THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal against the decision of the First-tier Tribunal given at Coventry on 9 December 2009 is refused. It is dismissed.

 

 

REASONS FOR DECISION

 

 

1.               The claimant has appealed to the Upper Tribunal against the decision of the First-tier Tribunal disallowing his appeal from the decision of the Secretary of State issued on 30 April 2009. The tribunal confirmed that decision. That decision is recorded at page 52 and was to the effect that the claimant cannot be accepted as having limited capability for work from 30 April 2009.

 

2. The grounds of appeal are in the following terms:

 

“I believe the tribunal failed to give adequate reasons for findings on material matters.

The tribunal state (para. 5.9) that I “function at a reasonable level” and “attend to own needs without any significant intervention or assistance from another person”. Yet the evidence I gave to the tribunal on the day was that my sister buys my clothes, takes me shopping, makes sure paperwork is dealt with, takes me to appointments, cleans and tidies my house and washes my clothes. I sleep during the day and some days do not get dressed. I have left the grill on and set the fire alarm off. I do not make meals anymore.

 

All of the above is due to my depression and alcoholism.

 

I am not sure why the tribunal reached the decision that I do not have assistance from another person. Furthermore the tribunal state (para. 5.11) that although I state I experience unconsciousness at least once a week I have not injured myself and therefore score no points for descriptor 11; but the descriptor does not state that an injury has to have occurred in order to score points.”

 

The Secretary of State does not support the appeal for the reasons set out at pages 100-103. The claimant has responded with a further submission at pages 111 and 112.

 

3. The basis for the tribunal’s decision is to be found at paragraph 5.12 where the tribunal said:

 

“5.12. The Tribunal concluded that the HCP’s assessment of the Appellant with regard to the Work Capability Assessment was entirely correct that the Appellant was not entitled to the award of any points in respect of either the physical or mental health activities.”

 

It is clear, when their statement is read as a whole, that the tribunal did not find the claimant to be a credible witness. Examples of why are to be found at paragraphs 5.10 and 5.11.

 

4. In the first ground of appeal the claimant disagrees with the opinion expressed by the tribunal at paragraph 5.9 where they say:

 

“5.9 The Tribunal found that for substantial periods of time the Appellant was able to function at a reasonable level. The Appellant was able to attend to his own needs without any significant intervention or assistance from another person.”

 

In doing so he sets out the summary of evidence which he gave to the tribunal. However, appeal to the Upper Tribunal is restricted to errors in law only. It is not for the Upper Tribunal to reconsider the evidence to see whether or not it would have come to a different decision. On the basis of the acceptance of the health care professional’s report the tribunal came to a decision they were entitled to reach. The tribunal have set out a reasoned basis for their decision. The first ground of appeal has no merit.

 

5. The only specific activity that the claimant raises in the grounds of appeal is related to the activity of consciousness. That is the issue which the Secretary of State particularly addressed following upon the issues raised by the Upper Tribunal Judge (Mesher) when granting permission to appeal. What the Upper Tribunal Judge said was as follows:

 

“The ground of application relating to Activity 11 (remaining conscious during waking moments) is arguable, and if the claimant’s evidence to the tribunal had been accepted that could potentially have led to qualification for 15 points. The tribunal in paragraph 5.11 of its statement of reasons did not make clear whether it was rejecting the claimant’s evidence about blackouts, because of the absence of details of any injuries, or whether it was regarding injury as a condition of qualification for one of the Activity 11 descriptors. In relation to the reasons given by the district tribunal judge on 4 March 2010 for refusing permission to appeal, there is a question that deserves consideration on appeal as to the meaning of “involuntary” in the context of alcohol dependency and unconsciousness following inebriation.”

 

6. In his submission the Secretary of State said:

“5. In granting permission to appeal the Upper Tribunal Judge has raised two particular issues. The first is the reference in paragraph 5.11 of the statement of reasons to injuries. I agree that it is unclear what the Tribunal meant. I submit that there is no requirement in the descriptor that the claimant has suffered injury. The ESA scheme is not yet sufficiently mature for case law to have developed around this activity though cases from Disability Living Allowance and Incapacity Benefit contain much that is equally applicable.

 

6. A Tribunal of Commissioners in R(DLA) 6/06 held that alcohol dependence was a well-recognised illness which had no identifiable physical cause. However if a separate medical condition arose through excessive consumption of alcohol, then the disabling manifestations of that condition could be taken into account. A person who chose to become intoxicated could not, however, allow the transient and immediate effects of consuming alcohol to count.

 

 

7. In CIB/1296/07 Mr Commissioner Jacobs decided how the decision in R(DLA) 6/06 applies to the PCA. He directed the tribunal to which he remitted the case that it had to first decide as a matter of fact whether or not the claimant had alcohol dependence or simply drinks too much and gets drunk and whether he experiences incontinence of the bowels or bladder. If he has alcohol dependence the experts quoted in R(DLA) 6/06 gave evidence that this was a mental condition not a physical one. But they were agreed that alcohol dependence could give rise to separate bodily disease or disablement.

