TL v Department for Social Development (DLA) [2010] NICom 32

Decision No:  C24/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 30 January 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.     I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

3.     The decision of the appeal tribunal dated 30 January 2008 is in error of law.  The error of law identified will be explained in more detail below.

 

4.     Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

5.     For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

6.     In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

7.     It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

         Background

 

8.     This application has a detailed and complicated background.

 

9.     On 14 September 2007 a decision-maker of the Department decided that the applicant was not entitled to DLA, from and including 6 September 2007, on a renewal claim.  An appeal against the decision dated 14 September 2007 was received in the Department on 29 October 2007.

 

10.   The appeal tribunal hearing took place on 30 January 2008.  The appellant was present and was represented.  The appellant’s wife was also present.  A presenting officer of the Department was also present. The appeal tribunal disallowed the appeal, and confirmed the decision dated 14 September 2007.

 

11.   On 28 April 2008, an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 3 June 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

12.   On 28 August 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

13.   On 13 October 2008, a request for reasons for the lateness of the application was made to the applicant’s representative.

 

14.   On 13 October 2008, observations were sought from Decision Making Services (DMS) and these were received on 10 November 2008. DMS opposed the application.

 

15.   Observations were shared with the appellant, and his representative, on 20 November 2008.

 

16.   Further submissions in response to the observations were received on 10 February 2009.

 

17.   The further submissions were shared with DMS on 13 February 2009.

 

18.   On 20 April 2009 a further submission was received from the appellant’s representative which was shared with DMS on 27 May 2009.

 

19.   On 12 June 2009 a further submission was received from DMS which was shared with the appellant and his representative on 12 June 2009.

 

20.   On 1 July 2009 a further submission was received from the appellant’s representative which was shared with DMS on 8 July 2009.

 

21.   On 22 July 2009 a further submission was received from DMS which was shared with the appellant and his representative on 27 July 2009.

 

22.   On 10 August 2009 a further submission was received from the appellant’s representative which was shared with DMS on 3 September 2009.

 

         Errors of law

 

23.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

24.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)       giving weight to immaterial matters;

(v)        making a material misdirection of law on any material matter;

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         Was the decision of the appeal tribunal in the instant case in error of law?

 

25.   The statement of reasons (SORs) for the appeal tribunal’s decision has been prepared with care and attention.  The appeal tribunal has identified the main issues arising in the appeal; has been forensic in its identification and assessment of evidence; has made relevant findings in fact and has, accordingly, drawn its conclusions on benefit entitlement.

 

26.   How, therefore, did the appeal tribunal err in law?

 

27.   The issue before the appeal tribunal was whether the appellant had an entitlement to DLA.  In his renewal claim form to DLA the appellant, at page 5 of the relevant form, listed a number of illnesses and disabilities.  At the head of this list was ‘chronic alcoholism’.  It is clear, from the remainder of the claim form, and from the evidence which was before the appeal tribunal that the appellant’s principal submission was that he had an entitlement to DLA on the basis of care, supervision or attention requirements, and/or a restriction in his mobility, based on his problems with alcoholism.

 

28.   In R(DLA) 6/06, a Tribunal of Commissioners in Great Britain undertook an extensive analysis of entitlement to DLA based on alcoholism.  The analysis undertaken by the Tribunal of Commissioners is extensive but is worth replicating in some detail.  In paragraphs 20 to 40 of the decision, the Commissioners stated:

 

         ‘20.   Two further matters were common ground.

 

21.       First, if a separate medical condition arises from the excessive consumption of alcohol, then any disabling manifestations of such a condition can be taken into account in assessing entitlement to the care component and the lower rate of the mobility component of DLA, whether or not the ingestion is related to alcohol dependence.  If the disabling manifestations also have a physical cause, they can also be taken into account in assessing entitlement to the higher rate of the mobility component.

 

22.       We agree with these propositions because DLA is focused on needs resulting from disability, rather than the cause of disability, and therefore a claimant is not deprived of the benefit simply because the condition from which the disability arises may have been self-induced or the result of a negligent or reckless or morally reprehensible or even criminal course of conduct on his part.  As indicated above, long-term ingestion of significant amounts of alcohol (whether or not this consumption results from dependence or voluntary abuse) may result in cirrhosis, or pulmonary or neurological conditions, or any of the other medical conditions identified by Dr Watts and those medical conditions might give rise to their own consequences in terms of disablement.  Simple drunkenness can also give rise to a separate medical condition.  A claimant may fall down a flight of stairs because he is intoxicated, breaking a leg.  The functional deficiency resulting from the broken leg would be a disablement relevant to DLA (although probably too short-term to result in an award unless there were medical complications).

 

23.       Second, the transient and immediate effects consequent upon a person choosing to consume too much alcohol are not to be taken into account in determining entitlement to DLA.  Bearing in mind the purpose of the statutory provisions, this would appear obvious; but, as a matter of statutory interpretation, why?

