Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CSE/496/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mr Justice Charles (Chamber President)

Upper Tribunal Judge Gamble

Upper Tribunal Judge Wright

 

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Glasgow on 21.03.12 under reference SC100/12/00747 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to decide the appellant’s entitlement to Employment and Support Allowance.  It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

(1)            The new hearing will be at an oral hearing.

 

(2)            The appellant is reminded that the tribunal can only deal with his situation as it was down to the 26^th of October 2011 and not any changes after that date.

 

(3)            If the appellant has any further evidence directed to his situation as it was down to the 26^th October 2011 that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Glasgow Appeals Service Centre within one month of the date this decision is issued.

 

(4)            The First-tier Tribunal should have regard to the points made below.

 

 

REASONS FOR DECISION

 

 

Introduction

 

 

 

1. This is an appeal from a decision of the Glasgow First-tier Tribunal of the Social Entitlement Chamber dated 21.03.12. We shall refer to this from now on as “the tribunal”.  The tribunal disallowed the appeal of the claimant and confirmed the decision of the respondent dated 26.10.11. By that decision it had been decided that on conversion of the claimant’s incapacity benefit awarding decision to the employment and support allowance (“ESA”) scheme the claimant was not entitled to ESA because the claimant did not have limited capability for work nor could he be treated as having limited capability for work.

 

2.               The claimant was granted permission to appeal against the tribunal’s decision by Upper Tribunal Judge May QC on 28.08.12. Although we were aware that such an argument has been made on other appeals, no argument was made on this appeal about the validity of the conversion process or its application on the facts of this case.

 

3.               After the exchange of submissions from the Secretary of State and those now acting for the appellant, a three judge panel of Upper Tribunal Judges was convened to hear and decide the appeal.  This was because of conflicting decisions of Upper Tribunal Judges concerning:

 

(a) whether the Tribunal of Commissioner’s decision in R(DLA)6/06 concerning a  person with alcohol dependence could be applied to ESA adjudication,  and

 

(b) whether points could only be awarded under Part 1 (Physical Disabilities) of Schedule 2 to the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) because of physical disablement (and similarly for part 2 and mental disablement).

4. Although the reasons and fairness challenges that have succeeded on this appeal might have been dealt with without a consideration of the above points, they inform that successful challenge and the approach when this case is considered by a differently constituted First-tier Tribunal.

 

Relevant Factual Background

 

ESA50 form

 

5. The appellant was aged 30 at the relevant time. He had been in receipt of incapacity benefit since 29.07.03 when, on 7.05.11, he was notified that “the conversion phase had begun”. Pursuant to this, he completed a form ESA50 on the 20^th of June 2011.  In the box on page 3 of that form he was asked to “tell us what is your disability, illness or condition, and how does it affect you”.  The appellant answered this by saying he had “depression”, “panic attacks/anxiety” and “alcohol problems”, and because of this he said he did not go out of the house unless he was with someone else and that he liked to have a drink most days as this made him feel better. When it came to the physical functions section of the ESA50 form the appellant ticked the boxes showing that he had no difficulties with any of the physical functions. However, in addressing the mental, cognitive and intellectual functions section of the ESA50 form, the appellant set out that:

 

(i)              his ability to learn how to do a more complicated task, such as using a washing machine, varied.  This was because he said he could “get very agitated when I do not understand how to do something and this makes me not want to try”;

(ii)            he sometimes needed someone to stay with him to keep him safe. This was because he said he was “not able to concentrate very well and this makes it difficult to be trusted to do things safely.  My mother does almost everything for me”;

(iii)          he could never manage to plan or finish daily tasks.  The appellant said he had “no motivation to do things and my mother needs to urge me to get up, get dressed, get washed etc”. He went on “We frequently argue about this.  I also struggle to concentrate on tasks and do very little each day, usually just staying in bed”;

(iv)          his ability to cope with small changes to his routine varied if he knew about the changes but he could not cope with changes if he did not know about them. He said he would go into a panic if the latter occurred;

(v)            his ability to go to places he knew if someone went with him varied, but it was not very often that he was able to go on his own to somewhere he did not know.  He said here that he got “anxious whenever I leave the house but can cope with this usually if I have someone with me.  I find it very stressful going to places that I do not know about and this causes me to panic”;

(vi)          his ability to meet people he knew without feeling anxious or scared varied, but he could not meet people he did not know without feeling anxious or scared. On this the appellant added “I have very few people close to me because of my behaviour and some days I just can’t face seeing anyone except my mother, who I live with. I do not meet new people due to extreme anxiety in social situations”;

(vii)        lastly the appellant recorded he often behaved in a way which upset other people. He went on “I do not like people telling me to do things and respond aggressively to this.  I end up arguing with my mother almost every day and have alienated all of my friends”.

 

Appellant’s GP

 

6. The appellant’s GP then submitted a short report on a form ESA113 to the Respondent on 14.07.11. Amongst other things, that form asked the GP to give details of those conditions which “may have a significant effect on the person’s capacity to work”. In answer to this the GP, under a box headed “Condition and date of diagnosis”, recorded two relevant conditions. The first was “Alcohol dependence syndrome”, which was said to be longstanding.  The second was “anxiety + depression”. In relation to the former the GP recorded that the appellant had had Librium but had failed to engage with community alcohol services, and when he last saw the appellant (on 23.05.11), he was drinking 70+ units of alcohol per week.  As to the latter, the GP recorded that the appellant was on Propranolol for his anxiety. On the reverse of the ESA113 form the GP was asked to comment on a standard list of activities related to the activities under schedules 2 and 3 to the ESA Regs.  The relevant ones were “Learning simple tasks”, “Awareness of hazards”, “Initiating and completing personal actions”, “Coping with changes or social engagement” and “Appropriateness of behaviour”. In respect of all five of these activities the GP stated that the appellant “should not have any difficulties with these activities unless under influence of alcohol”.

