CSDLA/171/98

The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This claimant’s appeal succeeds. I hold the decision of the Dumbarton Disability Appeal Tribunal dated 17 June 1997 to be erroneous upon a point of law and, accordingly, I set it aside. I refer the case to the tribunal for determination afresh in accordance with the directions which follow.

2. I directed an oral hearing of this case in order to consider the authorities after referred to. At that hearing the claimant was represented by Mr Robert A MacKinnon, Solicitor, of the Law Centre, Dumbarton. The adjudication officer was represented by Miss E Aitken, Solicitor, of the Office of the Solicitors in Scotland to the Department of Social Security. I am grateful to both for their submissions and assistance.

3. In April 1996 the claimant sought a disability living allowance. After the usual procedure, an adjudication officer upon a review under Section 30(1) of the Social Security Administration Act 1992 determined that the claimant was not entitled to any rate of either component of the allowance. The claimant appealed to the tribunal. The tribunal refused the appeal. Their reasoning was based upon an acceptance and interpretation of decision CSDLA/268/95 to the effect that alcoholism was not a physical or mental disability insofar as not beyond the claimant’s control and so any consequences fell to be discounted. Their statement of material facts and reasons at "(3)" so shows. Their conclusion, in its latter part, endorses that. They set their whole conclusion out thus -
"Tribunal found (1) found [sic] appellant’s evidence re his alcohol consumption and efforts to control it vague, unconvincing and inconsistent with medical evidence. (2) Noted "Halliday" but did not consider it relevant in this case as alcoholism is not a physical or mental disability. CSDLA/268/95."
The tribunal had held that the claimant suffered from "epilepsy caused by alcoholism". They went on to find that the seizures were frequent, random and unpredictable and that he had suffered from marked alcoholic hepatitis for over 4 years which caused a peripheral neuropathy affecting his walking and grip. They further found that the claimant had had several falls over the previous years involving attendance at hospital casualty departments. They concluded that the claimant failed to satisfy the statutory tests in section 72 and 73 of the Social Security Contributions and Benefits Act 1992. There are no findings to show what were the effects of the epilepsy or of the peripheral neuropathy nor as to whether they gave rise to any need for attention or supervision or discomfort in walking.

4. Mr MacKinnon adopted the adjudication officer’s written submission that chronic alcoholism was a physical disability. He then sought to distinguish CSDLA/268/95, essentially upon two grounds. The first was that the claimant’s condition brought about by alcoholism was very much more substantial if not also more severe. He also emphasised that in this case there was a separate type of epilepsy which had not been assessed at all by the tribunal. That contention arose from evidence of the claimant’s general medical practitioner who, at document 54 of the bundle, answered the question -
"What type or types of epilepsy does the patient suffer from?"
thus -
"1. Alcohol/cannabis related seizure.
2. Trauma on CT scan old injury."
I think it is a valid criticism of the tribunal decision that they appear to have rejected the need to assess any part of the claimant’s epilepsy because they regarded it as alcohol related in origin. Insofar as there is, and I am expressing no medical view merely repeating what is set out at document 64, a form of epilepsy caused by an accident then, however it might have been difficult, that and its consequences should have been assessed in the usual way with a view to discovering what if any attention, supervision or walking restriction resulted for the purposes of said Sections 72 and 73. Had that been all to the case I would have set the decision aside and remitted the matter to a new tribunal to deal with upon that basis. But I do not only so direct the new tribunal, for the reasons which follow.

5. Mr MacKinnon made a number of other criticisms dependent upon the sufficiency of evidence with which, because of the basis upon which the case has to be redetermined, I need not fully deal.