 

24.       Both parties submitted that it was because the effects could not be regarded as the result of disablement if they were the result of choice; but choice alone cannot be determinative.  If the long-term conditions arising from alcohol ingestion referred to above occur, then their consequences will be taken into account in assessing entitlement to DLA whether the ingestion of alcohol resulted from dependence or was by way of free choice.  However, not every restriction of action is a “disability” (see paragraph 39 of CDLA/1721/2004).  Just as someone who agrees to have their legs temporarily bound might not properly be described as “disabled” (because the functional incapacity is both transient and by choice), so it might be that the transient effects of the voluntary consumption of alcohol also cannot properly amount to disablement.

 

25.       However, even if, given the breadth of “disablement” in terms of functional incapacity or impairment after CDLA/1721/2004, such effects can properly be said to result in a disability, there is no entitlement to DLA unless the disability is so “severe” that one of the statutory conditions for entitlement to benefit is satisfied.  Thus, where section 72(1)(a)(i), (b)(i) or (ii) or (c)(i) or (ii) is in issue, attention, supervision or watching over is not required if the claimant can reasonably be expected to avoid the need for attention or supervision by controlling the consumption of alcohol.  Where the “cooking test” for the care component or the mobility component is in issue, the legislation does not expressly refer to a requirement for help; it refers simply to an inability to prepare a cooked main meal, an inability to take advantage of the faculty of walking without guidance or supervision or an inability, or virtual inability, to walk.  However, it is implicit in the scheme of the legislation that, where the “cooking test” is satisfied, the claimant is to be taken to require another person to prepare or help prepare a cooked main meal and that, where either of the relevant conditions for entitlement to the mobility component is satisfied, the claimant is to be taken to require help with mobility (although not necessarily from another person in the case of the higher rate of the mobility component).  Looked at from that perspective, it is quite clear that those conditions for entitlement should be approached in the same way as those where there is an express condition that attention, supervision or watching over be required.  The conditions are not satisfied where the claimant does not require the help contemplated by the legislation because he or she can simply avoid getting drunk.

 

            The principal issue

 

26.       Therefore, much was common ground between the parties; but there was a substantial issue between them concerning the extent to which the immediate and transient effects of alcohol consumption are to be taken into account in assessing entitlement to DLA.  As indicated above, it was agreed that, if the consumption was by way of choice, then they must be left out of account.  However, if the consumption resulted from alcohol dependence rather than choice, it was submitted on behalf of the claimant that they should be taken into account for all rates of both components, with the exception of higher rate mobility.  For the Secretary of State it was contended that such effects ought never to be taken into account, even if resulting from dependence rather than choice.

 

27.       Mr Maurici for the Secretary of State relied on the reasoning of Mr Commissioner Bano in paragraph 11 of CDLA/2408/2002, where the Commissioner said:

 

            “Section 72 of the Social Security Contributions and Benefits Act 1992 confers entitlement to the care component of disability living allowance on a person who is so severely disabled physically or mentally that he requires in connection with his bodily functions attention from another person, and in Re H (a minor), reported as R(A) 1/98, the Court of Appeal accepted that the severity of a disablement is a function of the need for care.  A person who is intoxicated by alcohol may require attention in connection with bodily functions such as standing and walking, but the amount of alcohol which the person has consumed, and hence the extent of the person’s need for attention at any particular time, will depend on factors such as the availability of alcohol, the extent of the claimant’s willingness to control his or her alcohol consumption, and the claimant’s financial resources (which will of course actually be increased if benefit is awarded).  (In this case the claimant’s consumption varies from no alcohol on some days, to between five and fifteen cans of beer the rest of the time.)  In the leading case of Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 (reported also as R(A) 2/98) the House of Lords approved the passage from the decision of Mr Commissioner Monroe in CA 2/79, cited by Lord Bridge in In re Woodling, [1984] 1 WLR 348 (also reported as Appendix 2 to R(A) 2/80) that the provisions ‘are directed primarily to those functions which the fit man normally performs for himself’.  An inability to stand or walk unaided when intoxicated by alcohol is unrelated to any infirmity, but is a temporary effect which is a direct and natural consequence of the consumption of excessive alcohol.  Since the nature and extent of the attention required by a person when intoxicated by alcohol cannot be directly related to the ‘severity’ of alcohol dependency (on the basis that such dependency, in itself, constitutes a physical disability), I consider that such attention needs should not be taken into account.  Entitlement to lower rate mobility component and care component on the basis of supervision needs is also prescribed in terms of the severity of disablement as a function of care needs, and I therefore consider for the same reasons that the intoxicating effects of alcohol should also be excluded when considering those entitlement conditions.  Similarly, the extent to which a person is prevented by intoxication from cooking a main meal is not related to the ‘severity’ of disablement, and I therefore consider that the intoxicating effects of alcohol should be left out of account when considering entitlement to lowest rate care component on the basis of the ‘main meal’ test.”

