Watch our webinar: Claiming DLA higher rate mobility for children with learning disabilities or autism

16 mins read

Wednesday 6 April 2022

Tags: dla, disability living allowance, webinar

Last week, our Family Finance Team ran a webinar looking at the rules which allow some children with autistic spectrum disorders or learning disabilities to qualify for the higher rate of the Disability Living Allowance (DLA) mobility component.

The webinar is now available to watch on Contact’s YouTube channel.

You can also click here to download the PowerPoint presentation used during the webinar, which includes hyperlinks to some of the relevant DLA caselaw, or read our DLA higher rate mobility (HRM) factsheet.

Your questions answered

This webinar was hugely popular, with almost 270 parent carers in attendance. Our advisers were asked more questions than they were able to answer during the session.

The questions they weren’t able to address on the day have been answered below, with some similar questions merged into a single common enquiry.

Our advisers have also previously answered five of the top questions parents ask about claiming HRM for their children, which you can read here.

My daughter got denied the higher rate as she behaves well at school. However, she is very challenging at home and we need to regularly intervene to restrain at home and outdoors. Can she get HRM on the grounds of severe mental impairment? 

This is a complex issue. Your child must not only require ‘regular restraint’ but also someone to be ‘present and watching over’ her the whenever she is awake. The fact that this watching over is required ‘whenever she is awake’ means that the DLA unit must look at the support she needs at school alongside that she needs at home and outdoors.

Different judges have reached different decisions about whether a child can qualify for HRM on the grounds of severe mental impairment (SMI), where disruptive behaviours and the need for restraint do not arise in highly structured environments such as a specialist SEN school. Some judges have taken the view that if a highly structured environment prevents disruptive behaviour happening the child cannot meet the SMI tests for higher rate mobility. However, other judges have taken a different view – stating that a child can still qualify if they are sometimes in a well-controlled environment where intervention is unnecessary, but at other times is in an environment where intervention is regularly required.

Does the fact that a child has a Blue Badge help them qualify for HRM?

Having been awarded a Blue Badge does not help in terms of getting HRM due to behaviour problems. This is because the tests used in assessing whether a child qualifies for a Blue Badge are different from those used in deciding whether they qualify for the HRM component.

However, if your child is awarded the HRM component this does mean that they will automatically be eligible for a Blue Badge without the need for any further assessment.

Can the DLA Unit’s definition of night-time (i.e. starting around 11pm) be challenged? I have gone to bed at 9pm for the past 10 years!

There may be some scope for challenging this. Night is defined as the ‘period of inactivity’ that begins when the household closes down for the night. Generally speaking, the DLA Unit normally assume this to begin around 11pm and end around 7am. It may be possible to argue that for an individual household a different period should be used based on the actual routine of the adults in that household. However, you also need to be aware that there is caselaw that says that the word “night” in the legislation must have an objective content and not be restricted purely by the claimant’s own particular sleep pattern. 

If my son gets middle rate care, does this mean we won’t be able to get HRM based on his learning disability?

Unless your son’s award of the care component is increased to the highest rate for care, it will not be possible for your son to qualify for HRM on the grounds of the severe mental impairment test. However, he may instead be able to qualify for the higher rate mobility on the alternative grounds that frequent refusal episodes mean he is virtually unable to walk.

The statement of reasons I was given for refusing HRM said my son doesn’t require 2 adults to supervise him outdoors. Surely this isn’t a requirement?

There is no requirement that you show that your child needs two-to-one support outdoors. Instead, there is a need to show that your child needs regular physical restraint to avoid a risk of injury or damage to property. However, that restraint doesn’t need to involve much physical force – particularly if a child is small. 

Can DLA be altered if it’s already been awarded? We currently get higher rate care and lower rate mobility. Can we get this increased to HRM?

Yes, it’s possible to get a DLA award looked at again. This can be done at any time so long as you can show that there has been a change of circumstances e.g. your child’s needs have increased. This is known as requesting a ‘supersession’. You can call the DLA Unit to request this, but it is likely that they will send you a new form to complete as part of this process.

Please take into account that there are risks involved in a supersession. This is because you are not guaranteed keeping the same rate of DLA as you go into the process with. Most people either get the same amount of DLA as before or an increase, but a small number of families find that their award is lost or reduced once it is looked at again.

Is there a time limit on requesting a supersession?

No there is not. You can ask for a supersession at any time.

