HA v The Secretary of State for Work and Pensions

These directions may be supplemented or changed by a District Tribunal Judge of the First-tier Tribunal (FtT) giving listing and case management directions.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The Appointee is advised to attend.

She should be aware that the new tribunal will be looking at her son’s health and development issues in relation to the qualifying periods and tests for entitlement to a Disability Living Allowance, but that it must not take into account matters which did not obtain at the date that the Department’s decision under appeal was made. That does not mean than later matters are never relevant, but their relevance is limited to them shedding light on what the position was likely to have been at that time.

If she has any documents that might help inform the Tribunal as to the measures taken for her son’s education and health planning, including reports from school, health or social care bodies, she should send them to HMCTS clearly marked with the FtT case number to arrive more than one week before the next hearing.

The new panel will make its own findings and decision on all relevant issues.

I thank Mr Martin, who acts for the Secretary of State, for his background to the appeal, from which this introduction is substantially taken. The case concerns a little boy, H. He was aged 5 at the date the existing award was made.

Since it concerns a claim for a Disability Living Allowance (DLA) my references, unless otherwise stated, are to the Social Security Contributions and Benefits Act 1992 (the Act) and the Social Security (Disability Living Allowance) Regulations 1991 (the regulations).

The appeal to the FtT was for an award of the higher rate of the mobility component through satisfaction of the Severe Mental Impairment (SMI) criteria under section 73 (3). In the Act section 72 is concerned with the criteria for an award of the care component, and section 73 the mobility component. There is, however, reference to section 72 within section 73 because prior to any SMI consideration there must be an award of the highest rate of the care component; that is to say, care both by day and night must either have been already recognised, or is contended for. Here there is such an award, so this early hurdle is overcome.

The relevant part of section 73 reads:

The appeal to the FtT was only in respect of whether the SMI criteria applied to H. The FtT declined the award sought, and the Appointee, H’s mother, started the appeal process. Having had permission to appeal refused by the FtT, Upper Tribunal Judge Butler granted permission to appeal on the basis of the papers on XXX .

Judge Butler set out the Appointee’s arguments initially:

The First-tier Tribunal (“FTT”) that decided H’s appeal did not adequately assess the severity of his mobility issues making him virtually unable to walk. Ms A refers to H physically refusing to walk, sitting, or lying down suddenly, as well as his lack of danger awareness, sensory overload difficulties and unpredictable behaviour;

Ms A disagrees with the FTT’s conclusion that H does not regularly exhibit extreme disruptive behaviour requiring physical restraint. She disputes that this only occurs when H was outside and describes incidents occurring indoors. Ms A also argues that H requires continuous supervision at home, describing what this involves;

Ms A argues that the FTT placed significant weight on H’s behaviour outdoors, particularly his risk of running off, but did not adequately account for his need for continuous supervision indoors. Ms A also argues that while physical restraint may not always involve holding H down, safety measures like wrist straps, harnesses and frequent physical redirection are necessary forms of restraint to ensure H’s safety.

In her reasoning Judge Butler said the following:

Having reviewed the electronic appeal file and having listened to the recording of the hearing on 07 November 2024, I am satisfied it is arguable with a realistic (as opposed to fanciful) prospect of success that the FTT made an error of law in relation to the following matter.

Adequately resolving conflicts in the evidence / adequate reasons for decision: the hearing recording confirms that at the hearing, the DWP Presenting Officer asked Ms A if H could be left alone in another room while she was in the kitchen. She said: “No, no, because I am concerned he might, the TV is there, the sockets, I put things in them but he is very good at knowing to pull things out and do some silly things so I don’t want to lose sight of him while he is alone, he might do something dangerous to all of us or himself.”.

Ms A separately told the FTT that H might fight with his seven-year-old brother Ha. This was, however, in response to being asked if H had ever hurt any of his brothers. Ms A said: “He has only had fights with Ha, because, for example, watching TV, he doesn’t want to watch that one, and then starting to attack Ha because he is nice and quiet watching TV, he gets from him the remote, and messing around, that is how the fight starts.”

