Disability Redefined

WELFARE RIGHTS:
In his second article on disability living allowance, Gary
Vaux looks at the outcome of a test case

A tribunal of commissioners recently made two important rulings
on children who receive disability living allowance (DLA). The
first related to whether disabled children should normally be
compelled to give evidence to social security appeal tribunals. The
second related to whether, in order to count as “disabled”, a
person must have a diagnosed or recognised medical condition.

The social security commissioners ruled that “a tribunal should
exercise its discretion to call a child to give evidence before it
with great care and caution, and it would be wholly exceptional for
it to do so against advice that it would be harmful for the child
to do so”.

This is significant, as tribunals should not now be influenced
against a child claimant who is unwilling to give evidence. It also
means that written reports from social workers and so on need to
give a full picture of the extent of a child’s disabilities.

The second aspect of the decision puts the focus of the assessment
for DLA on what the person can or cannot do rather than what is
medically wrong with them. It could bring into entitlement those
people – including those with so-called “behavioural problems” –
with obvious care needs but who have no medical label or diagnosis
to attach to their condition.

The test case is a girl of 12 who lives with foster carers. Her
social worker identified her on the DLA claim as having learning
difficulties, behavioural problems, attachment difficulties and
attention deficit disorder. The worker described the claimant’s
emotional difficulties, which could make her easily upset and
frustrated, leading to verbal aggression, disruptive behaviour,
intolerance of change, and forgetfulness.

It was said the claimant needed watching over because she lacked
awareness of danger, needed someone with her outdoors because she
was at risk of going off with people who were unsafe, lacked road
sense and was vulnerable to suggestions that put her at risk of
criminal behaviour. A school report said her behaviour was that of
a pupil aged seven to eight. Her main problem was arrested
emotional development.

Despite this, the appeal tribunal refused the DLA claim and
asserted that the girl’s behaviour did not give rise to supervision
needs over and above that of an able-bodied child. The lack of a
diagnosed medical condition was relevant to their decision.

The commissioners overturned the tribunal and rejected the view
that a definite diagnosis or recognised medical condition is
necessary to count as disabled. Instead, they adopted the World
Health Organisation definition of “disability” to mean “any
restriction or lack of ability to perform an activity in the manner
or within the range considered normal for a human being”.

The commissioners decided that behavioural disorders may be a
manifestation of a disability. On this basis, the Department for
Work and Pensions and tribunals should ask whether it was in the
claimant’s power to avoid behaving as they did, rather than look
for a specific diagnosis of a recognised mental disorder. The
severity of any disability should then be tested by asking, for
example, whether a person requires attention for a significant part
of the day.

*The decision (reference CDLA/1721/2004) can be found on www.rightsnet.org.uk

Gary Vaux is head of money advice, Hertfordshire Council. He is
unable to answer queries by post or telephone. If you have a
question to be answered please write to him c/o Community
Care