Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: C4/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 6 January 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, leave having been granted by the legally qualified panel member, against a decision dated 6 January 2006 of an appeal tribunal sitting at Belfast. My decision is given in the final paragraph.
   
2. The background was that on 14 June 2004 the claimant claimed disability living allowance (DLA) stating that she suffered from severe chronic alcohol abuse, hypertension, liver cirrhosis, depression and mental health problems. The Department, on 2 August 2006 made a decision disallowing DLA from and including 14 June 2004. The claimant appealed to the tribunal which on 6 January 2006 disallowed the appeal.
3. At the hearing before the tribunal, Mr O'Neill of Newry and Mourne Citizens Advice Bureau who represented the claimant (and who continues to do so in the appeal to me) indicated (in my view correctly) that the high rate of the mobility component was not being sought. The claimant gave evidence that her condition had not changed since 2004 and that she then drank a 10 glass bottle of vodka every night but had changed to drinking whiskey. She stated that she would not take care of herself three to four days in a row, that she might have one or two good days, that after sleeping off the effects of alcohol she could self-care, that she was rarely alone as she got anxious and lonely, that she typically went to bed at 2-3am and went immediately to sleep and slept right through sometimes until mid-afternoon, that she could go out walking but would want someone with her for company. She stated also that she had thrown herself in front of a taxi in September 2004; that sometimes she got drink from a nearby off licence and sometimes others got it for her.
4. The claimant appealed, the grounds being fourfold:-

1) The relationship between alcohol abuse and disability had at the date of the decision recently been the subject of a hearing before a Tribunal of Commissioners whose decision was awaited and eventually issued as CDLA/1365/2005. As this issue was central to the success or failure of the instant case, the tribunal should have adjourned until that decision was given. It had erred in law in not doing so.

2) As a matter of jurisprudence the tribunal had wrongly followed GB Commissioner's decision CDLA/2408/2002 rather than C64/96(DLA) a Northern Ireland Commissioner's decision relating to the same issue.

3) The tribunal made reference to the fact that (the claimant) was in charge of her own medicine, and drew an inference that, as neither her family, nor doctor believed there was any ongoing risk of self-harm, then no such risk was present. The issue was addressed in CDLA/2363/2005. In that case Commissioner Rowland stated that, "whilst a claimant never having suffered actual injury may be powerful evidence that there is no significant risk of harm, it is not conclusive". It was submitted based on that decision that the tribunal erred in reaching its conclusion without further exploration on the issue of self-harm and had erred accordingly.

4) The tribunal had erred by being influenced by the fact that the claimant who had a significant and longstanding problem with alcohol, presented at the hearing sober, with no apparent impairment of thought. This should have been viewed as an exception, as opposed to the rule.

5. The Department is represented by Mr Sloan of its Decision Making Services branch. By letter dated 12 August 2006 Mr Sloan supported the appeal. I set out his submission as to the basis of his support in an appendix to this decision.
6. I am in agreement with the parties that the tribunal erred in law in concluding that:

"… the temporary effects of alcohol may not be taken into account for the purposes of assessing a person's entitlement to DLA".

7. I set the decision aside as I consider that the tribunal erred in that respect and that this error vitiated the decision.
8. The tribunal did, as the record of proceedings shows, have cited to it decision C64/96 (DLA) a decision of Mr Commissioner McNally. The parties submit that the tribunal erred by accepting decision CDLA/2408/2002 (a decision of Mr Commissioner Bano in Great Britain) in preference to C64/96(DLA). It is undoubtedly correct that tribunals are bound by decisions of Northern Ireland Commissioners while (unless and to the extent of being expressly approved by Northern Ireland Commissioners) those of Great Britain Commissioners are only of strong persuasive authority.
9. As the Department submits there are parts of C64/96(DLA) which may be considered as forerunners of the decision of the Tribunal of Commissioners (TOC) in Great Britain in CDLA/1365/2005. However C64/96(DLA) does not enter into the analysis carried out in CDLA/1365/2005 (para 28 etc) as to whether or not care, supervision or other help is reasonably required. It may be that it was not considered necessary in that case. The reasoning in CDLA/1365/2005 is in my view correct and compelling and I approve it. CDLA/1365/2005 has implications as to enquiries which can usefully be made by decision-makers and tribunals as to the transient and long-term effects of alcohol consumption on alcoholics. These are based on the evidence given by Dr Helen Watts which the TOC accepted in that case. I am, of course, unable to accept or reject Dr Watts' evidence in this case. It is not before me as evidence.
10. It would, however, in my view be helpful if submissions to tribunals in relevant cases included a copy of CDLA/1365/2005. This would assist tribunals in the exploration of such cases. The Department could, if such is its view, submit that Dr Watts' evidence in that case did summarise the current state of medical knowledge on alcoholism and the effects of alcohol consumption on alcoholics. The other party could then be asked for comment on Dr Watt's evidence in CDLA/1365/2005. This could be of considerable assistance to tribunals in relation to exploration of issues and assessment of evidence.
11. It is, of course, open to a claimant or the Department in a particular case to produce evidence as to the situation in any individual case or as to medical knowledge. If the summary of Dr Watts' evidence is accepted as the current state of medical knowledge, the evidence can be considered against that background in the individual case.
12. In light of the above it is unnecessary that I comment further on grounds one and two. As regards ground three, I am in agreement with the Department's observations.
13. As regards ground four, there is no error in the tribunal using its own observations as a means of assessing evidence, provided it is able to conclude that the circumstances obtaining at the time of the observations also obtained at the date of the decision under appeal. However, in a case such as this, where there was evidence of fluctuation as regards the time of day and days of the week, it would be good practice to explore with the claimant whether this was a good or bad or average day and time of day for her. The assessment of the claimant's evidence is, of course, a matter for the tribunal.
14. I do not consider that this is a case where I should give the decision which the tribunal should have given. I set the decision aside for the reasons given above and remit the matter to a differently constituted tribunal for re-hearing and re-determination. The claimant wins her appeal.

