Appeal No. UA-2025-000042-DLA
Between:
TF (by his appointee)
Appellant
- v -
THE SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: In person (by his appointee)
Respondent: Mrs Alice Watts (DMA Leeds)
On appeal from:
Tribunal: First-Tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC296/23/00689
Digital Case No.: 1696-4174-9379-7222
Tribunal Venue: Bradford (in person)
Decision Date: 17 June 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 17 June 2024.
The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 4 May 2023).
The new First-tier Tribunal will be dealing with appellant’s entitlement to DLA during the closed period from 4 May 2023 to 27 January 2025.
If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
The appellant (by his appointee) appeals against the First-tier Tribunal’s decision of 17 June 2024 refusing the appellant’s appeal against the decision of the Secretary of State of 4 May 2023 to award the appellant Disability Living Allowance (DLA) ‘only’ at the highest rate of the care component and the lower rate of the mobility component. The Tribunal decided that he did not qualify for the higher rate of the mobility component.
The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 24 September 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 13 January 2025. The appellant filed the notice of appeal to the Upper Tribunal on 16 January 2025 (in time). I granted permission to appeal in a notice sent to the parties on 17 February 2025.
The Secretary of State has responded to the appeal and supports the appeal. Both parties consent to me giving a decision on the papers without a hearing. I considered whether it was in the interests of justice to hold an oral hearing, but concluded that it was not necessary or proportionate to do so given the agreement between the parties and the nature of the issues.
Legal framework
The conditions for entitlement to Disability Living Allowance (DLA) are set out in sections 72 and 73 of the Social Security and Benefits Act 1992 (“the Act”) and the Social Security (Disability Living Allowance) Regulations 1991 (“the Regulations”) made thereunder. Section 73(3) makes provision as to one of the bases on which a person may qualify for the higher rate of the mobility component:
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.
That sub-section is further defined by regulation 12(5) and (6) of the Regulations:
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.
It is well established that “requires” in regulation 12(6)(b) means “reasonably requires”: see AH v Secretary of State for Work and Pensions (DLA) [2012] UKUT 387 (AAC) at [16] per Judge Mark.
“Regularly” means “on a significant proportion of occasions”: see Commissioner Rowland at [13] in CDLA/2470/2006. The focus should be on what is required outdoors given that the criteria relate to the mobility component: (see CDLA/2054/1998 at [7a], where restraint was required to prevent running into traffice), although restraint required indoors may also be relevant (eg to prevent jumping dangerously on stairs: MMcG v Department for Social Development (DLA)).
‘Restraint’ is something more than physical guidance. In CDLA/2470/2006 at [13] Commissioner Rowland suggested it was ‘something more than taking a person by the arm’, but Judge Mesher in CDLA/2167/2010 at [15] observed that what constitutes restraint will be context-specific. For a younger/weaker child, taking by the arm may constitute restraint.
The First-tier Tribunal’s decision
The appellant has visual impairment, sensory issues, behaviour issues, flat foot, allergies and chest/breathing issues. At the time of the hearing, he was awaiting an assessment for suspected autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). The First-tier Tribunal proceeded on the basis that he is probably autistic.
The Tribunal found that all of the criteria for entitlement to higher rate mobility component save that they concluded that he did not regularly require another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property.
At [17] the Tribunal recorded the appointee’s evidence that the appellant required restraining three times a week, but that he did not hurt her, although he would scratch or bite his father and hurt his sister. The Tribunal noted that the matter had not been discussed with paediatricians, and that at school he was supervised in small groups. They considered that the appellant’s behaviour was more about hyperactivity/running away/pushing buttons than posing any risk of injuries/damage. The Tribunal considered the risks could be avoided by moving away from him or leaving him to calm down rather than using restraint.
