I am representing someone who is alcohol dependant who has failed the PCA. I'm planning to try and argue for exemption under reg 27 at the tribunal. The claimant's usual type of work would deffinately pose serious risks to him if he undertook it now. I'd be grateful if anyone could agree that this is a possibility (or otherwise).

Might be worth a try, but don't forget that the PCA is testing the claimant's ability to do any work, and not just their usual job.

I seem to remember that the Commissioner's Decision also covered serious risk in looking for work...I would double check the full decision because I think you have to prove a lot more than just usual occupation.

Wed 12-May-04 04:00 PM by ken

Hi jmt,

It may be worthwhile you having a look through Commssioner Jacobs recent decision in CIB/26/2004.

In this decision, Commissioner Jacobs adresses Reg 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 with reference to the Howker case (reported as R(IB)3/03).

In dealing with Reg 27(b), he analyses what has to be proved; the evidence to prove it; and the standard to which proof is needed.

He goes on to state that the application of regulation 27(b) is triggered by two factors -

that there ‘would be a substantial risk’ to the health of any person;

and

that the risk must arise from the claimant being ‘found capable of work’.

A summary of his decision, with a link to the full decision itself, can be found in the briefcase area of rightsnet

Thanks folks, I've had a look at CIB/26/2004 and the claimant's circumstances in my view would give rise to a substantial risk based on the extent of the alcohol intake on which claimant is currently physically dependant - has previously been hospitalised due to withdrawal. I'm seeking medical evidence confirming a specific disease/ mental or bodily disablement e.g. physical dependancy on alcohol/mental health problems.

I'm really needing reassurance that tribunals are happy enough considering reg 27 arguments as I've not been involved in one before.
thanks ...jim

you shouldn't give up on the points.

There is conflict between the Commissioners but the most recent word on the matter appears to be that of Commissioner Parker who in CSIB/248/03 quotes herself

"I repeat what I said at para 18 0f CSIB/287/03:-

'I prefer CDLA/778/2000 to the vies expressed by the Commissioner in CDLA/2408/02, which I do not fully understand. He does not appear to accept that alcohol dependency can itself amount to a disability and therefore categorizes all consequences which do not amount to a separate specific disability such as epilepsy as transient care needs which result solely from alcohol intoxication. However, it seems to me to be an issue for the expertise of the tribunal. If the new tribunal accepts that the claimant has an uncontrollable physical addiction, then it is logical that the results of that addicition may be taken into account. The tribunal erred in, firstly failng to determine whether or not the alcohol abuse constituted the necessary disablement within reg 25(3)(a) and, if so, then to make findings with respect to the asserted resultant problems of continence of bowel and bladder'."

This allows us to remind ourselves of CSIB 38/99 where the Commissioner said

"The other matter is as to whether the claimant's abilities or activities are to be judged when she is sober or under the influence of alcohol or both...it is for the tribunal to seek to obtain a general view of the claimant's condition. Thus if she is almost always on the "binge" it may be appropriate to judge her on that basis. On the other hand if there are reasonably substantial intervals
between bings then it may be appropriate to judge her upon that basis".

This approach will bring in some physical descriptors and many mental health desriptors.

In addition if Howker and Commissioner Jacobs are followed then
the old version of "consciousness" will apply.

In respect of the now revived test the Commissioner said

"Prior to that date it was simply the ability to remain conscious other than for normal periods of sleep" During that period if the whole business of drinking and its consequences were wholly uncontrolled and uncontrollable by the claimant it might be that the tribunal could regard the episodes of altered consciousness which resulted as "involuntary"