 

28.       However, this reasoning appears to be based upon a false premise, namely that alcohol dependence is a disability.  It is not.  It is a medical condition.  Even where that condition is severe (eg where a withdrawal syndrome has included severe symptomatology, or cravings are still severe), the condition may not be disabling.  At one end of the scale, a person may be so used to substantial ingestion that he or she tolerates alcohol, and can function in a reasonable manner even whilst consuming large quantities.  This scenario was specifically referred to by Dr Watts as a common one.  On the other hand, a person with alcohol dependence syndrome may address his or her condition, and not drink alcohol.  Whilst abstaining, again, he or she may be able to function perfectly well.  The condition may be asymptomatic, just as a person may have a heart condition that is asymptomatic.  Because of his apparent confusion between “medical condition” and “disability” (ie functional deficiency), we consider that the foundations of Mr Commissioner Bano’s distinction between the effects of alcohol consumption and the effects of dependence are not secure.

 

29.       The approach taken by Mr Commissioner Bano has not been universally followed by Commissioners.  For example, in CSIB/287/2003, Mrs Commissioner Parker expressed some concern over his reasoning, indicating (in paragraph 18) that, if “the claimant has an uncontrollable physical addiction, then it is logical that the results of that addiction may be taken into account”.

 

30.       At the hearing, the following example – familiar in attendance allowance cases – was put to Mr Maurici.  Suppose that a claimant is an elderly lady who has arthritis.  She is not incontinent.  However, when she wakes in the night to go to the toilet, she is stiff and in pain as a result of her arthritis.  This impedes her in getting out of bed and making her way to the toilet.  As a result, she often loses control of her bladder.  These circumstances appear to us to be indistinguishable from the case of a person who is alcohol dependent and who, as a result, drinks to excess and becomes intoxicated.  The claimant in the example does not have incontinence.  Losing control of her bladder is the natural result of an overfull bladder and not directly the consequence of arthritis.  And the loss of control may in part be attributable to other factors such as the layout of her home, the height of her bed, and the availability of aids.  All of those factors may be affected by financial considerations.  Subject to matters such as the use of a commode and restricting fluid intake in the evening, no one would deny that the circumstances of the claimant is this example are relevant to her entitlement to an allowance.  We can see no relevant distinction between intoxication due to alcohol consumption consequent upon dependence and loss of bladder control due to loss of mobility consequent upon arthritis.  The positions are in principle indistinguishable.  Indeed, if anything, in our view the example would provide a stronger case for withholding benefit.  The lady’s overflow of urine is in no way connected by medical aetiology to her arthritis.  There is a more direct causal link between dependence on alcohol and intoxication.

 

31.       Part of the reason for the different conclusions reached by Mr Commissioner Bano and Mrs Commissioner Parker lies in the different approaches they took to the ability of a person dependent on alcohol to control his intake.  Mr Commissioner Bano assumed a degree of “willingness to control his or her alcohol consumption”.  Mrs Commissioner Parker’s approach was predicated on the consumption of alcohol being “uncontrollable”.  Mr Maurici and Mr Forsdick put the issue in similarly absolute and mutually exclusive terms; dependence (involving no choice) or voluntary consumption (involving an entirely free choice).

 

32.       However, we do not see the issue in such stark terms.  It is no part of a medical definition of alcoholism that the condition is “uncontrollable” in the sense that it is absolutely impossible for a person to control the condition, eg by becoming and remaining abstinent.  We have already referred to the DSM IV diagnostic criteria for dependence (see paragraph 18 above).  The definition is expressed in terms of consequences rather than causes and does not imply a complete loss of control, although marker (2) implies that becoming abstinent may be difficult and even dangerous in the short term, markers (3) and (4) imply some loss of control and markers (5) to (7) imply at least a distortion of priorities.  This definition shows that it is inappropriate to think in absolute terms of choice or no choice.

 

33.       Rather than a clear-cut distinction between dependence and choice, in our judgment it is more helpful to think in terms of the degree of self-control that is realistically attainable in the light of all of the circumstances, including the claimant’s history and steps that are available to him to address his dependence.  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.

 

34.       We find support for our conclusion in the lack of any policy rationale on which section 72(1) might distinguish between the short-term and long-term consequences of alcohol dependence.  The Secretary of State was unable to suggest one, other than the point made by Mr Commissioner Bano that adjudication may in such cases be difficult because of the wide diversity of facts and circumstances that might arise.  But that is true of many cases that fall within the legislation.  Moreover, disentangling the effects of being drunk from the effects of medical conditions such as depression (which are often coterminous) would also be difficult if not impossible, and would always be required on the approach advocated by the Secretary of State.  It is noteworthy that, in the appeal before us, the claimant contends that he began drinking to alleviate the pain from his back, and the consequences of depression and inability to work that resulted from his physical injuries.  In this very case it would be an extraordinarily difficult task to tease out the effects of these various matters, which all ultimately stem from the claimant’s aggregated medical conditions.