 

8.                So, if there is alcohol dependence, the award of points might be appropriate under the mental health part of the Schedule (for Incapacity Benefit) and if it gave rise to separate bodily disease or disablement that would have to be assessed under the physiological part. I wonder therefore if the Tribunal’s thoughts about injuries were directed at finding some injury brought about by the alcohol that might itself attract the award of some points. Whether that was the Tribunal’s train of thought or not, I submit that there appears to be no physical disease or disablement (or injury) resulting from the claimant’s alcohol dependence.

9.               The other issue was the question of the meaning of “involuntary” in the context of alcohol dependency and unconsciousness following inebriation. The Training and Development ESA Handbook gives guidance to healthcare professionals on the scope of the descriptors. It is of course not binding on Decision Makers or Tribunals, but it gives the following description 11:

 

“This function covers any involuntary loss or alteration of consciousness resulting in significantly disrupted awareness or concentration occurring during the hours when the claimant is normally awake and which prevents the claimant from safely continuing with any activity. Such events occurring when the claimant is normally asleep should not be taken into consideration. The descriptors relate to the frequency with which such episodes of lost or altered consciousness occur. It should be noted that the descriptor indicates that awareness must be significantly disrupted. This means the nature of the episodes and their effects on function must be explored to see if they fulfil the criterion of the descriptor.

In the context of disability assessments, the most likely causes of episodes of “lost consciousness” are generalised seizures (previously referred to as grand mal, tonic clonic and myoclonic seizures, a seizure which is secondary to impairment of cerebral circulation (e.g. as a result of cardiac dysrhythmias), cardiac arrhythmia.

 

“Altered consciousness” implies that, although the person is not fully unconscious there is a definite clouding of mental faculties resulting in loss of control of thoughts and actions. The causes most likely to be encountered are partial seizures which may simple or complex partial (previously known Temporal Lobe epilepsy), absence seizures which may be typical (petit mal) or atypical or hypoglycaemia.”

 

 

 

10. I rely again on R(DLA) 6/06 that in the case of a person who chose to become intoxicated the transient and immediate effects of consuming alcohol should not count to meeting this descriptor. I submit that there is some further support in CIB/1870/02 in paragraph 15:

“15. I do not accept that there was any error in the consideration of descriptor 16e in respect of sleep problems interfering with daily activities. Despite possible poor quality of sleep the claimant gave evidence of ability to complete a range of daily activities, having risen at 8 or 9. He said that he drank two bottles of wine a day starting around 1 p.m. and that this made him tired and that in the late afternoon he tended to fall asleep in his chair. That has seemed to be part of his daily pattern of activity rather than a departure from it, and common sense dictates that the sleepiness is caused by the wine.”

I submit that the sleepiness caused by wine is an effect of the wine, rather than being a physiological effect occasioned in the claimant as a result of his alcoholism. The same amount of wine would be likely to make anyone go to sleep and does not indicate unconsciousness caused by the condition, and so I submit, it does not meet the requirements of this descriptor.”

7. In response to that submission the claimant’s representative said:

 

“Our understanding is that R(DLA) 6/06 suggests even transient effects of drinking can be taken into account if the claimant cannot realistically stop drinking to excess, taking into account the claimant’s history and depression.

 

The claimant states that he blacks out 3-4 times per week … 2 - 3 days per week he would drink so much he would not remember what he had done (para. 4.4 of full decision). In their findings the tribunal states “once he started drinking he drank to excess. He lacked control.” (para. 5.3)

 

R(DLA) 6/06 refers to that particular claimant falling asleep after drinking. We would suggest that falling asleep is different to an involuntary episode of lost consciousness i.e. blackouts.

 

In this case the claimant’s evidence does not indicate an ability to completely stop drinking. Indeed the tribunal found that the average weekly intake of 70 - 100 units pw was greatly in excess of that which was regarded as being a safe amount to drink.”

 

8. The starting point is dealing with the second ground of appeal, the issue raised by the Upper Tribunal Judge when granting permission and the submissions thereon. It is important to look at the healthcare professional’s report. The only condition medically identified was that of depression. The claimant himself indicated that he had no other problems. In relation to consciousness the healthcare professional referred to his discussion of this activity with the claimant and recorded that the claimant stated that there was no problem with it and that he had no evidence or opinion to the contrary. That view was given not only in the context of the medical conditions identified but was done so in the context of the condition history of the claimant’s depression which included alcohol misuse. What is recorded is as follows:

 

“The condition started many years ago

 

This mental health problem was caused by alcohol misuse

 

This mental health problem was made worse by work related stress.