At paragraph 72 of the Statement of Reasons, the FTT has inferred that the reason Ms A would not leave H unsupervised while cooking is because he and his brother had a tendency to quarrel over the remote control. This does not, however, address Ms A’s evidence that she could not leave H alone unsupervised and the danger that would be presented if she did. While it was open to the FTT to not accept Ms A’s evidence on that issue, it does not appear to have addressed it. This may represent an error of law.

Whether the FTT discharged its inquisitorial duty and / or adequacy of factual findings and reasons for decision: The hearing recording indicates Ms A told the FTT that H was now in a specialist special educational needs school, and had a dedicated Education, Health and Care Report (EHCP) and behaviour plan. When asked what the behaviour plan covered, Ms said it covered H running off and having meltdowns (which she appeared to connect to when it was difficult to get what he wanted). Ms A also said that H had two people from school to look after him when he went outside, that this was more substantial than the other children when they went out (who had one person) and that H had a person at school looking after him when he was inside.

The hearing recording also confirmed that the FTT asked Ms A about what happened when she was out with H, to which she said she had to use reins and hold his hand (which he disliked and would prompt a meltdown). Ms A also described H having meltdowns at home, during which he would put himself on the floor, bang his head (causing himself bruises) and that he would bite her or jump onto her. When asked what H did during his meltdowns at home, Ms A said he makes trouble by hitting himself or her, all these unwanted things, the unwanted behaviours. She referred to H damaging their television and her mother’s television and that if he had been in the hearing room, he would have wanted to move around and touch the panel’s IT equipment.

However, the hearing recording does not indicate the FTT asked Ms A about whether the school ever had to intervene and physically restrain H while he was in school, or whether she ever had to do so while he was at home.

It is arguable that the FTT failed to explore adequately the level of support and intervention provided by H’s school, in particular, at his dedicated special needs school. The FTT was told that various reports or plans had been produced for H, which would likely explain his needs and what support would be provided. The Statement of Reasons does not, however, address whether the FTT considered obtaining those documents. Instead, the FTT placed substantial reliance on the school letters about H and what was absent from them.

Nor does the Statement of Reasons explain why the FTT decided to proceed without considering obtaining the school reports and plans. It was, of course, open to the FTT to decide it should go ahead. However, but in the absence of those documents, the hearing recording suggests the FTT may not have explored adequately at the hearing what specific support H’s schools were giving him, including during class, and / or whether Ms A had to physically intervene with him at home.

In SSWP v DM (DLA) [2010] UKUT 318 (AAC), the Upper Tribunal explained that there must be a regular need to intervene and physically restrain a claimant to prevent him causing physical injury to himself or someone else, or damage to property. Upper Tribunal Judge Mark explained that interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant.

It is arguable the FTT may have failed to explore adequately whether there was a regular need for this at H’s school, and, if not, whether there were frequent interventions in the home context that, looked at overall, indicated a regular requirement to do so. Alternatively, the FTT may have failed to provide adequate reasons for this part of its decision.

If the Tribunal did make one or more errors of law in the way I have described at paragraphs 9 to 18 above, that error could be material in the sense that had it not been made, the outcome of H’s appeal might have been different. This satisfies the relatively low bar to be granted permission to appeal to the Upper Tribunal.

Judge Butler explained about aspects of the permission application that are not set out here; suffice to say that they only needed to be considered of the matters she identified were insufficient for an error of law to be confirmed on appeal. Since Mr Martin accepts that the issues Judge Butler raised as potentially arguable errors of law amount to matters that should lead to a re-hearing of the appeal, they need not be further discussed.