 

35.       We record that neither Mr Maurici nor Mr Forsdick suggested that the fact that a claimant suffering from alcohol dependence might spend DLA on drink rather than the care he needs – a point alluded to by both Miss Commissioner Fellner in CDLA/778/2000 and Mr Commissioner Bano in CDLA/2408/2002 – is a material consideration.  We agree that it is not.  If it were, it would apply as much to those suffering the long-term effects of alcohol dependence as to those suffering the transitory effects.  However, it does seem to us to be desirable that a claim for DLA by a person who is suffering from alcohol dependence should at least raise the question whether the assistance the claimant needs is help to stop drinking rather than help to deal with the consequences of drinking.  Our approach does that.  It requires the decision-maker or tribunal to consider whether the claimant could realistically be expected to reduce his or her consumption of alcohol so as to avoid the requirement for attention, supervision or other help upon which the claim for DLA is based.

 

36.       A person who is properly regarded as dependent on alcohol may well have some ability to control his alcohol consumption without professional assistance.  However, there is no reason why the possibility of the claimant’s taking advantage of such assistance should not be taken into account in assessing the attention, supervision or other help that is required by a person who is claiming DLA.  Dr Watts said that such professional assistance is widely available through the National Health Service, and that a detoxification course takes four to six weeks.  There would, of course, be a waiting period between referral and a course becoming available during which a claimant would still be drinking but, even so, we were told that, if successful, a programme of rehabilitation is likely to result in a claimant losing his dependence within the six month minimum period of entitlement laid down by section 72(2)(b) or section 73(9)(b) of the 1992 Act.

 

37.       However, Dr Watts also said that, in a significant proportion of cases, programmes of rehabilitation are not permanently successful and patients relapse.  Indeed, we observe that one of the diagnostic criteria for dependence is that the patient has failed to give up alcohol.  For a particular claimant, rehabilitation may, therefore, not be a realistic possibility.  It may have previously been tried with little or no effect; or the claimant may lack insight or motivation to such an extent that rehabilitation at that stage is not feasible.  If rehabilitation is not currently feasible, we agree with Miss Commissioner Fellner who said in CDLA/778/2000 that the tribunal should recognise that this may change and fix the period of any award appropriately.

 

38.       Therefore, a decision-maker or tribunal considering a claim for DLA based on the short-term effects of alcohol dependence will wish to know whether the claimant has ever been referred for rehabilitation and, if so, the outcome; the reason why other possible courses of intervention have not been considered or considered but rejected; and what the prospects would be for a future referral or a further referral.  The claimant’s medical records will often answer at least the first of those questions.  It is to be noted that a referral may have an effect not only on the transient effects of intoxication, but also on other adverse effects such as depression which, as we have indicated, may interact.

 

39.       Where rehabilitation is not a realistic possibility, the transient effects of being drunk must be taken into account but will seldom, if ever, entitle a person to DLA by themselves.  Significant consumption of alcohol alone will certainly not imply satisfaction of any conditions of entitlement.  As we have indicated, Dr Watts said that one result of the significant consumption of alcohol is toleration, so that the same amount of alcohol has less effect.  This is why many people who abuse alcohol nevertheless hold down jobs.  It also has important implications for the proportion of time that a person who consumes too much alcohol is so drunk as to require attention or supervision.  There is a spectrum of degrees of drunkenness and for only a small part is it likely that attention or supervision from another person will be both required and potentially effective.  Quoting Dr Watts’ evidence, someone who is intoxicated “will retain an awareness of surroundings and be able to relate to them until very late in the process.  There would normally be complete recovery within about 6 hours of stopping consumption of alcohol.”  A regular drinker may therefore be rather less drunk in the morning than in the evening.  The pattern of drunkenness during a day of drinking is material because entitlement under section 72(1)(b) depends on frequent attention or supervision being required “throughout the day”.  Attention, supervision or watching over may be required, but usually only when the claimant is most intoxicated.  It is only the most seriously drunk people who require care on that ground alone.  Such a claimant who vomits or is incontinent may need attention to clean himself and change the bedding.  There may also be a risk of choking on vomit, which might require that the claimant be supervised or watched over.  But we agree with Miss Deputy Commissioner Ovey’s comment in CDLA/3542/2002 (with which Mr Commissioner Bano agreed in CDLA/396/2004) that attention or supervision can reasonably be required only if something useful can be expected to result.  The claimant may be so intoxicated that any intervention would be either impossible or impractical.  In those circumstances, the assistance would not reasonably be required.