 

Health Care Professional

 

7. The appellant was assessed by a health care professional – a registered nurse – on 12.8.11, a process which took 22 minutes. She recorded that the conditions she medically identified were (a) alcohol misuse and (b) anxiety and depression.  Under the former the nurse recorded that the alcohol misuse started 10 years ago, that the appellant would drink 10-12 cans of lager daily and would first drink on waking, and that he had no current addiction input. On the latter, the nurse set out, inter alia, that the alcohol use was related to anxiety and depression, that the appellant described low mood, anxiety and social phobia most days, and that he drank alcohol as this made him feel better.  The description of a typical day set out a varied degree of interaction by the appellant with the world around him. For example, it set out that the appellant would occasionally stay in bed through day, he could find it hard work to wash and dress and would occasionally need prompting from his mother for hygiene, but seemingly he could manage these tasks if he had had some alcohol.  Likewise, the typical day indicated that the appellant would avoid going out to the shops (he would be anxious and shaky), but he would manage to go out alone if he had had some alcohol. The health care professional assessed the appellant as not falling within any of the points scoring descriptors under Schedule 2 to the ESA Regs.  In what is now termed a “Personalised Summary Statement” she said this:-

 

“[The appellant] is a 29 year old man who presents with alcohol misuse and anxiety and depression.  He has had alcohol misuse for 10 years, currently seeing no specialist and using no medication.  He has had anxiety and depression for 10 years, currently seeing no specialist and using average medication.  Typical day history evidence minimal activity within day.  This appears to be through choice rather than illness.  Although anxious at exam he was able to participate fully with no prompting.  Mental state exam was unremarkable.  Cognitively aware and well presented at exam.  Therefore, no significant disability likely in mental function” (underlining added for emphasis).

 

It is not evident to us the basis on which the health care professional arrived at her, albeit somewhat equivocal, conclusion that the lack of activity in the day was due to choice on the part of the appellant rather than because of the conditions she had medically identified. On the face of the ESA85 form it is not possible to discern whether the nurse explored with the appellant why he did so little in the day.

 

First-tier Tribunal

 

8. Based on the ESA85 report, on 26.10.11 the Respondent decided that the appellant’s existing award of incapacity benefit did not qualify for conversion into an award of ESA, and as a consequence the existing award would terminate with effect from 18.11.11.  It was this decision that the appellant appealed to the First-tier Tribunal on 16.12.11, assisted by a local CAB and a Law and Money Advice centre.  His grounds of appeal were:

 

“My condition is worse than assessed.  I suffer from depression and anxiety (alcohol-related).  I have frequent and unpredictable panic attacks, with sweats, shaking and heart racing.  I avoid public places and have to be accompanied when going out; to get reassurance to avoid panicking.  My mother does shopping for me, and I use taxis to get about. I have difficulty coping with day to day stresses: even small upsets cause uncontrollable surges of temper and anxiety.  I have violent mood swings and often cannot face people. I cannot concentrate and cannot follow TV programmes.  I used to love sport and playing football but cannot face this any more. The thought of going out and meeting people fills me with dread and fearful anxiety”.

 

9. The appeal was heard by the First-tier Tribunal on 21.03.12.  The hearing lasted for 25 minutes.  The appellant attended with his cousin for support.  No-one attended on behalf of the Respondent.

 

10. The record of proceedings is short, perhaps commensurate with the relatively short length of the hearing.  It shows that the appellant told the tribunal that there had been no change in his condition since 26.10.11. He stayed with his mum; he always drinks, every day; his mum got the alcohol at the shop, he never went; he would go to his GP with his mum (he couldn’t recall when he last went on his own); he stayed in the room at home and just sat; he would occasionally wash and dress; his mum brought his food into his room; if she wasn’t there he would panic; what he did during the day was drink; he sat on his bed all day; if he had no alcohol he had arguments with her; he behaved badly, throwing glasses on the wall, but he didn’t know why.  His cousin added that the appellant could not go to the GP by himself and she normally would go with him.  We will return to this matter later, but having traversed most of what is written in the record of proceedings, we are concerned to note a lack of any questioning of the appellant by the tribunal about why he stayed at home, drank and, in effect, did nothing all day, and why he did not or could not go to the GP or the jobcentre on his own.

 

10. The First-tier Tribunal dismissed the appeal on 21.03.12.  The appellant asked for a statement of reasons for the decision.  This was provided on 11.06.12.  Ignoring irrelevant and immaterial matters (such as the date of the decision under appeal and who was present at the hearing), and paragraph numbers, the tribunal’s reasoning was as follows.

 

“Findings in fact made by the Tribunal The appellant formerly worked as a laboratory assistant.  He has no worked since at least 2003.  He drinks excessive amounts of alcohol.  He lives a life of considerable inactivity. He does so through choice.  His general practitioner has been consulted.  The appellant has not been referred to a specialist. He has however been referred to a community alcohol service and has failed to engage with the service. At the date of the decision (a) the appellant suffered from no deficit of function to the extent that any physical descriptor applied (b) the appellant suffered from no deficit of function to the extent that any mental, cognitive or intellectual function descriptor applied, and (c) the appellant did not suffer from any disease or disablement which would have justified a decision to the effect that there would be a substantial risk to the mental or physical health of any person if the appellant was found not to have limited capability for work. 

 

Reasons The descriptors applicable from 28/03/11 apply in this case.  The appellant was able to express himself clearly.  He was able to make himself understood. The Tribunal were satisfied that the appellant was able to present accurately to the Tribunal all the factors which were relevant to his appeal. The appellant, in his ESA50 form, indicated that none of the physical descriptors applied.  Having seen and heard the appellant the Tribunal were satisfied that this was an appropriate concession.  Having seen and heard the appellant and having considered all the papers the Tribunal decided that the respondent’s decision was correct and the appellant was entitled to no points under either the physical descriptors or the mental, cognitive and intellectual function descriptors.  The appellant described a life of quite remarkable inactivity.  He told the Tribunal that he went out rarely.  He stayed in the house almost all the time.  He consumed significant amounts of alcohol but did not abuse drugs.  The alcohol was purchased for him by his mother or, occasionally, by another relative. He spent his life drinking.  He had no interest in anything and had no friends.  The Tribunal found it unlikely that the appellant was as inactive as he claimed to be.  He had consulted his general practitioner about his condition and has been prescribed medication.  He was not seeing a specialist and his medication was of average strength.  The Tribunal noted and accepted the views expressed by the [GP] at section 4 of page 39 of the papers refers [page 39 is what the last three sentences in paragraph 5 above refer to]. This was in accordance with the impression of the Tribunal which, having seen and heard the appellant, concluded that the appellant had through choice adopted a lifestyle which involved him in a life of inactivity.  In the circumstances of the present case the Tribunal’s decision in relation to each of descriptors 11-16 inclusive was based on the same ground which was that the appellant drank too much and lived a life of inactivity but did so through choice.  Accordingly the Tribunal were satisfied that, as far as descriptors 11-16 were concerned, there was no loss of function on the part of the appellant.  As far as descriptor 17 was concerned the appellant described arguments with his mother as a result of his lifestyle.  This was unsurprising.  The Tribunal found that there was nothing in the nature of uncontrollable episodes. Also the appellant did not suffer from cognitive impairment or mental disorder”.

 

Statutory Scheme

 

11. This is set out in the Welfare Reform Act 2007 and Regulations made under it. 

 

Welfare Reform Act 2007

 

12. The basic conditions for entitlement to ESA are set out in section 1(3) of the Welfare Reform Act 2007 (the “2007 Act”). By section 1(3)(a) of the 2007 Act the first basic condition is that “the claimant has limited capability for work”.

