[2025] UKUT 356 (AAC)

In addressing UT Judge Wikeley’s PTA at paragraph 9 - 10 (detailed above), it is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how it assessed whether the claimant met the Severe Mental Impairment (SMI) criteria appears limited in its reasoning. It seems that what the FtT has provided at paragraphs 20 - 21 of the SOR is a conclusion without an adequate explanation. I submit that my views are generally aligned with those of the UT Judge that the FtT has arguably erred materially in law for the reasons set out below.

The UT Judge’s first ground of appeal concerns the fact that the FtT may have erred in law by improperly eliding the statutory tests set out in regulation12(6) of The Social Security (Disability Living Allowance) Regulations 1991. Specifically, UT Judge Wikeley notes that at paragraph 21 of the SOR, the FtT have collapsed the discrete requirements of regulation 12(6)(b) and 12(6)(c) into one composite test, and that on a proper interpretation of the regulation ‘unpredictability’ is not part of the statutory test for ‘regularly requiring intervention and physical restraint’. The UT Judge also notes, however, that even if this passage in the FtT’s reasoning may not have been properly phrased, it is possible that any error in this respect was not material. Respectfully, I submit that I concur with the UT Judge that while the FtT’s phrasing at paragraph 21 of the SOR may show an improper paraphrasing of The Social Security (Disability Living Allowance) Regulations 1991, this miswording was likely immaterial - particularly given an alternative way in which the FtT may have erred in law which will be detailed in the following paragraphs.

The UT Judge’s second ground of appeal concerns the fact that the FtT may have erred in law by failing to find sufficient facts or give sufficient reasons for its conclusion that the claimant did not meet requirements of Regulation 12(6). Regulation 12(6) of The Social Security (Disability Living Allowance) Regulations 1991 forms part of the statutory test for the SMI criteria. In considering an award under the SMI criteria, it is submitted regard must be had to the provisions of s73(3)(b) (severe behavioural problems) and in particular the provisions of regulation 12(6) of The Social Security (Disability Living Allowance) Regulations 1991.

Section 73(3)(b) provides:

A person falls within this subsection if–

he is severely mentally impaired; and

he displays severe behavioural problems; and

he satisfies both the conditions mentioned in section 72(1)(b) and (c) above.

S. 73(6) authorised the making of regulations specifying the cases falling within s. 73(3)(a) and (b). They are to be found in Reg. 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991:

A person falls within subsection (3)(a) of section 73 of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

A person falls within subsection (3)(b) of section 73 of the Act (severe behavioural problems) if he exhibits disruptive behaviour which-

is extreme,

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

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

In considering whether the claimant met the SMI criteria, the FtT found that that he satisfied the first part of the test – to be suffering from a state of arrested development or incomplete physical development of the brain (Reg 12 (5)). At paragraph 10 of the SOR, quoting the decision notice, the FtT stated:

“The tribunal accepts that [the claimant] has an arrested or incomplete development of the brain and severe impairment of intelligence and social functioning.”

When considering whether the claimant met the second part of the test concerning severe behavioural problems (Reg 12 (6), outlined at paragraph 4.4 above), the FtT repeated much of the medical evidence in the bundle and came to the conclusion at paragraphs 20 – 21 of the SOR:

“20.

As mentioned in the summary reasons, it is a very high bar in relation to the regulations concerning extreme behaviour, restraint and watching over. We accepted that [claimant] had strong tendency to want to run away, and that those supervising him would have to keep a close eye on keeping doors and windows shut. Furniture had to be arranged carefully given [claimant’s] propensity to climb. He could have meltdown’s [sic] but for a lot of the time, these were predictable. These often occur when [claimant] is not allowed to do what he wants, such as been [sic] put back in the highchair. He will also sometimes struggle with sensory issues such as noises, but in general terms, could play alongside his peers. He had pinched another child at school and pinched his older brother if he was making too much noise. It was apparent that this was not done with aggression and he had not caused any injuries.

21.The tribunal fully accepted that [claimant’s] behaviour was hard work and required careful management. However, the tribunal found that the behaviour was not extreme, and so unpredictable that it required regular restrains and for him to be watched over whenever he was awake.”

