UK Social Security and Child Support Commissioners' Decisions

 


[2004] UKSSCSC CDLA_396_2004 (30 September 2004)

CDLA/396/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the tribunal's decision but, since I regard it as expedient to do so, I make findings of fact on the basis of which I substitute for the tribunal's decision a decision to the same effect, namely, that the claimant was not entitled to disability living allowance from and including 27 November 2000.
2. This is the second appeal to a Commissioner arising from a claim for disability living allowance made on 27 November 2000 by a claimant who suffers from alcohol abuse. I held an oral hearing of the appeal on 23 June 2004 at which the claimant was represented by Mr Chris Hughes, of Stoke Citizens' Advice Bureau, and the Secretary of State was represented by Mr Daniel Kalinsky, of Counsel. I am grateful to them both for their assistance.
3. The previous Commissioner's appeal was decided by deputy Commissioner Miss Elizabeth Ovey, who on 13 March 2003 set aside the decision of a tribunal dismissing the claimant's appeal against a Secretary of State's decision refusing the claimant both the mobility and care components of disability living allowance and remitted the case for rehearing before a differently constituted tribunal (CDLA/3542/2002). I gratefully adopt the deputy Commissioner's summary of the facts:

"2. The facts of the matter are as follows. By a claim form issued on 27^th November 2000 the claimant made a new claim for disability living allowance. The illnesses or disabilities from which he suffers were stated as depression, panic attacks, alcoholism and vibration white finger. He did not claim to have physical difficulty in walking, but said that he needed someone with him because of his panic attacks and that he was liable to fall owing to the effects of alcohol. Alcohol also contributed to difficulties in moving about indoors, difficulties with toilet needs, difficulties with cooking, outbreaks of aggressive or violent behaviour, confusion and periods in which the claimant was not aware what was happening. The claimant's depression meant that he needed encouragement to get out of bed, get dressed, look after his appearance and cook. The vibration white finger sometimes caused difficulties in eating. Frequent references were made to the claimant's need of help from his wife and daughter. He summed up his position by saying:

"I have suffered for several years from mental health problems and alcoholism. I get very depressed and am very lonely. I seem to have a split personality so at times can be reasonable and other times can be violent. I also hear voices and faces floating in front of me. I go for counselling for my alcoholic abuse and depression every week.

I can go out and get drunk at any time. Obviously when I am in this state I do not know or am responsible for my actions.

I prefer to be on my own and keep my own company. I have difficulty in communication with other people, have difficulty remembering things and can get violent at times."

3. Before making its decision, the Benefits Agency obtained two medical reports. The first, dated 2^nd January 2001, was from a psychiatrist at the hospital attended by the claimant. She confirmed the diagnoses of alcohol abuse and depression, the onset of which was many years ago, and said of the claimant's condition, "Presently stable, but does indulge in heavy drinking intermittently". She said that when not under the influence of alcohol there were no difficulties experienced with walking and self-care, that the claimant was not at substantial risk of self-neglect, that he could walk long distances and that he did not need supervision in order to get around either in familiar or in unfamiliar places. The second report, dated 12^th January 2001, was from the claimant's G.P. and again confirmed the diagnoses and the time of onset. Details were given of the drugs prescribed and the prognosis was said to be poor, because there was no motivation. The G.P. did not suggest that the claimant would have difficulty with the standard list of tasks, but said that his walking was limited in that after 50 yards he started to have pain and that he could not keep his balance. He also said that someone had to help the claimant to carry out his daily chores, that he could not be relied upon to act on his own as he got low moods, confused and something illegible, and that someone had to be with him "to assist his activities in unfamiliar surroundings". He concluded that the claimant needed continuous supervision to help him on with his daily chores and that he got confused and his wife helped him deal with almost all problems.

4. There was thus something of a conflict between the reports of the two doctors treating the claimant. Their reports and the claim pack were referred for advice from Medical Services. The conclusion expressed in a report dated 22^nd January 2001 was that the claimant's aggressive behaviour and hallucinations were related to his periods of heavy drinking. In between his condition was stable.

5. On the basis of that information, the decision maker decided on 26^th January 2001 that the claimant was not entitled to either component of disability living allowance. The claimant consulted the Citizens Advice Bureau, who helped him to write a letter dated 13^th February 2001 seeking full written reasons. On 19^th February 2001 the claimant wrote seeking a revision of the decision. It seems that that letter may have gone astray, since the next document is a letter received on 11^th July 2001 from the Citizens Advice Bureau enclosing a copy of the letter dated 19^th February. The decision was then reconsidered on 14^th August 2001 but was not changed.

