SD v Secretary of State for Work and Pensions (ESA)

I gave permission on the following grounds, which I reproduce here at paragraphs 17-20 with some minor amendment.

First, the tribunal arguably neglected to consider the effect of the Appellant’s drug use when considering Regulation 29(2)(b). This was a matter in issue by virtue of the letter from the Royal British Legion dated 30 September 2014 [see specifically page 51]. The tribunal found that the Appellant used street drugs including heroin and that he bought – and by inference used – street valium. The tribunal made no findings as to the effect that this drug use had on the Appellant’s functioning relevant to its consideration of Regulation 29(2)(b) and thus arguably erred in law. I note that a letter from a consultant psychiatrist, Dr R, diagnosed the Respondent as having “relapsed to street heroin dependency” over the previous 12 months [page 71]. Whilst the date of that letter was 26 February 2014 and thus postdated the relevant decision by some 6 months, it arguably shed light on circumstances relevant to the Appellant’s health at that time.

A three judge panel considered alcohol dependence and its relevance to a person’s capability for work within the meaning of the Employment and Support Allowance Regulations [JG v Secretary of State for Work and Pensions [2013] UKUT 37 (AAC), [2013] AACR 23]. It found that alcohol misuse must rank as “alcohol dependency” by reference to a constellation of markers set out in paragraph 45 in order for such dependency to constitute a “disablement”. Should the tribunal have considered whether the factors set out in that judgment were relevant to the issue of drug dependency and made findings on this issue? Arguably it should have done given that the Appellant had to demonstrate that his drug dependency constituted a bodily or mental disablement in order to satisfy part of the test in Regulation 29(2)(b).

The written evidence before the tribunal about the effect of drug use/drug dependency was unclear and arguably required clarification by the tribunal at the hearing. This did not happen. The tribunal had an inquisitorial function and arguably should have explored this issue with the Appellant even if his representative failed to do so. If it wished to avoid distress to the Appellant by such questioning, should it not have considered an adjournment and directed the production of a statement by the Appellant addressing this issue?

Finally, the tribunal concluded that there would be an “adequate range of work” which the Appellant could undertake without risk to himself or another. It is arguable that such a finding did not follow the procedure set out in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 which requires a tribunal – with sufficient particularity - to identify the range of work a claimant could do. Here all the tribunal did was to state that the Appellant had been in the Army.

I have only made reference to the law which is relevant to the issues raised by this appeal.

This relevant law is helpfully analysed in JG v Secretary of State for Work and Pensions [2013] UKUT 37 (AAC), a decision by a three judge panel. Paragraphs 12-21 of JG consider the Welfare Reform Act 2007 which underpins the regulations pertaining to ESA. JG held that sections 15A and 18 of the Act supported the proposition that alcohol or drug dependence was capable of falling within the definition of a “specific disease or bodily or mental disablement” in order to found a claim for ESA [see paragraphs 18-21].

Regulation 19 of the Employment and Support Allowance Regulations 2008 sets out how limited capability for work is to be determined via the limited capability work assessment. I reproduce those parts of regulation 19 relevant to this appeal below:

“(1)

For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2)

The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

…

(5)

In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises –

(a)

in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b)

in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental disease or disablement;

(c)

in respect of any descriptor or descriptors listed in –

(i)

Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific disease or disablement; or

(ii)

Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.

…”

Regulation 19 establishes a causative link between the disease or disablement and the incapability to perform the activities in Schedule 2. The same link between disease/disablement and incapability is seen in regulation 29(2)(b) which comes into play where the claimant has been found not to have limited capability for work. The paragraphs of regulation 29 relevant to this appeal are as follows:

“(1)

A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2)

Subject to paragraph 3 this paragraph applies if –

…

(b)

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

(3)

Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by –

(a)

reasonable adjustments being made in the claimant’s workplace; or

(b)

the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

…”

In most cases there will be little difficulty, given the medical evidence, as to whether a claimant’s condition amounts to a disease or disablement. Paragraph 44 of JG suggested that the most practical approach was for a tribunal to work backwards by starting with the Schedule 2 activities and descriptors in issue; assessing the evidence in respect of each of them; and awarding points (or not) accordingly. The wording of the descriptor in some cases requires the tribunal to decide whether the claimant’s incapability to perform the activity arises from a physical or mental disablement or disease.