 

Has been attending alcohol service

 

Had counselling in the past

 

Has been referred to counsellor. The appointment letter was seen

 

The following mental symptoms occur most days and are usually troublesome:

low mood

 

The following mental symptoms occur every day and are usually troublesome: difficulty sleeping

 

The following mental symptoms occur most days and are usually troublesome: alcohol misuse.”

 

9. The healthcare professional in giving her opinion had taken into account the claimant’s alcohol misuse, though there seems to have been no indication to her by the claimant as opposed to the tribunal, that he had blackouts sometimes when he got drunk. It seems to me as I indicated in paragraph 3 above that what was said by the tribunal in paragraph 5.11 of their statement where they said:

“Furthermore, with regard to the Appellant stating that through drink he would suffer unconsciousness at least once a week, the Appellant was not able to give any detail of any injuries sustained as a result of becoming unconscious through drink.”

 

was a comment related to the credibility of the claimant rather than an application of the descriptor. Even if the tribunal’s statement could be read, which I do not think it can, to be a mis-application of the statutory test I do not consider that this would in the event affect the result.

 

10.                In regulation 19 of the Employment and Support Allowance Regulations 2008 the statutory basis for assessment is:

 

“19(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from -

(a) a specific bodily disease or disablement;

 

(b)                a specific mental illness or disablement; or

 

(c) as a direct result of treatment provided by registered medical practitioner, for such a disease, illness or disablement.”

 

 

Schedule 2 is in two parts Part 1 relates to physical disabilities and part 2 relates to mental disabilities. The activity of remaining conscious during waking moments is in part 1 and is accordingly related to physical disablement. The claimant in these circumstances requires to establish that his incapacity to perform any descriptor in activity 11 is caused by a specific bodily disease or disablement which is physical. It does not appear to me that on the evidence accepted by the tribunal the claimant has established as a matter of fact a specific physical disablement which would allow for the satisfaction of a points scoring descriptor in relation to activity 11. That is sufficient to dispose of the appeal. It was not necessary in these circumstances to go into the meaning of involuntary episodes of lost or altered consciousness.

 

11. However I consider that in light of the direction by the Upper Tribunal Judge and the submissions made thereon I should deal briefly with R(DLA)6/06. I do not consider that R(DLA) 6/06 is a suitable or an apposite authority for application in employment support allowance cases. The Tribunal of Commissioners was dealing with provisions set out in Sections 72 and 73 of the Social Security Contributions and Benefits Act 1992, which are related to conditions which are dependent upon a claimant being “so severely disabled physically or mentally that …”

 

12. Employment Support Allowance is as set out in paragraph 10 above related to incapacity to perform as an activity arising from specific bodily disease or disablement or specific mental illness or disablement or as a direct result of treatment provided for them. The activities are also as indicated clearly categorised into physical or mental. These distinctly different statutory provisions have to be applied in relation to their own terms.

 

In these circumstances I consider that Mr Commissioner Jacobs was wrong in CIB/1296/2007 to conclude that it did have application.

 

13. He also appears in paragraph 18 and 19 of his decision where he says:

 

“18. The experts who gave evidence given to the Tribunal of Commissioners in R(DLA)6/06 were agreed that alcohol dependence was a mental condition, not a physical one. On that basis, the tribunal must assess the direct effects of the claimant’s alcohol dependence under the mental disabilities section, not the physical disabilities section.

 

19. However, the experts were also agreed that alcohol dependence could give rise to separate bodily disease or disablement. The tribunal must decide whether it has in this case. If it has, the tribunal must assess the consequences under the physical disabilities section.”

 

to have made directions as to facts based on the evidence given to the Tribunal of Commissioners and their acceptance thereof. A First-tier Tribunal must determine an appeal on the basis of evidence before them, not evidence which was heard in another case. Evidence such as that of the experts recorded in R(DLA)6/06 could be the subject of agreement between the parties to be evidence in an appeal before a tribunal but in my view such a tribunal cannot be directed to accept it not only to other disability living allowance cases but also in relation to other benefits such as incapacity benefit or as in the instant case employment support allowance with different statutory tests. R(DLA)6/06 states that alcohol dependence is not a disability but a medical condition. It does not automatically follow that a medical condition is the same as a “specific bodily disease and disablement” or “a specific mental illness or disablement”, particularly when in paragraph 28 the Tribunal of Commissioners, in the context of disability living allowance, is at pains to point out that it is not a “disability (i.e. functional deficiency)”. However as indicated the matter is of no consequence in the instant case due to the claimant’s failure to establish a specific bodily disease or disablement which gave rise to satisfaction of a points scoring descriptor under paragraph 11.

 

 

 

 

(Signed)

DJ MAY QC

Judge of the Upper Tribunal

Date: 12 August 2010