I would respectfully submit that here, the FtT have erred in law by failing to properly explain its reasoning for why it concluded that the claimant did not meet the SMI criteria. The evidence the FtT rehearses at paragraphs 15 – 19 of the SOR does appear to show significant difficulties with the claimant’s behaviour. For example, at paragraph 17 of the SOR, the FtT noted:

“…there were extra measures in place when arriving or leaving school, or when getting from one place to another on the school premises. There were also measures in place on his transport to and from school in the form of a special vest which was used to position the seatbelt so he could not escape from his seat during journeys. In the past, when the bus had been stationary, [claimant] would try to get off, which had been causing the driver and the escort staff a lot of problems. He also had a McLaren pushchair which was used to take him to and from his classroom straight from the bus. Again, this was to stop him running off and to ensure his safety. Measures also been put in place a school to try and stop [claimant] from climbing on the tables and furniture. In relation to issues when out of the house, [parents] had to use reigns or a buggy at all times because he was unaware of the dangers around him. In addition, if [claimant] did not want to go a certain way, he would throw himself on the floor kick-off his shoes, and “start to bang his head on the concrete”.

Later, at paragraph 18 of the SOR, when noting the appointee’s oral evidence about the claimant’s behaviour in the home, the FtT states:

“Oral evidence at the hearing presented a similar picture. At home, the family had to keep all the doors closed and locked, as well as the windows, and would always use stair gates. They were very attuned to the fact that he could elope, and he was very fast on his feet when that happened.”

There was also extensive evidence in the bundle which would appear to support the notion that the claimant was displaying disruptive behaviour which was extreme, both from his appointee and from healthcare professionals (HCPs). For example, in the original DLA1 form at p. 34 of the FtT bundle, the claimant’s mother and appointee notes how:

“The frustration that comes with being non-verbal can result in meltdowns and uncontrolled behaviour, [claimant] does not cope well with change in routine and becomes anxious and upset. Meltdowns are very physical but because [claimant] has a high pain threshold he does not always cry when he hurts himself. He can lash out and hurt himself and others by throwing his head back.”

Later in the same document at p. 41 of the FtT bundle, she explains how:

“[Claimant] is extremely sensory. He pulls hair as a means of comfort. We have had to shave his hair off as he had bald patches and was then eating it. He also pulls my hair out strand by strand and I have had to get a bonnet to wear as it is very painful.”

At p. 48 of the FtT bundle, a speech and language therapist involved in the claimant’s care notes his tendency to throw objects:

“[Claimant] will explore items through mouthing and throwing items, although he is not yet showing early play routines.”

At p. 88 of the FtT bundle, a community paediatrician assessing the claimant noted that:

“In clinic today he was making high pitched noises, squealing, he was stimming, covering his ears. He was fidgeting, flapping his hands. He had a blank stare and occasional eye contact. He followed his agenda. There was a vacant stare on his face. He was climbing on Mums’ lap and constantly touching her hair.”

At p. 110 of the bundle, a specialist nursery nurse stated that:

“He was observed to do lots of climbing on tables, chairs and the water tray and did not respond when verbally told “[Claimant], feet on the floor”, needing to be physically removed. He needs constant adult supervision[HCP’s underlining] as will constantly climb and does not show any fear”.

An educational psychologist involved in the claimant’s care also noted how:

“[Claimant] can be upset if told no. He will put his hands over his ears and closes his eyes. He will also push his teeth with his fingers and sometimes pinch key adults.”

The FtT does not explain what it makes of this evidence which would appear to show that the claimant was exhibiting disruptive behaviour which was extreme. Indeed, as referenced at paragraph 4.6 of this submission, it did note some of this evidence for itself, but I would respectfully submit that its conclusions at paragraphs 20 – 21 of the SOR do little to explain how it reconciled this evidence with its assertion that “the behaviour was not extreme”. For example, the FtT notes the specialist vest for the claimant’s seatbelt and the buggy used to transport him from the school bus to school and back again, but does not explain whether it considered this to amount to regular restraint. Instead, it simply states that it did not find that regular “restrains” [sic] were necessary. It also noted how the claimant’s parents were very “attuned” to the fact that he could escape at any moment but does not appear to consider this its conclusion that constant supervision was not needed. Without an explanation of how it reconciled its conclusion with the aforementioned evidence, I would respectfully submit that it is difficult for the appointee to know how the FtT reached its decision that the claimant did not meet the SMI criteria. Here, I courteously submit that the FtT has erred materially in law.

In view of the above paragraphs, I agree with the UT Judge that the inadequacy of reasons makes it difficult for the appointee to know whether the FtT applied the correct legal tests in assessing the evidence, making its findings of fact and arriving at its decision. Notwithstanding my support of the above grounds, I respectfully submit that I concur with UT Judge Wikeley that the FtT has failed to explain its findings that the claimant did not meet the SMI criteria and that therefore he was not entitled to the higher rate mobility component.