I have just attended a DLA tribunal where the appeal was disallowed because, at the time of the original application my client was self medicating with alcohol, and therefore his depression was not as apparent as it is today, even though he could not go out without being verbally and physically aggressive, would not cook for himself and did had to be encouraged to dress and bathe himself - all symptoms that he still has. The chair's argument was that he was more likely to go out by himself when he was drinking heavily, and therefore could claim LRM for that period, even though he was clearly a danger to himself and others, and managed to get up and dressed so that he could go out and get a drink. What do I do now? His symptoms have remained the same, although sometimes they're caused by alcohol, and sometimes by being clinically depressed.

Firstly, what was the decision exactly?

Get a statement of reasons to get rationale.

In addition to the aggression, consider his poor social and communication skills. This may lead to an attention need (re communicating) even without any danger (leading to a supervision need).

Even if the client can go out of the house, get dressed, get a drink etc etc, you can still argue a) he is a danger (to both himself and others, b) he cannot communicate and enjoy an ordinary social life and c) look after himself (if you consider the extent to which he washes and dresses properly or not).

'and therefore could claim LRM for that period' ? Was low mob awarded then? If not, consider client's ability on 'unfamiliar' routes (this is the test) ie not just down to the local 'offy'.

For lower rate mob there is no requirement to show that a person needs supervision - in order to avoid the risk of substantial danger to him/herself or others.

Sorry, that was meant to read "could NOT claim LRM".

The decision was that because his condition isn't the same as it was in December when he made the application, the appeal wasn't allowed - the tribunal considered him to be more capable in December, as the drink was allowing him to suppress his depression.

I don't know if there's a point of law to argue though?

Identify the effects of taking alcohol as they were in Dec. If drinking could have led to an attention or supervision need irrespective of depression, then go with that.

Once you have the SofRs, I think it would help to check two decisions both available on the comm's website and rigtsnet brief case - CDLA/396/2004 and CSDLA/725/2004. They are not particularly that helpful in my mind because they both rely on other disabilities to give effect to alcohol problems with respect to both attention and supervision. I have not checked it, but I also recall a decision by comm Parker (or was it Fellner?) that was a somewhat more expressive about problems with alcoholism. Check the analysis to sec72 of the SSC&B Act 92 for that decision.

Thanks for all of that - it'll prove invaluable when I get the SofR through. The thing that still confuses me though is whether my client can have a continuous claim when the causes of his symptoms are not the same, ie, alcoholism then and depression now. His depression is not caused by his alcohlism, it's caused by his HIV diagnosis (that's the reason he was drinking too).

Perhaps another line of thought....if I understand it correctly your client is HIV positive and has been so throughout the whole period. This led him to be depressed. For some of the period he drunk to excess. Could you argue that the disability is depression and has been throughout the whole period and that the effects of the depression have changed over time, sometimes your client is depressed and feels unable to leave the house, no motivation etc, and sometimes your client feels depressed, drinks to overcome this, feels falsely confident in leaving the house and is then a danger to himself and others. What I think I am trying to say is that the underlying cause of all his symptoms are the depression and the result is that he needs guidance or supervision when outdoors. Don't know if that helps!

Thanks Leigh - that's what I tried arguing at the tribunal, unsuccessfully. I'm still waiting for the statement so I'll let you know what the "official" reasons for the appeal being disallowed are.

Have just had the statemant of reasons back and I'm not impressed. It's the cooking test: the panel seem to have taken the fact that my client said that he is physically capable of cooking a meal as meaning that he chooses not to, whereas he lacks the motivation to cook for himself and so frequently buys pasties and pies from the local baker's (quite often sends a friend out to get them for him) and that is all he'll eat. This is not a healthy way for any one to go on, but especially not if you're HIV positive: good nutrition is essential to delaying the progress of the virus.

The panel also seemed to think that because my client was able to go out to the pub after drinking two bottles of cider at home, (the only time he left the house was when drunk) that this means that he did not qualify for LRM. He now hardly leaves the house at all unless accompanied.

There are a couple of things in the SofR as well that we totally dispute were said, or have been misheard and misinterpreted. What can I do about that?

I'm planning on asking for an appeal to commissioners. Any thoughts?

I am sick to death of decision makers and Tribunals being inconsistent and judgemental in cases where alcohol is involved!! They seem to ascribe to the old belief that alcohol dependence is a matter of choice and not a recognised illness. Rant over..........

The test for LRM is not whether he can go to the local pub or to get himself a pastie! The test for LRM is "able to walk but needs someone with them to provide guidance or supervision for most of the time when they are outdoors on unfamiliar routes".
So if they only considered guidance/supervision on the way to the pub or local shops then you could have a starting point for your appeal to the Commissioners.

Thanks Margie

The sticking point seems to be that if he was going to the pub, he could go alone, but only after drinking a significant amount. Since he's stopped drinking as much, he doesn't go out at all if he can help it, but has to have somebody with him if he does. It's this fluctuation that the chair said at the time was the reason for the appeal being refused, although she hasn't mentioned this in the SofR.

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Commissioner Fellner in CDLA778/2000 held that alcoholism of itself can be a recognised physical or mental disability. She cited both expert medical opinion and an earleir decision CSDLA 171/1998.

For the the Cooking Test Commissioner Parker held in CSDLA/725/2005
that it is not a simple issue of whether a claimant has the physical ability to perform all the activities in connection with planning, preparing and cooking but rather it is relevant whether, through disablement, the claimant lacks the motivation to do so on a sufficiently regular basis. If a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test.

