As you can see from the above flowchart, almost all roads lead to a rejected claim! (Our son has official diagnoses of ASD, GDD, ARFID, Sensory processing difficulties, is completely non-verbal, has severe sleep problems, has an EHCP and attends a special school. The following is based on this, but you should be able to adapt it to your circumstances).
When filling in the application form for DLA, we would recommend writing a detailed letter based on the above flowchart. Either do this in the "More Information" section on page 37 or attach it as an additional sheet. Address each point in turn, detailing how your child satisfies each individual point and setting out which bit of supporting evidence (quote the report and state which document and paragraph you have taken the quote from) you have supplied shows that they satisfy this point. Reference DMG 61 and the DLA Medical Guidance Notes and site DLA Case Law where applicable. Basically you're doing the assessors job for them and making it difficult for them not to award HRM.
So here goes trying to address each point of the above:
Is there evidence of behavioural problems and impaired intelligence?
You will need to detail behavioural problems and demonstrate impaired intelligence with supporting evidence, but this will be done through subsequent points.
Is the claimant entitled to the highest rate care component?
As previously stated, if not, your claim under SMI will not be successful.
Is there evidence that the claimant is severely mentally impaired?
You will need to be able to demonstrate that your child has either "Incomplete physical development of the brain" or "Arrested development of the brain". This basically means that you will need an official diagnosis of a condition that satisfies these criteria.
An ASD diagnosis satisfies this criteria. As per “Medical Guidance for DLA Decision Makers” “Autism spectrum disorders (ASD) are neuro-developmental disorders (impairment of the growth and development of the brain or central nervous system)”.
P53 DMG 61 - “Arrested development or incomplete physical development of the brain
61351 The first test towards treating a person as being severely mentally impaired is whether they have a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning1. Further guidance is available in the Children and Adult Medical Guidance.
1 SS (DLA) Regs, reg 12(5)
61352 The disabilities counting towards severely mentally impaired are defined as:
1. Incomplete physical development of the brain - where a person's brain has failed to grow properly and this can be seen and assessed.
2. Arrested development of the brain - where a person's brain is not functioning properly but no physical deficiency is apparent.
61353 There is no precise age at which an individual’s brain stops developing. The DM is entitled to apply the balance of probabilities and consider the age at which brain development ceases as a broad age range, at least into the fourth decade of life and in some cases perhaps into the fifties.
61354 A person cannot satisfy the severely mentally impaired condition unless it can be established that the cause of the mental impairment (for example accident, disease, injury) happened before the person's brain was fully developed. Degenerative diseases such as Alzheimer's Disease that begin after the brain is fully developed do not satisfy the severely mentally impaired condition. Difficult cases should be referred to Medical Services for advice.
61355 If a person has arrested development or incomplete physical development of the brain, the DM must then consider whether this results in severe impairment of intelligence and social functioning”.
Does the claimant have an arrested development or incomplete development of the brain?
As previously stated, a diagnosis of ASD satisfies this point. You also have to show that this occurred before the brain had completed it’s development, as you are claiming for a child, this is obviously true.
Does the claimant have a severe impairment of intelligence?
P54 DMG 61 - “Severe impairment of intelligence
61366 Medically someone with severe impairment of intelligence can generally be described as intellectually three standard deviations below the average IQ of 100. A standard deviation is 15%, so a person with severe impairment of intelligence will have an IQ of 55 or less. It is likely that a person with such a low IQ will have undergone tests to assess their intelligence. However, although the IQ is likely to be the essential starting point for considering impairment of intelligence, it is not necessarily decisive.
61367 As well as an IQ of 55 or less, the DM should consider other factors which may also indicate that a person has severe impairment of intelligence and should be considered even when the IQ is over 55. The DM should consider whether there
1. Is difficulty with communication so that
1.1 speech may be severely impaired, often only monosyllabic or grunting noises or
1.2 reading or writing skills may be absent or very poor or
2. Are severe learning difficulties or
3. Is a lack of understanding of everyday living.
People with severe impairment of intelligence are likely to need specialised schooling, and supervision of all activities. In cases of doubt and where the IQ is over 55 the DM should refer the case to Medical Services for expert advice.