 

40.       Moreover, a claimant’s own evidence on consumption and its effects may require some scrutiny and testing against other known facts.  For instance, in the present case, the claimant said to the examining medical practitioner who saw him in 2002 that he drank 15 cans of strong lager a day.  His representative’s submission to the tribunal in 2005 said that he reported drinking “up to 12 cans of beer most days”, which suggests that he does not drink 12 cans every day.  If he claims to do so, he might reasonably be asked how he manages to pay for the drink he consumes.  Realistically, his average consumption may be lower, although he may well drink 12 or 15 cans on some days.  Therefore, although he appears to have drunk to excess over a sufficient period of time to have caused haematemesis and acute pancreatitis and frequent injuries due to falling, there may be very substantial periods when he is not so drunk as to require attention or supervision.  Entitlement to DLA does not depend on satisfying the criteria on every day, but it does depend on being likely to satisfy them for a substantial proportion of the period for which benefit is claimed (R(A) 2/74, R(IB) 2/99 and Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, [2003] 1 WLR 1929 (also reported as R(DLA) 7/03)).  The words “most of the time” appear on the face of the legislation in section 73(1)(d) and it is without surprise that we note that the claimant in the present case does not seek the lower rate of the mobility component.’

 

29.   The reasoning in R(DLA) 6/06 was approved in this jurisdiction by Commissioner Brown in C4/06-07(DLA), at paragraph 9.

 

30.   How then did the appeal tribunal apply the reasoning in R(DLA)6/06?

 

31.   The appeal tribunal produced separate SORs for the care and mobility components of DLA.  In the SORs for the care component there is no specific reference to the principles in R(DLA) 6/06 but it is clear that the appeal tribunal had those principles in mind.  At paragraph 4 of the SORs, the appeal tribunal recorded:

 

‘Although Cllr McArdle has asked us to look at his needs arising from his (accepted) chronic alcoholism, the General Practitioner’s records confirm no Korsakoff’s syndrome, no liver changes and no peripheral nerve damage.  The problem is that (the claimant) is not constantly drinking or drunk.  He is a binge drinker.  During a binge of drinking, attention or supervision would not be reasonably required because he would be so intoxicated that any intervention would be either impossible or impractical.  In addition, his binges would not last 3 or 6 months (the qualifying periods) and a binge of 2 months can be followed by a not insignificant period of up to 3 weeks with no drinking.  We accept that for the first day or two of a non-drinking period his wife would have to encourage him regarding his bodily functions but this would not be enough to bring him into any rate of DLA.’

 

32.   It is clear from this extract that the appeal tribunal accepted that the appellant did suffer from chronic alcoholism.  Further, the first sentence of the extract, and the finding that the appellant did not suffer from Korsakoff’s syndrome, and no liver changes and no peripheral nerve damage, appears to be directed at the comments of the Tribunal of Commissioners at paragraph 21 of R(DLA) 6/06, where they state:

 

‘… if a separate medical condition arises from the excessive consumption of alcohol, then any disabling manifestations of such a condition can be taken into account in assessing entitlement to the care component and the lower rate of the mobility component of DLA, whether or not the ingestion is related to alcohol dependence.  If the disabling manifestations also have a physical cause, they can also be taken into account in assessing entitlement to the higher rate of the mobility component.’

 

33.   The appeal tribunal has concluded that there is no separate medical condition which arises from the excessive consumption of alcohol, from which there are disabling manifestations which require to be taken into account in assessing entitlement to DLA.  In arriving at this conclusion, the appeal tribunal appear to be discounting that the appellant’s other cited medical conditions, as listed at page 5 of the renewal claim form to DLA, do not arise from his alcoholism.

 

34.   I would note, at this stage that I find no error of law in the appeal tribunal’s conclusions with respect to separate medical conditions and their disabling effects.  The appeal tribunal has undertaken an assessment of the evidence which was before it and has arrived at a conclusion which was wholly justified.

 

35.   The appeal tribunal’s further statement that ‘…during a binge of drinking, attention or supervision would not be reasonably required because he would be so intoxicated that any intervention would be either impossible or impractical …’ appears to be directed at the comments of the Tribunal of Commissioners at paragraph 39 of R(DLA) 6/06, where they state:

 

‘… Attention, supervision or watching over may be required, but usually only when the claimant is most intoxicated.  It is only the most seriously drunk people who require care on that ground alone.  Such a claimant who vomits or is incontinent may need attention to clean himself and change the bedding.  There may also be a risk of choking on vomit, which might require that the claimant be supervised or watched over.  But we agree with Miss Deputy Commissioner Ovey’s comment in CDLA/3542/2002 (with which Mr Commissioner Bano agreed in CDLA/396/2004) that attention or supervision can reasonably be required only if something useful can be expected to result.  The claimant may be so intoxicated that any intervention would be either impossible or impractical.  In those circumstances, the assistance would not reasonably be required.’