What’s the appeal process as we do not currently get HRM?

If you have a recent decision refusing you the HRM component, you can ask for a mandatory reconsideration – and if that is unsuccessful, you can then ask for an appeal. Normally you are expected to ask for a mandatory reconsideration within one month of getting a decision, and an appeal within one month of getting a mandatory reconsideration notice. However, sometimes a late mandatory reconsideration or late appeal will be accepted.  Alternatively, if some time has passed since the decision awarding DLA, you can ask for a supersession instead (see above). 

If a case goes to the appeal stage, does my child have to attend the Tribunal?

It is very unusual for a child to attend an appeal hearing. Sometimes a family may choose to bring a child along, but in many instances a family won’t want to put their child through that experience. Sometimes an older child may decide for themselves that they want to attend. However, it is rare for a Tribunal require a child’s attendance and this should only happen if they believe that the child’s evidence is necessary to enable a fair hearing and the child’s welfare would not be negatively impacted.

Should we quote case law in the application, or do you only do this if you have to appeal an award decision?

We wouldn’t normally expect someone to quote case law when completing an application form. Instead, it is more often used where a family is challenging a DLA decision that they disagree and where it is clear why the DLA Unit did not accept that the qualifying criteria was met. This would happen most commonly at the appeal, but there may be cases where it would be useful to submit case law as part of a mandatory reconsideration.

My son has learning disabilities and is on DLA middle rate care and lower rate mobility, but the last few years have been challenging in terms of his behaviour at home and school. We have a social worker now and get respite two nights a month. Is it worth applying for HRM?

On current circumstances, your son will not be considered for HRM on the grounds of severe mental impairment (SMI). This is because one of the tests he must meet is being in receipt of highest rate care component. If your son needs care or watching over at night that is either prolonged or repeated, then it might be worth asking for his DLA to be looked at again and for both the care and the mobility to be reconsidered. If they decide to award higher rate care component, then this will open the way for them to also consider HRM on grounds of SMI, but he would need to meet all the other tests set out in our webinar and HRM factsheet.

Alternatively, if his learning difficulties result from a condition with a physical origin and he has frequent episodes where he won’t walk, he may instead qualify on the basis that he is ‘virtually unable to walk’. There is no requirement that he get higher rate care under the test of being virtually unable to walk.

My son is autistic. He has good days and bad days. On bad days he can be a danger to himself and often needs physically restraining, but on better days I can leave him to his own devices. When I’m explaining his needs to the DLA Unit, do I base his behaviour on his bad days?

When explaining your child’s needs, you need to provide an accurate description of his behaviour. If his needs fluctuate you will need to explain what the needs are on bad days as well as on better days. If on better days your son can be left alone for significant periods without someone being present and watching over him, then he is unlikely to qualify for the HRM component on the grounds of severe mental impairment. This is because one the tests that he must meet is being so unpredictable that he needs someone to be present and watching over him ‘whenever he/she is awake’. This means all of the time that he is awake, so if there are times when this is not required and he can be left unsupervised, that test is not met.

Do you apply for mobility and then the rate awarded is decided based on your application, or are there specific forms for the different rates?

There is no specific form for applying for the HRM component. When you complete a DLA claim form, the decision maker should look at both the care component and the mobility component (as long as the child is 3 years old or above) and decide which rates of both component should be awarded.

Would self-harming, risk-taking and no sense of danger be likely to meet the SMI tests?

If you can show that as a result of these behaviours your child needs frequent physical restraint and they are so unpredictable someone must be present and watching over them whenever they are awake, then yes, you will have a case to argue that they should qualify for HRM on the grounds of severe mental impairment. You would also need to be able to convince the DLA Unit that your child has a severe impairment of intelligence and social functioning.

My child has no insight into social boundaries and will try to talk to everyone she meets. Is a lack of social boundaries something that would be considered when deciding whether a child has a severe impairment of social functioning?

The case law that has looked at this issue has focused mainly on cases where a child had difficulties in establishing relationships with others because of their inability to show any interest in or to play with others. However, it may be possible to argue that a child who is interested in others may still meet this test if their lack of insight into social cues, personal space and body language causes significant difficulties in them establishing relationships with others. The impact of their learning difficulties and any communication problems on their social functioning would also have to be taken into account.

I have twins with ASD. Is there any way the DLA Unit would consider that while one child is manageable, coping with two outdoors is nearly impossible?