 

13. A claimant will have limited capability for work if, per section 1(4) of the 2007 Act, “(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”. Firstly, this statutory test is addressing capability for work; that is, a person’s practical ability to work. It is thus not concerned with whether a person wants to work (or whether such work is available for them to do).  It makes no sense to say that a person is unable to work or is incapable of work where as a matter of pure choice they do not work.  Secondly, the practical ability to work has to be limited by his physical or mental condition. This introduces a causative test and a comparison. Thirdly, there is a reasonableness qualification.  Thus taking the statutory test in isolation it provides that the limitation on the person’s practical ability to work must arise from something wrong, untoward or atypical in the person’s physical or mental condition – so again, not working purely through choice would fall outside this.  And for a person to  have a reasonable limit on his or her ability to do a task cannot in any ordinary or sensible use of language be said to arise from or be caused by that person’s physical or mental condition if he or she is perfectly well and fully competent both physically and mentally.  However, as appears from our conclusions concerning the finding of the tribunal on choice it is important to analyse what the choice relates to i.e. the alleged condition or the limitation alleged to be caused by it.  And it may well be that that analysis will lead to the conclusion that a choice leading to the condition is irrelevant and if the condition exists any limitation caused by it is not a matter of choice. 

 

14. Section 8(1) and (2) of the same Act sets out the approach to be taken to determining whether the basic statutory test in section 1 is satisfied by providing  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” per s.8(1), and that “[r]egulations under subsection (1) shall- (a) provide for determination on the basis of an assessment of the person concerned; (b) define the 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” per s. 8(2).  So, these subsection and the regulations made under them set the boundaries of the statutory test in s. 1(3) and (4) of the 2007 Act.  Thus whether a person’s capability to work is limited by his physical or mental condition has under the 2007 Act to be determined by way of an assessment which itself is limited to looking at a person who has a specific disease or bodily or mental disablement and the extent to which he or she is capable of performing prescribed activities. As appears later, the relevant regulations set out the way in which this is to be done by the decision maker.  In other words, if a person does not have some specific disease or bodily or mental disablement then his or her physical or mental condition is not one that can in law limit his capability for work such as to give rise to entitlement to ESA. Furthermore, reading sections 1(4) and 8 of the 2007 Act together, it seems to us clear that the limitation on the person’s capability to perform the prescribed activities has to be caused by the specific disease or bodily or mental disablement.

 

15. It is worthwhile noting at this stage that the above statutory wording, or wording very close to it, has featured for many years in the statutory provisions governing entitlement to what might loosely be described as out of work “sickness benefits”. So under section 8(1)(c) of the National Insurance Act 1911 a system of periodical payments was set up for those “rendered incapable of work by some specific disease or by bodily or mental disablement”. In section 17(1)(a)(ii) of the Social Security Act 1975, ‘a day of incapacity for work - on which entitlement to sickness benefit arose - was defined as a day on which “...[the claimant] is, or is deemed…to be, incapable of work by reason of some specific disease or bodily or mental disablement”.  This provision was repeated in section 57(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992 (SSCBA). And when invalidity benefit was replaced by incapacity benefit in 1995, sections 171B(2) and 171C(2) of the SSCBA used the same language again (in respect of the “own occupation test” and the “personal capability assessment” respectively), of “some specific disease or bodily or mental disablement”. The causative link between the limitation on capability, or incapability, for work and the specific disease or bodily or mental disablement has thus been a consistent feature of all of these schemes. 

 

16. Further, unlike the position that now holds in respect of most parts of the Disability Living Allowance scheme[1], it is plain to us that the search for the decision maker on ESA is not just in terms of the consequences, in the sense of a person’s functional limitations as mapped out across the activities and descriptors in Schedules 2 and 3 to the ESA Regs, but also, in theory at least[2], the cause of those limitations.  Moreover, in the particular statutory language governing ESA (and the sickness and incapacity benefits before it), it seems to us that the word “disablement” is being used to refer to the underlying cause of the functional limitation as opposed (as in DLA) to the functional limitation itself.

 

17. Before turning to the relevant regulations made under section 8 of the 2007 Act, it is necessary to consider two other sections thereof as in our judgment they cast a helpful light on whether alcohol (or drug) dependence is capable of falling within the definition of “specific disease or bodily or mental disablement” and thus may act to found a claim for ESA.

 

18.            The first is section 15A of the 2007 Act, which introduces Schedule 1A to the same Act and sets out that that schedule makes “provision for or in connection with imposing requirements on persons in cases where – (a) they are dependent on, or have a propensity to misuse, any drug, and (b) any such dependency or propensity is a factor affecting their prospects of obtaining or remaining in work”. Section 15A(2) of the 2007 Act sets out that Schedule 1A “also contains a power for its provisions to apply in relation to alcohol”, and that power is found in paragraph 10 of Schedule 1A.  What Schedule 1A does is to set out regulation making powers allowing requirements (such as attending  a mandatory drug or alcohol rehabilitation plan) to be imposed as a continuing condition of entitlement to ESA. For present purposes, however, the key feature is that the person is already entitled to ESA[3], which in our judgment at least, and when read with section 15A, seems to be an express recognition by Parliament under the 2007 Act that a drug or alcohol dependent person may have limited capability for work because of that dependency. 

 

19.            In our view, s. 15A provides compelling support for the conclusion we have reached that reading the 2007 Act as a whole shows that Parliament intended to provide and did provide that alcohol dependency falls within the phrase “specific disease or bodily or mental disablement” in section 8(2)(b) of the 2007 Act and the phrase “physical or mental condition” in section 1(4) of the 2007 Act .  Were it otherwise then the machinery under section 15A and Schedule 1A would have nothing to bite on.

 

20. The other relevant section is section 18. This provides the regulation making power for disqualifying someone from receiving ESA, or treating the person as not having limited capability for work when they may in fact otherwise have been found to have limited capability for work, in circumstances where, per s.18(1)(a) of the 2007 Act, the person “has become someone who has limited capability for work through his own misconduct”, or, per section 18(1(b), “..remains someone who has limited capability through his failure without good cause to follow medical advice”, or, s.18(1)(c), “…fails without good cause to observe any prescribed rules of behaviour”. We shall return to the regulations made under these provisions shortly. However, we simply note here that, in our judgment, by s.18(1) Parliament has indicated that a physical or mental condition that is “self-induced” or “self-inflicted” is one that is capable of amounting to a “specific disease or bodily or mental disablement”, with the statutory machinery attributing culpability directed to payment of ESA, or deeming a person not to have limited capability for work.  And this provides further support for the conclusion set out in the last paragraph.

