MMcG-v-Department for Social Development (DLA) [2012] NICom 292
Decision No:  C5/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 27 September 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from a decision of the appeal tribunal dated 27 September 2010.

2.	I grant leave to appeal and with the consent of the parties I proceed to treat and deal with the application as an appeal.

3.	For the reasons which I set out below, I allow the appeal and I set aside the decision of the appeal tribunal.

4.	By virtue of Article 15(8)(a)(i) of the Social Security (NI) Order 1998, I make the decision which I consider the tribunal should have given.  I decide that the child appellant is entitled to the high rate of the mobility component from 11 September 2008 to 13 August 2010 in addition to the high rate of the care component for the same period.

	REASONS

	Background circumstances

5.	The appellant is a child born on 14 August 2005.  In the course of this decision I will refer to him as “B”.

6.	B’s mother claimed disability living allowance (DLA) on his behalf from and including 11 September 2008.  On 16 November 2008 the Department awarded him the high rate of the care component and the low rate of the mobility component from 11 September 2008 to 13 August 2010 – the day before B’s fifth birthday.  Around the same time on 17 October 2008, the Department appointed B’s mother (“the appointee”) under regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 to exercise his rights on his behalf.

7.	B was under the age of five throughout the period of this award.  However, by virtue of section 73(1A)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the Contributions and Benefits Act”), low rate mobility component cannot be paid to a child under the age of five.  The decision-maker had consequently made an unlawful decision.  However, on 3 December 2008 the decision-maker revised the decision of 16 November 2008 and issued a new decision.  This removed the award of the low rate mobility component but retained the award of the high rate care component from 11 September 2008 to 13 August 2010.

8.	Further, by virtue of section 73(1A)(b) of the Contributions and Benefits Act, high rate mobility component cannot be paid to a child under the age of three.  However, at the date of claim B had attained the age of three.  Through his appointee, B appealed the decision as it related to the mobility component.  The appeal letter raised the ground that B potentially qualified for the high rate of the mobility component.  This was on the specific basis that B suffered from a condition linked to brain damage or arrested brain development, leaving him severely mentally impaired and with severe behavioural problems.  This could lead to potential entitlement to high rate mobility component under section 73(1)(c) of the Contributions and Benefits Act.

9.	B’s appeal was heard by a tribunal on 27 September 2010.  The appointee attended the hearing and B was represented by Mr Lafferty of the Citizens’ Advice Bureau.  The parties and the Department agreed that the question of entitlement to the high rate care component was not in issue and the appeal tribunal proceeded on this basis.  The appeal tribunal was entitled to adopt this approach under Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998, which provides that a tribunal need not consider any matter not raised by the appeal.  In the event, the appeal tribunal considered B’s entitlement under section 73(1)(c) of the Contributions and Benefits Act and also under section 73(1)(a).  The appeal tribunal disallowed the appeal in a decision issued on 28 September 2010.

10.	A statement of reasons for the decision of the appeal tribunal was requested and this was issued on 30 November 2010 together with a record of the proceedings.

11.	B’s representative, Mr Lafferty, wrote to the Appeals Service, by a letter dated 16 December 2010 and received on 22 December 2010 to make an application for leave to appeal to the Social Security Commissioner to the legally qualified member of the appeal tribunal (LQM).

12.	By regulation 58(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, an application for leave to appeal must be in writing and signed by the appellant, or where he has provided written authority to a representative to make the application on his behalf, by that representative.  Mr Lafferty did not have a signed authorisation.  By a letter of 30 December 2010 the Appeals Service declined to progress the application without the appellant’s signed authorisation.

13.	Mr Lafferty wrote on 5 January 2011 to explain that a written authorisation to make the application from the appointee had been sent to the Appeals Service separately on or around 16 December 2010.  The letter of 5 January enclosed an authorisation dated 4 January 2011.

14.	The application for leave to appeal was forwarded to the LQM of the appeal tribunal as a late application.  The LQM considered it to be a late application, refused to accept the late application for special reasons and rejected the application for leave to appeal, notifying the representative on 7 February 2011.

	Proceedings before the Social Security Commissioner

15.	B’s appointee then made an application for leave to appeal to the Social Security Commissioner on 17 February 2011.  The Chief Commissioner admitted the application out of time for special reasons by a determination of 21 November 2011.

