The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"Tribunal found (1) found [sic] appellant's evidence re his alcohol consumption and efforts to control it vague, unconvincing and inconsistent with medical evidence. (2) Noted "Halliday" but did not consider it relevant in this case as alcoholism is not a physical or mental disability. CSDLA/268/95."
The tribunal had held that the claimant suffered from "epilepsy caused by alcoholism". They went on to find that the seizures were frequent, random and unpredictable and that he had suffered from marked alcoholic hepatitis for over 4 years which caused a peripheral neuropathy affecting his walking and grip. They further found that the claimant had had several falls over the previous years involving attendance at hospital casualty departments. They concluded that the claimant failed to satisfy the statutory tests in section 72 and 73 of the Social Security Contributions and Benefits Act 1992. There are no findings to show what were the effects of the epilepsy or of the peripheral neuropathy nor as to whether they gave rise to any need for attention or supervision or discomfort in walking.
"What type or types of epilepsy does the patient suffer from?"
"1. Alcohol/cannabis related seizure.
2. Trauma on CT scan old injury."
I think it is a valid criticism of the tribunal decision that they appear to have rejected the need to assess any part of the claimant's epilepsy because they regarded it as alcohol related in origin. Insofar as there is, and I am expressing no medical view merely repeating what is set out at document 64, a form of epilepsy caused by an accident then, however it might have been difficult, that and its consequences should have been assessed in the usual way with a view to discovering what if any attention, supervision or walking restriction resulted for the purposes of said Sections 72 and 73. Had that been all to the case I would have set the decision aside and remitted the matter to a new tribunal to deal with upon that basis. But I do not only so direct the new tribunal, for the reasons which follow.
"The claimant's position is that he suffers from chronic alcoholism and, in consequence it would seem, anxiety and depression. It does not seem obvious to me, however, that chronic alcoholism could properly be described as a physical or mental disability at all, If what is described is a condition brought on by the on-going use of alcohol which a claimant could control if he wanted to and had sufficient strength of character, it could not be said as a matter of ordinary language, I think, that he suffered from any disability at all. Weakness of character, or lack of self-control, are not mental disabilities."
"Before any question of entitlement could arise, it is necessary in my opinion to establish the condition of which the claimant complains is truly beyond his control; and in the ordinary way I do not think that either drug or alcohol abuse, or their effects, could be said to be beyond the control of a person who does not suffer from any recognisable and serious mental or psychological disorder. I can quite appreciate that a person who suffers from mental illness, one of the manifestations of which a substance abuse of some kind, may be said to be severely disabled; but if it is the ongoing abuse which has as one of its consequences some mental disturbance, and nothing more, that is not enough: see Commissioners decision R(A)2/92 and re H, Court of Appeal, unreported, 17 February 1994."
"...and in the ordinary way I do not think that either drug or alcohol abuse, or their effects, could be said to be beyond the control of a person who does not suffer from any recognisable and serious mental or psychological disorder.
They were used to justify this tribunal's conclusion that the epileptic effects of this claimant's alcohol abuse could not be taken into account because it had not been established that his alcoholism was beyond his control. Certainly there is no question that he was otherwise suffering from a recognisable and serious mental or psychological disorder.
"... tried Alcoholics Anonymous and Gartnaval Hospital Psychiatric Alcohol Treatment Unit without success in the past."
But earlier he had observed that compliance with anti-convulsant treatment had been -
"... very erratic. Consequently he has continued to take seizures. His compliance is no doubt effected by his inability to abstain from alcohol."
It is those passages which have led to my concern. But I only mention this matter because, on the one hand, I reject Mr MacKinnon's criticism of the tribunal for not determining that the claimant's alcoholism was outwith his control but, on the other, because Miss Aitken raised a question as to whether, if the alcoholism was treatable, that should be allowed for in the assessment. I do not think that it is relevant for a tribunal to consider whether treatment properly undertaken might ameliorate a condition or wipe out any of the need for supervision, attention or ease any difficulty with walking. I think that it is for the tribunal to assess the matter free from any contentions about the possible effects of such medical treatment - R(M)1/95. If treatment is undertaken and has an effect then, so far as may be relevant, an award can be reviewed and, if necessary, revised.
W M Walker Q.C.
8 October 1998