 

The Employment and Support Allowance Regulations 2008 (the ESA Regs)

 

21. The key regulation made under section 8 of the 2007 Act is regulation 19 of the ESA Regs.  This provides, inter alia:

 

“19.—(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

(a)15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b)15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c)15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule………

 (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 a registered medical practitioner, for such a disease, illness or disablement”.

 

 

 

22. The recognition of the need for a causative link between the disease or disablement and the incapability to perform the activities in Schedule 2 (and Schedule 3) of the ESA Regs is made plain by the use of the words “by reason of such disease or bodily or mental disablement” in regulation 19(2) and “arises from” in regulation 19(5). 

 

23. We shall consider two issues arising from the wording of regulation 19 of the ESA Regs, namely:

(i) whether the points under Part 1 of Schedule 2 to the ESA Regs may, as a matter of statutory construction, only arise from a bodily disease or disablement or may also arise from a mental illness or disablement (and, likewise, whether points under Part 2 of Schedule 2 may arise from a bodily disease or disablement as well as a mental illness or disablement), and

 

(ii)  what is meant by “specific bodily disease or disablement” and “specific mental illness or disablement”.

 

We address these in turn below.

 

24. However before doing that we should refer to regulation 157 of the ESA Regs, which is the regulation made under section 18 of the 2007 Act. This provides, so far as is relevant, that:

 

“157.—(1) Subject to paragraph (3), paragraph (2) applies where a claimant—

(a)has limited capability for work through the claimant’s own misconduct, except in a case where the limited capability is due to pregnancy or a sexually transmitted disease; or

(b)fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or major surgery) recommended by a doctor with whom, or a hospital or similar institution with which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant’s capability for work;

(c)fails without good cause to refrain from behaviour calculated to retard the claimant’s recovery; or

(d)is, without good cause, absent from the claimant’s place of residence without leaving word with the Secretary of State where the claimant may be found.

(2) A claimant referred to in paragraph (1) is to be disqualified ----- from for ----- receiving an employment and support allowance for such period not exceeding 6 weeks as the Secretary of State may determine”.

 

25. In R(S)2/53 the Commissioner found on the facts and the law that a predecessor of regulation 157(1)(a) of the ESA Regs properly applied where the claimant’s incapacitating condition had been brought on by his drinking too much alcohol. In that decision at paragraphs 11-13 the Commissioner said:-

 

“In approaching the question whether the incapacitating condition of the claimant was caused by misconduct, regard must be had to the question whether the condition which has been diagnosed as alcoholism is a disease brought on by the claimant’s lack of self-control attributable to a defect in character, or by the claimant’s lack of control attributable to a disease of the mind or body. Drinking to such an extent as to endanger health is prima facie misconduct, and if it is a direct cause of a person’s incapacity for work that person has become incapable of work through his own misconduct.  In my opinion the claimant can only rebut the inference of misconduct by showing that his alcoholism was really involuntary, that is, that his will power had been so impaired by the shock of the accident, or by some other circumstance, beyond his control, that he was really unable to moderate his drinking”. 

 

 

26. We make a number of observations about this decision.

 

(i)              Firstly, it emphasises, correctly in our judgment, that stopping payment of the benefit for 6 weeks is a disqualification that arises once the person has been found to be incapable of work. In other words, the alcoholism here, even though on the face of it “self-induced”, did amount to a specific disease or bodily or mental disablement.

 

(ii) Secondly, this is an old decision and was one made when the jurisdiction of the Commissioners extended to deciding appeals on facts and law. The Commissioner’s comments and reasoning – for example about the “shock of the accident” - must be read in this context, and should not be taken as laying down a binding legal test as to how decision makers should approach alcoholism.

 

(iii) Thirdly, and related to (ii), science and medicine in particular has moved on considerably since 1953 in its approach to mental health and illness, and it is now unlikely to be helpful or accurate to think in terms of “defect of character”.

 

(iv)          However, regulation 157 of the ESA Regs remains in place and it may, in carefully identified circumstances, have application to situations where the causative disablement is alcohol dependency[4]. However any such application needs to be approached with care having regard to (a) the medical learning on alcohol dependency and how it is very often related to, and can arise from, a pre-existing anxiety disorder or depression, or cause such a disorder or depression to come on, and (b) the point that with alcohol dependency, by the time the dependency has arisen the claimant may often be a number of stages removed from when he or she first took alcohol, and in a sense it may be difficult to attribute the dependency to the claimant’s misconduct and so to  adjudicate on whether an alcohol dependent person has limited capability for work through their own misconduct.  In this context, it  is perhaps noteworthy that we are not aware of any decision at Commissioner or Upper Tribunal level since 1953 where regulation 157 of the ESA Regs (or any of its predecessors) was applied to what would now be termed an alcohol dependent person.

 

Can physical points be awarded for mental disablement (and vice versa)?

 

27. The immediate predecessor to the employment and support allowance scheme was the incapacity for work scheme.  Regulation 25 of the Social Security (Incapacity for Work) (General) Regulations 1995 (the “IFW Regs”) was very similar to the terms of regulation 19 of the ESA Regs, and the Schedule to the IFW Regs was, similarly, in two parts: Part I Physical Disabilities and Part II Mental Disabilities. However, regulation 25(3) of the IFW Regs set out that “[i]n determining the extent of a person’s incapacity to perform any activity listed in Part I or Part II, it shall be a condition that the person’s incapacity arises – (a) in respect of a disability listed in Part I, from a specific bodily disease or disablement; or (b) in respect of a disability listed in Part II, from some specific mental illness or disablement”. 

 

28. In other words, for incapacity benefit a person could only score points under Part I, say in respect of speech, if the problem with speaking arose from a bodily disease or bodily disablement and not if it arose from a mental illness or disablement. In many case this division was of no consequence. However, in complex or newly emerging medical conditions – such as chronic fatigue syndrome, chronic pain syndrome or illness behaviour – the attribution of the cause of the person’s incapacity to perform an activity was difficult (see, for example, CIB/4841/2002 and CIB/5435/2002).

 

29. The wording of the regulation 19(5) of the ESA Regs is different. It sets out, as we have seen above, simply that in the assessment of any activity listed in Schedule 2 the incapability to perform that activity arises from either a specific bodily disease or disablement or a specific mental illness or disablement.  Does this different wording lead to a different result? In our view it plainly does. The contrast with the more restricted and focused wording in regulation 25 of the IFW Regs is clear and we can only conclude was deliberate. On the face of regulation 19(5) of the ESA Regs the assessment of whether a person can score points under Part I of Schedule 2 is not restricted to where the incapability to perform the activity arises from a specific bodily disease or disablement, and so it may arise from a mental illness or disablement (and vice versa).

