My client is an 8 year old with autism and ADHD in reciept of HRCC and LRMC, appealling to get HRMC. Evidence from the school suggests that his behaviour there is much better than at home or when out and about. He has to be regularly physically restrained outside of school but never within the classroom setting as the structured environment and presence of staff prevents his more extreme behaviour and any incidents that do happen can be dealt with verbally. However he cannot be left unsupervised in any environment.

R(DLA)07/02 seems to suggest that if the child is not disruptive at school then he will not satisfy the conditions to recieve HRMC under the severe mental impairemnt / behavioural problems route. Have I interpreted this right and has anyone got any suggestions of the best way to argue the case or caselaw that offers an alternative viewpoint?

Thanks! Ruth C

Ruth

See CDLA 3779 2004, which states at para’9


9. Although a school report will very frequently contain valuable evidence in a claim for disability living allowance by a school-age claimant, it is necessary to have particular regard to the nature of the school environment when evaluating such evidence in relation to the evidence of other witnesses. Young children at school have to be more or less continually supervised for the school to function properly, so that a child with a disability may not need supervision over and above that which is normally given to all other children while attending school. However, children with disabilities may need supervision beyond that needed by other children when outside the school environment in order to avoid substantial danger to themselves or others, and it is that supervision which needs to be considered when deciding entitlement to care component. Evidence from a school should therefore be considered along with all the other evidence concerning a child’s care needs in deciding whether the claimant can safely be left unsupervised and whether the child requires substantially more care from another person than children of their age would normally require.

Although this relates to the care component I think the same arguments for supervision are applicable to the HR Mob for SMI purposes.

Regards
Paul

With ADHD children, it is often the case that a school report will come back in the way you describe -if the child is on medication - particularly slow release Concerta, then the school gets the benefit - the mother gets the child back in the afternoon as the medication is beginning to wear off.

With both Autistic and ADHD children, the notion of Severe mental impairment does not sit well at all and you'll have a job convincing a Chairman otherwise - more often than not these children have a slightly higher IQ than normal children. ADHD children are certainly not severely mentally impaired. Where Autism is concerned, it depends to what degree they are affected: but there again, I have met Autistic children who are very bright.
Behavioural problems - the child's behaviour at school (or at home) can't really have any bearing on HRMC - if they were disruptive, then that behaviour will serve to reinforce the entitlement to the Care Component.

Mobility component is , after all, payable normally where the claimant has mobility problems, and cannot physically walk any distance. It's because of the supervision these children require outdoors to avoid risk to themselves or others, that they can normally get low mobility.

I've never yet had a child with ADHD or Autism awarded HRM on SMI grounds.

Would be interested in the outsome of this if you do get it please!

Hi Ruth.
Nevip seems to have answered your question however i had a similar case.
I don't know if the following are of any use.
Page 157 of the Sweet and Maxwell refers to R(A) 1/81 and R(A) 5/81 which point out that it only takes the child once to run out in front of a car to present a substantial danger re social security contributions and benefits act 1992 section 72 (b) (ii) "he requires from another person ... continual supervision throughout the day in order to avoid substantial danger to himself or others". There is also a discussion on what is meant by substantial danger on the same page.
Also the DWP disability handbook, which decision makers use, has some info on ADHD. www.dwp.gov.uk/medical/dhb/
If this link does not work simply go to the above site and enter handbook into the search.
I may just be telling things you already know but i hope they are helpful

The C & B regs 72(b) is the one which gets you the middle rate of Care for a ADHD child - regrettably it doesn't however help to get high rate Mob.........low rate maybe.

For an Autistic child it is also worth remebering that the test of severe mental impairment is not simply an IQ test and that the decision-maker should look at a full evaluation of intelligence and social functioning and that this should include other elements of social interaction, sagacity and insight (Court of Appeal in R(DLA)1/2000).

Ruth,
how did you get on? A colleague has a similar case, the 4 year old boy has severe autism and has been awarded HRCC.
We're fairly confident on the conditions for section 73 -except- whether autism is due to an arrested devlopment or an incomplete physical development of the brain.Peadiatriciansays:
"There is no evidence that the structure of the brain is abnormal in children like D:but nevertheless it is clear that his difficulties are 'hardwired' at a very dep level."
I'm not sure that this will satisfy the test above.
Child is 4, so no LRMC.
I'd be grateful for any thoughts.