Employment and support allowance – regulation 29(2)(b) – substance or drug dependence a mental disease or disablement
Following an assessment by a health care professional the Secretary of State decided that the appellant, a homeless drug user, was not entitled to employment and support allowance (ESA). The appellant appealed against that decision and among the findings of fact made by the First-tier Tribunal (F tT) was that he was a drug user and he had been imprisoned for possession with intent to supply drugs. Despite these findings the F-tT rejected the appellant’s appeal, holding that any limitations arising from his mental health issues were insufficient to bring him within regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 ie that there would be substantial risk to the mental health of any persons if he were found not to have limited capability for work. The appellant appealed to the Upper Tribunal (UT) arguing that the F-tT 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.
Held, allowing the appeal, that:
1. the F-tT failed to consider the effect of the appellant’s drug use when considering regulation 29(2)(b). Despite finding that he used street drugs, it made no findings as to the effect that this drug use had on his functioning relevant to its consideration of regulation 29(2)(b) (paragraphs 17 and 44 to 51);
the factors pointing towards alcohol dependence set out in JG v Secretary of State for Work and Pensions (ESA)  UKUT 37 (AAC);  AACR 23 had application in the case of drug dependency and should have been considered by the F-tT to establish whether the appellant’s drug dependency constituted a bodily or mental disablement for the purposes of regulation 29(2)(b) (paragraphs 30 to 43);
the tribunal had failed to consider whether regulation 29(3)(b) applied. If the risk to him or others could be reduced by the use of medication prescribed to manage the appellant’s drug dependency then regulation 29(2)(b) would not apply (paragraph 53);
in the circumstances it was not necessary to address whether the F-tT had identified the range of work the appellant could do in accordance with the requirements of Charlton v Secretary of State for Work and Pensions  EWCA Civ 42, reported as R(IB) 2/09, but guidance was given for those tribunals rejecting an appellant’s case that regulation 29(2)(b) applied (paragraph 55).
The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be decided in accordance with her directions.