DLA can often seem like quite a subjective benefit because it is dependent on somebody making a judgment on the mobility and care needs of an applicant based solely on the information provided on the claim form. With regard to the higher rate of the mobility component, however, the law is very specific and a number of defined criteria are laid down which must be satisfied before an applicant can qualify.
The relevant legislation is the Social Security Contributions and Benefits Act 1992, Section 73, parts 1 to 4. This is Statute Law and can be viewed in its entirety on the website of the Office of Public Sector Information (www.opsi.gov.uk) but essentially it states that to qualify for the higher rate of the mobility component of DLA you must satisfy one of the following criteria.
You must be suffering from a physical disablement resulting in your physical condition as a whole being such that:
1. You are unable to walk.
2. You are virtually unable to walk.
3. The exertion required to walk would constitute a danger to your life or would be likely to lead to a serious deterioration in your health.
4. You have no legs or feet (from birth or through amputation).
5. You are both deaf and blind.
6. You are entitled to the highest rate care component and you are severely mentally impaired with extremely disruptive and dangerous behavioural problems.
We will look at these in more detail later on. As you can see from the above, the criteria are strict and do not generally take into account guidance and supervision whilst walking with children. Even if these needs are extreme they relate primarily to the award of the lower rate of the mobility component.
Of the criteria mentioned above, some are self-explanatory and therefore will not be looked at in detail on this factsheet. The third criteria, for example, would not normally be relevant to a child with autism. It relates to physical problems, such as a serious lung or heart condition, and the danger to life is only concerned with physical problems and not with external causes. The danger of a child with ASD being hit by a car after running out into a road would not count.
We do not concentrate on the fourth or fifth criteria here either as these relate to children who either have no legs or feet or who are deaf and blind. Entitlement in these cases should be automatic and relatively straightforward. This leaves criteria 1, 2 and 6, which we will look at in more detail on the following pages.
Case law
Case law comes from the decisions of appeal bodies that are higher than that of an appeal tribunal and which have heard previous cases of disputed individual DLA entitlement. These include decisions from the Social Security Commissioners, the Court of Appeal and the House of Lords. Their decisions are binding on appeal tribunals and decision-makers and can be quoted when they set a precedent in a case similar to your child's own. There have been a number of significant decisions concerning children with an autism spectrum disorder heard in the past.
Case law is usually presented at dispute stage (if you disagree with a decision) and often at tribunal. However, it is not in itself guaranteed to result in the awarding of your desired level of DLA. This is because case law decisions can contradict each other and appeal tribunals could, for example, choose to refer to a case which did not go in favour of a child with autism rather than one that did. Also, as each decision will relate to one child's specific circumstances, the decision-maker or tribunal must be satisfied that the case they are considering is sufficiently similar to the precedent being quoted in case law before that case law can be applied.
Despite this, some decisions do carry more weight than others and set a general precedent. On following pages we will examine decisions relevant to the highest rate of the mobility component which concerned cases of children with an ASD and can be bought up at dispute stage. If you choose to quote case law it is often preferable to obtain assistance from a Welfare Rights Adviser. Decisions can be difficult to read as they concern the law and an adviser may also be able to identify other examples of case law relevant to your child's circumstances.
On the following pages, case law decisions are quoted. They are referenced either with the prefix 'R' or 'C/DLA' followed by two sets of numbers, i.e C/DLA/1678/1997. R stands for 'Reported' and these decisions should carry more weight than others as they are viewed as being particularly important. The C in 'C/DLA' stands for 'Commissioner' and 'DLA' refers to the benefit concerned (Commissioners make decisions on all benefits but all the decisions quoted by us relate to DLA). Finally, the numbers relate to the file number (in the above example, case file number 1678) followed by the year in which the file was opened. Decisions starting 'CS' as opposed to 'C' come from decisions made in Scotland but are still relevant, as DLA is a UK-wide benefit.
Case law decisions can be found in full either on the Office of the Social Security Commissioner's website (www.osscsc.gov.uk) or by typing them into an internet search engine. Disability Alliance (www.disabilityalliance.org.uk) also has a comprehensive digest of case law on its website.