	The written submissions

16.	The application made on behalf of B relies on three grounds:

1.	error of fact by the LQM when stating that there was no diagnosis of autism in B’s case;

2.	inadequate reasons in explaining why the occupational therapist (OT) report was preferred by the appeal tribunal over the evidence of B’s mother and that of a specialist in community paediatrics;

3.	procedural error in failing to consider properly the submissions of B’s representative.

17.	The Department was invited to make observations on B’s grounds on 19 April 2011.  On 16 May 2011 Mr Collins responded for the Department.

18.	In response to the first ground of application, Mr Collins refers to the decision of Commissioner Brown in C19/99(DLA) at paragraph 11.  Commissioner Brown stated:-

“In any event the mere giving a name to symptoms does not mean that a person is any more likely to succeed in relation to a claim for Disability Living Allowance.  It is not the label attached to the person’s condition which is important, it is the care and mobility needs coming therefrom”.

19.	On this basis he submitted that the tribunal had not erred in law in relation to the first ground.

20.	In response to the second ground, Mr Collins referred to the decision of now Chief Commissioner Mullan in C16/08-09 at paragraph 54.  Chief Commissioner Mullan stated at paragraph 54:-

 “there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

21.	Mr Collins submits that the tribunal went from acknowledging it considered evidence from B’s mother to stating that it favoured the report from the OT and that of the specialist in community paediatrics.  He submits that the tribunal has not explicitly explained why it rejected the evidence from B’s mother.  On this basis the Department supports B’s second ground of appeal.

22.	In relation to the third ground, Mr Collins submits that it is clear that the appeal tribunal has considered the basis on which B had sought to argue the case.  He observes that the appeal tribunal had particular regard to the question of behavioural problems.  Consequently he does not support B’s third ground.

	Relevant legislation

23.	By section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992:

	The mobility component

	73.—(1)  Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—
	…

	(c)  he falls within subsection (3) below;
	…

	(1A)  In subsection (1) above “the relevant age” means—

	(a)  in relation to the conditions mentioned in paragraph (a),(ab),(b) or (c) of that subsection, the age of 3; …
	(3)  A person falls within this subsection if—

	(a)	he is severely mentally impaired; and

	(b)	he displays severe behavioural problems; and

	(c)	he satisfies both the conditions mentioned in section 72(1)(b) and (c) above.
	…

	(6)  Regulations shall specify the cases which fall within subsection (3)(a) and (b) above.
	…

	By regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992:

(5)  A person falls within section 73(3)(a) (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

	(6)  A person falls within section 73(3)(b) (severe behavioural problems) if he exhibits disruptive behaviour which—

(a)	is extreme;

(b)	regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property; and

(c)	is so unpredictable that he requires another person to be present and watching over him whenever he is awake.

	Case summaries

24.	I directed the parties to file case summaries in advance of the hearing.  For B, Mr Lafferty submitted that CDLA 1678/1997 supported the case that autism was caused by a state of arrested physical development of the brain.  He submitted that B had been diagnosed with autism, but that if there was any ambiguity over whether this was the case, the tribunal should have, if necessary, adjourned to verify the diagnosis.

25.	Mr Lafferty submitted that deciding whether a claimant suffered from severe mental impairment only by reference to IQ the tribunal had adopted too narrow an approach, relying upon M (a child) v Chief Adjudication Officer (reported as R(DLA)1/00).

26.	Mr Lafferty questioned the tribunal’s approach to the evidence of B’s mother, submitting that it was not entitled to reject it without a process of explaining why.  He further continued to submit that the tribunal erred in misunderstanding his submissions in relation to the high rate mobility component.

27.	Mr Collins for the Department maintained that this was not a case in which a diagnosis of autism was required.  He relied on C19/99(DLA) as authority for the proposition that it is the mobility needs in themselves which determine possible entitlement.  Nevertheless he submitted that the tribunal had erred by not explicitly explaining why it rejected B’s mother’s evidence of his behavioural problems.

28.	Mr Collins opposed the submission of Mr Lafferty that the tribunal had not applied the appropriate test and had wrongly focused on the low rate mobility component.

	Hearing

29.	I held an oral hearing of the application.  At the outset of the hearing I granted leave to appeal and with the consent of the parties I proceeded to determine the application as if it were an appeal.

