CDLA/2408/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and, since it is not expedient for me to make the findings of fact which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.

2.	This appeal, brought with the leave of a district chairman, arises out of a claim for disability living allowance made on 29 January 2001.  The claimant stated that his disabilities were anxiety, depression, agoraphobia, poor eyesight, suicidal tendencies and alcohol abuse. He claimed that he required supervision and encouragement, and that he had care needs in connection with walking outdoors, the risk of falling and blackouts, preparing meals and communicating with other people.  However, the only disabling condition identified by the claimant’s general practitioner in two reports dated 5 March 2001 was alcoholism, and on 12 March 2001 a decision was made rejecting the claim to both components of disability living allowance on the basis that mobility and care needs caused by alcohol abuse could not be taken into account.

3.	By letter dated 9 April 2001, the claimant’s solicitors applied for the decision refusing benefit to be revised, contending that because of panic attacks and alcohol abuse the claimant was unable to go outside unless accompanied, and that he lacked the motivation and concentration to cook a meal, get out of bed, attend to his personal hygiene and appearance, and deal with forms and correspondence.  However, the decision refusing benefit was maintained on reconsideration, and on 17 May 2001 the claimant’s solicitors appealed on his behalf on substantially the same grounds as those of the revision application.

4.	Prior to the hearing of the appeal, the claimant’s solicitors arranged for a full psychiatric assessment of the claimant to be carried out.  The psychiatrist’s report, prepared following a domicillary visit, described the claimant’s condition as follows:

“(His) problem is that of longstanding alcohol dependence.  Alcohol has proved a problem to him since aged fourteen, with an exacerbation some three years ago at the time of the death of his sister, his ex-partner and a nephew, the latter from suicide.  He currently drinks between five and fifteen cans of  5% beer daily, though avoids spirits.  He has the occasional day when abstinent, although only manages this by increasing his Benzodiazepine intake.  At such times he describes a clear withdrawal syndrome.  He drinks from early morning until rendered unconscious.  Some years ago he was frankly jaundiced as a consequence.  He tells me that he has been ejected from various GP’s lists as a consequence of his behaviour.”

After referring to the claimant’s “extensive forensic history, largely as a result of disinhibited behaviour while intoxicated”, including an incident when he threatened police with an axe, the psychiatrist concluded that the claimant “clearly shows all the features of marked alcohol dependence”, and continued:

“…he is clearly trapped by his addiction to alcohol.  The likely causes of this are, however, not of his own doing.  He appeared depressed, but it is my experience that such symptoms often fully remit after some weeks abstinence. (The claimant) was adamant that he did not wish formal entry into NHS Secondary Services again, with a view to a detoxification admission.  It is my opinion that it would only be as a result of such admission that he would have the opportunity to arrest his substance misuse.  This would also allow us to detoxify him from his concurrent Benzodiazepine dependence. ”

That report was sent to the tribunal  by the claimant’s solicitors, with detailed written submissions in support of the appeal, but the claimant himself was unable to attend the hearing.

5.	The tribunal accepted that the claimant had a “significant alcoholism problem”, but rejected the claim to lower rate mobility component because they considered that, whilst the claimant would obtain reassurance from being accompanied out of doors, he had no need for guidance or supervision “due to a disability”.  In relation to care component, the tribunal considered that the consultant psychiatrist’s report did not suggest any identified disability or mental illness and, although the tribunal accepted that the claimant would be unlikely to be able to care for himself if he had drunk to excess, they considered that there was no evidence as to the frequency of such episodes of drunkenness on which they could reach a view as to the extent of the claimant’s dependence on others.  The tribunal rejected the claim to lower rate care component because they considered that that there was no reason why the claimant would not be able to plan, prepare and cook a main meal for himself  when he was sober.

6.	The claimant appealed on the grounds that the tribunal failed take account of all his disablements, or his attention needs and need for supervision both in and out of doors (particularly with regard to his aggressive behaviour), and on the ground that, contrary to the tribunal’s findings, there was evidence of the frequency of the claimant’s drunkenness in the psychiatrist’s report.  The psychiatrist diagnosed the claimant as suffering from “longstanding alcohol dependence”, and in concluding that the psychiatrist’s report did “not suggest that that there is any identifying disability or mental illness”, the tribunal therefore do not appear to have accepted the claimant as disabled by alcoholism for the purposes of section 72 or 73(1)(d) of the Social Security Contributions and Benefits Act 1992.  In a submission dated 12 July 2002 the Secretary of State’s representative agrees with that position, but nevertheless supports the appeal on the ground that the tribunal did not make any findings on whether they considered the claimant was disabled from anxiety, agoraphobia, depression and poor eyesight and, if so, what care needs resulted from those conditions.

7.	I agree that the appeal must be allowed for the reasons accepted by the Secretary of State.  As the  Secretary of State’s representative has pointed out, the tribunal must have accepted that the claimant had some identifiable disability, but did not deal at all with any care needs resulting from anxiety, agoraphobia, depression or poor eyesight.  I also agree with the claimant’s representative that the tribunal failed to consider the claimant’s need for supervision resulting from his aggressive behaviour, and on the basis of the psychiatrist’s report, that there was, in fact, evidence of the frequency of episodes of drunkenness.  I therefore agree that the tribunal’s decision was erroneous in point of law and must be set aside.  Since it is not possible for me to make the findings which are necessary to decide the claimant’s entitlement to benefit, I refer the case for rehearing before a differently constituted tribunal.

