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July 2007 Factsheet IB2

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Index Moral dilemmas........................................................................... 2 A short history of dual diagnosis commissioners decisions ........ 2 The law as it stands now............................................................. 4 Steps to take when making a claim based on dual diagnosis..... 5 Latest guidance to decision makers............................................ 7

Claiming DLA on mental health and dual diagnosis grounds training

"Very comprehensive. Very Informative . . . Invaluable." Una Ball, CDAT, Swansea. "Steve's sense of humour makes an often very dry subject enjoyable . . . keeps you on your toes - and awake!" Liz Angus, Missing Link Based on the very popular 'Best Possible Disability Living Allowance claims' course, but dealing solely with the particular problems faced by clients with mental health conditions - some of whom may also abuse drugs or alcohol. No previous knowledge of disability living allowance is required. By the end of the day you will have learnt how to:

identify clients who may be eligible for DLA on mental health or dual diagnosis grounds; help complete the claim packs; help clients get supporting medical and non-medical evidence; help clients prepare for a medical visit; help clients access professional support in relation to their claim.

For more details of this and other Benefits and Work in-house training days, visit www.benefitsandwork.co.uk email info@benefitsandwork.co.uk or call 01823 602796

Copyright 2007 Steve Donnison and Holiday Whitehead. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means (photocopying, electronic, recording or otherwise), except for personal, non-commercial use, without the prior written permission of the authors. Crown copyright material is reproduced under licence with the permission of the Controller of HMSO and the Queen's Printer for Scotland.

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Moral dilemmas
Making a claim for DLA based on dual diagnosis - where a claimant has a mental health condition and also abuses or is dependent upon substances such as alcohol, prescription or non-prescription drugs - is a controversial subject. In the course of our work we have met many support workers with heartfelt concerns about the morality and wisdom of assisting clients with claims for benefits where it is likely that any additional money will be spent on drink or drugs. Both of the authors of this guide have experience of working with clients in direct access hostels and are aware of the sometimes disastrous effects that can result from a successful award of DLA, especially where there is a large back payment. A party lasting several days and resulting in evictions is far from unheard of. However, we also know of claimants whose opportunity to be successfully rehoused and build a life free from substance abuse was only made possible by the degree of financial independence which a successful claim for DLA permitted. As soon as workers begin to act on their opinions about whether or not it would be good for a claimant to receive their legal entitlement they embark on a road with no obvious end. For example, what about claimants who spend their benefits on tobacco or on life-threateningly fatty food? It would surely be better for their health if they had less money to spend on such injurious substances? And then theres the issue of whether receipt of DLA discourages some claimants from undertaking work or training for fear it may affect their entitlement. Wouldnt some claimants have a much more fulfilling life if they werent in receipt of DLA? We take the view that it is very seldom the case that poverty improves any individuals life chances and that the role of support workers in this regard is simply to assist, without making judgements, claimants in obtaining benefits to which they are legally entitled. We hope this brief examination of the issue of claims for dual diagnosis will help welfare rights workers and other support staff do just that.

A short history of dual diagnosis Commissioners decisions

If you are unsuccessful in appealing against a DLA decision, you may be able to appeal further to a Social Security Commissioner on a point of law. Commissioners decisions are binding on decision makers and tribunals though not, unfortunately, on other commissioners. So, for example, if a commissioner decides that alcohol dependency is a mental rather than a physical health condition, then all decision makers and tribunals must follow this when making their decisions. Unhappily, there is a is a large reservoir of judicial prejudice, often dressed up as learned argument, against awarding benefits to people who abuse, or are addicted to, substances. Although this prejudice is less prevalent now, it can still be difficult to get a fair award for clients with a dual diagnosis. Below, we set out a representative sample of commissioners decisions before looking at R(DLA)6/06, a decision by a tribunal of three commissioners which should now be followed by all commissioners, tribunals and decision makers. In R(A) 2/92 it was held that benefits were not payable where the cause of the disability or incapacity was a defective character:

