Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Glasgow on 2 July 2013 is set aside.

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

REASONS FOR DECISION

1.         The claimant has appealed against the decision of the tribunal given at Glasgow on 2 July 2013.  It is in the following terms:

            “1.        The appeal is allowed.

            2.         The decision made on 02/11/2012 is set aside.

            3.         [The claimant] is entitled to Employment and Support Allowance (“ESA”) with the work-related activity component.

            4.         This is because insufficient points were scored to meet the threshold for the Work Capability Assessment, but regulation 29 of the ESA Regulations 2008 applied.

            5.         No Schedule 3 descriptor applied.  Regulation 35 of the ESA Regulations 2008 did not apply.

            By reasons of abuse of alcohol [the claimant] is significantly limited, in particular, in regard to disinhibition.  Nevertheless he does not score sufficient points.  However if he were found capable of work this would result in a substantial risk of danger to himself and any other person.  In reaching its decision the Tribunal placed particular reliance upon the evidence of the appellant’s GP and preference to the report of the Health Care Professional.”

2.         The grounds of appeal related to the tribunal’s decision in respect of descriptor 17(a) of schedule 2 and descriptor 14 of schedule 3 of the Employment and Support Allowance Regulations 2008.

These are identical and are as follows:

“Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.”

Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.”

3.         In the course of the appeal however Mr Webster submitted that the tribunal erred in law in respect of their treatment of regulation 29(2)(b) of the same regulations in which they found that the claimant satisfied the conditions for that regulation.  The basis for Mr Webster’s submission was that in making the finding that regulation 29(2)(b) applied the necessary connection between the risk and some specific disease or bodily or mental disablement contained in the regulation was not made.  Mr Orr properly accepted that this was the case.  The tribunal made a finding that the claimant had an intolerance of bright lights, loud noises and large groups of people and is currently liable to react to such experiences by consuming a greater than recommend level of paracetamol.  However this was not linked to disease or disablement referred to in the regulation.  That is apparent from the tribunal’s findings at page 89 in relation to the medical conditions affecting the claimant. These findings in the reasons have the headings, “alcohol misuse”,  “depression”,  “epilepsy” and “other”.  The aversion to bright lights, crowded places and loud noises and disorientation is placed by the tribunal under the heading “other”, which is not identified, and is not linked to the other conditions found.  In these circumstances I am satisfied that the tribunal’s decision errs in law and must be set aside. 

4.         The grounds of appeal were within short compass.  It was that the tribunal did not deal with the argument that was made to them in respect of the descriptors referred to. It was submitted that the mere fact of drinking alcohol would constitute disinhibited behaviour that would be unreasonable in any workplace.  It appeared from what Mr Orr submitted that the evidence relied upon as the factual foundation for this submission was that contained in the condition history in the Health Care Professional’s report at page 48.  There it is stated:

            “Started about 20 years ago.

            Drinks half a bottle of Vodka a day and 7 cans of lager a day.”

5.         Mr Webster in response submitted that the volume of alcohol drunk in the course of a day would not in itself amount to disinhibited behaviour.  He also submitted that the misuse of alcohol by the claimant did not amount to the mental disorder referred to and the activities relating to the descriptors nor the specific disease or bodily or mental disablement which is the precondition for the application of the descriptors in schedule 2.  I refer in that connection to regulation 19(2) and (5) of the Employment and Support Allowance Regulations 2008.  It is also an essential precondition for the application of the descriptor 14 in schedule 3 that the claimant’s condition arises from a specific mental illness or disablement. I refer to regulation 34(3A). It was Mr Webster’s submission that alcohol misuse is not such a disablement.  It was however accepted that alcohol dependency could, following the decision of the 3 Judge Panel in CSE/496/2012, be such a condition. Reference is made to paragraph 47 of the 3 Judge Panel’s decision.  Mr Webster’s submission was that the tribunal were correct when they said:

            3.         The Guidance given to this First-Tier Tribunal by the Upper Tier Tribunal indicates that the mere consumption of large amounts of alcohol should not, in itself attract benefits and that it is only where mental or physical injury to the Claimant results should an award of benefit be considered.  Accordingly, the task for this Tribunal is to assess the physical and mental effect upon [the claimant] of his consumption of alcohol.  The HCP, whose Report this Tribunal accepts, did not find [the claimant] to be physically or mentally affected by his alcohol assumption to the extent that any of the ESA Descriptors were satisfied. The Tribunal found that the evidence from the GP was not essentially in conflict with that finding.  It may well be, as the GP states, that [the claimant] has problems controlling the level of his alcohol intake and has sought help and medication (Librium) for that condition and that is accepted by the Tribunal but that is a long way from a finding of physical or mental disability as a result which the GP does not state in terms of exists in the case of [the claimant].  From its own assessment this Tribunal found [the claimant] to be a healthy-looking, well fed and well kempt individual showing none of the effects of the damage the Tribunal normally sees in those disabled by the excessive consumption of alcohol.  For these reasons, in the case of [the claimant], this Tribunal found none of the ESA Descriptors satisfied and was unable to award any points in relation to alcohol.”       