Mr Martin, in his submission supporting the appeal, said:

“The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in its reasoning. It appears that the FtT have failed to adequately explore the level of support the claimant requires both whilst at school and at home. Furthermore, at paragraph 72 of the SOR, the FtT appear to have failed to fully consider all of the Appointee’s evidence in relation to whether the claimant has exhibited ‘extreme disruptive behaviour’”.

In relation to the adequacy of the reasons he gives examples. I mention one, where he said:

On another issue of importance, that of whether the claimant requires regular physical restraint when outside, Mr Alexander opines:

Whilst the Appointee did not directly state that there have been instances where the claimant has had to be restrained at school, the level of supervision that the claimant requires, suggests that certain measures may have been put in place by the school as a result past incidents where the claimant has had to be restrained. I therefore respectfully submit that it was the responsibility of the FtT to further question the Appointee on this point, as well as to further inquire into the school reports and plans that may have provided insight into the level of support the claimant requires whilst at school.

Similarly, it appears that during the hearing, the FtT failed to question the Appointee on whether the claimant needs to be restrained whilst at home. Instead, the FtT chose to purely rely on evidence already submitted by the claimant. Within the Appointee’s grounds of appeal, they state that ‘extreme behaviours such as running off, meltdowns, and self-injury occur both inside and outside of the home’. Whilst the FtT would not have had this evidence available to them when they made their decision, it does however suggest that if the FtT had carried out its inquisitorial duty and questioned the appointee as to the level of restraint needed at home, their conclusion may have been different. I therefore respectfully submit that the FtT has erred materially in law on this issue.

At Paragraph 66 of the SoR, the FtT state:

Here the FtT appear to interpret the word ‘regularly’ to mean that the claimant must show that they require frequent restraint when both inside and outside of the home. As pointed out by UT Judge Butler at Para 17 of the PTA, SSWP v DM (DLA) [2010] UKUT 318 (AAC) instead states that ‘interventions must be regular if they are frequent in one context but infrequent, or even rare, in another context, provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant’. As previously mentioned, the FtT failed to ask the appointee during the hearing whether the claimant required restraint whilst at home. If the FtT had done so, it’s possible that claimant may have met the definition as set out in SSWP v DM (DLA) [2010] UKUT 318 (AAC) and as a result, satisfied part of the SMI criteria.

I set out Mr Martin’s observations quite fully, for the assistance of the fresh Tribunal.

Given the Secretary of State’s support for the appeal the Appointee makes no further observations and does not seek an oral hearing at the Upper Tribunal.

I am content to adopt the submissions of Ms Howard as providing the reasons for my decision that the previous tribunal erred both in their inquisitorial duty to explore the issues relevant to the applicability of the higher rate of the mobility component through the SMI route, and in the reasoning of their findings.

In rehearsing the main points raised by Judge Butler, and Mr Martin’s responses, as well as matters that he has added to them, I believe I have highlighted the main factors that the new FtT will want to ensure are part of their considerations.

I need say only a little more to the Tribunal about the approach to the application of these criteria; they are complex, but there is a wealth of helpful information in volume 3 of the Social Security Legislation, the standard text. In particular the commentary to regulation 12, which runs to some pages, details the various issues that might arise, and refers extensively to case law on the point. It is an essential companion for the Tribunal both prior to the hearing and in the discussion following it, for the task of finding facts on the detail of the SMI test on the basis of what is likely to be the case given H’s known health and development issues, and the other evidence.

Although only certain points have been under active consideration at the Upper Tribunal, the new FtT must consider all aspects of the SMI rules that are in contention.

The Appointee may be able to provide reports concerning H’s education such as his ECHP. If these are available, they should be sent to the Tribunal to arrive at least a week before the date set for the hearing, so that the Tribunal can read them in advance. Their content may narrow the various issues if it is sufficiently detailed in relation to H’s behaviour and the way it is dealt with in the more structured school setting.

The Appointee may, of course, make any further points at the rehearing.

Finally, I warn her that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful, because it is the new Tribunal that will consider the evidence and determine the outcome.