“I believe the tribunal failed to give adequate reasons for findings on material matters. The tribunal state (para. 5.9) that I “function at a reasonable level” and “attend to own needs without any significant intervention or assistance from another person”
“5.12. The Tribunal concluded that the HCP’s assessment of the Appellant with regard to the Work Capability Assessment was entirely correct that the Appellant was not entitled to the award of any points in respect of either the physical or mental health activities.”
“5.9 The Tribunal found that for substantial periods of time the Appellant was able to function at a reasonable level. The Appellant was able to attend to his own needs without any significant intervention or assistance from another person.”
“The ground of application relating to Activity 11 (remaining conscious during waking moments) is arguable, and if the claimant’s evidence to the tribunal had been accepted that could potentially have led to qualification for 15 points. The tribunal in paragraph 5.11 of its statement of reasons did not make clear whether it was rejecting the claimant’s evidence about blackouts, because of the absence of details of any injuries, or whether it was regarding injury as a condition of qualification for one of the Activity 11 descriptors. In relation to the reasons given by the district tribunal judge on4 March 2010 for refusing permission to appeal, there is a question that deserves consideration on appeal as to the meaning of “involuntary” in the context of alcohol dependency and unconsciousness following inebriation.”
“This function covers any involuntary loss or alteration of consciousness resulting in significantly disrupted awareness or concentration occurring during the hours when the claimant is normally awake and which prevents the claimant from safely continuing with any activity. Such events occurring when the claimant is normally asleep should not be taken into consideration. The descriptors relate to the frequency with which such episodes of lost or altered consciousness occur. It should be noted that the descriptor indicates that awareness must be significantly disrupted. This means the nature of the episodes and their effects on function must be explored to see if they fulfil the criterion of the descriptor. In the context of disability assessments, the most likely causes of episodes of “lost consciousness” are generalised seizures (previously referred to as grand mal, tonic clonic and myoclonic seizures, a seizure which is secondary to impairment of cerebral circulation (e.g. as a result of cardiac dysrhythmias), cardiac arrhythmia. “Altered consciousness” implies that, although the person is not fully unconscious there is a definite clouding of mental faculties resulting in loss of control of thoughts and actions. The causes most likely to be encountered are partial seizures which may simple or complex partial (previously known Temporal Lobe epilepsy), absence seizures which may be typical (petit mal) or atypical or hypoglycaemia.”
“15. I do not accept that there was any error in the consideration of descriptor 16e in respect of sleep problems interfering with daily activities. Despite possible poor quality of sleep the claimant gave evidence of ability to complete a range of daily activities, having risen at 8 or 9. He said that he drank two bottles of wine a day starting around 1 p.m. and that this made him tired and that in the late afternoon he tended to fall asleep in his chair. That has seemed to be part of his daily pattern of activity rather than a departure from it, and common sense dictates that the sleepiness is caused by the wine.”
“Our understanding is that R(DLA) 6/06 suggests even transient effects of drinking can be taken into account if the claimant cannot realistically stop drinking to excess, taking into account the claimant’s history and depression. The claimant states that he blacks out 3-4 times per week … 2 - 3 days per week he would drink so much he would not remember what he had done (para. 4.4 of full decision). In their findings the tribunal states “once he started drinking he drank to excess. He lacked control.” (para. 5.3) R(DLA) 6/06 refers to that particular claimant falling asleep after drinking. We would suggest that falling asleep is different to an involuntary episode of lost consciousness i.e. blackouts. In this case the claimant’s evidence does not indicate an ability to completely stop drinking. Indeed the tribunal found that the average weekly intake of 70 - 100 units pw was greatly in excess of that which was regarded as being a safe amount to drink.” 8. The starting point is dealing with the second ground of appeal, the issue raised by the Upper Tribunal Judge when granting permission and the submissions thereon. It is important to look at the healthcare professional’s report. The only condition medically identified was that of depression. The claimant himself indicated that he had no other problems. In relation to consciousness the healthcare professional referred to his discussion of this activity with the claimant and recorded that the claimant stated that there was no problem with it and that he had no evidence or opinion to the contrary. That view was given not only in the context of the medical conditions identified but was done so in the context of the condition history of the claimant’s depression which included alcohol misuse. What is recorded is as follows: “The condition started many years ago This mental health problem was caused by alcohol misuse This mental health problem was made worse by work related stress. Has been attending alcohol service Had counselling in the past Has been referred to counsellor. The appointment letter was seen The following mental symptoms occur most days and are usually troublesome: low mood The following mental symptoms occur every day and are usually troublesome: difficulty sleeping The following mental symptoms occur most days and are usually troublesome: alcohol misuse.” 9. The healthcare professional in giving her opinion had taken into account the claimant’s alcohol misuse, though there seems to have been no indication to her by the claimant as opposed to the tribunal, that he had blackouts sometimes when he got drunk. It seems to me as I indicated in paragraph 3 above that what was said by the tribunal in paragraph 5.11 of their statement where they said: “Furthermore, with regard to the Appellant stating that through drink he would suffer unconsciousness at least once a week, the Appellant was not able to give any detail of any injuries sustained as a result of becoming unconscious through drink.” was a comment related to the credibility of the claimant rather than an application of the descriptor. Even if the tribunal’s statement could be read, which I do not think it can, to be a mis-application of the statutory test I do not consider that this would in the event affect the result. 10. In regulation 19 of theEmployment and Support Allowance Regulations 2008 the statutory basis for assessment is: “19(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 from - (a) a specific bodily disease or disablement; (b) a specific mental illness or disablement; or (c) as a direct result of treatment provided by registered medical practitioner, for such a disease, illness or disablement.”