ESA - Alcohol Dependency

I have a client with severe Alcohol Dependency and chronic depression which leads to outburst.  Client was awarded 0 points on a conversion to ESA and I am drafting a submission for the appeal to FT.

I am looking at Regulation 29(b) and also Descriptors 12 Awareness of everyday hazzards, 16, Coping with a social engagement and 17, Appropriateness of behaviours.  This is based upon alcohol dependency and depression as a mental health condition.

Is it right in drafting to ask the panel to consider the descriptors and if they disagree ask them to consider Reg29 in any event the same submission?

Best Wishes
Mik

yes

Not sure if this recent decision may be useful.

In CE/1757/2011 the claimant suffered from mental health problems and alcohol abuse.

Judge Levenson agrees in principle with the Secretary of State that needing the use of alcohol to visit new places or engage in social contact can be compared with the use of self-hypnosis or relaxation techniques or anti-anxiety medication.

However, he does state that it is matter of degree -

“A small glass of beer or lager before going out might be one thing, half a bottle of vodka would be something else.”

In the latter kind of case, Judge Levenson holds that Regulation 29(2)(b) would be brought into play -

“…the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

Judge Levenson outlines that the First Tier Tribunal considered this in the context of the claimant’s attempts at self-harm. In respect of alcohol it stated that “the alcohol problem would not be a risk because on the evidence of the appellant he can function with the amount he consumes for example before he goes out”.

However, in upholding the claimant’s appeal and remitting it fore rehearing Judge Levenson says that -

“It seems to me that if a claimant has to drink significant amounts of alcohol before going out, even to the pub, and 3 ½ cans of alcohol before facing the First Tier Tribunal then it is incumbent on the First Tier Tribunal to consider whether and how much alcohol he might need to drink before going to work, on the way to work, and while at work, in order to actually work.

Significant amounts on a daily basis might well pose a substantial risk to his own health and also (depending on the nature of the work) to the health of others. The First Tier Tribunal was in error in not giving proper consideration to this issue. The new panel must do this.”

CE/1757/2011 is available @ http://www.osscsc.gov.uk/Aspx/view.aspx?id=3514

As the rep in CE/1757/2011, I found it laughable that the SSWP attempted to argue that alcohol use was equivalent to treatments such as relaxation techniques and prescribed anti anxiety medication.  I was even more surprised when the UT agreed with them, “to a degree”. 

I personally cannot envisage many situations in which a person will be able to work without substantial risk to himself on even a modest alcohol intake. 

The case has been remitted to a FtT but already the FtT has raised CE/903/2010 which I’m still trying to get my head round.  Comments in para 13, though obiter, come dangerously close to reversing what I thought was the settled position that alcohol dependency is a qualifying disease or disablement for ESA.

Cheers Andy, I’ll take a look.