When filling in the application form for DLA, I 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.
Virtually Unable to Walk (VUW). (DMG 61 Page 37-48)
Our son has an official Autism diagnosis and refuses to walk when not in our house. He will not go in a buggy, shopping trolley etc and insists on being carried everywhere. If we do not do this he will have a meltdown. The following is based on this, but you should be able to adapt it to your circumstances.
Is there a physical disability? (Our son has an official ASD diagnosis, as below this is recognised as a physical disability of the brain).
P38 DMG 61 - “61280 The differences between mental and physical disability may not always be obvious but are distinctive. To count towards virtually unable to walk, a person’s disability must be physical. Any limitation in a person’s ability to walk must be because of a physical disablement not merely a physical manifestation of the person’s mental condition. Further guidance is available in the Children and Adult Medical Guidance.”
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)”. DLA case law recognises Autism as a physical disability of the brain.
As per CDLA/1678/97 “it was presently accepted that the condition (Autism) had a physical cause, in that it was a disorder of brain development” (also supported by CDLA/2288/2007)
and
CSDLA/894/01 “limitations on walking ability resulting from autism are to be regarded as due to physical disablement because autism is due to a chromosomal abnormality”
Does it affect walking ability? We described our son's refusal to walk and the affect that us refusing to carry him would have on him. We supplied supporting evidence from his school nurse, his OT who described how mobilising in the community would cause him severe discomfort and as the DLA do not accept video evidence, we recorded multiple instances of him refusing to walk or to get out of the car and asked our social worker to review these and write us a supporting letter.
What is the walking ability without severe discomfort? This was not applicable to our son or others who refuse to walk as you're claiming based on an absolute refusal to walk, see below.
P42 DMG 61 - “61309 If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises.“
P39 DMG 61 - “61290 People with behavioural problems often refuse to walk. Although most behavioural problems result from a mental disability, they can be the result of a reaction to a physical condition over which the person has no control. For example, children with Down’s syndrome may be virtually unable to walk or they may refuse to walk despite coaxing. But this does not mean that all people with Down’s syndrome are virtually unable to walk.
61291 The question the DM should consider is whether the person could not walk, rather than would not walk.
The DM should consider both good and bad days and take a common sense approach, having regard to the proportion of good and bad days and the claimant’s behaviour on each type of day.”
P40 DMG 61 - “61293 Example 2. Fraser is autistic. There is evidence that his autism has a physical cause. On occasions he suffers from temporary paralysis. There is evidence that Fraser has more bad days than good days. On the bad days he is unable to walk; on the good days he can walk only very short distances with difficulty. Fraser satisfies the test.”
Does one factor or a combination of factors render the claimant virtually unable to walk? You will have shown that the answer to this is yes and the result is “Claimant entitled to higher rate mobility”. Leave no ambiguity, state that you have clearly shown how your child satisfies all of the VUW criteria and as such you expect them to be awarded HRM.
If you're thinking of researching some DLA case law related to your claim, these are some good websites to start with:
https://www.gov.uk/administrative-appeals-tribunal-decisions
https://www.casemine.com/
https://www.rightsnet.org.uk/forums/viewforum/2/
https://www.disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries/attendance-allowance-and#Behavioural
You can download a fact sheet containing all this information here: DLA HRM VUW Criteria