JG is also authority for the proposition that alcohol dependency falls within the phrase “specific disease or bodily or mental disablement”. The summary of the expert evidence on alcohol dependence in R(DLA) 6/06 could and should be adopted by decision makers and tribunals in ESA cases as representing the currently accepted and mainstream medical view in respect of alcohol dependence [paragraph 47]. The evidence referred to is set out in paragraph 45 of JG.

In essence, the Appellant argued that the tribunal had failed to have regard to his mental health problems and drug misuse when assessing, in particular, whether regulation 29(2)(b) applied in his case. Additionally the tribunal was said to have overlooked evidence pointing to the Appellant’s aggressive and threatening behaviour in general rather than just when he did not get what he wanted. That latter ground of appeal was very much secondary to the submission centred around regulation 29(2)(b) and the Appellant’s drug use.

The Respondent argued that the tribunal did not err in law in its approach to this case. He accepted that, applying the principles set out in JG, drug dependency might constitute a bodily or mental disablement by reference to the descriptors in Schedule 2 and regulation 29(2)(b). However his case was that the claimant was not dependent on drugs at the date of the decision under appeal.

Turning to the third of the permission grounds, I am indebted to the submission from the Respondent.

The criteria for diagnosing alcohol dependence set out in paragraph 45 of JG relied on the factors listed in the category of Substance Dependence contained in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM IV). The diagnostic criteria are as follows:

“A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same twelve month period:

i)

tolerance as defined by either of the following: (a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect or (b) markedly diminished effect with continued use of the same amount of the substance;

ii)

withdrawal as manifested by either of the following: (a) the characteristic withdrawal syndrome for the substance or (b) the same (or a closely related substance) is taken to relieve or avoid withdrawal symptoms;

iii)

the substance is often taken in larger amounts over a longer period than was intended;

iv)

there is a persistent desire or unsuccessful efforts to cut down or control substance use;

v)

a great deal of time is spent in activities necessary to obtain the substance (eg visiting multiple doctors or driving long distances), use the substance (eg. chain-smoking), or recover from its effects;

vi)

important social, occupational or recreational activities are given up or reduced because of substance use;

vii)

the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problems that is likely to have been caused or exacerbated by the substance (eg. current cocaine use despite recognition of cocaine-induced depression or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).”

I note that the factors listed in the category of Substance Dependence in DSM-IV are not alcohol specific [see (vii) above for example] and thus, as a matter of logic, they must apply to other substances such as heroin and cocaine. I find that the constellation of markers set out in paragraph 45 is therefore equally applicable to drug dependence (such as that probably seen in this particular case).

The Respondent states that he “has no argument with JG about how drug dependency may be determined and how it might constitute a bodily or mental disablement by way of reference to the descriptors of Schedule 2 of the ESA Regs 2008 and regulation 29(2)(b).” I interpret this submission as support for my conclusion that the factors listed in paragraph 45 of JG by reference to DSM-IV are applicable to drug as well as alcohol dependence.

If I am wrong about the above, the Respondent has made submissions about the changes wrought by DSM-5 to the clinical criteria for substance dependence. However he has not said how these changes might impact upon the finding in JG that a diagnosis of alcohol dependence – and I suggest, drug dependence – brought that condition within rule 19(5) – and by extension, Rule 29(2)(b) - of the Regulations.

DSM-IV has now been superseded by DSM-5 with effect from 18 May 2013. In DSM-5, substance related/addictive disorders are divided into two groups: substance use disorders and substance induced disorders.

Substance use disorder in DSM-5 combines the DSM-IV categories of substance abuse and substance dependence into a single disorder measured on a spectrum from mild to severe. Each specific substance is addressed as a separate use disorder such as alcohol use disorder, opioid use disorder or stimulant use disorder. Whereas a diagnosis of substance abuse previously required only one symptom to be present in the previous twelve months, mild substance use disorder in DSM-5 requires two to three symptoms from a list of 11. In DSM-IV the distinction between abuse and dependence was based on the concept of abuse as a mild or early phase and dependence as the more severe manifestation. The revised criterion of substance use disorder is said to better match the symptoms that patients experience.

Substance induced disorders include intoxication, withdrawal, substance induced psychosis and substance induced neuro-cognitive disorders.

