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Neutral Citation Number:	2015 UKUT 18 AAC
Reported Number:
File Number:	CDLA 3048 2013
Appellant:	BM
Respondent:	Secretary of State for Work and Pensions (DLA)
Judge/Commissioner:	Judge K Markus QC
Date Of Decision:	14/01/2015
Date Added:	02/02/2015
Main Category:	DLA, AA: personal care
Main Subcategory:	attention: children under 16
Secondary Category:	DLA, AA: personal care
Secondary Subcategory:	bodily functions
Notes:	Reported as [2015]AACR 29 Disability living allowance – attention – children under 16 – proper approach to section 72(1A)(b) of the Social Security Contributions and Benefits Act 1992 Bodily functions – whether KM v SSWP [2014] AACR 2 limited to dyslexia The appellant, a seven year old child, had learning difficulties, speech and communication problems and hyper-extensible knees and elbows. His mother claimed disability living allowance (DLA) on his behalf stating that he required help with most daily living tasks as well as with social interactions. His claim was rejected. It was submitted before the First-tier Tribunal (F-tT) that, given the appellant’s learning disability, the decision in KM v Secretary of State for Work and Pensions (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2 was relevant. In that case a three-judge panel of the Upper Tribunal (UT) had approved the decision in CDLA/1983/2006 and held that a person with dyslexia had a functional or mental disability or impairment which was capable of giving rise to an entitlement to DLA. The F-tT dismissed the appeal. It held, amongst other things, that the decision in KM v SSWP was not relevant as the appellant was not dyslexic and that the appellant did not satisfy the conditions of entitlement for either component of DLA. The issue before the Upper Tribunal was whether the decision in KM v SSWP was relevant and the proper approach to section 72(1A)(b) of the Social Security Contributions and Benefits Act 1992, and in particular the meaning of the two sub-paragraphs (i) and (ii) within the subsection. Held, allowing the appeal, that: 1. the decision in KM v SSWP applied to other cases of learning disability, not just dyslexia, as was clearly indicated by the three-judge panel’s approval of the decision in CDLA/1983/2006. The F-tT therefore erred in concluding that the decision was irrelevant and failed to consider whether the appellant required assistance with his bodily functions (paragraphs 16 to 19); 2. once it had been determined that a claimant had requirements falling within section 72(1) of the 1992 Act then the issues which arose for determination under section 72(1A)(b)(i) were: (a) what are the relevant requirements of normally healthy children of the same age; and (b) whether the claimant’s requirements are substantially in excess of those in (a). Under section 72(1A)(b)(ii) the issues which arose were: (a) whether the claimant’s requirements were substantial; (b) whether the claimant’s requirements were different from those of children of the claimant’s age in normal physical and mental health; (c) whether younger children in normal physical and mental health would have those requirements. If one of the sub-paragraphs applied, there would be no need to consider the application of the other. A decision that section 72(1A)(b) did not apply must demonstrate that both sub-paragraphs had been considered in substance (paragraphs 34 to 35); 3. section 73 generally required a similar fact-finding approach to that required by section 72 and a determination under section 73(4A) was assisted by the correct approach to decision-making as to the primary conditions of entitlement. The F-tT should have identified the nature and degree of any guidance or supervision that was required and whether it was substantially more than the requirements for guidance or supervision of six year olds in normal physical and mental health, or whether six year olds in normal physical and mental health would not require such guidance or supervision. Even if the only assistance required was guidance in crossing the road, the fact that all six year olds need guidance in crossing the road did not dispose of the case. It would depend on whether he needed substantially more guidance or different guidance (paragraphs 42 to 44). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions.
Decision(s) to Download:	[2015] AACR 29ws.doc