6. Miss Aitken, in response, departed from the adjudication officer’s submission that chronic alcoholism is a physical disability. She, and with some encouragement Mr MacKinnon, were critical of decision CSDLA/268/95. In that decision the Deputy Commissioner, at paragraph 3, asked, first, what, if any, physical or mental disability the claimant there concerned might have. He noted that -
"The claimant’s position is that he suffers from chronic alcoholism and, in consequence it would seem, anxiety and depression. It does not seem obvious to me, however, that chronic alcoholism could properly be described as a physical or mental disability at all, If what is described is a condition brought on by the on-going use of alcohol which a claimant could control if he wanted to and had sufficient strength of character, it could not be said as a matter of ordinary language, I think, that he suffered from any disability at all. Weakness of character, or lack of self-control, are not mental disabilities."
7. I am far from sure that I accept all that, but the passage upon which the tribunal fastened is that which follows:
"Before any question of entitlement could arise, it is necessary in my opinion to establish the condition of which the claimant complains is truly beyond his control; and in the ordinary way I do not think that either drug or alcohol abuse, or their effects, could be said to be beyond the control of a person who does not suffer from any recognisable and serious mental or psychological disorder. I can quite appreciate that a person who suffers from mental illness, one of the manifestations of which a substance abuse of some kind, may be said to be severely disabled; but if it is the ongoing abuse which has as one of its consequences some mental disturbance, and nothing more, that is not enough: see Commissioners decision R(A)2/92 and re H, Court of Appeal, unreported, 17 February 1994."

8. The essential part of that passage for the tribunal was, I think, in these words -
"...and in the ordinary way I do not think that either drug or alcohol abuse, or their effects, could be said to be beyond the control of a person who does not suffer from any recognisable and serious mental or psychological disorder.
They were used to justify this tribunal’s conclusion that the epileptic effects of this claimant’s alcohol abuse could not be taken into account because it had not been established that his alcoholism was beyond his control. Certainly there is no question that he was otherwise suffering from a recognisable and serious mental or psychological disorder.

9. R(A)2/92 did determine that the statutory provisions about being "severely disabled physically or mentally" related to a condition of body or mind that could be defined medically and did not encompass merely unsocial behaviour unrelated to serious mental illness. The question then was whether certain aggressive or irresponsible conduct arose from a recognised disorder or mental condition or merely from a defective character. Re H was a decision by the Court of Appeal to much the same effect but it has to be borne in mind that it related primarily to a child whose diagnosis of epilepsy had been superseded, vitally for the purposes of the decision, by a behavioural disorder. Moreover, it specifically declined to deal with the correct approach to the issues because Counsel for the Secretary of State had not been called upon. In R(A)2/92 Mr Commissioner Skinner had accepted a contention from the Secretary of State that the primary question was to determine from what, if any, physical or mental disability a claimant was suffering. It is only in light of that determination that there can be any further consideration about issues of attention, supervision or restriction on walking for the purpose of the legislation, and assessment thereof. Insofar as the Deputy Commissioner in CSDLA/268/95 in the passage last quoted above might be taken to have laid down that physical or mental disabilities which exist only as the result of drug or alcohol abuse, which in turn is not established to be outwith the claimant’s control, fall to be disregarded then I must respectfully disagree.

10. 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.

11. 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.

12. Finally, I must deal with a mater which figured in various ways in the discussion before me. That was the effect of the evidence as to the extent to which this claimant’s alcoholism was within or without his own control. For the reasons given I regard this as largely irrelevant and so express no opinion as to the proper conclusion thereon. Although Mr MacKinnon pointed to document 68 for some verbal evidence, in my view, for what it is worth, the weightier evidence upon the matter is the medical evidence provided at document 72A. It seems to me to be rather unclear therefore whether the claimant’s attempts to refrain from alcohol produced no effect upon his epilepsy or whether his attempts to refrain from alcohol were what failed. The doctor said that the claimant had -
"... tried Alcoholics Anonymous and Gartnaval Hospital Psychiatric Alcohol Treatment Unit without success in the past." 
But earlier he had observed that compliance with anti-convulsant treatment had been -
"... very erratic. Consequently he has continued to take seizures. His compliance is no doubt effected by his inability to abstain from alcohol."
It is those passages which have led to my concern. But I only mention this matter because, on the one hand, I reject Mr MacKinnon’s criticism of the tribunal for not determining that the claimant’s alcoholism was outwith his control but, on the other, because Miss Aitken raised a question as to whether, if the alcoholism was treatable, that should be allowed for in the assessment. I do not think that it is relevant for a tribunal to consider whether treatment properly undertaken might ameliorate a condition or wipe out any of the need for supervision, attention or ease any difficulty with walking. I think that it is for the tribunal to assess the matter free from any contentions about the possible effects of such medical treatment - R(M)1/95. If treatment is undertaken and has an effect then, so far as may be relevant, an award can be reviewed and, if necessary, revised. 

13. For the foregoing reasons this appeal must be redetermined and the case is remitted accordingly.

(Signed) 
W M Walker Q.C.
Commissioner
8 October 1998