The effects of alcohol or other substances

I have a couple of appeals pending where the appellants are chronic alcohol users, both drink about 3 litres of strong cider every day. Both have, needless to say, been found not to have LCW as on interview they appear relatively unaffected by their alcohol intake.

It would seem to me that however they appear at interview they are still considerably under the influence of alcohol (imagine the outcome if they were stopped by the police while driving!) and this might raise the possibility of them qualifying under Reg 29 as there is clearly some potential for danger to themselves or others if they were at work.

The ‘Charlton’ case approved a previous decision regarding Reg 27 of the IB regs that placed some onus on a Tribunal to look at the sort of work a claimant might be expected to do when assessing the potential risk and I suppose there are some jobs that might be safely done with 3 litres of cider in your system. (the excesses of some past and recent politicians inevitably come to mind, although the jury is still out as to whether they presented a risk to themselves or others!)

I am looking for any other caselaw that might give some authority to the idea that if a person is unable to control their drinking and cannot stop themselves drinking throughout every day they are by any reasonable measure a potential hazard to themselves or others if they were in a workplace.

I am sure I’m not the first person to propose this and I expect it’s been dealt with but I can’t find any particular reference to it.

As always any thoughts or observations would be gratefully recieved.

Not much help I’m afraid, but I had a very similar appeal recently (like your clients, the client didn’t obviously attract any points from the descriptors- he’s just a chronic alcoholic who can hold his booze and has no intention of ceasing drinking at present) where I argued Reg 27 applied but the appeal failed. Client wasn’t interested in pursuing it so I didnt request SOR.

I too would be interested to see if anyone has had any success with Reg 27 argument under these circs.

Have they scored under activity 17 “Appropriateness of behaviour”?

disinhibited behaviour: friendly drunk “Your my best mate you are…... lets have a sing song”

aggressive behaviour: angry drunk: “Your’e all ***** and I’m going to kick your heads in!”

I know these are stereotypes but the effect of drink is usually to loosen inhibitions so a lot of alcoholics would seem to score under this activity

Could you not argue that any reasonable employer would be breaking the law by allow such an intoxicated worker in any work place contrary to Sect. 2(1) Health & Safety at Work Act 1974…..........

(2) General duties of employers to their employees.

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

Damian - 13 July 2012 11:10 AM

Have they scored under activity 17 “Appropriateness of behaviour”?

disinhibited behaviour: friendly drunk “Your my best mate you are…... lets have a sing song”

aggressive behaviour: angry drunk: “Your’e all ***** and I’m going to kick your heads in!”

I know these are stereotypes but the effect of drink is usually to loosen inhibitions so a lot of alcoholics would seem to score under this activity

No they don’t , like 1964’s client they are both able to hold their booze without any obvious effect although both avoid socialising or going to new places in case they get upset and kick off. They will probably both get some points for 15 and 16 but not 17 as they never actually have these ‘outbursts’, there is the potential for this to happen but no evidence that it actually does happen and the descriptor clearly refers to things that do happen rather than just might happen. I think they would both probably get 12 ponts, hence the question about Reg.29

Is there any evidence of a decline in mental health or an increase in alcohol consumption shortly after receiving the decision finding them not to have LCW, or other examples of them drinking more in response to stress or anxiety? What about the difficulties coping with change descriptor? I’ve had a few successes recently with reg.29 (one alcohol related) where we were able to show that just the thought of having to go out to work, or undertake the activities associated with a JSA claim (attending interviews, weekly trips to the JC), which would be necessary if the claimant were found not to have LCW and therefore needed to claim JSA instead of ESA, had already resulted in the claimant drinking more. If there are already physical health complications resulting from prolonged alcohol abuse and dependency then increased drinking could pose a substantial risk to health?

Trouble is, it depends so much on the individual client. I have at least two other clients with chronic alcohol dependency who have been placed in the SG following successful appeals but in those cases the clients clearly had significant mental and physical issues resulting from the alcohol dependency (and met a good number of the descriptors) as well as there being an exceptional circs argument.  The client I referred to in my post really didn’t tick any of the boxes in that sense.

I think J.McKendrick’s H&S at work argument is worth a shot though.

The above facts seem relevant to a client or two of ours. Has anyone got anywhere with the health and safety argument for reg 29?

Excellent, thank you. Given the nature of my client’s former employment, going to try coupling that with CE/0691/2012, which supports that “substantial risk” thus had to be assessed in the context of the range or type of work a claimant might be expected to do’, i.e. Charlton.