IT’S thought that between two and 5% of children have attention deficit/hyperactivity disorder (ADHD) in the UK. Many young people affected go undiagnosed and symptoms can range from mild, moderate to severe.

Symptoms can include the inability to concentrate, focus, or listen; with little or no sense of danger, excessive movement and acting impulsively without thinking. The medical condition itself began to gain more recognition in the 1990s but was still largely misunderstood.

Severe symptoms of ADHD can be profound and result in a child requiring constant supervision while the condition prevents them from developing and learning as they get older.

Children with severe ADHD symptoms will generally be eligible for the higher rate of the care component of the Disability Living Allowance (DLA) and the lower rate mobility component.

Yet, historically it has been difficult to qualify for the higher rate of the mobility component – an additional £40 or so per week – because of the way social security law has treated ADHD.

I’ve been instructed by Govan Law Centre for a client, working with Money Matters Money Advice Centre in Glasgow, to challenge past UK case law based upon the current state of worldwide knowledge of ADHD and other legal arguments.

Last November, the Scottish Government launched the Child Disability Payment (CDP) as a replacement for DLA. New claims by children now need to be for CDP, while existent claimants of DLA are being transferred over to the CDP during 2022/23. However, new Scottish CDP legislation uses many of the same legal tests as for DLA.

There are a complex series of legal tests to pass before one can be eligible for the DLA higher rate of the mobility component. Besides being eligible for the higher rate DLA care component one route is through severe mental impairment. This requires a person 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” – this is known as the regulation 12(5) test.

The new Scottish regulation 13(7) for CDP uses a similar test to DLA legislation, so any successful challenge before the UK Upper Tribunal would of course be highly persuasive for future appeals to the Upper Tribunal for Scotland for CDP.

The stumbling block in the UK for claimants with ADHD goes all the way back to a social security case from 1997 which found that medical knowledge could not say ADHD was a disorder of brain development – unlike the position for autism at that time.

Commissioner Howell QC explained what was understood to give rise to ADHD: “Dr McKinlay refers to work by Professor Barkley published in the United States in 1998, citing the results of some (still comparatively small) studies that suggest a correlation with abnormalities or malfunction in certain areas of the prefrontal cortex and basal ganglia”.

“These are thought to be the parts concerned with regulating an individual’s behaviour, and there is also some basis for supposing that the problem may be associated with some genetic abnormality. However, Dr McKinlay comments that there is no consistent imaging abnormality in ADHD children, and most show no scan abnormalities: knowledge of the specific aetiology is lacking at present and the assertion that it is a form of brain dysfunction is unproven”.

In 1997, Dr McKinlay thought that with advances in neurological imaging techniques and genetics in the near future it would be possible to determine whether or not ADHD was a physical brain disorder.

In 2013, the ENIGMA ADHD Working Group was formed by medical experts from universities across the world to overcome the previous weakness of MRI scanning studies. International research by the Department of Human Genetics at Radboud University Medical Center in the Netherlands, with ENIGMA group members was published in the Lancet Psychiatry journal in 2017.

Its findings were remarkable. Patients with ADHD had altered brains with “the most pronounced effects in childhood and showing delayed peaks of subcortical volume maturation provides a relevant model of ADHD as a disorder of brain maturation delay”.

As the researchers said of their findings: “ADHD is a disorder of the brain. This is a clear message for clinicians to convey to parents and patients, which can help

to reduce the stigma that

ADHD is just a label for difficult kids, and caused by incompetent parenting”.

What the 2017 ENIGMA ADHD Working Group research also tells us is that UK social security case law from 1997 cannot stand given advances in medical knowledge about ADHD.

Arguably, there are now no barriers for children with severe ADHD symptoms to qualify under the arrested development of the brain test for DLA higher rate mobility component and the new Scottish CDP equivalent.