4.1. DLA Regulations and Commentary

Whilst the terms used in the ESA and PIP regulations can, for the most part, be read with their ordinary, intuited meaning, the terms used in the DLA regulations have precise definitions which cannot be intuited. The most important are given in the commentary, however, you are strongly advised to consult the CPAG or DR handbook (see Drafting Resources) in addition to these notes when taking a DLA case.

Care component

For all rates of the Care component, the attention or supervision required must be substantially in excess of, or of a different type to, that required by a healthy child of the same age.

Lowest rate

A child is eligible if they are so severely disabled, physically or mentally, that they require, in connection with their bodily functions, attention from another person for a significant portion of the day (whether during a single period or a number of periods).

Middle rate

A child is eligible if they satisfy one of the daytime disability conditions or one of the night-time disability conditions*.

* or if they receive renal dialysis.

Highest rate

A child is eligible if they satisfy one of the daytime disability conditions and one of the night-time disability conditions*.

*or they are terminally ill.

Daytime disability conditions

A child is so severely disabled, physically or mentally, that they require:

• frequent attention from another person throughout the day in connection with their bodily functions; or

• continual supervision throughout the day in order to avoid substantial danger to themselves or others

Night-time disability conditions

• A child is so severely disabled, physically or mentally, that they require:

• prolonged or repeated attention from another person at night in connection with their bodily functions; or

•another person to be awake at night for a prolonged period or at frequent intervals to watch over them in order to avoid substantial danger to themselves or others.

• Attention is a “service of a close and intimate nature… involving personal contact”. Such contact can be physical or verbal (e.g. instructions, narration, reassurance).

• Usually attention must be in the presence of the child, though a period of attention can contain incidental activities without the child, e.g. wringing out soiled sheets. The incidental activities must immediately follow the other activities within the period of attention, e.g. laundering sheets the following day would not count.

Mobility component

Higher rate

A child is eligible if they are over the age of 3 and:

• are suffering from a physical disablement such that they are either unable to walk or virtually unable to walk; or

• they are both blind and deaf; or

• they are blind or severely visually impaired; or

• they were born without feet or are a double amputee through or above the ankle

• they

• have a severe mental impairment; and

• have severe behavioural problems; and

• qualify for the highest rate of the Care component

• “virtually unable to walk” – their ability to walk outdoors is so limited in terms of distance, speed, length of time, or manner in which they can make progress on foot without severe discomfort. Alternatively, the exertion required to walk would constitute a danger to their life or would be likely to lead to a serious deterioration in their health

• Physical disablements can include ME/chronic fatigue syndrome, Down’s syndrome and autism, as well as physical sequelae from mental illnesses e.g. exhaustion due to anorexia

• Takes into account prostheses (except for automatic eligibility of double amputees) and aids

• Considered with reference to outdoor terrain and environment, i.e. uneven ground surfaces and exposure to wind, rain etc.

• “severe mental impairment” is to suffer from “a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning”. An IQ of 55 or less is taken to be a severe impairment of intelligence, but it is recognised that IQ can be misleading, and that some children are not able to apply their intelligence usefully in the real world. Thus, even with an unknown IQ or an IQ above 55, communication and language skills should be considered in the context of social functioning, and having no awareness of danger may indicate a severe impairment of intelligence. Furthermore, social functioning should be assessed not only in familiar environments but also outdoors and with strangers.

“severe behavioural problems” – exhibits disruptive behaviour which

• is extreme

• regularly requires another person to intervene and physically restrain them in order to prevent them causing physical injury to themselves or another, or damage to property, and

• is so unpredictable that they require another person to be present and watching over them whenever they are awake

• they are able to walk but are so severely disabled physically or mentally that, they cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time, and

• they require substantially more guidance and supervision, or a different type of guidance or supervision, than would a healthy child of their age

• Disregards any ability the child has to use routes that are familiar to them without guidance or supervision.

• Note that a mental disablement, e.g. an anxiety disorder, can qualify.

Middle rate

A child is eligible if they are over the age of 5 and:

• they are able to walk but are so severely disabled physically or mentally that, they cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time, and

• they require substantially more guidance and supervision, or a different type of guidance or supervision, than would a healthy child of their age

• Disregards any ability the child has to use routes that are familiar to them without guidance or supervision.

• Note that a mental disablement, e.g. an anxiety disorder, can qualify.

Last updated on February 22nd, 2019 at 04:11 pm