6. The claimant then supplied to the Benefits Agency a letter dated 15^th August 2001 from his G.P. which explained that because of his drink problem he had lost his temper and attacked his wife. It seems likely that the letter was prompted by the consequences of the assault, which took place on 12^th August 2001, rather than the decision on reconsideration, which was apparently notified on 28^th August. The claimant, in response to an inquiry from the Benefits Agency apparently asking what he wanted them to do in the light of the G.P.'s letter, said on 19^th September 2001 that he would like them to review his claim. It seems that he was then supplied with a further claim pack, which he completed and returned. The general tenor of the form was similar to the original form, but the results of alcohol abuse featured very prominently and the claimant said that he had been arrested for domestic violence which had led to his living alone. The claimant appealed against the decision notified on 28^th August by an appeal form received on 11^th December 2001. The appeal was therefore out of time. The claimant explained this by his having been arrested for the assault on his wife and thereafter restrained from entering the matrimonial home, so that he had had a number of temporary addresses and had been in effect drowning his sorrows. The tribunal agreed to admit the appeal."

4. The claimant's representative had specifically asked the tribunal to make a finding on whether the claimant was capable of maintaining a sober lifestyle and the deputy Commissioner allowed the appeal, among other reasons, because the tribunal did not make such a finding.
5. The appeal was re-heard on 26 June 2003, but the claimant did not attend and his representative withdrew when an adjournment of the appeal was refused. After referring to the evidence, the tribunal concluded:

"The Tribunal Members were of the view that whilst the appellant was sober the claimant's abuse of alcohol did not and would not cause physical or mental damage and that no disability would arise of such severity that it meant that the appellant was entitled to receive either the care component under the provisions of Section 72 of the Social Security Contributions and Benefits Act 1992, nor the mobility component under the provisions of Section 73 of the 1992 Act and Regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 as amended. The Tribunal was also of the view that at the date of the decision maker's decision the appellant had not substantially lost the ability to control his intake of alcohol. But the Tribunal went on to consider the theoretical position that if the appellant had lost his ability to control his intake of alcohol as to what care and mobility needs would reasonably result from that. The appellant himself claimed that he was finer (violent?) whilst in drink and also disruptive and it was very difficult for the Tribunal to see what care needs could reasonably arise from that because no reasonable caring member could expect to be subject to abuse and violent assault. In those circumstances legislation provides other means of for dealing with people by having them compulsorily detained in a Mental Health Institution which clearly has not happened in this case. That also makes the Tribunal tend to feel that the Appellant does have a considerable amount of willing choice as to whether he wishes to drink or not to drink as the case may be. Accordingly the Tribunal was therefore satisfied on careful review of all the evidence that it preferred the evidence of the Clinical Assistant of the Psychiatry Unit as having specialist knowledge in relation to alcohol abuse but was also of the view that the GP would have good knowledge of the appellant's ability to walk and look after himself. Accordingly taking into account all matters explained above the Tribunal was of the view that it was unable to allow the appeal and award the appellant either component of Disability Living Allowance at any rate."

6. The claimant's representative appealed on his behalf, on the grounds that the tribunal failed to explain why they concluded that the claimant had not lost the ability to control his intake of alcohol and ought to have considered whether the claimant reasonably required supervision in order to ensure that he did not drink. In granting leave to appeal on 18 February 2004, I invited a submission on whether supervision or attention needs resulting solely from the effects of alcohol intoxication are to be taken into account, in the light of my decision CDLA/2408/2002. The Secretary of State opposed the appeal in a submission dated 22 March 2004.
7. In relation to the first ground of appeal, Mr Kalinsky submitted that the decision of the tribunal had to be read in the light of the deputy Commissioner's decision allowing the earlier appeal. The first tribunal had been asked by the claimant's representative to make a finding on the question of whether the claimant could maintain a sober life-style and their decision had been overturned by the deputy Commissioner because they had failed to make that finding. An answer to the question posed by the claimant's representative was also necessary to deal with the issues identified by the deputy Commissioner in her decision.
8. Although the tribunal undoubtedly did have to consider whether the claimant's ability to control his intake of alcohol was impaired, I have come to the conclusion that the tribunal's conclusion that the claimant had not substantially lost that ability cannot be sustained. In her submission on the earlier appeal, the Secretary of State's representative submitted an expert medical opinion from Doctor David Dewis, which had been obtained in response to a direction by Mr Commissioner Henty in CDLA/2228/1999. Doctor Dewis is a Medical Policy Manager in the Medical Policy Group of the Department of Work and Pensions and a member of the Medical Council on Alcoholism. He expressed the view that alcohol and substance disorders are recognised mental health conditions, not merely arising as result of defective character, which are recognised mental health conditions in the DSM IV and ICD10 classifications. He continued:

"The question of whether a person with alcohol or drug abuse problems can control their intake by force of will-power is a complex issue. However, once a person has reached a state of being physically and psychologically dependent on a particular drug, a loss of ability to control the intake of that substance will be part of the overall clinical picture. Such a person may be able to resist taking a drink or drug if offered one on a particular occasion, but over any period of time (the length of which may vary between individuals) the ability to exercise this control will be lost. It is certainly not uncommon for someone with alcohol dependence to need to take a drink every few hours, despite the individual having an intense desire to stop. The affected person will be unable to exert strength of character over the situation, despite being able to show evidence of such character strengths in other situations. In addition, a state may also be reached when failure to take another drink or drug within a particular time period may lead to distressing psychological and physical withdrawal symptoms."

9. The Clinical Assistant in Psychiatry at the unit where the claimant was receiving treatment gave diagnoses of "alcohol abuse" and "depression" and the claimant's general practitioner stated that the claimant suffered from long standing alcohol abuse. The claimant was attending an alcohol support group and was receiving psychiatric treatment, and in those circumstances all the evidence suggested that he had become physically and psychologically dependent on alcohol, and therefore limited in his ability to control his intake of alcohol over a period of time. The only reason given by the tribunal for concluding that the claimant could control his alcohol intake was that he had not been compulsorily detained under the Mental Health Act, but that reason simply cannot be sustained. I therefore agree with the claimant's representative that the tribunal failed to give adequate reasons for their finding that the claimant had not substantially lost his ability to control his intake of alcohol, and that their decision was therefore erroneous in point of law. The decision must accordingly be set aside.
10. Mr Hughes submitted that the tribunal ought to have considered both the supervision reasonably required by the claimant in order to prevent him from becoming intoxicated, and the supervision which was needed to guard against the resulting risks if intoxication occurred. Although neither the claimant nor his daughter attended the last appeal hearing, Mr Hughes contended that I should refer the case for rehearing if I allowed the appeal, so that a tribunal could consider whether the claimant had a realistic strategy for preventing danger to himself or others by means of supervision.
11. In CDLA/2408/2002 I held that transient attention needs resulting solely from alcohol intoxication, such as help given to a drunken person to stand or walk, should not be taken into account in deciding whether a claimant satisfies the attention conditions in section 72 of the Social Security Contributions and Benefits Act 1992. That decision was followed by Mr Commissioner Williams in CDLA/2833/2003 and by Mr Commissioner Pacey in CDLA/362/2003. Mr Kalinsky submitted that the reasoning in CDLA/2408/2002 applied equally to the supervision condition in section 72, because the supervision required by a claimant suffering from alcohol dependency is equally not a function of the severity of the claimant's disablement. Mr Kalinsky therefore submitted that the tribunal's failure to deal with the supervision required by the claimant in order to prevent him from becoming intoxicated was not a reason for allowing the appeal, nor was it a matter which should be considered by a new tribunal if the appeal was allowed for other reasons.
12. Although it will often be possible to isolate attention needs resulting solely from intoxication, it may be much more difficult to distinguish between supervision needs resulting from alcohol intoxication and those resulting from other features of a claimant's medical condition. In his opinion, Doctor Dewis stated:

"People who abuse alcohol or drugs frequently complain of a variety of psychological symptoms which include generalised anxiety, depression and phobias. It can be very difficult to determine whether a person is drinking excessively or taking drugs because of, for example, a primary anxiety state or depressive illness, or rather whether such symptoms are secondary to the substance abuse. Alcohol and a number of other drugs are central nervous system depressants and clinical depression is a frequent consequence of prolonged use. Anxiety of various forms can be a feature of such depression. In addition anxiety is a very frequent symptom of withdrawal from a variety of drugs. Thus users often find that anxiety levels build up when the next dose of the particular drug is due.

It can be very difficult to determine, in an individual case, whether such symptoms are the result of another primary mental health disorder, or are the secondary results of excess drug and alcohol intake. Usually, the only way to determine this is to observe the effects of the anxiety, depression etc of treating the alcohol or drug dependency. In my experience, such symptoms are more frequently due to the secondary effects of the alcohol or drugs, rather than due to some secondary mental health problems."