30.	Mr Lafferty continued to rely on his first two grounds, but ceased to rely on the submissions concerning the tribunal’s understanding of his arguments around the high rate of the mobility component.

31.	Firstly, he submitted, the tribunal had made a fundamental error of fact in holding that there was no firm diagnosis of autism in the case of the child applicant.  He pointed to the evidence in the form of diagnosis of autistic spectrum disorder agreed by a multidisciplinary “CASCADe” assessment on 8 June 2010 which was before the tribunal.  This acronym stands for Children’s Assessment of Social Communication and Development, and involved the views of a community paediatrician, a senior educational psychologist for autism, an early intervention therapist, an advisory teacher for the Autistic Spectrum Advisory Service, a health visitor for the Autistic Spectrum Disorder Service, a speech and language therapist and a nursery school assistant.

32.	Mr Lafferty accepted the proposition that within Autistic Spectrum Disorder there might be a range of conditions, from autism to asperger’s syndrome, with different behavioural traits.  However, he submitted, if the tribunal was making a fine distinction between autism and autistic spectrum disorder, it should have put that to B and enabled more evidence to be obtained.

33.	I will return to the question of whether and why any diagnosis might be significant in the present case.

34.	Secondly, Mr Lafferty challenged the tribunal’s approach to the evidence of the child’s parents.  He submitted that, while the tribunal had expressed a preference for the evidence of the general practitioner (GP) and OT, no findings had been made in relation to the parents’ account.  He submitted that the GP and the OT reports could be read as focusing solely on physical ability to walk.  Neither dealt with the issue of behavioural problems and the necessary findings for the purpose of the relevant test of entitlement could not be drawn from them.

35.	He submitted that the evidence of the parents was not inconsistent with the expert reports available to the tribunal.  As this was the case, the tribunal had given insufficient reasons to explain why the evidence of the parents was rejected.

36.	For the Department, Mr Collins resiled from a previous argument in his case summary concerning the significance of the issue of diagnosis.  He accepted that the relevant case-law suggested that when a particular question which was before the tribunal in the present case arose, namely the issue of severe mental impairment, diagnosis could be significant.

37.	In addressing the questions before it, he submitted that it was not clear that the tribunal had considered these adequately.  He submitted, however, that a diagnosis of autistic spectrum disorder did not necessarily equate to a diagnosis of autism.

38.	Addressing Mr Lafferty’s second submission, Mr Collins accepted that there did not appear to be any significant contradictions between the OT’s report and the evidence of the parents.  Similarly, he submitted that it was open to a tribunal to conclude that the consultant paediatrician’s evidence substantiated that of the parents.  He expressed reservations as to the adequacy of the tribunal’s reasons for rejecting the parent’s evidence.

39.	I was also advised by Mr Collins that since and from the date of the child’s fifth birthday an award of low rate mobility component has been made, alongside the previously existing award of high rate care component.

40.	I am grateful to both Mr Lafferty and Mr Collins for the assistance which they have given me by way of their helpful submissions.

	Assessment

41.	The questions which need to be addressed to establish entitlement to high rate mobility component under section 73(1)(c) are:

(i)	does the claimant satisfy the conditions of entitlement to the high rate of the care component?; and

(ii)	does the claimant suffer from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning?; and

(iii)	does the claimant exhibit disruptive behaviour which—

(a)	is extreme;

(b)	regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property; and

(c)	is so unpredictable that he requires another person to be present and watching over him whenever he is awake?

42.	It is not disputed that the first condition is satisfied.

43.	There are two parts to the second condition – the issue of arrested development or incomplete physical development of the brain, and the issue of severe impairment of intelligence and social functioning

	Arrested development or incomplete physical development of the brain

44.	The significance of the tribunal’s finding that no firm diagnosis of autism had been made relates to CDLA/1678/1997, a decision of GB Commissioner Rice.  In that appeal the Commissioner had heard expert evidence to the effect that autism had a physical cause in the form of a disorder of the brain.  This conclusion has been subsequently relied upon by Scottish Commissioner Parker in CSDLA/202/2007 and by Commissioner Jacobs in CDLA/2288/2007 where he states that “if a tribunal finds that the claimant has autism (…) it must accept that that was caused by arrested development or incomplete physical development of the brain”.  The finding of Commissioner Rice was not disputed by the Department before the Court of Appeal in England and Wales in M (a child) v Chief Adjudication Officer (reported as R(DLA)1/00).  Finally, the same principle has been accepted in this jurisdiction by Chief Commissioner Mullan in KH-v-Department for Social Development (DLA) [2011] NICom 200 (at paragraph 20).  Therefore a diagnosis of autism is widely accepted in Commissioner and court jurisprudence as evidence of arrested development or incomplete physical development of the brain.

