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

Drug dependence may constitute a specific mental disease or disablement for the purposes of the Employment and Support Allowance Regulations 2008. The diagnostic markers used for alcohol dependence in JG v Secretary of State for Work and Pensions apply equally to drug dependence.

Under DSM-5, a mild substance use disorder does not meet that threshold. A moderate or severe disorder may do so. Where evidence of drug use and possible dependency is material to the substantial-risk assessment, a tribunal must determine its effect on the claimant’s functioning. It must also consider whether prescribed medication would significantly reduce any risk. Failure to address those matters may amount to an error of law through inadequate reasons.

The appellant appealed against a First-tier Tribunal decision that he was not entitled to employment and support allowance. The tribunal found that he used heroin and bought street valium, but concluded that he had no relevant limitations and that the substantial-risk provision did not apply.

On appeal, the appellant contended that the tribunal had failed to assess the effect of drug use and possible drug dependency, particularly under regulation 29(2)(b). Medical evidence recorded a relapse into street-heroin dependency. The central issue was whether the tribunal had adequately addressed whether dependency was a mental disease or disablement and whether it created the statutory substantial risk.

1. Appeal allowed. The First-tier Tribunal materially erred in law by giving inadequate reasons for rejecting regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. Its decision was set aside and the case was remitted for a complete rehearing before a differently constituted tribunal.

2. Following JG v Secretary of State for Work and Pensions [2013] UKUT 37 (AAC), alcohol or drug dependence can be a specific disease or bodily or mental disablement. The DSM-IV constellation of markers used in JG was not alcohol-specific and applied equally to drug dependence.

3. The judge further held that DSM-5 altered the clinical categorisation without undermining JG. A mild substance use disorder, involving two or three symptoms, did not fall within regulations 19(5) and 29(2)(b). A moderate or severe disorder, involving at least four symptoms, could meet the required threshold because it corresponded with the former, more serious concept of dependence.

4. The tribunal had found that the appellant used heroin and street valium at the relevant date. It also had evidence of a consultant psychiatrist’s diagnosis of relapse into street-heroin dependency. Having made those findings, it had to determine whether the drug use amounted to dependency and hence to a mental disease or disablement. It failed to do so.

5. The tribunal also failed to investigate how drug use affected the appellant’s daily functioning and the risk to his own health, fellow employees or the public if he were found capable of work. It needed to consider whether prescribed Suboxone could significantly reduce any risk under regulation 29(3)(b).

6. It was unnecessary to decide the separate complaint based on Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. The judge nevertheless observed that a tribunal rejecting regulation 29(2)(b) should briefly identify the range of work the claimant might be expected to undertake.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for a complete rehearing before a differently constituted tribunal.
• First-tier Tribunal (Social Entitlement Chamber), Llandudno: On 18 February 2015, dismissed the appellant’s appeal against the refusal of employment and support allowance (file reference SC155/14/00126).