 

36.   The appeal tribunal appear to have concluded that the appellant’s pattern of drinking is not continuous but consists of binges.  During a binge the appellant would be so intoxicated that any intervention by way of attention or supervision would be futile, in that it would be impossible or impractical to achieve.  Accordingly any such attention, according to the principles in paragraph 39 of R(DLA)6/06 would not reasonably be required.

 

37.   Once again, it is, at first glance, difficult to find an error of law in the appeal tribunal’s conclusions in this regard.  That conclusion was based on a careful assessment of the evidence, clear findings in fact, and an accurate application of the relevant legal principles.  I would wish to add a qualification, however, that it is not clear whether the appeal tribunal has concluded that during every drinking binge, and every day of a drinking binge, the appellant is so intoxicated that any intervention would be either impossible or impractical.  As was noted at paragraph 39 of R(DLA)6/06:

 

‘… There is a spectrum of degrees of drunkenness and for only a small part is it likely that attention or supervision from another person will be both required and potentially effective.  Quoting Dr Watts’ evidence, someone who is intoxicated “will retain an awareness of surroundings and be able to relate to them until very late in the process.  There would normally be complete recovery within about 6 hours of stopping consumption of alcohol.”  A regular drinker may therefore be rather less drunk in the morning than in the evening.  The pattern of drunkenness during a day of drinking is material because entitlement under section 72(1)(b) depends on frequent attention or supervision being required “throughout the day”.  Attention, supervision or watching over may be required, but usually only when the claimant is most intoxicated.  It is only the most seriously drunk people who require care on that ground alone.  Such a claimant who vomits or is incontinent may need attention to clean himself and change the bedding.  There may also be a risk of choking on vomit, which might require that the claimant be supervised or watched over.’

 

38.   The appeal tribunal then went on to state:

 

‘… In addition, his binges would not last 3 or 6 months (the qualifying periods) and a binge of 2 months can be followed by a not insignificant period of up to 3 weeks with no drinking.  We accept that for the first day or two of a non-drinking period his wife would have to encourage him regarding his bodily functions but this would not be enough to bring him into any rate of DLA.’

 

39.   As was noted above, at paragraph 40 of their decision, the Tribunal of Commissioners at paragraph 39 of R(DLA) 6/06 stated that:

 

‘… Entitlement to DLA does not depend on satisfying the criteria on every day, but it does depend on being likely to satisfy them for a substantial proportion of the period for which benefit is claimed (R(A) 2/74, R(IB) 2/99 and Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, [2003] 1 WLR 1929 (also reported as R(DLA) 7/03)).’

 

40.   In R(DLA) 5/05, the then Chief Social Security Commissioner for Great Britain stated, at paragraph 12:

 

‘12.      What matters of law affect where this line is drawn?  Of course, these cannot be dealt with comprehensively in this decision, nor do I purport to do so – but the following matters are particularly relevant to the cases before me.

 

12.1    As I indicate above, a determination as to whether a criterion has been satisfied cannot be made by reference to an inflexible benchmark.  Therefore, for example, in relation to whether the night-time criteria of section 72(1)(c)(ii) are satisfied, although no doubt the number of nights upon which a claimant requires “prolonged or repeated attention” is a relevant factor which a decision-maker must take into account, a claimant does not automatically fail to satisfy that condition merely because (eg) he does not satisfy the criteria for at least a majority of the nights of the week.  Similarly, a person may satisfy the requirements of a provision “throughout” a period, even if he does not satisfy the statutory criteria for a majority of the days of the week.  By way of further example, although “prolonged” may “seem to be accepted by decision-makers to mean 20 minutes or more” (Social Security Legislation 2003 Vol 1 paragraph 1.205), “prolonged attention” cannot be expressed in a given number of minutes (eg 20 minutes), beyond which attention is invariably “prolonged” and within which it is invariably not “prolonged”.

 

12.2    However, although the discretion of the decision-maker or tribunal must be actively exercised in each case, this does not mean that they cannot have cognisance of any sort of guideline.  For example, although it cannot be said that attention of less than X minutes cannot in any circumstances be “prolonged”, it is difficult to conceive of circumstances in which, say, 3 minutes attention could properly be considered “prolonged” (see R(A) 2/74, paragraph 35): and a guideline that attention of anything less than 20 minutes is unlikely to be “prolonged” may be at least a reasonable starting point (see CDLA/4024/2003, paragraph 5).  It is not wrong for decision-makers to have starting point guidance in mind when considering such determinations, so long as they consider each case on its own facts and look for factors which may lead to the guidance being inappropriate in that case (eg circumstances that may render attention of less than 20 minutes “prolonged” for the purposes of section 72(1)(c)(i)).

