Factual and Procedural Background
This opinion concerns an appeal by the claimant against a First-tier Tribunal decision denying entitlement to the higher rate of the mobility component of disability living allowance (DLA). The claimant, born in 2001, is autistic and suffers from ADHD. It was undisputed that the claimant was entitled to the highest rate of the care component and the lower rate of the mobility component. The central issue was whether the claimant was entitled to the higher rate of the mobility component under section 73(3) of the Social Security Contributions and Benefits Act 1992, which requires the claimant to be severely mentally impaired, display severe behavioural problems, and satisfy certain other conditions. The First-tier Tribunal found that although the claimant exhibited behavioural problems, these were not severe within the relevant regulations. The claimant appealed with permission from an Upper Tribunal judge.
Legal Issues Presented
- Whether the claimant displays severe behavioural problems within the meaning of regulation 12(6) of the Social Security (Disability Living Allowance) Regulations 1991, entitling her to the higher rate of the mobility component of DLA.
- Whether the tribunal correctly interpreted the requirements of regulation 12(6)(b) and 12(6)(c), specifically regarding the need for physical restraint and the requirement that the claimant must be "present and watching over" whenever awake.
- The legal effect of the claimant being left alone in a bedroom with the door closed but under supervision by a carer in an adjoining room, including the impact of modern monitoring methods such as CCTV or auditory supervision.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R(DLA) 7/02 |
Clarified that a claimant must need watching over to restrain disruptive behaviour whenever awake, regardless of walking ability. |
Used to illustrate the requirement for continual supervision and the distinction between intervention and watching over. |
| LM v Secretary of State [2008] UKUT 24 (AAC) |
Distinguished between limbs (b) and (c) of regulation 12(6); emphasized unpredictability as key to (c) and intervention to (b). |
Supported the argument that periods without intervention do not negate the need for presence and watching over if unpredictable behaviour exists. |
| Secretary of State v DM [2010] UKUT 318 (AAC) |
Confirmed the need to distinguish between regular physical intervention and the need for continuous watching over due to unpredictability. |
Adopted to clarify the legal test and to reject conflating the requirements of (b) and (c). |
| JH v Secretary of State [2010] UKUT 456 (AAC) |
Held that "present and watching over" requires actual watching and presence, not merely being awake and available. |
Relied upon to criticize less stringent interpretations and to emphasize continuous supervision when awake. |
| R(DLA) 9/02 |
Held that a carer is not "present and watching over" if separated by a closed door without visual or auditory means. |
Applied to assess whether the claimant’s supervision met the statutory requirement, noting the tribunal’s error in not considering electronic monitoring. |
| CDLA/2470/2006 |
Raised doubts about the strict approach to regulation 12(6)(c) and recognized practical difficulties in continuous presence. |
Used to highlight that a claimant may require watching over even if carers are occasionally unable to provide it. |
| CDLA/2714/2009 |
Confirmed that "present and watching over" requires a greater degree of alertness than mere supervision. |
Supported the interpretation that continuous watching is necessary to satisfy the regulation. |
| CDLA/2955/2006 |
Confirmed that unpredictability of behaviour is essential to satisfy the requirement for presence and watching over. |
Supported the conclusion that unpredictable behaviour necessitates continuous supervision despite a controlled environment. |
Court's Reasoning and Analysis
The court analysed the statutory framework governing entitlement to the higher rate mobility component of disability living allowance, focusing on section 73(3) of the Social Security Contributions and Benefits Act 1992 and the relevant regulations. The key legal question revolved around whether the claimant’s behavioural problems met the threshold of "severe" as defined in regulation 12(6), particularly the requirement under limb (c) that the claimant’s behaviour be so unpredictable as to require another person to be "present and watching over" whenever awake.
The court reviewed prior Upper Tribunal decisions to clarify the distinction between limbs (b) and (c) of regulation 12(6), emphasizing that (b) requires regular physical intervention to prevent injury or damage, while (c) requires continuous presence and watching over due to unpredictability, even if intervention is not always necessary. The court rejected the First-tier Tribunal’s apparent conflation of these limbs.
The court further considered the significance of the claimant’s bedroom door being closed while under supervision from an adjoining room. It acknowledged the precedent that a closed door without visual or auditory means generally precludes "presence and watching over," but distinguished the current case by noting that the claimant’s grandmother was within earshot and frequently checked on the claimant by entering the room. The court held that such monitoring could satisfy the statutory requirement depending on factual findings about frequency and proximity, which the tribunal had failed to make.
The court also considered the physical and health limitations of the claimant’s carers and recognized that while the claimant may require continuous supervision, practical constraints might limit carers’ ability to provide it fully. It noted that such limitations do not negate the claimant’s entitlement if the need for supervision exists.
Overall, the court found that the First-tier Tribunal erred in law by misinterpreting the legislation, failing to properly apply relevant precedents, and omitting necessary factual findings about the claimant’s supervision and carers’ capacity.
Holding and Implications
The court ALLOWED THE APPEAL, set aside the decision of the First-tier Tribunal and the decision maker dated 3 December 2010, and substituted its own decision that the claimant is entitled to the higher rate of the mobility component and the highest rate of the care component of disability living allowance from 30 January 2011 to 29 January 2015 (both dates inclusive).
The direct effect is to grant the claimant entitlement to enhanced disability living allowance benefits for the specified period. The court’s decision clarifies the proper interpretation of regulation 12(6)(b) and (c) and the application of the "present and watching over" requirement, emphasizing the necessity of detailed factual findings on supervision. No new precedent beyond the application of existing case law was established, but the decision reinforces the nuanced approach required when assessing entitlement under these provisions.