The grant of permission
The grounds of appeal set out a number of complaints about the Tribunal’s decision. In granting permission to appeal, I observed (summarising the points made in the grounds of appeal):-
I am satisfied that it is arguable that the Tribunal has failed adequately to address the need to physically restrain the appellant out of doors or when travelling as well as in the home and school environments. It is also arguable that it has misdirected itself as to is meant by “regularly” in this regulation. I further note that the Tribunal’s heading at paragraph 17 of its decision omits reference to the need to restrain the appellant to prevent him physically harming himself as well as others. It may be that this has contributed to the failure to address the need for restraint while outdoors and travelling.
Why I am allowing this appeal
The Secretary of State’s very helpful submissions highlight the evidence in the bundle that the Secretary of State suggests the Tribunal overlooked in reaching its conclusions:-
Essentially, the sole reason that the FtT gave for finding that the claimant did not meet the SMI criteria and therefore was not entitled to an award of the higher rate mobility component was that it considered that the claimant did not regularly require physical restraint. I would respectfully submit that this conclusion appears erroneous as there is extensive evidence in the FtT bundle which would appear to suggest that the claimant did require regular physical restraint. This is particularly true given that, as UT Judge Stout has pointed out, the FtT do not appear to have given due consideration to the claimant’s need for restraint when out of the house and travelling outside (evidence of which is apparent in the bundle), instead focussing on the need for restraint within the family home and in the context of his interactions with his mother, sister and father (see paragraph 17 of the SOR).
For example, at p. 43 of the FtT bundle, the assistant headteacher and special educational needs and disability coordinator (SENDCo) at the claimant’s school states on the DLA1 form that:
“[Claimant] requires a high level of additional support due to his complex needs. He finds periods of transition very difficult and can become physically aggressive to those around him….[Claimant] shows very little awareness of his own physical safety, especially when he lashes out.”
Later in the DLA 1 form, at p. 53 of the FtT bundle, the claimant’s mother and appointee answers that the claimant is unable to walk safely near a road, cross a road or understand common dangers when outside. When the form asks if the claimant regularly requires physical restraint, the appointee answers “yes”. At p. 70 of the FtT bundle, the appointee gives more context to these answers, stating:
“[Claimant] can stop in the community/outside and run off, not understanding dangers around him. [Claimant] can physically hit and shout at others and can be at risk of hurting himself and others. [Claimant] can be very hypo [sic] and will not stop or listen to instructions. He will smash items, run off or climb.”
Similarly, at p. 74 of the bundle, the claimant’s GP observes that:
“I saw [claimant] in my surgery today and he was extremely hyperactive, climbing on all the chairs and beds and jumping off them.”
In a letter addressed to health care professionals (HCPs) involved in the claimant’s care, the assistant headteacher and SENDCo at the claimant’s school writes:
“[Claimant] finds transition periods extremely difficult, especially when coming to and from school. He relies heavily on routine and unfortunately, this has been disrupted when he is unable to join Breakfast Club at school. [Claimant] has been physically aggressive (kicking, pushing, swearing) on his arrival at school and is very reluctant to come into school…”
At p. 89 – 90 of the FtT bundle, evidence from a telephone conversation had between claimant’s mother and the DWP in connection with the MR request is recorded. It is stated that:
“[Claimant] will pick things up and throw them at people, if they are on the beach, he will pick stones up and throw them in people’s faces or in the street he will pick anything up and throw it at people. He will run of if he is frightened or if he sees something he is excited about. If he hears an alarm or something loud, he will run or if he sees something he wants he will run. He has no sense of danger so will run into crowds or straight into the road. When he is out if he sees heights i.e., on a pier he will try and jump off it so needs restraining, this is very scary and dangerous for parental guardian. He can be quite aggressive if he doesn’t want to be there or wants something he will hit out, in the community he will hit out at people and try and scratch them, so parental guardian needs to remove him from the situation for his and others’ safety.”