45.	However, the lack of such a diagnosis does not necessarily lead to the converse finding.  In this case there was a diagnosis of autistic spectrum disorder.  While embracing a broader range of conditions than autism alone, the question which should have been addressed was whether the diagnosis of autistic spectrum disorder was evidence of arrested development or incomplete physical development of the brain.

46.	In CDLA/2288/2007 Commissioner Jacobs says at paragraphs 11 and 12:

“11.  In theory, the issue for a tribunal is whether the claimant has arrested development or incomplete physical development of the brain and it is not necessary to reach any conclusion on diagnosis.  However, in practice, I do not know how a tribunal could make such a finding other than by reasoning from a recognised medical condition.

12.  A tribunal may or may not have a firm diagnosis of autism.  If it does not have a firm diagnosis, it may decide from other evidence on the balance of probabilities as Mr Deputy Commissioner Mark did in CDLA/1520/2005.  If it has a firm diagnosis, it may decide from other evidence available to it that the diagnosis is wrong.  That would be a brave decision to take, because the tribunal would not have the full information on which the diagnosis has been made. But it is a possibility”.

47.	The tribunal was therefore in error of law to decide that the child was not suffering from arrested development or incomplete physical development of the brain on the basis of the absence of a diagnosis of autism.  It was required as a matter of law to decide the question on the basis of the evidence before it, which included a firm diagnosis of autistic spectrum disorder based on the input of a wide range of relevant experts.

48.	It appears to me that, whereas entitlement on the basis of section 73(1)(c) can commence as early as age three, there are inherent difficulties in diagnosing a condition such as autism at such a young age.  This is because the diagnosis of autism is made on the basis of behaviour.  The Disability Handbook (second edition), compiled by Dr.Aylward, Dr Dewis and Dr Henderson for the use of DLA decision-makers, indicates that abnormal social interaction, absent or abnormal language and communication, and restricted stereotyped and repetitive ranges of interests and activities are central to the diagnosis.  Early development (up to two years) may appear normal.

49.	It also seems likely that it may take parents of a child with possible autism some time to recognise or acknowledge developmental differences with their child’s peers.  It may then take further time to obtain referral for appropriate professional assessment and for that assessment to be carried out.  Therefore diagnosis may well not be available at the earliest point at which entitlement to the component can arise, namely at age three.

50.	In this case, the diagnosis of autistic spectrum disorder was made on 8 June 2010.  The decision under appeal was made on 16 November 2008.  Article 13(8)(b) of the Social Security Order (NI) 1998 precludes a tribunal from taking into account any circumstances not obtaining at the date the decision appealed against was made.  However, the diagnosis of 8 June 2010, although post-dating the decision, was evidence of circumstances obtaining at 16 November 2008, namely that B suffered from autistic spectrum disorder at that date.  The date of diagnosis did not therefore prevent it from being taken into account by the tribunal.

51.	Autistic spectrum disorder as a term covers the whole range of autism and asperger’s syndrome (a mild form of autism).  As this is the case, it appears to me that it would be open to a tribunal to find on the balance of probabilities that any condition properly considered as an autistic spectrum disorder has an organic basis.  This is because all forms of autism, under the general evidence accepted in CDLA/1678/1997, have a physical cause.  It was similarly stated by the Disability Handbook that autism has an organic basis, though often no organic pathology can be demonstrated.

52.	The classification of a condition within the range of autistic spectrum disorder varies according to the nature of the behavioural traits associated with the condition, not by the cause of the condition.  B, having been diagnosed as suffering from an autistic spectrum disorder, suffers from a form of autism.  On this basis, I consider that the principle accepted in CDLA/1678/1997 applies to B and, therefore, that he satisfies the condition that he suffers from a state of arrested development or incomplete physical development of the brain.