13. The claimant in this case presents many of the features described by Doctor Dewis. In addition to alcohol dependency, he suffers from depression which may be the cause of, or may be caused by, his alcohol abuse; together with mental characteristics which may be related to his propensity to violence. In a case such as this, it is clearly not possible to unravel the complex interaction between the various conditions giving rise to a claimant's possible supervision needs. While Mr Kalinsky's argument may be correct as a matter of pure statutory construction, in the context of this and similar cases I accept Mr Hughes's submission that in determining the claimant's supervision requirements it is generally necessary to consider the claimant's physical and mental disablement as a whole.
14. The nature and extent of the supervision which is required to satisfy section 72 was considered by Mrs Commissioner Parker in R(DLA)10/2002. The Commissioner held:

"Encouragement, support, comfort and reassurance to prevent self neglect or self-injury is capable of constituting supervision but there is the additional requirement that it must be reasonably required on a continual basis throughout the day in order to avoid substantial danger. Such danger is unlikely to arise with respect to self neglect because it is probable that encouragement to wash, dress and eat would be enough if provided for part of the day only. It may however be different with a claimant who makes suicide attempts or where there is evidence that without the support, mental health may deteriorate to that state.

15. In considering whether the claimant may satisfy the supervision condition of entitlement to the care component of disability living allowance, the opinion of Doctor Dewis is again very much in point. He states:

"The process of intoxication is such that the person, although suffering from impaired judgement, disinhibited behaviour etc will retain an awareness of surroundings and be able to relate to them until very late in the process. It is quite normal for drunken people to be able to find their way home unaided despite quite advanced levels of intoxication. Their impaired judgement may lead to a number of dangerous situations eg falling on stairs, due to getting into fights or as a result of driving. However, no amount of supervision can be of any real help in such situations. Indeed, any attempts to supervise are often vigorously resisted by the intoxicated person and the situation is made worse rather than better."

16. Mr Hughes submitted that I should refer the case for rehearing to a new tribunal to enable the claimant to show that a regime of continual supervision could be established in order to prevent him from drinking to excess, and thereby stop him from committing further acts of violence. For the reasons given by Doctor Dewis, I consider it unlikely that a claimant in a case such as this will be able to establish that continual supervision throughout the day is reasonably required in order to avoid substantial danger to the claimant or others, although there may perhaps be cases of the kind envisaged by Mrs Commissioner Parker where alcohol dependency, perhaps in combination with other mental conditions, may lead to risks, such as a risk of suicide, which can be averted by continual supervision. However, as the deputy Commissioner stated when allowing the first appeal, attention or supervision can only reasonably be required if something useful can be expected to result. I regard it as completely unrealistic to suggest that the claimant in this case could be continually supervised to prevent him from drinking, and I therefore regard it as unnecessary to refer the case for rehearing to a new tribunal to consider that issue.
17. Mr Hughes did not submit that the case should be referred to a new tribunal for any other reason, nor did he seek to challenge the decision of the tribunal in respect of mobility component or attention needs. However, on the basis of my view that attention needs resulting solely from excess consumption of alcohol should not be taken into account, I am satisfied from the documentary evidence before me that mobility component and care component on the basis of attention needs were correctly refused, essentially for the reasons given in the Secretary of State's submission on the first appeal.
18. So far as mobility component is concerned, the claimant's general practitioner stated that the claimant could walk 50 yards before experiencing pain, but there is no evidence that the claimant has any physical disability which might affect his walking ability and the doctor's statement that the claimant 'cannot keep balance wobbles cannot walk on straight line" suggests that he had in mind the effect of alcohol on the claimant's ability to walk. The general practitioner also stated that someone had to be with the claimant to assist his activities in unfamiliar surroundings, but I agree with the Secretary of State's submission that that does not mean that the claimant needs guidance an supervision to enable him to take advantage of the faculty of walking in unfamiliar places. The Clinical Assistant in Psychiatry stated that the claimant did not need supervision in familiar or unfamiliar places, and I can see no reason to doubt that that is the position.
19. With regard to attention, I also agree with the Secretary of State's submission that it is apparent that most of the claimant's needs result from him drinking to excess, rather than from his underlying condition. The claimant's own references to care needs nearly contain the words "when I have been drinking", or words to similar effect, and there is no indication that the claimant's depression results in any care needs other than possibly a need for encouragement to get out of bed and to get dressed. The general practitioner stated that the claimant needed no help to carry out his bodily functions safely and independently or to cook himself a main meal. I do not consider that the encouragement needed by the claimant to get up and dress amounts to attention which is either frequent or for a significant portion of the day.
20. For those reasons, although I allow the appeal, I substitute for the tribunal's decision a decision which is to the same effect.

(Signed) E A L Bano

Commissioner

30 September 2004