 

30. We therefore agree with Upper Tribunal Judges Mesher, Wikeley and Ward on this issue in, respectively, KP –v- SSWP (ESA) [2012] AACR 15; [2011] UKUT 216 (AAC) (see in particular paragraphs 18 to 20), KN –v- SSWP (ESA) [2011] UKUT 229 (AAC) (see in particular paragraphs 29 to 32) and RM -v- SSWP (ESA) [2011] UKUT 454 (AAC) (see in particular paragraphs 10 to 12).  So, for example, we agree with Judge Mesher when at paragraphs 18 to 20 of KP he said:

 

“18. It is possible that the tribunal was regarding the claimant’s case as being made under paragraph 14 of Schedule 2. That paragraph is in Part 2 of Schedule 2, which is headed “Mental, cognitive and intellectual function assessment”. The tribunal might have considered paragraph 14 to be more appropriate to a fading of concentration after five hours or so. If so, it would have been unsatisfactory that the activity being considered was not made clear. However, the reasons given for rejection might then have been adequate if the tribunal had been correct in law that the causal link only to bodily disease or disablement, and not to mental illness or disablement, excluded qualification under any of the activities in Part 2 of Schedule 2.

 

19. I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement. I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.

 

20. It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant. The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1. The heading “Mental, cognitive and intellectual function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins. Second, the terms of regulation 19 of the ESA Regulations are very significant. Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner. There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken. In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there. That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fall a long way short of that. Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions”.

 

31. We should add that the Secretary of State made submissions to us agreeing with this interpretation of regulation 19(5).

32. Conversely, but for the same reasoning, we disagree with the approach to the same issue by Upper Tribunal Judge May QC in RA –v SSWP (ESA) [2010] UKUT 301 (AAC) where he said in paragraph 10:

 

“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”. (our underlining added for emphasis).

 

 

That approach to regulation 19(5) of the ESA Regs is, in our judgment, wrong, as it seeks to read in words of restriction that are not present.  RA-v- SSWP should, therefore, no longer be followed on this issue.

 

33. However, two further points need to be made in respect to the conclusions reached under this heading. 

 

34. The first is that care must still be taken in identifying the cause of the person’s incapability to perform certain of the activities in Schedule 2. This is because although no causative link is made in regulation 19(5) of the ESA Regs, it is sometimes made within the wording of individual activities and descriptors in Schedule 2 to the ESA Regs. 

 

(i)              For example, under activity 13 (initiating and completing personal action), the terms of the descriptors set out that the inability to complete at least two personal actions is “due to impaired mental function”[5]: so an inability to complete two personal actions due to a broken arm would not lead to any points being awarded under activity 13. Similarly, in the wording for activity 16 (coping with social engagement) appear the words “due to cognitive impairment or mental disorder”. 

 

(ii)            On the other hand, for activity 15 (getting about) there are no words in either the activity or the descriptors that limit the inability to get about to cognitive impairment or mental disorder. Accordingly, it may be possible for a visually impaired person to score points under both activity 8 (navigation and maintaining safety) and activity 15. 

 

(iii)          Care must therefore be taken by decision-makers and First-tier Tribunals to consider the wording in both the activities and the descriptors in Schedule 2 to identify whether the activity or the instances of it described as giving rise to points contain within it any words of qualification about the cause of the incapability.

 

But unless words limiting the application of an activity or descriptor to a particular cause or causes appear, however, the inclusive approach of regulation 19(5) of the ESA Regs renders far less relevant some of the past discussions in decisions of the Commissioners about what the cause of the incapacity or incapability is.  The words used in regulation 19(5) of the ESA Regs simply require the decision maker or tribunal to ask “Does the inability to perform the activity arise from a disease, illness or disablement?”

 

35. The second point is that it has come to our attention, after the hearing on 22.11.12, that the Government has put forward draft and, as far as we can see, replacement Employment and Support Allowance Regulations 2013, due to come into effect in April 2013. As these provisions are not in force they do not affect the decision under appeal to us and so we have not sought submissions from  the parties on what effect, if any, these changes to the ESA scheme have on the interpretation of regulation19(5) of the ESA. But we mention them because it seems that the effect of regulation 15 of these draft regulations, which in substance replaces regulation19 of the ESA Regs, may well be to reinstate the position under the incapacity for work scheme, with points under Part I of Schedule 2 having to arise “from a specific bodily disease or disablement” and points under Part II “from a specific mental illness or disablement”.   However, the difficult issues of attribution (see paragraph 28 above) may arise again if and when these draft regulations come into force.

 

“Specific bodily disease or disablement” and “specific mental illness or disablement”

 

36. As we have seen above, these are the phrases used in regulation 19 of the ESA Regs made under s. 8(2) of the 2007 Act which sets the approach to be taken to determining whether the basic statutory test in s. 1 of the 2007 Act is satisfied.  In s. 8(2) the statutory phrase is: “a person who has some specific disease or bodily or mental disablement” and that wording is repeated in regulation 19(2) of the ESA Regs when it talks about the assessment being “an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the [Schedule 2] activities”. Regulation 19(5) of the ESA Regs then provides that in making this assessment of the extent of capability it is a condition that the “incapability to perform the activity arises from a specific disease or disablement or a specific mental illness or disablement”. 

 

37. The statutory authority for the making of the ESA Regs and their purpose shows that the use of the word “illness” in the phrase “specific mental illness or disablement” is not intended to, cannot and does not either expand or restrict the test. In our view, as a matter of language it does not do so because “a specific mental illness” is a specific disease. That is consistent with the view in CS/221/49 that “disease” means “a departure from health capable of identification by its signs and symptoms, an abnormality of some sort”.  Further or alternatively in our view “mental illness” is within the meaning of statutory words “mental disablement”.  And, as will appear later, it is likely that in most cases it is not necessary to wrestle with the issue whether a condition is a mental illness or a mental disablement.

 

38. The wording of section 8(1)(c) of the National Insurance Act 1911 “rendered incapable of work by some specific disease or by bodily or mental disablement” gave rise to the question whether the word “specific” was not intended to qualify “disablement” but just the word “disease”.  In our view, this issue does not arise on the wording of regulation 19(5) but the earlier cases remain relevant to the issue what is meant by “specific”. In paragraph 21(1) of CS/7/82 Mr Commissioner Edwards-Jones said, in the context of whether a person had a personality disorder, and thus had a disablement, or was not working through personal choice:

 

“It is convenient to interpose at this point that whilst the statutory formula “some specific disease or bodily or mental disablement” clearly imports attributing “specific” so as to qualify “bodily or mental disablement” no less than “disease” the expression “specific mental disablement” to my mind draws from the word “specific” no more stringent qualification than that the mental disablement must be of a kind known to medical science and identified by appropriate terminology. In particular I do not consider it to import a requirement of aetiological attribution, and have in mind in that regard that in the parallel field of physical disease such precision is often impracticable in circumstances in which no one could doubt the condition to be one qualifying the sufferer as regards incapacity for work – e.g. “pyrexia of unknown origin”. See also as to this the recent decision CS 4/82 (not reported) holding “dyslexia” a specific disablement”.

