Regarded as FTA ESA medical due to being intoxicated
Appeal due to be heard next week. Client was unable to be examined as too intoxicated. Client got very upset but they sent him away. He did attend two weeks before but took unwell and that has also been regarded as a FTA
Any case law please?
CE/288/2016 might help, in which Judge Hemingway pointed out that the legal test in regulation 23(2) of the Employment and Support Allowance Regulations 2008 was whether the claimant had failed without good cause to ‘attend for or to submit to’ a medical examination, rather than ‘failed to participate’ in an examination as stated by the DWP and tribunal. May be some mileage in arguing that the claimant did ‘attend for or submit’ to the examination; even if they were too intoxicated to meaningfully participate in practice, as long as they didn’t actively refuse to ‘submit’ to the examination, you may have something to argue there.
More generally, is the client alcohol or substance dependent, or is it acknowledged that they have a problem with alcohol or drugs? I would focus on that question, because it differentiates between someone who has just turned up drunk through choice, and someone who actually has a dependence and cannot realistically stop drinking, for example. CDLA/1365/2005 has some interesting and potentially useful observations on the issue of alcohol dependence; although that case is about DLA, I think you could argue that some of the principles may be relevant to your case. In particular, the questions of choice or lack thereof in relation to alcohol may be useful. For example, if your client had little choice but to turn up drunk, because of dependency on alcohol, I think that you’d have something to argue.
Seems like the claimant has been given a pretty short straw on this one. I would also consider in my submission about the reason why the claimant was intoxicated, given the previous cancelled appointment and the anxiety over journey’s etc. it is entirely plausible that taking alcohol/drugs to self medicate was the only way they were going to be able to attend. Particularly given that you mention that the claimant became upset when the examination was refused. I suppose there is also the question of whether or not they were intoxicated.
Another good tactic is to give a plausible way that a similar scenario will be avoided in the future, i.e. accessing a support worker, advocate or family member who will be able to support them to attend in such a way that they won’t be as anxious and wont need to take alcohol/drugs to support them to attend.
Generally, most judges I have had on these kinds of cases look for a plausible explanation of why it happened, how it will be avoided in future and then allow the appeal, with the unofficial caveat that if they are back at appeal again that they will probably be refused.