 

12.3    As identified by Lord Hoffmann, the subsections of section 72(1) require consideration of a “composite question”, and it is unhelpful to regard the test as comprising a number of stages.  For example, with regard to section 72(1)(b)(i), the Secretary of State submitted in his observations to me in Case No CDLA/5465/2002 that this provided for a two-stage test or a test involving two discrete questions, ie (i) is the attention required frequently and, if so, (ii) is it required throughout the day.  However, this approach is not helpful and may lead to error.  The real question is the composite one of whether, throughout the relevant period, the claimant was so severely disabled that, by day, he or she required from another person frequent attention throughout the day in connection with his or her bodily functions.

 

            The need to consider the requirements of section 72(1) in a composite way is well established in long-standing Commissioners’ jurisprudence.  Considering provisions of the National Insurance Act 1972 substantively similar to those of section 72(1)(c), in words resonant with those of Lord Hoffmann, Mr Commissioner Shewan said in CSA/2/1973 (paragraph 8):

 

            “… [T]he statutory condition could not, in my view, be held to be satisfied by evidence that on one solitary occasion the disabled person required prolonged or repeated attention during the night:  nor, in my view, is it necessary, for satisfaction of the condition, to show that on every night he requires such attention.  The test must be something between these two extremes.  I respectfully agree with the statement, in Decision CA 2/73 (paragraph 13), that ‘in order to determine whether a condition is satisfied, or is likely to be satisfied, regard must be paid to evidence of the claimant’s requirements over a period of time …’.”

 

            This composite approach was expressly approved by the Chief Commissioner in R(A) 2/74, to which I have already referred.

 

12.4    In Lord Hoffmann’s words, “it is seldom helpful to make additions or substitutions in the actual language he [the author] has used”.  Earlier cases – of both the Commissioners and the courts – which seek to make such additions or substitutions need to be considered with very great caution.  It is likely that the propositions for which they have been cited in the past are no longer good.  For example, in relation to section 72(1)(b)(i), with respect I disagree with Mrs Commissioner Parker (in CSDLA/590/2000, paragraph 43) that the words “frequent … throughout the day” necessarily mean (and could usefully be replaced by) “very often over the course of the whole day”.  As Lord Hoffmann indicated, such attempts at clarification by manipulating the actual words used are unlikely to be helpful, and may lead to error.

 

            Again, if I might venture to say so, this is well established from earlier Commissioners’ cases.  In R(I) 2/74, the Chief Commissioner Sir Robert Micklethwait QC, having said that there can be no objection to discussion of the component parts of benefits conditions, went on:

 

            “When however the adjudicating authority comes to the point of actual decision of a statutory question, it is then essential for it to decide that question and not some other one.  This makes it dangerous for either an adjudicating authority or the forms supplied for its use to use, at the decision stage, language different from that of the statute, which may lead to doubt whether the authority has decided the correct question.”

 

12.5    Nor, in relation to the definitions of “frequent”, “prolonged” or “repeated” in section 72(1), do I consider the oft quoted words of the Master of the Rolls in R v National Insurance Commissioner ex parte Secretary of State for Social Services [1981] 1 WLR 1017 reported as Appendix to R(A) 2/80 to be of any substantial assistance. In that case, Lord Denning MR said:

 

            “‘Frequently’ connotes several times – not once or twice.  ‘Prolonged’ means some little time.  ‘Repeated’ means more than once at any rate.”

 

            In addition to Commissioners’ decisions, the learned authors of standard texts refer to these as definitions with apparent support (see, for example, “Social Security Legislation 2003” Vol 1 paragraph 1.205 and “The Law of Social Security”, 5th Edition, Wikeley, Ogus & Barendt, page 698).  However, although the case provides important authority upon the question of whether “cooking” comes within the words “attention in connection with [her] bodily functions” (which was the matter in issue), any comments on the meaning of “frequent” or these other words were obiter.  More importantly – because obiter dicta of the Court of Appeal are in any event persuasive – in my view, Lord Denning was not purporting to lay down definitions but only identify some obvious characteristics of these words as conventionally used.  To say that “repeated” connotes something occurring “more than once” is not only self-evident (as Lord Denning himself clearly appreciated from his addition of the words “at any rate”), but in most cases will not be particularly helpful.  “Frequent” clearly does require there to be several occurrences, but the characteristic of frequency is not simply the number of times something occurs, but the rate at which it occurs.  “Frequency” is a product of the number of times something occurs over a period of time.  “Frequent” does not mean “several”, either in conventional usage or in the specific context of section 72(1).

 

            In my view, with regard to section 72(1), the words of Lord Denning MR quoted above have attracted a definitional authority neither intended nor warranted.  The Master of the Rolls merely made some general and uncontentious comments in respect of the conventional usage of these words.  Whilst one can only have respect for the words of Lord Denning – who always used the tools of his trade carefully and skilfully – it is important that his every comment is not clothed with something akin to statutory force.  His comments in R v National Insurance Commissioner should not be treated as comprehensively defining these terms in the context of section 72(1).