By “aetiological attribution” we take it the Commissioner simply meant scientific

or medical cause for the disablement, and so was saying no more than that it was not necessary to drill down to find the definitive cause of the mental disablement; it was sufficient if the personality disorder was a condition known to and identified by medicine.  On this analysis “specific” acts to limit the scope of regulation 19(5) of the ESA Regs so as to keep out of it conditions that may in some ordinary sense be said  to be mental illness or disablement but which are not (as yet) recognised, or accounted for, as physical or mental conditions by medical science[6].

 

39. In CIB/26/2004 Mr Commissioner Jacobs, as he then was, quoted with approval the above passage from CS/7/82 and went on to say that what was needed to prove the specific mental disablement was a recognised medical condition. In so doing he drew expressly on the then Commissioner case-law from disability living allowance (“DLA”), such as CDLA/944/2001, which said that a recognised medical condition was required to show that person had a disability for the purposes of DLA.  The parts of his analysis in CIB/26/2004 based on the then DLA case-law about recognised medical condition now have to be read with care and in the light of the decision of the Tribunal of Commissioners in R(DLA)3/06 where they overruled much of that case law.

 

40. However, in our judgment, the approach referred to above in CIB/26/1994 (and CS/7/82) is nonetheless still correct for ESA because the statutory wording of the tests for the two benefits are materially different and the reasoning and conclusion in them on what is meant by the word “specific” and causation is not undermined or affected by the decision in R(DLA)3/06.  For the reasons we have already given, the statutory wording in ESA requires a cause for the incapability to be identified.  That is what the wording in section 1(4) of the 2007 Act “capability for work is limited by his physical or mental condition” and regulation 19(5) of the ESA regs “it is a condition that the…incapability to perform any activity arises from a….bodily…disablement or…a…mental…disablement” requires.  This is consistent with what Mr Commissioner Jacobs said in CIB/5435/2002, a case concerning chronic fatigue syndrome, where, at paragraph 15, he said:

 

“I doubt whether this syndrome would be classified as a disease. However, that does not matter, if it is a disablement. What is a disablement for the purpose of regulation 25(3)? A disablement prevents a person from performing, or restricts the person’s ability to perform, a function. But that alone is not sufficient. The claimant cannot say: ‘I cannot perform a particular descriptor, so I am entitled to the points.’ The inability or restriction must arise from a disablement. So, that disablement must be something separate from the inability or restriction. That is clear from the wording of regulation 25(3): ‘the person’s incapacity arises … in respect of a disability listed in Part I, from a specific bodily disease or disablement’. The state of medical research and knowledge has now reached the point where chronic pain syndrome and its related conditions can be accepted as having an independent causative effect sufficient for these purposes”.

41. Having addressed the meaning of the definition of the relevant condition that causes the limited capability to work we think that it is important to note that given the breadth of what is covered by regulation 19(5) of the ESA Regs (that, is physical and mental disablement), and as in the vast majority of cases there will be a diagnosis of a medical condition given by the claimant’s GP on the Med 3 form, the structure and effect of regulation 19(5) is such that  in that vast majority of cases there will be no need in applying that regulation to identify whether the medical condition is a physical or mental disablement (though, as we have said above that may become an issue depending on the wording of the activities and/or descriptors in Schedules 2 and 3 of the ESA Regs and under the proposed new regulations).   

 

 

42. There may be appeals, albeit rare we imagine, where the first issue on the appeal is whether the person has a specific disease, or bodily or mental disablement.  However, we would make two comments about this type of case.

 

(i)              Firstly, given the nature of the ESA scheme, where entitlement begins simply by the claimant being “signed off” by his or her GP with a medical condition given on the form Med3, they are likely to be rare. It would be for the Secretary of State to then first put in issue whether the claimant has a condition that falls within regulation 19(5) of the ESA Regs.

 

(ii)            Secondly, if, in the rare cases, the First-tier Tribunal was to raise this as an issue – that is, does the appellant have a disease, illness or disablement that is recognised in medicine – where the Secretary of State even after the ESA85 assessment has not taken it as an issue, then it would need to explain why it was taking this as an issue, why it considered it was or may be an issue, and give the appellant adequate opportunity to address the point. In almost all cases where this step was taken by the First-tier Tribunal we consider an adjournment would be needed to enable the appellant to properly address the issue (most likely by the provision of further medical evidence).

 

43. Save in these rare cases, however, we consider the key and practical task for the First-tier Tribunal dealing with an ESA appeal under the present ESA Regs is, if we can put it this way, to work backwards.  What we mean by this is that it should start with activities and descriptors in Schedule 2 that are in issue on the appeal (and Schedule 3, if in issue), assess the evidence in respect of each of them and award points (or not) accordingly. In some case the wording of the activity or descriptor will require the tribunal to decide whether the claimant’s incapability to perform the activity arises from a physical or mental disablement (or disease or illness).  And in some other cases, like this one, an issue may arise whether the incapability to perform the activity arises from, to use the words in section 1(4) of the 2007 Act, the appellant’s physical or mental condition or is for some other reason (for example, religious or cultural belief). However, in most cases we consider the issue ought simply to be whether the appellant can score enough points under Schedules 2 or 3[7]. Adopting this approach has, we consider, the additional benefit of identifying the extent of the disablement and corroborating it (or not).

Alcohol dependency / specific disease or bodily or mental disablement (s. 8(2)) / specific  mental illness or disablement (Reg 19(5)

 

The Medical View

 

44. In R(DLA) 6/06 the Tribunal of Commissioner’s set out a helpful summary of the expert evidence given in that case on alcohol dependence:

“16. We had the benefit of written and oral evidence from Dr Helen Watts of the Central Medical Group of the Department for Work and Pensions. Dr Watts is not of course independent, but her expert evidence in respect of the effects of alcohol consumption and the nature of alcohol dependence was uncontroversial, compelling and extremely useful. We accept it.

17. She said that the long-term ingestion of significant quantities of alcohol may result in a wide variety of medical conditions, with mental and/or physical manifestations. Those with primarily mental symptoms include dementia and other cognitive impairments, psychoses (including Korsakoff’s Psychosis), amnesia, depression and anxiety states. Those with primarily physical symptoms include cirrhosis (with associated encephalopathy, ascites or oesophageal varices), cerebellar degeneration, peripheral neuropathy, fits, pancreatitis, anaemia, and atrial fibrillation, cardiomyopathy and other heart conditions. Some conditions may have both mental and physical manifestations.