Also if Chair was arguing did not qualify as condition better how does that fit in with having to look at condition as at date of decision? Chairs will always point out that they are looking at a particular date and if client says they are now worse they emphasise that they cannot take the change in circs into account. Yet the indication is that if someone is 'better' then they can, I would have thought that they only way round this would be to argue that qualifying period not satisfied but that if this is not expressly stated then it is an error of law to refuse because of improvement.

OK, so I've had the Secretary of State's submission to the Commissioner, and there seem to be two main bones of contention:

1. Whether or not he can get around in unfamiliar places. My client said at the time that if he had to he would ask for directions, but that this would make him very uncomfortable (although the tribunal just recorded this as a yes, he would ask for directions. I think I have to accept that there was no error of law here.

2. This hinges more on the interpretation of the word "can". My client said that he can cook, but "doesn't think about it", that his friend brings round pasties and pies for him, or he occasionally makes it out to the baker's across the street. The tribunal decided that this was evidence that "the appellant is sufficiently motivated to maintain a reasonable standard of nutrition and cleanliness despite his low mood". Now I know we're in the West of Scotland, but a diet of pasties and pies is not a reasonable standard of nutrition for anybody, especially somebody who has symptomatic HIV (who needs to eat a special diet).

There is also the matter of the two reports from the same Psychiatrist - the first which said not very much at all, when requested by the DWP, written when my client had only just started seeing him, and the second, requested by me several months and several sessions later, which was a lot more detailed, but disregarded by the tribunal.

And is it better to go for an oral hearing? I half suspect that the reason the appeal was refused in the first place was to do with the fact that my client is a heavy set man, but he assures me that this bulk is not to do with eating well, it's about the drink and the pies.

I have to return the OSSC3. Any ideas?

Most Commissioners hearings are done on paper, oral hearings are the exception.

Since an appeal to the Commissioner is on point of law only, I would not recommend asking for an oral hearing as a matter of course.

I think if you win this case, it is most likely to be on grounds of inadequate findings of fact remitted to another Tribunal.

For LRM you might want to have a look at CDLA/3781/2003 as it deals with aggressive behavour and taking advantage of the faculty of walking

Have had the Commissioner's decision back on this and the appeal has failed. He/She (Commissioner May) says:

"For myself I do not consider that motivation in respect of cooking is a matter which is encompassed within the cooking test set out in section 72(1)(a) of the SS Contributions and Benefits Act 1992. A lack of motivation to prepare a meal might, if it posed a risk to the claimant's health, give rise to a requirement for supervision but that is a somewhat different matter to the ability to prepare a cooked main meal. However, the tribunal in this case found that the claimant was motivated to maintain a good level of nutrition..."

He didn't comment on the level of nutrition to be found in meat pies from Greggs - I suppose that isn't an error of law, more a matter for nutritionists.

Hmmm...any comments?

i think there's a semantic problem here, related to the inadequacy of our vocabulary to describe mental faculties and mental states.

if you look at what is needed from a person to cook a meal, you can say that they need the ability to cook a meal, and they need to be motivated to cook a meal - you can see them as two separate 'ingredients'.

i may get home and can't be a***d to cook, so i have a cheese sandwich. i lack the motivation - i could cook if i were motivated. there is an element of volition, an element of choice, judgement and decision-making in the process, the character of which could be summarised as lack of motivation, and i wouldn't argue with it.

we can also look at a similar situation, and use the words 'lack of motivation' as a handy summary, or label, but make a mistake if we assume that it adequately describes a mental state or faculty. it may be the nearest phrase we can devise to cover it, but it can be misleading. even seeing motivation as separate from ability may be a category error. conventional language and conceptualisation works well enough for efective communication in normal circumstances - a bit like newtonian physics works. if what we term 'lack of motivation' is a manifestation of mental dysfunction, impaired volition, an effect of severe depresion, for example, ie part of an _inability_ or _disability_, rather than something separate from and additional to ability, i would disagree with what the commissioner says about it not being encompassed by sec 72 (1) (a).

i can give you a personal example from my own experience of moderate depression a few years ago, which might explain better. i recall finding myself completely unable to deal with a bowl of (several day's) washing up. i _wanted_ to wash up, and i was physically capable of washing up, and i was fed up of it, sitting there, a reproach in my kitchen. i couldn't do it. i remember going into the kitchen for the umpteenth time, and telling myself over 'i can do this', but i couldn't. i became quite distressed about it, but had to leave it for a better day, or hour... i cannot explain to anybody what was going on with my mind, but you might just as well have asked me to climb Everest as ask me to wash up that small bowl of dirty crockery. i can say that the 'lack of motivation' in this instance, was something entirely different to the lack of motivation in the 'cheese sandwich' scenario, for which i could give you a rational and comprehensive explanation. simplistically, the difference is between 'normal' and 'abnormal' mental processing and functioning.

jj

Hope you banged in another claim using the 2nd report from the Psychiatrist showing deterioration in the cl's health. A second claim would take the focus off the alcohol and on the depression which should help the dm make the right decision. Dm's seem to be blinded by alcohol!!

Thanks for that JJ - that's the point that I was trying to get across to the Commissioner about the meaning of his phrase "I don't think about it" and the meaning of "motivation".

I have put in another claim, but it seems that I may have the opposite problem this time as I suspect that my client is drinking again, and so any subsequent psych report will mention that. And you're right, DMs can't see much further than the word alcohol. At least that's what I hope you mean Margie, not that all DMs are chronic alcoholics. Maybe we could help them with their DLA applications?

ha ha yeah we could but it wouldnt bring us much joy