	Severe impairment of intelligence and social functioning

53.	Turning to the second aspect of the second condition, the tribunal had to consider whether the condition led to severe impairment of intelligence and social functioning.  The Court of Appeal in England and Wales held in M (a child), reported as R(DLA)1/00, that these were two separate conditions rather than a conjoined test which should be approached as a composite question.

54.	Nevertheless, in approaching the issue of severe impairment of intelligence, the court held that a tribunal would not be bound by the assessment of IQ alone.  The court acknowledged the decision of GB Commissioner Rice in CDLA/8353/1995, in which he had found that a person could not be said to be suffering from severe impairment of intelligence unless he had an IQ of 55 of below.  While the court accepted that this was a useful starting point, an IQ test score would not necessarily prove decisive.  A high IQ score could well give a misleading impression of a claimant’s useful intelligence, as opposed to test intelligence.

55.	Simon Brown LJ said in M (a child) that:

“Autistics, however, at least in certain tests, score unusually highly just because they are being tested outside the real-life context.  Their success in IQ tests, in short, is not a true indication of what one might call their useful intelligence and it is surely the impairment of the claimant’s useful intelligence to which the regulation is directed”.

56.	The Court of Appeal in England and Wales held that regard should be had to the limits of a claimant’s “social capacity” in deciding whether a claimant’s intelligence was severely impaired within the meaning of the legislation.  The consequence of this, reasoned the Court of Appeal, was that, in some cases, an impairment of social functioning will shade into an impairment of intelligence.  They were not therefore entirely distinct concepts in all cases.

57.	The evidence of the educational psychologist on social functioning was unambiguously to the effect that B had significant problems in the areas of communication, socialization and rigidity of thought.  Many of his self-help skills were very significantly delayed, including toileting, washing, feeding and dressing.  However, the evidence regarding impairment of intelligence was to the effect that B had non-verbal intelligence well above average range.  He displayed excellent visual perceptual skills but with significantly weaker verbal skills.

58.	There was no formal assessment of IQ in B’s case, but the tribunal had placed weight on the advice of Dr Kelly, medical officer to the Department, who had given an opinion on the basis of other reports that B did not have severe learning difficulties and that his cognitive ability would appear to be average to above average.

59.	In the light of the approach of the Court of Appeal of England and Wales in M (a child), I consider that the tribunal, in placing weight on the cognitive ability of B in an artificial testing context, has not approached the question of impairment of intelligence correctly.  For example, B was assessed as having the ability to “reel off scripts from his DVD’s” but much of his daily language was echolalic (ie repeating what has just been said to him) and he never carried on simple conversations about past experiences.  He employed a very systematic problem-solving approach while doing object assembly and displayed very good fine motor skills in drawing.  However, he would only ever drink from a baby’s bottle with the top of the teat cut off.  Thus his language and fine motor skills were not practically and usefully applied.

60.	By focusing on the issue of cognitive ability in isolation of its real-life application, I consider that the tribunal has not addressed the question of “useful intelligence” fully in accordance with relevant authority.

	Behaviour

61.	The tribunal had evidence before it in the form of statements from B’s appointee and expert reports from a range of sources including a community paediatrician.  The tribunal based its view of B’s behaviour on two particular reports – one from an OT and one from B’s GP.

62.	Mr Lafferty and Mr Collins were in agreement that the tribunal had not addressed the detailed evidence of B’s appointee as regards his behaviour.  They were also in agreement that the evidence of the community paediatrician did not differ from that of the appointee and that it could be viewed as supporting that evidence.

63.	The tribunal found on the basis of the OT report that B did not have any behavioural problems.  However, I think that it is more accurate to say that the report did not comment on B’s behaviour, being largely concerned with functional skills.  The tribunal also appears to give weight to the GP’s comment that B is “walking safely”.  However, this comment also appears to be based on functional ability.

64.	Other reports indicate a variety of behavioural problems.  For example, the educational psychologist reported that upon accidentally banging his head, B became very agitated and began banging his head again and again.  This observed behaviour corroborated the appointee’s account of numerous similar events.