18. Alcohol dependence is a discrete illness, well recognised by the medical professions and manuals of diagnostic criteria. Alcohol dependence falls within the category of Substance Dependence in the current Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM IV). The illness is diagnosed on the basis of a constellation of markers, as follows:

“A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of the substance to achieve intoxication or desire effect

(b) markedly diminished effect with continued use of the same amount of the substance

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for the substance …

(b) the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) the substance is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful efforts to cut down or control substance use

(5) a great deal of time is spent in activities necessary to obtain the substance (eg visiting multiple doctors or driving long distances), use the substance (eg chain-smoking), or recover from its effects

(6) important social, occupational, or recreational activities are given up or reduced because of substance use

(7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (eg current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).”

The definition of Dependence Syndrome in the current equivalent World Health Organisation manual (ICD10) largely corresponds.

Common ground

19. The diagnostic definition is expressed in terms of manifestations rather than causes. However, Dr Watts’ evidence was that alcohol dependence had a mental cause, in that it had a psychological or psychiatric cause which, insofar as science currently understands the conditions, may result from some activity at receptor level in the brain. On the basis of this evidence it was common ground (with which we agree) that physical symptoms or manifestations flowing from alcohol dependence alone do not result from an identifiable physical cause” (underlining added for emphasis).

 

 

45. That expert medical evidence is consistent with the World Health Organisations classification of alcohol dependence and harmful alcohol use as mental health disorders[8]. And, medical science has moved on since Commissioner Fellner said in paragraph 18 of CIB/4328/2000 that she was “satisfied that alcoholism (to use the lay term) is capable of being a “disease” for the purposes of [what is now regulation 29(2)(a) of the ESA Regs]”

 

46. In our view, unless contrary evidence is advanced that merits consideration, the summary of the expert evidence in R(DLA) 6/06 can and should be adopted by decision makers and tribunals in ESA cases as representing the currently accepted and mainstream medical view in respect of alcohol dependence.  This was the course adopted before us and by us in this appeal.

 

47. In our view it follows that the approach taken by Upper Tribunal Judge Mark in paragraph 15 of CE/1293/2011 where he said that:

“it is irrelevant whether the claimant’s alcoholism is to be treated as a physical or mental disablement, or a combination of the two, or a disease.  The question is the extent to which, by reason of that or any other disablement or disease at the relevant time in 2010 he could score any points on any of the descriptors”.

 

remains the correct approach. This is because on the medical approach summarised in R(DLA) 6/06, whether  it is categorised as a mental illness or mental disablement or neither, a diagnosis of alcohol dependence or alcohol dependency syndrome (which the appellant had in this case) plainly brings the condition within regulation 19(5) of the ESA Regs. 

 

Commissioner/Upper Tribunal Case law on Alcohol Dependence

 

47. In CIB/1296/2007 Commissioner Jacobs said, drawing on R(DLA)6/06 that alcohol dependence was “a mental condition, and not a physical one”, and so if the appellant in that case was alcohol dependent then the tribunal he was remitting the appeal to would have to consider only the mental disabilities section of the Schedule to the IFW Regs, and not the physical disabilities section of that Schedule, in respect of alcohol dependence.  We can see nothing remarkable or contentious in these directions the Commissioner gave to the tribunal.

 

48. However, in RA –v- SSWP[9] Upper Tribunal Judge May QC disagreed with this approach, in obiter comments. He said:

 

“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”.

 

49. Naturally we agree with Judge May QC that the definition of “disability” for DLA purposes is not the same, and so cannot be read across, to “specific… disablement” in ESA. However, as we have already indicated, we disagree with
Judge May QC that the expert evidence in R(DLA)6/06 – itself relying on world-wide recognised medical authority – has no application to ESA. We repeat that in our view, absent other evidence that merits consideration, it provides a helpful and up-to-date recitation of the current mainstream expert medical perspective on alcohol dependency.  As such, we consider it to be just as relevant to ESA as it is to DLA, and indeed, as Commissioner Jacobs found, helpfully locates alcohol dependency as a specific mental illness or disablement.  So we agree with Upper Tribunal Judge Levenson in AD –v- SSWP (ESA) [2011] UKUT 307 (AAC) where he said:

 

“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)”.

 

We add that, as appears above, in our view Judge Levenson could also have added ‘or a specific mental illness or disablement within regulation 19(5)’.

 

50. The remarks of Judge May QC in paragraphs 11-13 of RA were obiter and so not binding but for the reasons we have given they should not be followed.

 

The Appeal to the Upper Tribunal

 

51. The appellant obtained help from Glasgow City Council’s Welfare Rights service, who on 18.06.12 sought permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal had failed to provide adequate reasons for its finding that the appellant’s drinking was through choice. Reference was made to R(DLA)6/06 and the apparent dispute at commissioner/upper tribunal level about whether R(DLA)6/06 could apply in the context of ESA and limited capability for work. Permission was refused by the First-tier Tribunal but was granted by Upper Tribunal Judge May QC on 28.08.12.

 

52. The Secretary of State’s written submission on the appeal was to the effect that the First-tier Tribunal had not erred in law and had not provided inadequate reasons for its decision. In essence, the Secretary of State argued, at that stage, that the tribunal “were of the view that points in accordance with regulation 19 fell to be considered in respect of the claimant’s mental health condition” but that it was fully entitled to decide on the evidence that there was in fact no loss of functional ability. Mr David Fernie, from Glasgow City Council, for the appellant did not agree with this or that this was in fact what the tribunal had done.  He argued that (a) the tribunal had given no reasons for its finding that the appellant’s drinking and lifestyle was a matter of choice and (b) had failed to reason out whether the appellant’s alcohol dependence or misuse had been taken into account when assessing the various activities and descriptors in issue.

 

53. The appeal came on for hearing before the three judge panel on the 22^nd of November 2012. Mr Fernie attended and represented the appellant, who did not attend. The Secretary of State was represented by David Simpson, advocate, instructed by Helena Janssen, Solicitor of the office of the Solicitor to the Advocate General for Scotland.  We are grateful to both representatives for their submissions.

 

54. Mr Fernie’s submission on behalf the appellant stripped to its essentials was that:

 

(a)                                 the appellant had a mental illness due to his alcohol dependency and anxiety and depression which brought him within regulation 19(5) of the ESA Regs,

(b)                                if the First-tier Tribunal’s decision was to be read as saying it did not accept he had a mental illness then (i) it had erred in law in not putting that new issue to the appellant and giving him a fair opportunity to address it, and (ii) cogent reasoning was required to explain why the tribunal was going against the view of the GP and the health care professional, and that reasoning was not present here, and

(c)                                 on the basis that the appellant had a mental illness and so came within regulation 19(5) of the ESA Regs, the First-tier Tribunal had failed to explain adequately why none of the specific activities and descriptors put in issue were satisfied.

