CE/0437/2011

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant, brought with my permission given on 14^th March 2011, succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Newcastle and made on 10^th November 2010 under reference 228/10/02438. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

Directions

2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence (especially in relation to the nature of the claimant’s addictions, if any). The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. The new tribunal will have to consider afresh all of the evidence and make its own findings of fact.

Background and Procedure

3. The claimant is a man who was born on 19^th February 1970.. He worked full time as a cleaner until about four years ago. So far as concerns the present appeal he was awarded employment and support allowance (“ESA”) from 20^th February 2010. On 17^th March 2010 the claimant completed form ESA 50. This is a 26 page questionnaire about limited capability for work and is reproduced in the Upper Tribunal file. The main difficulties to which he referred in his answers were caused by heroin and alcohol misuse. The effects included breathlessness, nausea, blackouts and falls.

4. On 9^th April 2010 the claimant was examined on behalf of the Secretary of State by Dr Stephenson. On the basis of his report the Secretary of State decided on 21^st April 2010 that as from that date the claimant no longer had limited capability for work and was not entitled to ESA.

5. On 5^th May 2010 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State. The First-tier Tribunal considered the matter on 10^th November 2010. The claimant attended with his Housing and Addictions Support Officer, who worked for Norcare Limited “a voluntary organisation that provides a diverse range of supported housing and community based services for people who are socially excluded, vulnerable and disadvantaged” (page 69 of the file). The tribunal confirmed the decision that had been made by the Secretary of State and on 17^th December 2010 a judge of the First-tier Tribunal refused the claimant permission to appeal against the decision of that tribunal. The claimant now appeals by my permission given on 14^th March 2011. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal.

The Relevant Law

6. ESA was introduced by section 1(1) of the Welfare Reform Act 2007. Subject to the satisfaction of other conditions which are not relevant for the purposes of my decision, section 1(2)(a) of the Act provides that a claimant is entitled to ESA if he satisfies the “basic conditions”. The basic condition that is disputed in this case is defined in section 1(3)(a) as being that the claimant “has limited capability for work”.

7. Section 1(4) provides that:

1(4) … a person has limited capability for work if –

(a)   his capability for work is limited by his physical or mental condition, and

(b)  the limitation is such that it is not reasonable to require him to work.

8. Section 8 of the Act provides that whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations which provide for an assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed.

9. The relevant regulations are the Employment and Support Allowance Regulations 2008. Regulation 19 and Schedule 2 provide for the assessment. Regulation 19(2) describes the assessment as an assessment of the extent to which a claimant “who has some specific disease or bodily or mental disablement is capable or incapable of performing the prescribed activities. Regulation 19(3) provides that a claimant has limited capability for work if he obtains a score of at least 15 points in respect of descriptors listed in Schedule 2. Regulations 20 and 29 set out certain circumstances in which a claimant is to be treated as having limited capability for work regardless of the assessment score, but none of them applies in the present case. In the present case, Dr Stephenson was of the opinion that the claimant had not scored any points.

The First-tier Tribunal

10. In its statement of reasons the First-tier Tribunal observed:

“3. The Appellant’s case basically was that he was affected by and consequently unable to work by reason of his drug and alcohol abuse and addiction. Indeed, he said in evidence that he would be quite able to work if it were not for the alcohol and drugs … Blackouts are not caused by anything other than the effects of drug abuse.

4. The Tribunal was satisfied that there was no evidence of any specific physical or mental disease or disability that gave rise to the implementation of any Descriptors. It seems clear to the Tribunal from the presentation of the evidence at the hearing that drugs and alcohol were a lifestyle choice and did not come about as a consequence of any specific physical or mental illness or disability.

…

6. The Appellant told the Tribunal that he had been on drugs for 13 years and that his consumption of alcohol had cost him jobs in the past … His Support Worker stated that the Appellant was a capable man who would do well in work.”

This was a little clumsily expressed. Some descriptors apply when there is no problem and carry no points, and the tribunal clearly intended to refer to the non-applicability of descriptors that do carry points.

The Issues

11. There are really two grounds of appeal. The first is that the tribunal was wrong to say that there was no evidence of specific disease or mental disablement. I agree with this. As Upper Tribunal Judge Jacobs pointed out in CIB/1296/2007 (sitting as a Social Security Commissioner) alcohol dependence is a mental condition (as decided by a Tribunal of Commissioners in relation to DLA in R (DLA) 6/06). The same must apply to drug dependence, and if it is correct in relation to incapacity benefit it is also correct in relation to ESA. In the present case the First-tier Tribunal did not seek medical evidence as to whether the claimant was actually dependent on alcohol and/or drugs and seems to me to have simply made an assertion without reference to evidence.

12. I am aware that in CE/0903/2010, [2010] UKUT 301 (AAC) Upper Tribunal Judge May held that Judge Jacobs was wrong and that R (DLA) 6/06 does not apply to ESA. However, it seems to me that Judge May was mistaken in his approach. He sought to confine the decision in R (DLA) 6/06 to the effects of the wording in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 requiring a claimant to “so severely disabled physically or mentally that …”. However, if alcoholism (or drug addiction) amounts to mental disablement for the purposes of DLA, I simply fail to see how it does not amount to a “mental condition” for the purposes of the Welfare Reform Act 2007 and a mental disablement within the meaning of regulation 19(3).

13. The second ground relates to the evidence of the Support Officer. On 31^st December 2010 she wrote to the tribunal as follows:

“I have read [the statement of reasons] and was very concerned by some of the comments. I refer specifically to reason 6 where it is stated that ‘His Support Worker stated that the Appellant was a capable man who would do well in work’. This has been taken totally out of context as it was made very clear that [the claimant] is not fit for work at this time and I believe that he would benefit from entering residential rehabilitation for treatment. [He] has long-term alcohol and heroin addictions and was clearly under the influence of substances at the Tribunal. [He] would be a risk to himself and others if he were to enter employment at this time.

Also, at no point did I express the opinion that it was purely [his] choice to over indulge in drugs and alcohol, and nothing else, that prevented him from working. I wish to make it clear that this is not my belief and it was never expressed as such”.

14. The Secretary of State concedes that it was unlikely that the Support Officer would have made in isolation the statements attributed to her but argues that when it came to it, this is not what influenced the First-tier Tribunal in its decision. However, it seems to me that the tribunal was indeed heavily influenced in what it made of the whole case by what it understood the Support Worker to be saying. I cannot adjudicate on the accuracy of the tribunal’s understanding of her evidence, but I have sufficient doubt over whether it failed to take into account all of the relevant matters in this context, that I am not satisfied that its decision did not (on this basis as well) involve the making of an error of law.

15. For the above reasons this appeal by the claimant succeeds.

H. Levenson

Judge of the Upper Tribunal

29^th July 2011