6.         The evidence in respect of the claimant’s use of alcohol from his General Practitioner is in a letter of 14 February 2013 recorded at page 79 where he says:

            “I can confirm the above patient has been with the practice since 1996 and has a long history of alcohol abuse and has attended the practice on numerous occasions requiring help with his alcohol abuse.  He has required medication from my colleagues and advice with regards to his problems.  This is not a new condition and has been ongoing since the patient registered with the practice.  I would therefore appreciate if this could be taken into consideration with his appeal as he registered with the practice on 12 December 1996 and this is a long standing ongoing major problem which seriously affects his well being and his health.”     

7.         The evidence before the tribunal contained in the General Practitioner’s evidence and elsewhere does not appear to support a diagnosis of alcohol dependency on the basis of what is described as “a constellation of markers” set out in the quotations from R(DLA)6/06 by the 3 Judge Panel in paragraph 44 of CSE/496/2012 JG v SSWP [2013] UT037 (AAC).  Therefore there is substance in Mr Webster’s submission that the essential preconditions I have referred to were not established and that accordingly the tribunal came to the correct conclusion on this. On the evidence before the tribunal I am satisfied that in respect of the claimant’s consumption of alcohol the disablement of the type referred to in regulation 19 and 34 has not been established and accordingly the points scoring descriptors in issue cannot arise. 

8.         Even if such disablement had been established I am persuaded by Mr Webster’s submission that the volume of alcohol the claimant is said to drink on a daily basis would not in itself amount to the disinhibited behaviour referred to in descriptors 17(a) in schedule 2 and 14 in schedule 3.  I see the force in Mr Webster’s submission that disinhibited behaviour requires the context of an inhibition.  I cannot see and it has not been established what the inhibition in this case is and how the drinking of a certain volume of alcohol amounts in itself to disinhibited behaviour.   Disinhibited behaviour may result as a consequence of drinking specific quantities of alcohol but that is not the basis upon which the claimant’s argument is put.  Mr Orr seeks to widen “disinhibition” beyond the scope of what the statutory provisions can bear.  The activity for both descriptors relates to the appropriateness of behaviour “with” other people which suggests that the descriptor is intended to be applied in respect of behaviour which is more than the passive drinking of alcohol.   I did not accept  Mr Orr’s argument to the contrary.

9.         I accept that Mr Webster is correct when he submitted that without disablement being established this would be the end of the matter as far as the points scoring descriptors are concerned.  I do however note that in the decision notice the tribunal say that by reasons of abuse of alcohol the claimant is significantly limited in particular in regard to “disinhibition”.  However I cannot find anything in the statement of reasons which identifies the nature of that disinhibition.  The matter is of no moment for the purposes of this decision as the tribunal’s finding of disinhibition did not provide a factual foundation for a finding by the tribunal that the claimant satisfied any of any points scoring descriptors.

10.       The case goes before a freshly constituted tribunal.   It would appear that descriptors 17(a) of schedule 2 and 14 of schedule 3 will be in issue before them.  Regulation 29(2)(b) and 35(2) will also be in issue.  They will note that the nature of the use of alcohol by the claimant is critical for the determination of the appeal.  In that connection, for the purposes of both the descriptors and regulations 29 and 35, the claimant’s use of alcohol has to establish a disablement of the type referred to in the regulations.  In that connection for the purpose of determining whether the use of alcohol by the claimant amounts to disablement CSE/496/2012 should be followed by the tribunal. They should note what is said in paragraphs 47 to 49 of that decision.  If the tribunal come to apply the descriptors on the basis that the essential preconditions have been satisfied they will note what I have said in respect of the nature of disinhibition and that more than the consumption of a given volume of alcohol is required.

                                                (Signed)

                                                D J MAY QC

                                                Judge of the Upper Tribunal

                                                Date: 21 March 2014