55. The Secretary of State’s argument remained that the tribunal had not erred in a law and its reasoning was adequate. However, the focus of his submissions differed from the earlier written submissions and in particular, as we have mentioned, both sides agreed with our conclusion on the meaning and effect of Reg 19(5).  On behalf of the Secretary of State it was argued before us that what the First-tier Tribunal had decided was that although the appellant had, or was assumed for the sake of the decision to have, a mental disablement or illness, he had failed on the causation test in regulation 19(5) because it had not been shown that any functional deficit arose from the alcohol dependency or his anxiety and depression. What the tribunal had decided, so the Secretary of State argued was that the functional deficits (e.g. not going out on his own) arose through the appellant’s choice, he was able to control his drinking, and therefore the functional difficulties the appellant complained of, even if believed, did not arise from his mental disablement(s).

 

Adequacy of Reasons / Fairness

 

56.  In our view, on a fair reading of the statement of reasons the tribunal has failed to adequately demonstrate that it has applied the correct approach in law as set out above to this claim to ESA based on the claimant’s assertion that he suffers from “depression”, “panic attacks / anxiety” and “alcohol problems” and whose GP recorded that his relevant conditions were “alcohol dependence syndrome” and “anxiety + depression”. 

 

57. Indeed, it is not easy to identify what the reasoning was in connection with the claimant’s physical or mental condition.  For example:

 

(i) the closing words of the statement of reasons set out above “Also the appellant did not suffer from cognitive impairment or mental disorder” reads as if the tribunal may have taken the view that the appellant did not have a “specific disease or mental disablement” within s. 8(2)(b) of the 2007 Act and regulation 19.  But if this is the case the tribunal fail to explain how they have dealt with the GP’s view that he suffered from “alcohol dependence syndrome” and “anxiety + depression”,

 

(ii) the statement that “In the circumstances of the present case the Tribunal’sdecision in relation to each of descriptors 11-16 inclusive was based on the same ground which was that the appellant drank too much and lived a life of inactivity but did so through choice.  Accordingly the Tribunal were satisfied that, as far as descriptors 11-16 were concerned, there was no loss of function on the part of the appellant”, could be read either as meaning that that there was in fact no loss of function at all or that whatever loss of function there was it did not arise from the appellant’s mental illness or disablement or that the appellant’s mental illness or disablement was a matter of choice, and

 

(iii)          on one reading of the tribunal’s decision it may have been saying that

the appellant’s alcohol dependency per se did not qualify as a specific disease or bodily or mental disablement, and as we have explained above this is not correct.

 

57. But the Secretary of State argues that these failures or uncertainties in the reasoning do not matter because the key finding is one of fact that was open to the tribunal on the evidence (in particular that of the GP, the health professional and the tribunal’s assessment of the claimant) that the claimant’s alleged limited ability to work was a matter of choice and so was not caused by his physical or mental condition (and thus a specific disease or metal mental disablement). 

 

58. As appears above (see paragraph 13) we agree, and the claimant did not argue to the contrary, that a finding based on choice if it had been fairly made and properly reasoned and analysed could found a rejection of the appeal to the tribunal, but there is a need to carefully analyse what the choice relates to and so whether it means that the causation required by the statutory test is not satisfied.

 

59. On the assumption that the statement of reasons had set out clearly that the tribunal was relying purely on their conclusion on causation, in our view, this argument of the Secretary of State is flawed because:

(i) the tribunal failed to give the claimant a fair chance to deal with this potential finding, and the assertion that they found it unlikely that he was as inactive as he claimed to be, and in any event

(ii) the conclusion on causation is inadequately reasoned and analysed.

 

60. As to point (i) in the preceding paragraph, in our view, if the tribunal was considering the rejection of the claimant’s appeal on this factual rejection of his case, procedural fairness required the tribunal to put these potential conclusions to the claimant expressly, or to question him in a way that would have given him a fair opportunity to deal with them.  A basic aspect of procedural fairness is to alert the relevant person to the case he has to meet and in our view the tribunal failed to do this in respect of these findings of fact.

 

61 As to point (ii) in the preceding paragraph, we acknowledge that there was some evidence before the tribunal upon which the conclusion could be based and that they were entitled to draw conclusions from the evidence and demeanour of the claimant.  In its reasons it does not mention the view of the health professional but as we point out in paragraph 7 above it is not evident to us how the health professional arrived at the conclusion – “this appears to be through choice rather than illness” – and so if the tribunal had referred to this in its reasoning in our view it should have recognised the weaknesses in that evidence, particularly in light of the conditions of “alcohol dependence syndrome” and “anxiety + depression” identified by the GP and effectively confirmed by the health professional.  The statement of reasons only refers to the second page of the GP’s report and fails to refer to the first page which sets out that view of the GP on the claimant’s conditions.  So no explanation is given as to how the Tribunal’s conclusion on choice was reached having regard to that view of the GP.  For example, it is unclear:

(i) whether the conclusion under the heading “Findings of fact made by the Tribunal”: “He does so through choice” applies to both of the preceding sentences or only the second of them.  Those sentences are: “He drinks excessive amounts of alcohol” and “He lives a life of considerable inactivity”, and

(ii) this uncertainty increases when read with the conclusion under the heading “Reasons”: “….the appellant had through choice adopted a lifestyle which involved him in a life of inactivity” and “…on the same ground which was that the appellant drank too much and lived a life of inactivity but did so through choice”.  Also, the statement of reasons fails to indicate how the finding of choice relates to the GP’s view that the claimant suffered from “depression + anxiety”.

 

62. Without such reasoning the finding of “choice” is unclear and far too simplistic.  Also, the medical opinion set out earlier makes it difficult to reach such a finding without, at least, further examination and assessment of the GP’s evidence.  Firstly, it is difficult to read into the short report of the GP a view that the two conditions described were the consequence of a choice.  Secondly, even if they could be the result of a choice or choices or lifestyle, the medical opinion set out earlier would point to the conclusion that what they cause is no longer a matter of choice.

 

63. The appeal succeeds. The appellant should draw no inference as to his eventual success on the merits of his case. Those are for determination by the freshly constituted First-tier Tribunal rehearing his case and applying our decision.

 

 

Mr Justice Charles

Chamber President

 

 

A J Gamble

Judge of the Upper Tribunal

 

 

S. M. Wright

Judge of the Upper Tribunal

Dated 15^th January 2013