The diagnostic criteria for opioid use disorder (heroin being an opioid) are as follows:

“a problematic pattern of opioid use leading to clinically significant impairment or distress as manifested by at least two of the following occurring within a 12 month period:

i) opioids are often taken in larger amounts or over a longer period than was intended;

ii) a persistent desire or unsuccessful attempts to cut down or control opiate use;

iii) a great deal of time is spent in activities necessary to obtain the opioid, use the opioid or recover from its effects;

iv) craving or a strong desire to use opioids;

v) recurrent opioid use resulting in a failure to fulfil major role obligations at work, school or home;

vi) continued opioid use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the use of opioids;

vii) important social, occupational or recreational activities are given up or their engagement is reduced because of opioid use;

viii) recurrent opioid use in situations in which it is physically hazardous;

ix) continued opioid use despite knowledge of having a persistent or recurrent physical of psychological problem that is likely to have been caused or exacerbated by the substance;

x) tolerance as defined by either a need for markedly increased amounts of opioids to achieve intoxication/desired effect or a markedly diminished effect with continued use of the same amount of opioid;

xi) and withdrawal as manifested by either the characteristic opioid withdrawal syndrome or opioids (or a closely related substance) being taken to relieve or avoid withdrawal symptoms.”

Severity is specified as follows: mild substance use disorder is the presence of 2-3 of the above symptoms; moderate is the presence of 4-5 symptoms; and severe is the presence of six or more symptoms.

The category of opioid induced disorders includes opioid intoxication, opioid withdrawal; opioid induced anxiety disorder and opioid induced depressive disorder.

JG concluded that a diagnosis of alcohol dependence or alcohol dependency syndrome plainly brought that condition within regulation 19(5) of the Regulations [paragraph 48]. The position now is rather more complex given the adjustments made by DSM-5 to the category of substance related disorders.

I have come to the conclusion that a diagnosis of mild substance abuse disorder in accordance with DSM-5 would not bring that condition within regulation 19(5) or 29(2)(b) of the Regulations. I consider that, in order to fall within the ambit of the relevant regulations, the substance abuse disorder must fall within either the moderate or severe categories. My reasons for so concluding are as follows.

A DSM-IV diagnosis of alcohol dependency required three or more symptoms from the list occurring at any time in the same 12 month period. It is clear that all of the factors listed in DSM-IV are incorporated into the factors for substance abuse disorder listed in paragraph 37. The presence of three or more factors in a twelve month period from the DSM-5 list would establish a diagnosis of mild substance use disorder. However a DSM-5 diagnosis of substance use disorder equivalent to DSM-IV substance dependency requires, in my view, the presence of, at least 4-5 symptoms from the eleven listed, thus bringing it within the moderately severe category of substance use disorder. This is because the distinction between abuse and dependence In DSM-IV was based on the concept of substance abuse as a mild or early phase and substance dependence as the more severe manifestation.

In conclusion, my comments about the changes occasioned by DSM-5 to the reasoning in JG with respect to substance dependence support the reasoning in JG by which I am bound.

In the light of JG, was the tribunal in error of law in its approach to the Appellant’s drug use having regard to Schedule 2 and regulation 29(2)(b)? I have concluded that it was with respect to its consideration of regulation 29(2)(b). On reflection, I can see little scope for criticism of the tribunal’s findings or reasoning with respect to the Schedule 2 descriptors in issue.

The Secretary of State submitted that the question was whether the tribunal was right to say that regulation 29 did not apply in the Appellant’s case when it made no reference in that context to drug abuse. He says the tribunal was correct because, although the Appellant is said to have been taking drugs later, as at the date of the decision he denied taking Class A drugs.

The second of those submissions is difficult to accept given the tribunal’s finding of fact that the Appellant was using street drugs including heroin and was buying valium off the street. The tribunal had made it explicitly clear in paragraph 22 of the Statement of Reasons that it was considering the position at the date of the decision under appeal and thus its findings of fact must be read in that context. What the Appellant may or may not have said at the date of the decision was irrelevant in the light of the tribunal’s unequivocal finding.

