I am really showing my ignorance now, but here goes!

My client is a 3 year old child with a severe learning disability and poor co-ordination. He can walk but is very unsteady on his feet and frequently falls, bumps into things etc. He lunges around and has little control over his movements.

Which rate of DLA Mob does 'falls and stumbles'attract?

Is it relevant to the high rate and could it be argued that given the manner in which he walks and the distance he can walk without falling or stumbling, his walking is so restricted that he is virtually unable to walk? He can only walk short distances before he falls, can the pain of falling count as severe discomfort?

Or is it a need for supervision that means he can't get a mobility component till age 5?

We are making an appeal to try to get the high rate of care component but the child's behaviour is not extreme and disruptive so I don't think we have much scope with those criteria.

Any suggestions or CD's that will help me will be gratefully received.

Many thanks
Shona

With regard to the care component, it seems you could have a good case for at least the middle rate on both attention - help given because of the severe learning difficulties and supervision - watching over the child to avoid danger/injuries from falls etc.

In resoect of supervision, have a look at R(A)1/83 which, although concerned with an different medical condition, is very helpful on the subject of supervision - this is a Tribunal of commissioners decision, and they held that:

1. four elements are involved in the continual supervision test,
(a) the claimant's medical condition must be such that it may give rise to substantial danger to himself or others,
(b) the substantial danger must not be too remote a possibility, the fact that an incident may be isolated or infrequent is immaterial,
(c) supervision by a third party must be necessary to avoid the danger,
(d) supervision must be continual;

The commissioners also quoted from paragraph 9 of R(A)2/75 :-

"The object of supervision is to avoid substantial danger which may or may not in fact arise; so supervision may be precautionary and anticipatory, yet never result in intervention, or may be ancillary to and part of active assistance given on specific occasions to the claimant."

Regarding mobility - If you take the view that the purpose of walking is to travel from point A to point B, rather than just meander (as it were), then from what you have described it does'nt sound as if this child can walk in the commonsense every day english interpretation of the word, in that his legs don't do what his brain tells them to.

The only (minor) problem will probably be argueing that the child requires attention/supervision over and above that normally required by a three year old.

Thanks for your reply.

I didn't make it clear in the original question that client has middle rate care already. Mum feels he should have higher rate and we've got a fairly good argument for this.

However she also wants high rate mobility and this is where I am unclear whether the falls and stumbles questions are leading to high or low rate component. But I agree with you that it is debatable whether what he does could be called walking, given the lack of control.

Shona

For HRMC, there is no requirement that a child has extra difficulties compared to a child of the same age. They just have to demonstrate they are unable/virtually unable to walk etc.
Do the falls/stumbles slow the child down? Does he get very tired when walking and that causes the falling? That might be relevant.

R(M) 3/86 seems to be your starting point, albeit about behavioural problems manifesting from learning difficulties:

"R(M) 3/86
(Tribunal decision) 13.3.86
MOBILITY ALLOWANCE
Relevance of behavioural factors in determining a person's ability to walk-effect of Lees v The Secretary of State as regards R(M) 2/78
A child claiming mobility allowance suffered from brain damage at birth leading to severe mental subnormality. The disability was accepted by the medical appeal tribunal as being physical. While capable of the physical movements of walking his behaviour while doing so was erratic and unpredictable so that at times he needed to be physically restrained while on other occasions he refused to move. The medical appeal tribunal disregarded his behavioural problems in refusing an award. In setting aside the medical appeal tribunal's decision the Tribunal of Commissioners held:-
1. R(M) 2/78, in which a child suffering from Down's Syndrome was found to be virtually unable to walk, remains unaffected by the decision in Lees v The Secretary of State <1985> 1 AC 930 (paragraph 7);
2. where a person suffers from behavioural problems which stem from a physical disability affecting the exercise of his walking powers, two tests must be applied to determine whether he is virtually unable to walk:-
i. is his ability to walk out of doors so restricted "as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort" that he is to be treated as virtually unable to walk, and if so
ii. is his condition attributable to a physical impairment, such as brain damage, so that he cannot walk as distinct from will not walk?
If the child's refusal to walk was a matter of conscious choice there could be no question of his stopping having arisen from a physical condition over which he had no control (paragraph 8);
3. Hyperactivism does not of itself qualify a sufferer for mobility allowance. What is relevant is whether a person suffers from "temporary paralysis" so far as walking is concerned and if so to what extent (paragraph 9).
R(M) 1/83 and the effect of the decision in Less are discussed."

I can't find any specific caselaw on manner of walking alone - is it worth raising reg 12 (1)(a)(b) DLA Regs: "The exertion required to walk would consitute a danger to his life or would be likely to lead to a serious deterioration in his health"? I think not, but it's another seemingly underdeveloped area of DLA law.