 

12.6    Phrases in section 72(1) such as “frequent … throughout the day” consist of ordinary words not used in any unusual sense (see CA/147/1984).  Although context is of course important – and I will return to it – the starting point in the construction of such phrases is the ordinary meaning of the words in conventional usage.

 

            Therefore, by way of example, as I have indicated, “frequent” requires consideration of, not just the number of occasions something occurs, but the time over which they occur:  the word having the characteristic of recurrence at intervals which are not long.  Whether intervals between occurrences are or are not “long” – and therefore whether occurrences can properly be said to be “frequent” – therefore depends upon a number of factors, particularly the number and pattern of those occurrences over time.  The nature of the occurrences themselves is also relevant.  For example, “frequent” ice ages properly so-called would be very different in number and pattern from a “frequent” train service properly so-called.  Indeed, because the nature of the occurrences is something relevant to the question of whether those occurrences are “frequent”, I do not quite agree with Mrs Commissioner Parker (in CSDLA/590/ 2000) that the proper approach to frequency can take no account of duration of the relevant occurrence (except to exclude instances of attention that are de minimis as she accepts).  Although it is often not illuminating to see how words are used in entirely different contexts, in common usage consideration of the frequency of a train service is affected by the length of the journey involved.  An hourly service from London to Birmingham may be spoken of as “frequent”, but an hourly short local service may not.  However, although in my view duration of individual occurrences is not necessarily irrelevant, in relation to periods of attention under section 72(1)(b)(i) the number and pattern of occurrences will usually be the most relevant – indeed, the overriding – factors in relation to the issue of “frequency”.

 

12.7    However, as well as the conventional usage of the words used, in construing the requirements of the various subsections of section 72 it is important also to take into account the context of the relevant provisions.  The subsections set out sets of criteria for each of three levels of the care component of DLA.  Because the tests for the different rates are separate and not logically progressive, there is no strict hierarchy whereby a claimant who does not satisfy the lowest rate criteria (of section 72(1)(a)) could not logically satisfy the requirements of one of the middle rate tests (see, eg, CDLA/12150/1996, paragraph 12).  It would also be simplistic to suggest that those with disabilities can easily be “graded” for DLA purposes, if only because it is difficult to compare the functional effects of dissimilar disabilities.  However, even with these caveats in mind, in construing the provisions of section 72(1)(b) or (c), it is proper to bear in mind that a person who satisfies those criteria is entitled to over twice the weekly benefit of someone who satisfies only the criteria of section 72(1)(a).  DLA is a benefit which is specifically designed to give different levels of financial assistance in response to different levels of functional disability.  It cannot have been Parliament’s intention that less disabled people should generally be awarded higher levels of DLA than those who are more disabled.  Similarly, although the requirements are clearly different in nature, in construing the requirement of section 72(1)(b)(i) (“frequent attention throughout the day in connection with his bodily functions”), it is proper to take into account that the same level of benefit is attached to this requirement as the requirement for “continual supervision throughout the day in order to avoid substantial danger to himself or others” (section 72(1)(b)(ii)).

 

Therefore, the construction of each set of criteria within section 72(1) is to an extent informed by not only the DLA scheme as a whole, but also where it falls within the particular scheme of section 72(1).’

 

41.   Although the issue is a very narrow one, it seems to me that the appeal tribunal was in error in how it approached the question of whether the appellant would satisfy the conditions of entitlement during what are commonly referred to as the ‘qualifying periods’.  In reality these are the periods set out in section 72(2) and 73(9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  The appeal tribunal concluded that the appellant’s drinking binges would not last for three or six months and, accordingly, he could not satisfy the provisions of section 72(2) and 73(9).  What the principles in Secretary of State for Work and Pensions v Moyna and R(DLA) 5/05 tell us is that the proper approach is to look at the period as a whole, take a broad or ‘common-sense’ view and determine the composite question of whether, throughout the relevant period, the claimant satisfied the conditions of entitlement to DLA.

 

42.   The situation is, in my view, different to the often-quoted hypothetical case where an individual breaks a leg and has a resultant disablement for a short period, the period being so short that the conditions set out in section 72(2) and 73(9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 could never be satisfied.  The appeal tribunal in the instant case has approached the question from that perspective.  The situation in the instant case is more akin to that pertaining in Moyna and R(DLA) 5/05 where the disabling effects of the medical condition fluctuated.  It was in the context of fluctuating conditions that the relevant principles were evolved.

 

43.   With some regret, therefore, I conclude that the decision of the appeal tribunal is in error of law.  There is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made, particularly with respect to the pattern and form of the appellant’s alcoholism.  I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

         Disposal

 

44.   The decision of the appeal tribunal dated 30 January 2008 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

45.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)                 the decision under appeal is a decision of the Department, dated 14 September 2007 a decision-maker of the Department decided that the applicant was not entitled to DLA, from and including 6 September 2007;

 

(ii)               the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

 

(iii)             it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

 

(iv)              it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

22 April 2010