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where a person indulges in aggressive or serious irresponsible conduct the board has to consider whether that arises from some recognised disorder or mental condition or whether it merely arises from a defective character. The view of many tribunals and decision makers has been that abuse of substances, no matter what the cause, was simply the result of defective character and would not give rise to a claim for benefits. In CSDLA/268/95 the commissioner held that weakness of character leading to alcohol dependency was not something which would attract an award of DLA: It does not seem obvious to me, however, that chronic alcoholism could properly be described as a physical or mental disability at all. If what is described is a condition brought on by the ongoing use of alcohol which a claimant could control if he wanted to and had sufficient strength of character, it could not be said as a matter of ordinary language, I think, that he suffered from any disability at all. Weakness of character, or lack of self control, are not mental disabilities. The Commissioner also went on to find that a person who suffers from mental illness, one of the manifestations of which is substance abuse of some kind, may be said to be severely disabled; but if it is the ongoing abuse which has as one of its consequences some mental disturbance, and nothing more, that is not enough . . In other words, the commissioner considered that if a mental health condition was caused by substance abuse then it was not grounds for a claim, but if the claimant abused substances because of a mental health condition then they could claim in relation to their mental health. In CSDLA/171/98 the Commissioner disagreed. Their opinion was that where substance abuse led to separate physical or mental disabilities, such as epilepsy, then they should be assessed in the normal way: In short, I see no reason why someone suffering from epilepsy because of alcoholism, or as it may be suffering worse because of aggravation by alcoholism, should be refused benefit as against someone who has the same disability uninfluenced by alcoholism. In CDLA/778/00 the Commissioner held that alcohol dependency itself could be a physical or mental disability which gave rise to a claim to benefits, but that other resulting health conditions would probably need to be demonstrated to prove that the dependency was sufficiently severe: I do not think I have any choice, on the evidence before me, but to accept that alcohol dependency is capable in itself of being a physical or a mental disability, or both, and that to dismiss it as merely the result of weak will or a defective character is too summary. It is clear that the matter is far more complicated than this. As a matter of practicality, evidence of some other condition (be it epilepsy or anxiety/depression, and whether pre-existing or resulting from the alcohol dependency) will be looked for as an indicator of the severity of the dependency. In CDLA/2408/2002 the commissioner agreed that care needs resulting from any physical or mental disability which have been caused or aggravated by alcoholism should be taken into account, irrespective of whether the consumption of alcohol can be considered within the claimants control.

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But the Commissioner also held that it does not follow that transient care needs which result solely from alcohol intoxication should also be taken into account, even if such intoxication may be frequent or prolonged in the case of a particular claimant. So, for example, problems with standing or walking unaided when intoxicated could not be taken into account. For claimants who were in a state of near permanent intoxication this required the person filling in the claim form to imagine what their client would be like if they were sober and then fill in the claim form for that imaginary person. In CDLA/396/2004 the commissioner held that whilst it was possible to distinguish between attention needs resulting solely from intoxication and those needs resulting from other causes, it was much more difficult to do so in relation to supervision needs where, for example, a claimant might be likely to fall or get into fights. However, the commissioner decided that continual supervision to prevent someone from drinking was unlikely to be practically possible and that supervision to prevent danger was unlikely to be required continually. This was because for much of the time the claimant would not be so drunk as to require supervision and that for some of the rest of the time the claimant would be so drunk that attempts at supervision might make the situation worse rather than better. The commissioner did concede, however, that in some cases alcohol dependency, perhaps in combination with other mental conditions, may lead to risks, such as a risk of suicide, which can be averted by continual supervision.

The law as it stands now

The lead decision in relation to DLA and dual diagnosis is currently R(DLA)6/06 a tribunal of commissioners decision in March 2006. You can download a copy of R(DLA)6/06 from the Benefits and Work website. Amongst the most important findings of the commissioners were: Alcohol dependence is a mental, not a physical condition, and therefore higher rate mobility cannot be awarded if this is the only basis of the claim Separate medical conditions caused by alcohol consumption can be taken into account in the normal way. Where a person chooses to consume too much alcohol, the effects of intoxication cannot be taken into account because there is an alternative to providing attention or supervision: the claimant could drink less. Where a person cannot reasonably be expected to control their drinking, the effects of intoxication can be taken into account. However, the commissioners also held that it would be reasonable to look at such issues as whether the claimant had ever attempted to control their drinking and also what help is available to the claimant. The commissioners also considered that it would be reasonable to ask claimants for proof of their level of consumption. In regard to needs caused by intoxication, a sort of Goldilocks principle first set out in CDLA/396/2004 is now firmly enshrined in caselaw. This states that, when claiming

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for help required whilst intoxicated, it is necessary to make a distinction between that portion of the day when the client is not sufficiently drunk to need help, that portion of the day when the claimant is so drunk that help would be of no avail and that portion of the day when the claimant is just drunk enough to be able to take advantage of any attention or supervision that might be provided. The commissioners were of the opinion that a claim based solely on needs whilst just intoxicated enough would be very unlikely to succeed.

