[2006] NISSCSC C11_06_07(DLA) (28 November 2006) 

Decision No:  C11/06-07 (DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 15 September 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the chairman, against a decision of the appeal tribunal sitting at Belfast on 15 September 2005 (“the appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted tribunal (“the new tribunal”) for a complete rehearing.

2.	The question for determination by the appeal tribunal was whether the claimant was entitled to either or both components of a disability living allowance (DLA).  In the event, the appeal tribunal, upholding the decision of the decision‑maker, decided that the claimant was entitled to neither component.

3.	The claimant, who was born on 19 May 1950, was found by the appeal tribunal to be suffering from depression, post‑traumatic stress disorder and hypertension.  The appeal tribunal added “there is also a history of alcohol abuse”.  Later it commented: “We are satisfied that the major problem in this case is alcohol abuse”.  The claimant had previously been awarded the lower rate of the mobility component and the middle rate of the care component for the period from 1 July 2001 to 31 January 2005.  He applied to renew that award towards the end of 2004.  He was, as already indicated, unsuccessful.  

4.	I am going to remit the appeal to the new tribunal for rehearing for the following reasons.  The appeal tribunal’s statement of reasons contains this important passage:  
	
“We are satisfied that the major problem in this case is alcohol abuse.  His consultant psychiatrist confirmed so in a letter from October 04 when he notes that the psychiatric services have nothing to offer this man.  Again in February 05 it is noted that, in the psychiatrist’s opinion, [the claimant] is not suffering “… From a primary psychiatric illness – his main problem is alcohol”.

The appeal tribunal’s reasoning, and in particular its comments about alcohol abuse have been subjected to detailed and careful criticism by the Law Centre (NI) who act on behalf of the claimant.  The Department for Social Development does not, however, support the appeal and have explained why it does not do so in clear and helpful submissions dated 18 August 2006. 

5.	But for one factor I might have accepted the Department’s submissions and dismissed the appeal.  However, since 15 September 2005, when the appeal tribunal gave its decision a Tribunal of Commissioners in Great Britain has considered the question of alcohol abuse in relation to claims for DLA and has attempted to give general guidance.  The decision is numbered CDLA/1365/2005 (now reported as R(DLA)6/06), and is dated 22 March 2006.  The guidance contained in it was, therefore, not available when the appeal tribunal sat in September 2005.  In the light of that guidance it is far from clear, at least to my mind, what exactly the appeal tribunal made of the claimant’s alcoholism.  The Law Centre (NI)’s latest submissions which, I suspect have been drafted with CDLA/1365/2005 in mind, although that decision is not referred to overtly, contain the following submissions.  

“…There is conflicting case law regarding whether care needs from alcohol abuse or alcohol intoxication can be taken into account for DLA, or even if alcohol abuse constitutes a physical or mental disability.  A finding by the tribunal that alcohol abuse is his main problem may therefore affect the tribunal’s view of all of [the claimant’s] contended care needs.  It was therefore vital that the tribunal illustrate how it reached this conclusion in the light of the other evidence which give an overall picture which does not refer to alcohol abuse.  At the least, it would have been preferable for the tribunal to put its finding to [the claimant] for his response.  Further, a finding that alcohol abuse was his main problem should have given rise to a need by the tribunal to address issues such as his degree of control over his alcohol intake, the amount he drinks and how often, how this interacts and overlaps with his other accepted medical conditions, etc.”

	I accept that the appeal tribunal, which did not have the benefit of the Tribunal of Commissioners’ detailed consideration of the problems of alcohol abuse, did not explain itself fully.  

6.	I remit the matter to the new tribunal for a complete rehearing.  Subject to paragraph 7 below, the new tribunal should have regard to the guidance given in CDLA/1365/2005.  I direct that a copy of that decision be added to the papers.  Unfortunately it is a long decision.  For present purposes the most important passages would appear to be paragraphs 13 to 15 and 31 to 42.  In paragraph 33, the Tribunal of Commissioners said this:

“33.	Rather than a clear-cut distinction between dependence and choice, in our judgment it is more helpful to think in terms of the degree of self-control that is realistically attainable in the light of all of the circumstances, including the claimant’s history and steps that are available to him to address his dependence.  A person who cannot realistically stop drinking to excess because of a medical condition and cannot function properly as a result can reasonably be said both to be suffering from disablement and to require any attention, supervision or other help contemplated by the legislation that is necessary as a consequence of his drinking.  We can see no reason why the effects of being intoxicated should not be taken into account in determining his entitlement to the care component of DLA.”

7.	I fully appreciate that decisions of Commissioners in Great Britain, even decisions of a Tribunal of Commissioners, do not bind tribunals sitting in Northern Ireland.  Nevertheless, decision CDLA/1365/2005 is of great persuasive value.  Further, it focuses on the problems of alcoholism which are frequently encountered by tribunals.  It attempts to give sensible guidance.  The new tribunal is not obliged to follow everything that the Tribunal of Commissioners said.  However, if it decides not to follow any part of the guidance given then it should identify the point and explain why it does not accept the views of the Tribunal of Commissioners.  The explanation need not be long.

8.	I am also aware that I have not invited submissions from the parties on the effect of decision CDLA/1365/2005.  I am not so concerned about the claimant partly because I am allowing his appeal and partly because I think it likely that the draftsman of the last set of submissions from the Law Centre (NI) is familiar with the decision.  I am more concerned that the Department has not been given the opportunity to comment.  However, I have come to the conclusion that there is little point in my inviting submissions from it.  I hope that I do not appear arrogant.  Part of the reason is that I am remitting the matter for rehearing.  I would certainly have given the Department the opportunity of commenting if I were contemplating giving a final decision.  The Department is, of course, free to make submissions to the new tribunal.  The other reason is that the appeal tribunal said very little about the claimant’s alcohol abuse.  That being so, there would appear to be very little that the Department can, in turn,  say apart from stressing that the decision is not binding on tribunals in Northern Ireland.  
9.	Accordingly, and for the reasons I have given, I allow the appeal and remit the matter to the new tribunal.

(signed):  J P Powell

Deputy Commissioner

28 November 2006