M F Brown

Commissioner

20 November 2006

Decision No: C4/06-07(DLA)

APPENDIX I

"Grounds 1 and 2

It is clear from its reasons that the tribunal followed the GB Commissioner in CDLA 2408/2002, deciding that the immediate and transitory effects of alcohol consumption could not be taken into account in determining entitlement to DLA.

On 22 March 2006 a GB tribunal of Commissioners in CDLA 1365/2005 held inter alia that due to an apparent confusion between "medical condition" and "disability" (i.e. functional deficiency); Commissioner Bano's reasoning in decision CDLA 2408/2002 was not secure. The Commissioners held:

"33. …A person who cannot realistically stop drinking to excess because of a medical condition and cannot function properly as a result can reasonably be said both to be suffering from disablement and to require any attention, supervision or other help contemplated by the legislation that is necessary as a consequence of his drinking. We can see no reason why the effects of being intoxicated should not be taken into account in determining his entitlement to the care component of DLA."

The tribunal in the present appeal also considered the NI Commissioner's decision C64/96(DLA). That decision also concerned a claimant whose needs arose from an addiction to alcohol. The Commissioner held:

"9. … I can find no valid authority for the opinion expressed by him nor that a claimant must prove that his condition is beyond his control before entitlement can be established. I am satisfied that entitlement is established if the claimant can prove he suffers from disabilities which bring him within the regulations. The bland assumption that an alcoholic can control his use of alcohol may have applied to the facts of that particular case but as a general proposition it is contrary to all authorities on the subject.

10. Clearly claimant suffers from a severe disability. There is no doubt it as a result of his alcoholism."

The tribunal did not follow this however as it felt bound to follow the reasoning of the GB Commissioner in CDLA 2408/2002. In doing so I would submit that the tribunal erred because in the NI jurisdiction it was bound to follow the decision of a NI Commissioner. Furthermore I would submit that the NI Commissioner's reasoning to a certain extent anticipates the reasoning of the GB Tribunal of Commissioners, in CDLA 1365/2005 above and in R(DLA) 3/06 (paragraphs 38 to 39). In view of this I would submit that the tribunal's decision is in error of law.

Ground 3 and 4

Both of these grounds concern the weight ascribed to the evidence and the adequacy of the tribunal's reasons. The tribunal accepted (the claimant's) oral evidence that she had thrown herself in front of a taxi in 2004. However the tribunal went on to conclude that this was an isolated incident and as she was able to self medicate it decided that in terms of Section 72(1)(b) and (c) of the Social Security Contributions & Benefits Act (NI) 1992, (the claimant) did not require frequent or continual supervision to avoid harm. The tribunal also found that its observations of (the claimant) at the hearing to be relevant to its conclusion that she had no substantial care needs.

As submitted above, had the tribunal not erred by misdirecting itself to disregard needs arising from the effects of alcohol, I would be inclined to submit that the tribunal's reasoning on these matters was neither perverse nor unreasonable. However the tribunal also heard evidence of incidents related to supervision needs arising from (the claimant's) alcohol problem and I would therefore submit that this matter did warrant further consideration and that the tribunal's reasoning is inadequate and in error of law.

Conclusion

In view of the above I would submit that the tribunal's decision of 6 January 2006 is in error of law and I therefore support this appeal to the Social Security Commissioner. Should the Commissioner agree with my submissions I would suggest that the case should be remitted to a differently constituted tribunal for determination."