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Neutral Citation Number:	2014 UKUT 188 AAC
Reported Number:
File Number:	CSE 859 2013
Appellant:	DR
Respondent:	Secretary of State
Judge/Commissioner:	Judge D. J. May Q.C.
Date Of Decision:	21/03/2014
Date Added:	14/05/2014
Main Category:	Employment and support allowance
Main Subcategory:	Post 28.3.11.WCA activity 17: appropriateness of behaviour with other people
Secondary Category:	Employment and support allowance
Secondary Subcategory:	WRAA Schedule 3 prescribed activities
Notes:	Reported as [2014] AACR 38. Work capability assessment – alcohol consumption – whether disinhibited behaviour for the purposes of descriptor 17(a) of Schedule 2 and descriptor 14 of Schedule 3 The claimant drank large amounts of alcohol daily. He appealed against the decision that he was not entitled to employment and support allowance (ESA). The First-tier Tribunal (F-tT) found that, as his alcohol consumption did not cause any physical or mental disability, he failed to satisfy any of the descriptors. But it also decided that he did satisfy regulation 29 of the Employment and Support Allowance Regulations 2008 on the basis that there was a substantial risk to health if he were found capable of work. The claimant appealed to the Upper Tribunal (UT) on the grounds that his drinking constituted disinhibited behaviour for the purposes of descriptor 17(a) of Schedule 2 and descriptor 14 of Schedule 3 to the 2008 Regulations. Held, allowing the appeal, that: 1. the F-tT erred in law in its treatment of regulation 29(2)(b), as the necessary connection between the risk and some specific disease or bodily or mental disablement contained in the regulation was not made (paragraph 3); 2. the evidence before the F-tT had not supported a diagnosis of alcohol dependency on the basis of a constellation of markers: JG v Secretary of State for Work and Pensions (ESA) [2013] UKUT 37 (AAC); [2013] AACR 23 and the decision in R(DLA) 6/06. Therefore the essential preconditions for the application of the descriptors in Schedule 2 or Schedule 3 to the 2008 Regulations were not established (paragraph 7); 3. even if such disablement had been established, the daily volume of alcohol drunk by the claimant would not in itself amount to the disinhibited behaviour referred to in descriptors 17(a) in Schedule 2 and 14 in Schedule 3. Disinhibited behaviour required the context of an inhibition and that had not been established; it may result as a consequence of drinking specific quantities of alcohol but that was not the basis upon which the claimant’s appeal was made (paragraph 8). The Judge set aside the F-tT’s decision and remitted the case for re-hearing by a new tribunal in accordance with his directions.
Decision(s) to Download:	[2014] AACR 38bv.doc