65.	The community paediatrician indicated further that B had no sense of danger.  She reported that after learning to jump from the bottom step on a set of household stairs, B later tried to jump from the top step.  This was clearly based on an event which the appointee had described.  However, the community paediatrician gave support to the credibility of this account.  In addition to that event, B was described by the appointee as having tried to jump down an escalator in Foyleside shopping centre.  He was described as regularly throwing himself off equipment in the play park.  He was described as reacting to noise or to frustration by dangerous behaviour such as running into the road.

66.	Other relevant matters included B’s observance of rigid behaviour patterns and tantrum-type outbursts when these were disturbed.

67.	I accept the submissions of Mr Lafferty and of Mr Collins that the tribunal did not fully address the evidence of the appointee, and of experts such as the community paediatrician and the educational psychologist, in making its decision.  If it was the case simply that the tribunal preferred the evidence of the OT and GP over the appointee and the other professionals, although not expressing that as part of the reasons for its decision, I do not consider that it was entitled to do so.  In the light of all the other evidence, I believe that the evidence of the OT and GP can only reasonably be read as confined to B’s functional ability, and I agree with the submissions of the parties that the tribunal has erred in law.

	Conclusions

68.	For the reasons given above, I consider that the tribunal has erred in law and I set aside its decision.

69.	By Article 13(8)(a) of the Social Security (NI) Order 1998 a tribunal need not consider any issue that is not raised by the appeal.  Entitlement to the high rate of the care component was not disputed by the parties and was accepted by the Tribunal.  I similarly decide that B is entitled to the high rate of the care component from 11 September 2008 to 13 August 2010.

70.	B has been awarded the high rate of the care component from 11 September 2008 to 13 August 2010.  A fresh award was made for the period from and including 14 August 2010 and accordingly I have no jurisdiction to determine the case beyond 13 August 2010.  As the case now relates to a period which is some time in the past, I have given consideration to the matter of whether I should remit the appeal to a new tribunal for determination or whether I should determine the appeal myself.

71.	As this is a matter which largely depends on matters dealt with in documentary reports and statements, I consider that I am in as good a position as a tribunal to give the decision the tribunal should have given.

72.	On the basis of the diagnosis of autistic spectrum disorder, I consider that B is severely mentally impaired as he suffers from a state of arrested development or incomplete physical development of the brain.

73.	On the basis of all the expert evidence, and in particular the reports of Maria Phillips of the Educational Psychology Service and Jayne Porter, community paediatrician, I find that this condition results in B having severe impairment of social functioning.

74.	On the basis of the evidence of the appointee and the expert reports, which I find to be inherently consistent, I consider that B’s behaviour is extreme and would regularly require physical restraint to prevent physical injury.  I consider that it is also the case that B could not reasonably be left alone at any time, and therefore would require someone to be present and watching over him when he is awake.

75.	I find the aspect of severe impairment of intelligence much more problematic.  It is clear that B has above average intelligence in relation to some assessments.  There is no formal assessment of IQ; yet in the light of the discussion of the case of M (a child), that might be of limited assistance in any event.

76.	Simon Brown LJ refers to concepts such as insight and sagacity when assessing intelligence.  He says that in the case of an autistic child those characteristics might well be lacking.  Further, in another case concerning an autistic child, GB Commissioner Levenson in CDLA/3215/2001 has said:

“It seems to me that a child who has no sense of danger (as contrasted with a child who has the ability to take risks deliberately and decides to do so) lacks such a fundamental aspect of basic human intelligence that it must be the case (certainly here) that his intelligence is severely impaired”.

77.	I accept the view expressed by Commissioner Levenson.  On the basis of all the evidence, which includes the finding that B has no sense of danger, I accept that B’s condition results in severe impairment of intelligence.  This finding of fact is of course restricted to B’s case, and does not establish a more general proposition applying to all children assessed as having an autistic spectrum disorder.

78.	This means that I find that B satisfies all of the conditions of section 73(1)(c) of the Contributions and Benefits Act.  Having reached that conclusion, I do not need to consider the question of entitlement under section 73(1)(a) of the Contributions and Benefits Act, although this is also a potentially relevant matter (see KH-v-Department for Social Development (DLA) [2011] NICom 200).

79.	I find that B is entitled to the high rate of the mobility component from 11 September 2008 to 13 August 2010.

(signed):  O Stockman

Commissioner

7 June 2012