Unfortunately not. In making a decision, the DLA Unit cannot take into account the cumulative impact of having to deal with two disabled children rather than one. In order either of your children to qualify for the HRM component, you need to be able to show the DLA Unit that each individual child meets all the relevant tests.

My son has to have lots of interventions to avoid injury and damage, but he has never been restrained. Would this count?

In order for someone to qualify for HRM on the grounds of severe mental impairment, one of the tests that must be met is that the child regularly requires another person to intervene and physically restrain them. So, any interventions must not only be regular but involve the use of regular physical restraint – although please note that this restraint may not necessarily involve much force. For smaller, younger children, a firm grip on their arm may be enough. For bigger, older children restraint may be more involved.

Does having a camera watching my child count as being present and watching over them for the purposes of the severe mental impairment tests? Sometimes you need to leave them to go to the bathroom, for example.

To qualify on the grounds of severe mental impairment, one of the rules is that a child must need someone to be present and watching over them whenever they are awake. However, it is generally accepted that this test should be treated as being met despite the fact that the carer may have some short comfort breaks (e.g. to go to the toilet). There is also a strong argument that the test is met where someone is not actually in the same room as the child but is nearby and is using a camera to watch over them. 

The DLA forms don’t really lay out the criteria for severe mental impairment or ask questions about the tests. Is it best to write a covering letter to show how each criterion is met? For example, it asks how far my daughter can walk. She can walk, but she does sit on the road, tries to eat stones, refuses to walk and falls frequently.

We would agree that the forms used by the DLA Unit aren’t particularly good at gathering information that would help prove a child qualifies for the HRM component on the grounds of behaviour. It is definitely a good idea to try and make sure that somewhere on the form you make clear how your child meets the different tests (e.g. descriptions of disruptive behaviours, episodes where restraint is required, and that they are very unpredictable). There are some questions on the form that include spaces for additional information, so those sections could be used to do this or you can attach additional sheets of paper.

How do we get a professional to confirm in a report that a child has a severe mental impairment?

Although it is helpful to get supportive evidence from professionals if you can, you need to be clear about what evidence you need a professional to confirm. For instance, asking a professional to confirm that a child has ‘a severe mental impairment’ does not necessarily help you much as their understanding of what this means is unlikely to be the same as the specific tests used in DLA.

The evidence that will be most helpful to gather will depend to a large extent on why your child has been refused the HRM component. For instance, if it is because the DWP does not accept that a child needs regular physical restraint then the most helpful evidence would be focused on confirming that such restraint is required. If, on the other hand, the DWP does not accept that a child has a condition that causes “an incomplete physical development of the brain or a state of arrested development” then you are likely to need medical evidence making clear that their condition does indeed fall into that category.

Trying to narrow down which of the specific tests are disputed by the DWP (and which they already accept are met) is an important part of preparing for a mandatory reconsideration or appeal. It allows you to be much more focused in your arguments and the evidence you provide. This can be tricky at the mandatory reconsideration stage, as the DLA decision you were sent may be vague about the exact reasons for their decision, but by the time you are at appeal you should have a clear idea of which tests the DWP believes are not met.

Which conditions can potentially lead to an award of HRM?

We had several questions from parents asking whether a child with a specific type of condition would qualify for higher rate mobility. In order to be considered for HRM on the grounds of severe mental impairment, one of the tests that you need to meet is showing that your child has a condition resulting from ‘an incomplete physical development of the brain or a state of arrested development’. 

Incomplete physical development of the brain is where a person’s brain has not grown or developed properly, and this can be seen or assessed. ‘Arrested development’ isn’t limited to arrested development of the brain; it can mean any sort of emotional or functional delay or lack of development, whether or not the brain is fully developed, as long as there is a physical cause. DLA case law has established that certain conditions such as autism and Down’s syndrome fall into this category, and most genetic or chromosome disorders should also meet this test.

Contact’s Family Finance Team are not medically qualified and are unable to specify which other conditions do or do not meet this test. If you are refused HRM on the specific grounds that your child does not have a condition resulting from ‘an incomplete physical development of the brain or a state of arrested development’, you will need medical evidence to try and challenge this. Similarly, if you are told that your child cannot be treated as ‘virtually unable to walk’ because their behaviours do not result from a condition with a physical origin, you would need medical evidence to challenge this. In the first instance you should seek clarification from your child’s doctor or from a support group specifically working with families who have the same condition as your child.