[2025] UKUT 356 (AAC)

The context of this application for permission to appeal

The central issue in this case was whether Timothy qualified for the higher rate of the DLA mobility component on the basis of the so-called SMI rules. At the outset I should make the point that there are many very seriously disabled children who present with extreme behavioural problems yet who still do not meet every element of the demanding statutory tests under the SMI rules.

In particular, regulation 12(6) of the Social Security (DLA) Regulations 1991 (SI 1991/2890) requires that the claimant exhibit:

“disruptive behaviour which–

(a)

is extreme,

(b)

regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and

(c)

is so unpredictable that he requires another person to be present and watching over him whenever he is awake.”

The proper application of those cumulative statutory tests was considered in some detail in my decision in MG v Secretary of State for Work and Pensions [SSWP] (DLA) [2012] UKUT 429 (AAC) and in the more recent decision by Upper Tribunal Judge Church in XTC v SSWP (DLA) [2020] UKUT 342 (AAC).

The decision in MG v SSWP can be accessed on the Upper Tribunal’s old website at

https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=3591.

The decision in XTC v SSWP can be accessed on the Upper Tribunal’s new website at

https://www.gov.uk/administrative-appeals-tribunal-decisions/xtc-v-secretary-of-state-for-work-and-pensions-dla-2020-ukut-342-aac.

Analysis of this application for permission to appeal

In as much as the grounds of appeal are an attempt to re-argue Timothy’s case on its facts, they are not especially persuasive. This is because of the limited scope of the right of appeal ... The facts are for the FTT to determine. However, on closer scrutiny it may be arguable that the FTT erred in law in at least two respects.

First, it is possible that the FTT may have improperly elided the statutory tests in regulation 12(6). At para 21 of its reasons, the FTT recorded that “the tribunal found that the behaviour was not extreme, and so unpredictable that it required regular restrains [sic] and for him to be watched over whenever he was awake.” This passage appears to collapse the discrete requirements of regulation 12(6)(b) and 12(6)(c) into one composite test. However, on a proper interpretation of the regulation ‘unpredictability’ is not part of the statutory test for ‘regularly requiring intervention and physical restraint’. However, even if this passage in the FTT’s reasoning may not have been happily phrased, it is possible that any error in this respect was not material to the outcome of the appeal.

Secondly, there may be an argument that the FTT failed to find sufficient facts or give sufficient reasons for its conclusion that Timothy did not meet the very strict requirements of regulation 12(6). The passage cited above from para 21 of the FTT’s reasons is at best arguably a rather garbled restatement of the statutory test. As such, although the FTT appears to have engaged in quite detailed fact-finding, it may be that it has not provided an adequate explanation for its decision. So, for example, has the FTT really explained why Timothy’s behaviour was not “extreme”? – on which see the guidance in both MG v SSWP and XTC v SSWP – or is this perhaps just a matter of inference. Furthermore, has the FTT actually made an evidence-based finding of fact (in paras 14 to 21) which addresses the question whether Timothy “requires another person to be present and watching over him whenever he is awake” within regulation 12(6)(c) (putting to one side for the moment the issue of unpredictability). In my experience of hearing SMI appeals it is often the need to satisfy regulation 12(6)(c) which is the stumbling block to a successful appeal. A relevant question to be asked in such cases is e.g. can the child be left alone in a room to watch TV? If they can, then the appeal will fail, regardless of the degree of disability. I have to say that on an objective reading of this FTT’s decision the answer to that crucial question in this case is not immediately clear.