This is obviously a very distressing term and it will not be easy or pleasant for a parent to describe their child as being severely mentally impaired, though it is, unfortunately, the term laid down in the DLA regulations.

Again, a test is applied to see if a child fits the criteria for satisfying the criteria of severe mental impairment or SMI for short. This test is laid out in the Social Security (Disability Living Allowance) Regulations 1991, Regulation 12, (5) and (6).

The regulations lay down five criteria, all of which must be satisfied to qualify for the higher rate of the mobility component under this route. They are:

  • that your child must be entitled to the higher rate care component of DLA

If a child receives the middle or lower rate care component this route cannot be pursued.

  • that your child suffers from "a state of arrested development or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning"

When looking at this, case law is useful as it concerns medical opinion. There has been a recent decision from Social Security Commissioner Jacobs which held that tribunals and decision-makers, where they accept that a claimant suffers from autism, must also conclude that s/he has either a state of arrested development or incomplete physical development of the brain. Accordingly, higher rate mobility claims made by such claimants should not be rejected on the basis that the claimant with autism does not have arrested development or incomplete physical development of the brain. The relevant case number for this decision is C/DLA/2288/2007.

However, this criterion has three parts, so even after establishing that a child is suffering from a state of arrested development of the brain, it still needs to be demonstrated that this leads to a severe impairment of intelligence and social functioning. Whereas it may not be too difficult to show that a child with ASD experiences an impairment of social functioning, it can be harder to explain how this leads to an impairment of intelligence. 

The test of intelligence impairment used to be considered by the Department of Works and Pensions (DWP) as a child having an IQ of 55 or less. However, it is entirely possible that children with an autism spectrum disorder could have an IQ above this level but lack the social functioning skills of children in their peer group. A decision-maker or tribunal should take this into account when looking at this criterion and distinguish between a child's intelligence and their useful intelligence. The Court of Appeal held that severe impairment of intelligence should not be defined exclusively by reference to an IQ score (Megarry v Chief Adjudication Officer, 29.10.99, reported as R(DLA)1/00). Although this was a landmark case in terms of autism and DLA, it may not be relevant to all situations, as in many cases there will not be a test of IQ available. Also, in this particular case the commissioner did not actually overturn the decision in favour of the child, rather he stated that it should be re-heard by a new tribunal.

Children who have normal or above average intelligence can also be considered to have a severe impairment of intelligence if it can be demonstrated that they display a total lack of any sense of danger and inability to calculate risk (C/DLA/3215/2001).

  • that your child exhibits disruptive behaviour which is extreme

For this particular criterion, family evidence may be very important because a GP or other healthcare professional may not be able to comment on this in detail if they do not have regular contact with the child. If any professional can provide evidence confirming this - for example, a teacher or support worker at the school - then this would be very useful, but personal evidence from parents, other friends or relatives should also be taken into account.

In commissioners decision C/DLA/2054/1998, a commissioner clarified the definition of the word extreme:

The word extreme is an ordinary English word, connoting behaviour which is wholly out of the ordinary. However, the claim is for the mobility component of Disability Living Allowance and it is the claimant's behaviour when taking advantage of the faculty of mobility, generally outside the home environment, which needs to be considered.

In other words, the tribunal should concentrate on a child's behaviour in relation to the behaviour they display while walking, and the difficulties this causes, even if their behaviour is less extreme at other times.  

  • that your child regularly requires another person to intervene and physically restrain them to prevent them causing physical injury to themselves or another or damage to property

In terms of case law, the same decision as above (C/DLA/2054/1998) can be relevant here. Alhough it related to a child with severe learning difficulties and not autism, it stated that:

...the tribunal had erred in law in holding that, by taking hold of the claimants arm, to stop him causing further complications, the claimant's carer did not physically restrain him within the meaning of the regulations... I consider that physical contact which is necessary and effective to prevent a claimant from causing injury, or damage to property, amounts to physical restraint, irrespective of the degree of force which is needed to achieve that result.

Later in this decision, the commissioner goes on to define the term 'requires', stating that this should mean 'reasonably requires' and that the purpose of such intervention must be to prevent physical injury or damage to property from occurring. There is no requirement that injury or damage would inevitably result.

Obviously, if a child does require more physical restraint than, for example, a hand on the shoulder, then this should be commented upon. For this criterion, as with all of the others mentioned here, any examples of specific incidents should be mentioned. 

  • that your child's behaviour is so unpredictable that they require another person to watch over them whenever they are awake

This can be a difficult part of the criteria to pass. You may want to mention here if your child requires constant supervision at school, though it can be difficult to satisfy this test if the decision-maker or tribunal take the view that the presence of someone being with them is enough to prevent disruptive behaviour. This is because a commissioners decision (R(DLA)7/02) stated that:

I think the clear meaning is that the watching over must be necessary in order that the person watching can intervene when the claimant actually does become disruptive. If the structured regime of the school is of itself sufficient to prevent the claimant becoming disruptive, this regulation, is, in my judgement, not satisfied.

Therefore, any examples of disruptive behaviour within the school environment, even when a child has been accompanied, may be relevant. Again, if a support worker or a teacher can provide supporting evidence to back this up it would be very helpful.