Introduction

The case of BM v Secretary of State for Work and Pensions (DLA) ([2015] UKUT 18 (AAC)) adjudinated by the Upper Tribunal's Administrative Appeals Chamber, marks a significant development in the assessment of Disability Living Allowance (DLA) eligibility for children with functional disabilities. This case revolves around BM, a seven-year-old child with learning difficulties, speech and communication problems, and hyper-extensible knees and elbows, whose application for DLA was initially refused by the Secretary of State and subsequently upheld by the First-tier Tribunal.

The key issues in this case include the proper application of section 72(1A)(b) of the Social Security Contributions and Benefits Act 1992 in determining DLA eligibility for children, the relevance of precedents like KM v Secretary of State for Work and Pensions, and the appropriate assessment of mobility and care components in the context of functional disabilities.

Summary of the Judgment

The Upper Tribunal set aside the decision of the First-tier Tribunal, which had denied BM entitlement to both the care and mobility components of DLA. The Tribunal identified critical errors in the First-tier Tribunal’s approach, particularly in ignoring relevant precedents and misapplying legal tests under section 72(1A)(b). The judgment emphasizes that tribunals must conduct a comprehensive and structured assessment of a claimant's functional disabilities and the corresponding assistance required, beyond mere comparative analysis with the average child's needs.

The Upper Tribunal directed that the case be remitted to a freshly constituted tribunal to reassess BM's eligibility in accordance with the clarified legal principles and guidance provided in the judgment.

Analysis

Precedents Cited

The judgment extensively references the case of KM v Secretary of State for Work and Pensions (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2, which expanded the interpretation of what constitutes a functional or mental disability capable of granting DLA. The KM case established that disabilities beyond dyslexia, encompassing a broader range of learning disabilities, could lead to DLA entitlements if they meet the required criteria.

Additionally, the judgment cites CSDLA/1983/2006 and CA/92/92 Deputy Commissioner Rowland, which provide foundational interpretations of statutory provisions related to DLA for children, emphasizing the necessity for attention or supervision to be substantially in excess or different from what is typically required by children of the same age in normal physical and mental health.

Legal Reasoning

The Upper Tribunal critiqued the First-tier Tribunal’s inadequate consideration of BM's functional disabilities and the necessary assistance linked to bodily functions. The crux of the legal reasoning lies in correctly applying section 72(1A)(b) of the Social Security Contributions and Benefits Act 1992, which requires a dual-limb test for children under 16:

• Subparagraph (i): The claimant requires attention substantially in excess of what is normally required by a child of the same age.
• Subparagraph (ii): The claimant has substantial requirements that are different from those of children of the same age in normal health, or similar to those required by younger children in normal health.

The Upper Tribunal found that the First-tier Tribunal failed to apply these subparagraphs correctly, particularly neglecting subparagraph (ii). It emphasized that attention or supervision required should not only be greater but also qualitatively different or similar to what younger children might require.

Furthermore, the judgment underscores the importance of integrating both home and school support in assessing the level of required assistance, as established in the KM precedent. The Upper Tribunal also highlighted errors in evaluating the mobility component, noting that the First-tier Tribunal did not adequately assess whether BM's need for guidance and supervision in mobility was substantially different from that of an average child.

Impact

This judgment has profound implications for future DLA assessments, particularly for children with functional disabilities. It clarifies the application of section 72(1A)(b), ensuring that tribunals conduct a more nuanced and comprehensive analysis of a child's needs, considering both the extent and nature of required assistance.

The decision reinforces the necessity for tribunals to adhere strictly to established precedents and statutory provisions, promoting fairness and consistency in DLA determinations. Additionally, it broadens the scope of recognized disabilities qualifying for DLA, moving beyond specific conditions like dyslexia to include a wider range of functional impairments.

Complex Concepts Simplified

Section 72(1A)(b) – Dual Limb Test

This provision sets out two conditions that must be met for a child under 16 to qualify for the care component of DLA:

• Subparagraph (i): The child needs attention that is significantly more than what a typical child of the same age would require.
• Subparagraph (ii): The child has substantial needs that are either different from their peers or similar to what younger children would require.

Both subparagraphs provide separate pathways to qualifying, meaning meeting either condition can establish eligibility.

Functional Disability

A functional disability refers to a physical or mental impairment that restricts a person’s ability to perform activities generally considered normal for their age. In this context, it encompasses not only traditional disabilities but also learning difficulties and other impairments affecting bodily functions, such as speech and communication.

Care and Mobility Components

- Care Component: Assesses the need for assistance with daily living activities.
- Mobility Component: Evaluates the need for help with walking or moving around.

Conclusion

The judgment in BM v Secretary of State for Work and Pensions (DLA) serves as a pivotal reference for the correct application of DLA eligibility criteria for children with functional disabilities. By rectifying the First-tier Tribunal's errors, the Upper Tribunal has reinforced the need for a thorough and precise assessment of a child's functional impairments and the corresponding assistance required.

This case underscores the judiciary's role in ensuring that legislative intent is meticulously followed, thereby safeguarding the rights of vulnerable children to receive the necessary support. The clarified interpretation of section 72(1A)(b) paves the way for more equitable and consistent DLA determinations, ultimately enhancing the legal framework that supports children with disabilities.