Having made that finding of fact, the tribunal failed in the remainder of its reasons to make any reference to it whatsoever. I find that very surprising given that the tribunal had before it a letter from Dr R, a consultant psychiatrist from the Substance Misuse Service dated 26 February 2014, which contained a diagnosis of “relapse back to street heroin dependency with intermittent use of crack cocaine” [page 71]. That diagnosis was based, in part, on an account given by the Appellant that he had relapsed back to smoking heroin for about the last twelve months. Dr R noted that he had not disclosed this until recently and had not discussed it when seen by the primary care mental health team in the autumn of 2013. The tribunal had relied on some of what was said in that letter when considering whether the Appellant satisfied descriptor 17(c) [see paragraph 29 of the Statement of Reasons]. Its failure to consider whether Dr R’s diagnosis, alongside its own finding about the Appellant’s drug use, had any bearing on regulation 29(2)(b) rendered its reasoning on that issue materially inadequate and in error of law.

The Respondent submitted that the evidence with respect to the Appellant’s drug use was inconsistent and that there was sufficient evidence to show that the Appellant was not drug dependent at the time of the decision under appeal. Those submissions do not carry weight in the absence of any analysis whatsoever in the Statement of Reasons either of the evidence relating to drug use/dependence or its significance.

In my grant of permission, I observed that the tribunal arguably should have explored the effects of the Appellant’s drug use/dependency with him at the hearing or adjourned for him to address this in statement form if it wished to avoid distress to him (given his somewhat volatile conduct in two of the three tribunal hearings). Quite properly the Respondent has referred me to the record of proceedings which makes frequent reference to the Appellant’s use of drugs and to incidents which may have had some drug-related aspect.

Given the frequent references to drug use in the record of proceedings, I observe it is even more surprising that the tribunal failed to have adequate regard to this issue in its Statement of Reasons.

Regrettably the tribunal’s questioning was not focussed on the effect of drug use on the Appellant’s daily functioning which might be relevant for its consideration as to whether there was a substantial risk to the mental or physical health of any person if the Appellant were found not to have limited capability for work. Bluntly, if the Appellant were intoxicated on drugs during work hours, there might be implications for not only his own health but also the health of fellow employees or members of the public (should any job bring him into contact with the public). In the statement prepared for this appeal on my direction, the Appellant’s representative explained that the Appellant became drowsy for several hours once the initial effect of heroin had worn off [page 132]. It is not hard to see how that factor might impact upon the assessment of risk required by regulation 29(2)(b) and why, in appropriate cases, an exploration by the tribunal of the effect of substance use on an individual’s functioning is required.

In this context, the other matter which required some attention - and exploration by means of evidence - from the tribunal was whether regulation 29(3)(b) applied in this case, given that Dr R had prescribed Suboxone in an attempt to manage the Appellant’s dependency on heroin. If risk could be reduced by the Appellant taking medication prescribed by a registered medical practitioner treating him, regulation 29(2)(b) would not apply.

The tribunal stated that it had considered the Appellant’s mental health issues as a whole and made reference to the letter from Dr K [see paragraph 14 above]. However, and in possible ignorance of JG’s application to substance misuse, the tribunal did not analyse whether drug dependency as diagnosed by Dr R amounted to a mental health disease or disablement. It thus overlooked important evidence about a major issue in this case and thereby undermined the sufficiency of its reasoning.

In the light of the above analysis, I conclude that the tribunal materially erred in law by giving inadequate reasons for its decision that regulation 29(2)(b) did not apply in this case. I allow the appeal on this ground.

Given my conclusions, I consider it unnecessary to address in detail whether all the requirements of Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 were met in this case, specifically whether the tribunal adequately addressed the range of work the Appellant could do. I note that, in circumstances where a tribunal rejects an Appellant’s case that regulation 29(2)(b) applies, it will be helpful if the tribunal briefly states what range of work the Appellant might be expected to do.

I am satisfied that the tribunal materially erred in law and thus this appeal must be allowed for the reasons set out above.

I am further satisfied that the appropriate order is the setting aside of the tribunal’s decision and the remittal of the Appellant’s case for fresh consideration by a differently constituted tribunal. In my judgment, it would not be in the interests of justice to restrict the scope of the remitted hearing, and so the Appellant is entitled to advance any and all points he wishes on their merits at the fresh hearing.

Though the Appellant has succeeded in this appeal, this should not be taken as an indication that he will be successful at any rehearing.

The appeal should be considered at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge who was previously involved in determining the appeal on 18 February 2015.

If the Appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision under appeal (namely 25 September 2013).

The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The tribunal must deal with any procedural questions, as may arise, on their merits.

The tribunal must consider all aspects of the case, both fact and law, entirely afresh.

The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision.