TC (by NC) v Secretary of State for Work and Pensions

For the higher-rate mobility component of Disability Living Allowance, the severe mental impairment rules impose cumulative requirements. The claimant must satisfy the statutory conditions concerning severe mental impairment and severe behavioural problems, including extreme disruptive behaviour, regular intervention and physical restraint, and unpredictability requiring constant supervision while awake. These requirements must be considered separately. In particular, unpredictability is not part of the requirement for regular intervention and physical restraint. A tribunal must make sufficient findings and give adequate reasons showing how the evidence applies to each requirement. Where the evidence is sufficient, the Upper Tribunal may set aside the tribunal’s decision and re-make the decision itself.

The appellant, a young child represented by his mother as appointee, appealed against a First-tier Tribunal decision concerning entitlement to the higher-rate mobility component of Disability Living Allowance. The First-tier Tribunal accepted that he was severely mentally impaired and awarded the highest-rate care component, but refused the mobility component under the severe mental impairment rules. Permission to appeal was granted on the grounds that the tribunal may have conflated separate statutory requirements and had not adequately explained its conclusion on severe behavioural problems. The Secretary of State supported the appeal. The central issues were whether the First-tier Tribunal had erred in law and whether the Upper Tribunal should remit or re-make the decision.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. The severe mental impairment rules under regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991, made under section 73 of the Social Security Contributions and Benefits Act 1992, contain cumulative and distinct requirements. The requirement in regulation 12(6)(b) for regular intervention and physical restraint is separate from the requirement in regulation 12(6)(c) concerning unpredictability and the need for supervision whenever the claimant is awake. Unpredictability is not an element of regulation 12(6)(b).
3. The First-tier Tribunal had recorded evidence of elopement, climbing, physical behaviour, safety measures, use of a specialist vest and buggy, and the need for close supervision. However, its conclusion that the behaviour was not extreme and did not require regular restraint and constant supervision was insufficiently explained. It did not adequately reconcile its findings with the evidence or demonstrate that each statutory limb had been separately addressed.
4. The error was material because the inadequate reasoning made it impossible to determine whether the correct statutory tests had been applied. The evidence was sufficient for the Upper Tribunal to re-make the decision, with the parties’ agreement, rather than remit the case.
5. Under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal substituted a decision awarding the highest-rate care component and higher-rate mobility component for the closed period from 26 October 2022 to 2 June 2024. A later award at the same rates covered the period from 3 June 2024 to 2 June 2027.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision was set aside for error of law and the decision was re-made, allowing the appeal and awarding the highest-rate care component and higher-rate mobility component.
• First-tier Tribunal (Social Security and Child Support): awarded the highest-rate care component but refused the mobility component.