Severe Mental Impairment: Is Reg 12(6)(c) ultra vires?

Been preparing an SMI appeal recently and, whilst my case didn’t turn on the point, it appeared that Reg 12(6)(c) DLA Regs might be ultra vires.

That’s because section 73(3)(c) Contributions and Benefits Act makes, as we know, the receipt of HRC of DLA a qualifying condition for HRM under the SMI route.  However, by setting a condition of “being present and watching over whenever the claimant is awake”, Reg 12(6)(c) imposes a test far stricter than the test for HRC.  As Judge Wikeley recently acknowledged in DS v SSWP [2010] UKUT 2001 (available on OSSC site) at para 33, it goes beyond even the level of involvment required for continual supervision throughout the day (continual does not, after all, mean continuous).  That being the case I feel that the Legislature in passing section 73(6) (the provision authorising Reg 12(6)(c)), could not possibly have envisaged that that regulation would then negate section 73(3)(c).  Just a thought.

Thanks Dan.

I wasn’t aware of the origin of Reg 12(5) & (6)‘s contents.  But I don’t think it really makes a difference to the point I was making.  Section 73(6) is certainly the provision authorising Reg 12(6)(c). 

The two most recent SMI cases appearing on the OSSC website, namely CDLA/280/10 (Judge Wikeley’s decision referred to in my earlier post) and CDLA/765/10 are both successful appeals by the DWP against First-tier tribunal decisions that had awarded SMI-based HRM. 

The condition that someone be present and watching over whenever the claimant is awake under Reg 12(6)(c) just seems so strict especially as it’s construed by R(DLA) 9/02 which held that it’s not satisfied if the claimant is separated from his carer by a closed door.  Imagine the basis of your HRC award is frequent attention during the day and prolonged attention at night.  The statutary provision (ie section 73(3)(c)) could in this instance be made otiose by the much stricter test required by a mere regulation (ie Reg 12(6)(c)) which effectively makes continuous supervision whenever the claimant’s awake a requirement for Smi-based HRM, irrespective of the basis of the HRC.  Can’t be right.

I see the latest UT decision appearing on the OSSC site (CSDLA/356/10) is a further successful DWP appeal against an award of HRM based on SMI.  The DWP again rely on Reg 12(6)(c) without any argument before the UT about the vires of that regulation.