In further evidence from the claimant’s GP, in a letter at Addition E p. 2 of the FtT bundle, the GP gives evidence that,
“He has severe behavioural problems. He can be extreme and unpredictive, and I have seen evidence of this in surgery. He doesn’t sit still for a minute when he is with us; on and off beds and chairs, picking things up, and as such can be a danger and cause damage, and needs constant supervision.
I have seen him bite Mum, pick up a step to throw it. He has given his Dad a black eye.”
The community paediatrician involved in the claimant’s care describes a consultation with the claimant at Addition G p. 2 of the FtT bundle:
“I observed [claimant] in clinic. He was constantly on the go and very hyperactive. He tried to escape the clinic consultation room 2/3 times and Grandmother had to go and bring him back in…he was also going on the floor and showing some aggressive behaviour with Mum throughout the consultation.”
At Addition K p. 3 of the FtT bundle, the claimant’s child psychiatrist reports:
“He has no road awareness, and he can just run and chase parents have chased after him crossing the road [sic]. Can be very dangerous. He will stay and say car will come and then he will just leave and parents had to also restrain him [sic].”
The FtT offers no perspective on how it reconciled this evidence with its ultimate conclusion that “regular physical restraint was not required as a result of [claimant’s] ASD”. The FtT noted that it believed that physical restraint could be avoided in the home by taking measure such as, for example, the claimant’s father moving away, or “calming or distracting” the claimant (SOR, paragraph 17). I respectfully submit that it does not explain, however, what it made of the evidence which appears to suggest that the claimant regularly required physical restraint when travelling outside or being in the community.
The FtT also states, at paragraph 17(a) of the SOR, that of the evidence it examined, “none of them mentioned a need for physical restraint.” I would respectfully submit that this statement appears erroneous. Much of the evidence, recorded in paragraph 4.6 of this submission, does explicitly reference the need for physical restraint. Whilst in some evidence - for example, that of the claimant’s GP - the need for physical restraint is not expressly stated, behaviours are still described which it would not seem unreasonable to conclude might necessitate physical restraint. For example, what did the FtT make of the evidence from the community paedirician that the claimant tried to ‘escape’ from the consultation room multiple times? What was its interpretation of the GP’s evidence that the claimant jumps off beds and chairs in the surgery, and tries to throw objects? What was its conclusion on the SENDCo’s evidence that the claimant was physically aggressive when transitioning into school, and would kick and push, or the appointee’s evidence that the claimant would try to throw things at strangers when out in the community, or run into the road? Ultimately, did the FtT consider that these behaviours, which it had already noted to be extreme and require somebody to be present watching over the claimant whenever he was awake, would also necessitate regular physical restraint? I respectfully submit that it is difficult for the appointee to know, as the FtT have made no analysis of this evidence in the SOR. It also does not appear to have exercised its inquisitorial function and used the opportunity of the oral hearing to ask the claimant’s mother and appointee about such matters. Here, I courteously submit that the FtT have failed in law by failing to properly explain its reasons, and by failing to exercise its inquisitorial function.
Having considered the Secretary of State’s submissions, I am satisfied that the Tribunal has erred in law in its decision in the following respects:-
It failed to consider whether the appellant reasonably required restraint when out of doors to avoid injury to himself or others or damage to property, erroneously confining its consideration only to what he requires indoors at home and at school;
It failed to take into account the evidence in the bundle which the Secretary of State identifies.
Although it is surprising that it concluded that despite the appointee’s evidence that the appellant requires restraining three times per week that he did not meet the criteria, I consider on reflection that it does not follow that the Tribunal had misdirected itself as to the meaning of “regularly”. Its point was that it considered the restraint was not required to avoid injury to others. Its conclusion in that respect was flawed for the reasons I have already identified, but it was not separately flawed by a misdirection as to the meaning of “regularly”.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involved errors of law. I set it aside and remit it for re-hearing in accordance with the directions above.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 28 June 2025
Re-issued on 11 August 2025, correcting a typographical error in paragraph 1.