61368 The DM should consider whether they accept that
1. the assessment of IQ, having had regard to all available evidence, is an adequate reflection of intelligence or
2. having regard to all the available evidence, despite an IQ of above 55, or in the absence of any objective IQ measurement, the claimant's behaviour is consistent with 'severe impairment of intelligence'. The same evidence may be considered when deciding both the question of “severe impairment of intelligence” and also “severe impairment of social functioning”. Nevertheless the two questions themselves are separate and should be considered accordingly.”
We stated: Our son has never had an IQ test. However, as indicated in all supporting medical evidence he is completely non-verbal and cannot read or write at all. He has severe learning difficulties, diagnosed with Global Developmental Delay and is completely non-verbal. He lacks understanding of everyday living (is completely reliant on his parents for all his needs, far beyond that of a typical five year old). He has an Education, Health and Care Plan (EHCP) and attends a special school.
If you have an IQ test for your child or supporting evidence from a specialist stating the equivalent age at which they function, this would also be useful.
We stated our sons scores from his ASD assessment and that he meets the DLA criteria of severe Autism, as referenced in the “Severity Levels of Autism” from “ Medical Guidance for DLA Decision Makers” (Page 226)
“Severe Autism IQ less than 70
• Severe deficits in verbal and non verbal social communication skills.
For example, a child who has very little intelligible speech and who rarely initiates interaction with others. They mostly make unusual interactions that meet their needs only and respond to only very direct social approaches.
• Inflexibility of behaviour, extreme difficulty coping with change. They often have repetitive behaviours or do repetitive movements and have marked difficulty functioning in all spheres
For example, the child spends the majority of his time engaged in stereo-typed behaviours to the exclusion of interacting with others. This child will require 1 to 1 supervision and this will usually take place in a special school or unit.”
Does the claimant have a severe impairment of social functioning?
P55 DMG 61 - Severe impairment of social functioning
61369 People with severe impairment of social functioning will usually have severe learning difficulties. They will only be able to acquire a few basic social skills after being shown how to perform them. They will have difficulties relating to other people and making friends, and would not be able to carry out basic social skills such as running a simple errand, using public transport and carrying on a conversation.
61370 The term “intelligence” refers to a person’s intellect or ability to understand. The term “social functioning” is what that person is able to do with the intelligence they have. For example, some people who have a low intelligence can relate to other people and perform basic social skills once they are shown how to do them. But others who have a low intelligence are not able to perform basic tasks or relate to others. It is the latter who would display severe impairment of intelligence and social functioning.
We used evidence from our son’s EHCP, ASD Assessment and Social Worker’s Assessment that stated significant delay of learning and play skills, that he would not tolerate the presence of others he’s not very familiar with, lack of understanding of other’s emotions and sharing etc
Points 7 to 10 will largely be answered as one:
Is there evidence that the claimant displays severe behavioural problems?
You need to be able to demonstrate that your child’s behaviour is severely disruptive and dangerous. You also need to be able to show that they require the presence of another person to watch over them whenever they are awake. Give multiple examples of this and you will need supporting evidence from medical professionals to confirm this. As only written evidence is accepted, you may be able to video examples of your child's behaviour and ask a social worker or other professional involved in your child's care to review these videos and write a supporting letter based on them if they have not actually witnessed this behaviour themselves.
P56 DMG 61 - “Severe behavioural problems
61376 People are treated as having severe behavioural problems if they exhibit disruptive behaviour that
1. is extreme and
2. regularly requires another person to intervene and physically restrain them
2.1 to prevent them injuring themselves or others or
2.2 damaging property and
3. is so unpredictable that they require another person to be present watching over them whenever they are awake.
It is essential that all three conditions are satisfied. The disruptive behaviour does not need to be displayed at all times but it must be extreme. The word “extreme” is an ordinary English word which here refers to behaviour which is wholly out of the ordinary.
61377 People who have severe behavioural problems may
1. Be destructive
2. Be reckless with dangerous things
3. Be aggressive and attention seeking
4. Self-mutilate or abuse themselves
5. Be hyperactive
6. Display persistent body movements
7. Disrupt the household during the night.
Note: This list is not exhaustive.