8.	It is, however, necessary to consider how the claimant’s alcoholism should be taken into account in determining his entitlement to benefit and, as the Secretary of State’s representative has pointed out, there are conflicting decisions on that issue.  In CSDLA/268/1995 it was held by a deputy Commissioner that a person suffering from a condition brought on by the use of alcohol could only be said to be suffering from a disability if the condition was truly beyond his control, but that view was rejected by a Northern Ireland Commissioner in C/64/96(DLA) and by Mr Commissioner Walker in CSDAL/171/98 (*71/98).  In CDLA/778/2000 Miss Commissioner Fellner held that alcohol dependency was capable, in itself, of being a physical disability, although she disagreed with Mr Commissioner Walker in saying that no account should be taken of possible treatment in deciding on the length of an award.

9.	In CSDLA/171/1998 the tribunal found that the claimant suffered from epilepsy caused by alcoholism, that he suffered from frequent, random and unpredictable seizures which had led to several falls, and that he had suffered from marked alcoholic hepatitis for four years, which had caused a peripheral neuropathy affecting his walking and grip.  However, relying on CSDLA/268/1995, the tribunal held that the claimant was not suffering from a physical or mental disability.  As in this case, the tribunal do not appear to have had regard to disabling conditions which may not have been alcohol related, but the Commissioner rejected the view expressed in CSDLA/268/1995 that (R)(A)2/92 requires it to be established that alcohol dependency is wholly outside a claimant’s control before consideration can be given to any care needs resulting from the condition:

“In my opinion, following R(A)2/92, the proper approach is the other way about.  If the effects of abuse are, or fall to be regarded medically as, mental or physical disabilities then they will require to be assessed as such in the normal way.  That means that this claimant is entitled to have his epilepsy, from whichever cause-and I suspect that alcohol may be more an aggravation than a separate cause but that is for them-determined by a tribunal also assessing what, if any attention, supervision or walking restrictions flow from that epilepsy all in terms of the tests laid down in the legislation.  The new tribunal will proceed accordingly.

It follows, in my opinion, that whether an individual’s alcoholism or drug abuse, or as was figured in argument any other problems such as anorexia or severe migraine is not of itself a physical or mental disability-and that in my respectful view may depend upon medical evidence in any particular case-nonetheless if, as a result, there is any mental or physical disability suffered then that does fall to be assessed.  In short, I see no reason why someone suffering from epilepsy because of alcoholism, or as it may be suffering worse because of aggravation by alcoholism, should be refused benefit as against someone who has the same disability uninfluenced by alcoholism.” 

10.	I respectfully agree that care needs resulting from any physical or mental disability which have been caused or aggravated by alcoholism should be taken into account, irrespective of whether the consumption of alcohol can be considered within the claimant’s control.  But, in my view, it does not follow that transient care needs which result solely from alcohol intoxication should also be taken into account, even if such intoxication may be frequent or prolonged in the case of a particular claimant.  

11.	Section 72 of the Social Security Contributions and Benefits Act 1992 confers entitlement to the care component of disability living allowance on a person who is so severely disabled physically or mentally that he requires in connection with his bodily functions attention from another person, and in Re H (a minor), reported as R(A) 1/98, the Court of Appeal accepted that the severity of a disablement is a function of the need for care. A person who is intoxicated by alcohol may require attention in connection with bodily functions such as standing and walking, but the amount of alcohol which the person has consumed, and hence the extent of the person’s need for attention at any particular time, will depend on factors such as the availability of alcohol, the extent of the claimant’s willingness to control his or her alcohol consumption, and the claimant’s financial resources (which will of course actually be increased if benefit is awarded). (In this case the claimant’s consumption varies from no alcohol on some days, to between five and fifteen cans of beer the rest of the time.)   In the leading case of Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 (reported also as R(A)2/98) the House of Lords approved the passage from the decision of Mr Commissioner Monroe in CA 2/79, cited by Lord Bridge in In re Woodling, [1984] 1 WLR 348 that the provisions “are directed primarily to those functions which the fit man normally performs for himself.” An inability to stand or walk unaided when intoxicated by alcohol is unrelated to any infirmity, but is a temporary effect which is a direct and natural consequence of the consumption of excessive alcohol.  Since the nature and extent of the attention required by a person when intoxicated by alcohol cannot be directly related to the ‘severity’ of alcohol dependency (on the basis that such dependency, in itself, constitutes a physical disability), I consider that such attention needs should not be taken into account. Entitlement to lower rate mobility component and care component on the basis of supervision needs is also prescribed in terms of the severity of disablement as a function of care needs, and I therefore consider for the same reasons that the intoxicating effects of alcohol should also be excluded when considering those entitlement conditions.  Similarly, the extent to which a person is prevented by intoxication from cooking a main meal is not related to the ‘severity’ of disablement, and I therefore consider that the intoxicating effects of alcohol should be left out of account when considering entitlement to lowest rate care component on the basis of the ‘main meal’ test.
 
12.	The new tribunal should therefore take account of all the claimant’s disablements, irrespective of whether or not they have been caused or aggravated by the effects of the claimant’s alcohol dependency, and make detailed findings on the care needs resulting from those disablements for the purpose of deciding entitlement to both lower rate 

mobility component and lowest and middle rate care component (including lowest rate care component on the basis of the ‘cooking test’).  However, for the reasons I have given, I consider that attention or supervision required by the claimant solely because of intoxication caused  by the consumption of excess alcohol should not be taken into account.

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	(Signed)	E A L BANO
		Commissioner

		10 June 2003