To be classed as virtually unable to walk, a test is applied as laid down in the DLA regulations. Regulations provide further legal detail and clarification on individual benefits and the relevant regulation for this criteria is Regulation 12 (1) (a) (ii) of the Social Security (Disability Living Allowance) Regulations 1991. 

This states that:

your physical condition as a whole is such thatyour ability to walk out of doors is so limited, as regards the distance at which or the speed at which or the length of time for which or the manner in which you can make progress on foot without severe discomfort, that you are virtually unable to walk.

Do bear in mind that this is a generic test relating to mobility problems as a whole and does not take into account personal circumstances such as where and when a child walks, so, if for example you are required to walk a long distance to a bus stop this would not be taken into account. Neither does it take into account the age of a child, so if, for example, a child aged three became tired as a result of walking, this would not be taken into account by the decision-maker or tribunal.
 
As you can see from the legislation, it is designed primarily for physical problems with walking. The starting point for the virtually unable to walk test is an inability to walk, which is then extended to those children who can walk but only to a very limited extent. However, if you can demonstrate that behavioural problems with walking stem from a physical condition, then it is possible to pursue this course. Social Security Commissioners have in the past accepted medical evidence that the predominant expert view is that autism has a physical cause because it is a disorder of brain development. You must also demonstrate that interruptions while walking occur on a frequent basis.

You may wish to concentrate on the following areas.

  • Conduct a walking test. This would involve asking your child to walk unaided and observing whether they stopped, how long this was for and whether there were any changes in gait, speed or balance when walking. This could then be recorded and submitted to the DWP as evidence. It is difficult to quantify how far a child can walk before being considered to pass the virtually unable to walk test. The legislation relates to the point where a person experiences severe discomfort with walking. Different decisions from commissioners have stated that if a person can walk between 50 and 100 yards before experiencing this they would be unlikely to pass the test.
  • Provide a letter from your child's GP or other healthcare professional stating that they understand all behavioural problems with walking stem from your child's diagnosis of ASD.
  • Describe the effect of external sensory stimuli (eg loud noise, bright light etc) on your child's behaviour while out of doors to demonstrate that it is these which are affecting his/her ability to walk and what behaviour occurs as a result of these stimuli.
  • As the test relates primarily to interruptions when walking (often referred to as temporary paralysis) concentrate on examples of refusals to walk and what triggered them.

It is important to distinguish between a child's behaviour as regards to whether they cannot walk or will not walk. Commissioners decision R(M)3/86 examines this difference in detail. It states that a child who refuses to walk but who can be persuaded to do so with the promise of a reward or the threat of a punishment could be viewed as making a conscious effort not to walk and therefore it cannot be viewed as being related to a physical disability.

However, decision C/DLA/4565/2003 believes this approach is too generalised. It states that children who suffer from conditions such as autism may have a raft of symptoms which are relevant to their ability to walk but which may make them not wish to walk, including clumsiness and lack of coordination, high levels of anxiety and fearfulness, poor balance, muscle weakness, tiredness, lack of endurance, breathlessness and embarrassment. The decision directed a tribunal to pay careful attention to medical evidence.

A decision from the commissioners (C/DLA/341/2005) stated that autism could not be considered a physical disablement for the purposes of the 'virtually unable to walk' test. However, in a later decision (CS/DLA/202/2007) this view was contradicted.

Though the 'virtually unable to walk' test is quite restrictive, it is certainly possible that children on the autism spectrum may qualify for higher rate mobility this way and probably more so than under the route of severe mental impairment which will be described next. When looking at the 'virtually unable to walk' test it may be worthwhile concentrating on and give specific examples of refusal episodes whilst walking, if they occur, as they should be taken into account by the decision-maker when deciding entitlement. For the above test, as with many aspects of entitlement to DLA for children on the autism spectrum, the extent to which their difficulties arise from their diagnosis of ASD will be relevant. Children at the higher-functioning end of the spectrum may well find it harder to qualify for the higher rate of the mobility component under both available routes.