61378 The conditions at DMG 61376 can only be satisfied if the disruptive behaviour is
1. a regular occurrence and
2. a constant risk.
Aggression, destructiveness, hyperactivity and self injury may require physical restraint.
61379 The claimant’s behaviour must be so destructive and unpredictable that they require the presence of another person to watch over them whenever they are awake. This is in all aspects of the claimant’s life both indoors and out. If a claimant displays behavioural problems at home but elsewhere, for example at school, is well behaved then the test will not be satisfied.
Example
Jane, although displaying some behavioural problems, is capable of playing alone in her room with the door closed. The claim to the higher rate of the DLA mobility component failed as the carer is not required to be present and watching over Jane whenever she is awake as the bedroom door was closed with the carer on one side and Jane on the other.
61380 The claimant’s condition must be such that the constant presence of another person is required to intervene, and restrain the claimant, to deal with unpredictable behaviour. The restraint must be a regular occurrence.
61381 Recent case law has qualified the above statements as follows. Even if the person (or child) behaves when in a structured environment then the DM must still consider what the consequences would be without that structure, and is there still a likelihood that the claimant could display disruptive behaviour for which intervention would be required.
61382 The DM should consider the following steps when making a decision.
1. What are the constituent parts of the assistance relied on and who gives it.
2. Which parts of the assistance are of a sufficiently intimate and personal nature to qualify as “attention”.
3. Why is it reasonably required, and so what is it directed to and what is it a consequence of.
4. How often and when is it given.
5. If the claimant is under 16, how do the claimant’s requirements, and thus the attention, compare with the normal requirements of persons of that age.
61383 The DM must also consider
1. what are the bodily functions that are affected by the functional disability of the claimant
2. if but for the existence of the functional disability would the relevant attention be reasonably required.
61384 From the above assessment the DM should be able to determine
1. the bodily functions to which the attention relates can be identified
2. the link between them (and thus the relevant attention) and the relevant functional disability can be identified
3. the intimate quality of each aspect of the assistance can be assessed
4. the period or periods for which the attention is reasonably required can be assessed and
5. in the case of a claimant under 16 the relevant comparisons can be made.
Does the claimant exhibit extreme disruptive behaviour?
You will have answered this question at point 7 above.
Does the claimant regularly require the intervention of another person to physically restrain them to prevent injury to themselves, others or damage to property?
You will likely have answered this at point 7, give examples of how you have to restrain or remove your child from situations, how they would damage things if left alone etc. We gave examples of our son trying to climb out of upstairs windows, smashing glass etc. Evidence will also likely be required from your child's school or nursery to confirm this.
Is the claimants behaviour so unpredictable that they require another person to be present and watching over them whenever they are awake?
You will have already answered this in the previous points, you should if possible get this confirmed in writing by a medical professional.
Anecdotally SMI seems to be the most difficult criteria to get the DWP to accept. We've known people who the DWP have refused to accept a consultant paediatrician's report stating that the child has a severe mental impairment as acceptable evidence of a severe mental impairment! (They were later awarded HRM at tribunal). Even if you do all of this and back it up with multiple reports from medical experts, don't be disappointed if you are refused HRM from your initial application, this seems to happen many applicants. Even when requesting a Mandatory Reconsideration, most people seem to have SMI claims rejected, but many are then successful when taking their claim to a tribunal.
If you're thinking of researching some DLA case law related to your claim, these are some good websites to start with:
https://www.disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries/attendance-allowance-and#Behavioural
https://www.gov.uk/administrative-appeals-tribunal-decisions
https://www.casemine.com/
https://www.rightsnet.org.uk/forums/viewforum/2/
CDLA/2414/2012 & CDLA/1034/2014 - Deals with what constitutes severe mental impairment and relates it more to real world functioning rather than just IQ tests
CDLA/2054/1998 & CDLA/943/2011 - Discusses what physical restraint is required to meet this criteria and also the regularity with which this must occur
CDLA/17611/1996, CDLA/2054/1998 & CDLA/2470/2006 - Refers to what satisfies the severe behavioural problems criteria
You can download a fact sheet containing all this information here: DLA HRM SMI Criteria
