DLA). Jon Shaw looks at some recent cases with implications for children’s entitlement.

In the recent BM v SSWP (DLA) [2015] UKUT 18 (AAC) (see p13), Judge Markus QC gives helpful guidance on the additional conditions that must be satisfied for a child under 16 to qualify for any rate of the DLA care component and the lower rate mobility component. Those are set out in sections 72(1A)(b) and 73(4A) of the Social Security Contributions and Benefits Act 1992.

For the care component, the judge held that the two tests set out in s72(1A)(b) are distinct and that each can be satisfied independently of the other. The tests are that entitlement to the care component cannot arise unless:

‘(i) [a child] has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii)he has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.’

In this case, the First-tier Tribunal had erred in law by only addressing the test in sub-para (i).

The judge reviewed the decisions of Commissioner Rowland in CA/92/92 and R(DLA) 1/05, concluding that, in essence, the two tests above consider whether a child’s care needs are (i) greater or (ii) different than those of other children the same age (para 30). If a child has substantial requirements which are similar to those of younger children, then the test in section 72(1A)(b)(ii) may be satisfied, even if the needs are not substantially in excess of those of a child of the same age. The judge gives the example of the assistance which a child with developmental delay may need with reading, but emphasises that sub-para (ii) is not restricted to this type of disability (para 33).

The approach to the low rate mobility component should be similar, despite the different wording. In this case, the First-tier Tribunal had refused the mobility component, stating that all young children need guidance when crossing the road. It should have gone on to make findings of fact as to whether any other guidance or supervision was required, and whether that was either (i) substantially in excess of the guidance and supervision needed by a child of the same age, or (ii) children of the same age would not require such guidance or supervision. As the judge put it, whether the test in s73(4A) was satisfied ‘would depend on (in shorthand) whether he needed substantially more guidance or different guidance’ (para 44).

In BM, the tribunal had also erred in law in holding that a recent three-judge panel decision in KM v SSWP (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2 (Bulletin 237 p12) had no relevance to the case before it. Judge Markus QC held that KM did not just apply to children with dyslexia, but also to other children with learning difficulties (BM at para 16).

The decision in KM endorsed the approach taken by Judge Jupp in CDLA/1983/2006, in holding that assistance given to a dyslexic child with reading can be attention in connection with a bodily function (either seeing or reading, the judges agree with Judge Jupp that this is not the crux of the matter). An important aspect of this decision is the confirmation that attention received at school with bodily functions such as reading can be taken into account in assessing a child’s entitlement to DLA, notwithstanding the fact that those needs may be met by public funding (paras 31 and 32). As long as a child requires attention in connection with bodily functions and/or supervision such as to meet the disability tests, the only limitations on the ‘overlap’ between DLA and other publicly funded provision are those which restrict payability of DLA to most hospital and care home residents.1 See Regs 8-10 and 12A and 12B Social Security (DLA) Regulations 1991 While not relevant to the facts of that particular case, the Upper Tribunal also clarified that medical treatment can count as attention in connection with bodily functions (paras 34 and 35).

Declining to set out exactly when a dyslexic child may qualify for DLA, the judges preferred to set out guidance on the general approach to DLA decision-making (para 43 onwards).

In JP v SSWP (DLA) [2014] UKUT 275 (AAC); [2015] AACR 2 (Bulletin 241, p12), Judge Jacobs held that the guidance previously given by a Tribunal of Commissioners in R(DLA) 3/06 about when children can be required to give evidence to a tribunal needs to be updated. This guidance was incorporated into the Senior President’s Practice Direction on ‘Child, vulnerable adult and sensitive witnesses’.

Judge Jacobs did not take issue with the parts of the guidance which restrict the circumstances in which a child can be required to give evidence. However, in JP, the First-tier Tribunal had refused to take evidence from a 12-year-old child, despite her attending the hearing and wishing to explain her difficulties to them. Making reference to recent developments in family law cases and the requirements of the UN Convention of the Rights of the Child and the European Convention on Human Rights, Judge Jacobs decides that the welfare of a child (specifically any harm which may be caused by giving evidence and hearing her/his care needs discussed by strangers) must be balanced against the maturity, understanding and willingness of a particular child to give evidence (para 18). As a result, representatives can consider whether a child is willing and able to give evidence of her/his own care or mobility needs, particularly in cases where her/his own explanation of her/his difficulties is likely to be the best evidence available – eg, in JP the appellant’s claim was based on the difficulties with care and mobility caused by her pain and breathlessness.

The Senior President has issued a press release stating that the Practice Statement on Child and Vulnerable Adult Witnesses is to be revised in light of the decision in JP2

In MP v SSWP (DLA) [2014] UKUT 426 (AAC) (Bulletin 243 p12), Judge Knowles QC considered the requirement in regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 that a claimant must have, inter alia, a ‘severe impairment of intelligence and social functioning’ to satisfy the entitlement conditions for the high rate mobility component by the ‘severe mental impairment’ route. Considering the case of a 4-year-old child with an autistic spectrum disorder, the First-tier Tribunal had erred in taking a statement that the appellant had ‘good non-verbal problem solving skills’ out of context where the totality of the evidence put this ability in the ‘below average’ range, and indicated significant difficulties with other aspects of his cognitive functioning (paras 21–23).

Following R(DLA) 1/00, Judge Knowles QC held that language difficulties should be taken into account in assessing the impairment of social functioning. She further held that a child’s social functioning outside a highly structured environment (such as school or home) should be taken into account. Finally, consideration should also be given to a child’s ability to interact with strangers (paras 29–33).

This is just one of a significant number of recent Upper Tribunal decisions considering the ‘severe mental impairment’ route. A useful starting point remains Judge Wikeley’s review of the caselaw in SSWP v MG (DLA) [2012] UKUT 429 (AAC) (Bulletin 232 p12). This decision is of particular interest in relation to children who are attending non-mainstream schools with a highly structured environment, where the instances of disruptive behaviour are reduced – whether regulation 12(6)(c) can still be satisfied will depend on ‘the nature of the type of supervision that is reasonably required’ (MGat para 39). A very recent decision of Judge Wikeley, DM v SSWP[2015] UKUT 87 (AAC) provides further useful guidance, in a case relating to a 52-year-old claimant with severe schizoaffective disorder. A full summary will appear in the June 2015 Welfare Rights Bulletin

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.