COURT OF APPEAL. Published November 11, 1999. Megarry v Chief Adjudication Officer. Before Lord Justice Simon Brown, Lord Justice Otton and Lord Justice Mummery. Judgment: Friday October 29th, 1999
A high intelligence quotient was not sufficient to deprive an autistic child of entitlement to disability living allowance as a person suffering from "severe impairment of intelligence" within the meaning of regulation 12(5) of the Social Security (Disability Living Allowance) Regulations (SI 1991 No 2890).
The Court of Appeal so held in a reserved judgment in allowing an appeal by the claimant from the dismissal by a social security commissioner of an appeal against the determination of the Disability Appeal Tribunal that the claimant was not entitled to the higher rate of the mobility component of Disability Living Allowance.
Mr Simon Cox for the claimant; Mr Richard McManus, QC, for the Chief Adjudication Officer.
LORD JUSTICE SIMON BROWN said that the claimant was an Autistic child aged nine. At issue was his entitlement to the higher rate of the mobility component of a disability living allowance as from January 1995.
Among the qualifying conditions for that higher rate were that the claimant suffered from "severe impairment of intelligence and social functioning" within the meaning of regulation 12(5) of the 1991 Regulations. The true construction and application of that provision lay at the heart of the appeal.
On May 21, 1997 the Disability Appeal Tribunal found the claimant entitled to the higher rate of the care component, and to the lower rate of the mobility component of the benefit; but they rejected his claim to the higher rate of the mobility component. On May 1, 1998 the social security commissioner dismissed the claimant's appeal against the decision.
The claimant's claim to the higher rate of the mobility component was made under section 73(3) of the Social Security Contributions and Benefits Act 1992: "A person falls within this subsection if - (a) he is severely mentally impaired..." Regulation 12 of the 1991 Regulations specified who satisfied that condition:
"(5) A person falls within subsection (3)(a) of section 73 of the Act (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."
The regulation had two limbs. The claimant had first to establish that "he suffers from a state of arrested development or incomplete physical development of the brain". He had then to establish that that "results in severe impairment of intelligence and social functioning".
As to the first limb, there was no dispute before their Lordships that it was satisfied in the case of those who suffered autism. Critically, therefore, the question arising for an autistic claimant was: Did his autism result in "severe impairment of intelligence and social functioning"?
The commissioner held that to satisfy that condition the claimant had to establish that his autism resulted in both (i) severe impairment of intelligence and (ii) severe impairment of social functioning: there were two discrete conditions to be satisfied.
The commissioner also held that to establish that he suffered "severe impairment of intelligence" the claimant had to show that he had an IQ of 55 or less.
Whether the claimant had to establish both severe impairment of intelligence and severe impairment of social functioning was not an easy question.
What persuaded his Lordship in favour of the commissioner's construction was that the two elements of intelligence and social function would, in the great majority of cases, be widely disparate.
But, was it permissible to decide whether a claimant suffered "severe impairment of intelligence" solely by reference to whether his IQ exceeded 55?
The commissioner's approach was too narrow and mechanistic. In most cases the measurement of IQ would be the best available method of measuring intelligence.
But among the dictionary definitions of intelligence one found reference not merely to the functions of understanding and intellect but also to the qualities of insight and sagacity.
In the case of an autistic child those qualities might well be lacking and to the extent that they were, there would be a functional impairment which overlapped both limbs of the regulation: intelligence and social functioning.
IQ tests were purposely constructed so as to be as independent of social context as possible.
Some people had difficulty in solving problems in tests for their own sake outside a real-life context; they, therefore, scored badly in IQ tests.
Autistics, however, scored unusually highly just because they were being tested outside the real-life context. Their success in IQ tests was not a true indication of what one might call their useful intelligence, and it was the impairment of the claimant's useful intelligence to which the regulation was directed.
In those circumstances it was wrong to regard the limitation on the claimant's social functioning as "wholly irrelevant", as the commissioner did.
While in every case the claimant's IQ as conventionally tested was likely to be the essential starting point for considering the impairment of intelligence, and it was perfectly reasonable to take an IQ of 55 or less as the prima facie touchstone of severe impairment, that test and that score would not invariably prove decisive.
Rather it should be recognised that an IQ result might give a misleading impression of the claimant's useful intelligence and that in some cases an impairment of social functioning would shade into an impairment of intelligence.
Tribunals and commissioners would accordingly need to admit and consider evidence other than a mere IQ score.
Lord Justice Otton and Lord Justice Mummery agreed.
Solicitors: Jocelyn Murphy, High Holborn; Solicitor, Department for Social Security.