Steps to take when making a claim based on dual diagnosis

In spite of what many members of the public and almost all journalists believe, getting awarded benefits on the basis, even in part, of substance abuse is not easy Thats why we have devised these steps, which are in addition to those already detailed in our guides to claiming DLA on mental and on physical health grounds. They are largely, though not entirely, based on the findings of the commissioners in R(DLA)6/06. Following these steps may look like an awful lot of extra work - and additional sheets of paper but much of the evidence can be given relatively succinctly in a supporting letter. In every case it should increase the chances of a successful claim. But even if your client isnt successful and has to appeal, you will have already provided most of the evidence a tribunal will require and they and your clients representative if they have one will undoubtedly be very grateful to you. 1 If substance dependency is going to be a factor in your clients claim, try to get evidence of dependence from a health professional. The claimants own word, or the evidence of their close associates, may not be sufficient to convince a decision maker that your client is dependent upon alcohol rather than simply choosing to abuse it. If a medical diagnosis is not obtainable, perhaps because your client is unable to engage with health professionals, then try to show how DSM IV, the test set out in para 18 of R(DLA)6/06 applies to your client. 2 Try to ensure that your client has a diagnosis of a physical and/or mental health condition as well as substance dependency when making a claim for DLA. This will be persuasive evidence of the severity of your clients condition. A claim based solely on substance dependency will have less chance of success, particularly given the degree of prejudice your client is likely to encounter from decision makers and some tribunal members. 3 If it is accurate, try to show that your clients mental or physical health condition existed prior to their substance dependency and contributed to it. This is by no means legally necessary, but it is likely to reduce the level of discrimination your client will face. There may not be any medical evidence of a preexisting condition, but a brief synopsis of your clients past and their drift into substance abuse whilst trying to deal with, for example, chronic depression may be persuasive. 4 Wherever possible stress the degree to which your clients needs arise from their physical or mental health condition rather than their substance abuse. This is simply a question of emphasis, but once again, the less you rely on substance dependency as the basis for the claim the less discrimination your client is likely to encounter. For example, if you client is clearly unable to pass the cooking test because when not intoxicated they are generally too depressed to motivate themselves to cook then this could be your primary evidence in the claim pack. At

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the very end you might add that, in addition, when your client is intoxicated it is not safe for them to handle sharp knives or hot pans. If your client is substantially intoxicated for much of the time then this will be an issue that a decision maker or tribunal will have to deal with if they fail to accept that your client passes the cooking test on mental health grounds. 5 Provide evidence of the degree to which your clients substance misuse is beyond their control. This is important in order to show that your client has a medical condition rather than a defective character and thus their drinking is beyond their reasonable control. Explain any efforts your client has made to control their drinking and what went wrong. If they havent made any efforts, can you explain why not? For example, is their life still too chaotic, do they need to establish some sort of security and stability before there is any realistic possibility of addressing their drinking? 6 Is it reasonable to expect your client to take advantage of professional help to reduce or end their substance dependency and is this likely to be successful? If not, explain why not. Professional help may not be a realistic possibility at the moment. For example, your client may be stuck in a trap where mental health services will not engage with them until they reduce their drinking but they are unable to address their drinking until their mental health improves. Or your client may be street homeless and have all their energy taken up with simply surviving, with no emotional reserves left for addressing their substance dependency. Or they may simply be too unwell to cope with regular appointments or to countenance the possibility of residential treatment. If this is the case, it is likely to reduce the level of prejudice your client will face if you can demonstrate any steps, however small, that your client is taking towards dealing with the barriers to treatment. In addition, if you can show that they have a genuine desire to deal with their dependency, this will also be helpful. 7 If it is reasonable to expect your client to take advantage of professional help, explain any factors that suggest such help will not obviate your clients attention , supervision or mobility needs. Even if your client does get help, will this mean they immediately cease to have any attention or supervision needs? Will they need ongoing attention or supervision in relation to reducing or avoiding drinking, for example? Will they need attention or supervision because ceasing to misuse substances will oblige them to learn new skills to deal with everyday situations, such as social activities, budgeting and selfcare. Is stopping drinking likely to exacerbate their mental health condition by obliging them to deal with issues that have until now been avoided by the use of substances? 8 Provide evidence of the amount of any substance(s) that your client consumes on average and their pattern of substance use. Where possible, provide some form of corroboration. You may not need to do this at initial claim stage, but if you have to appeal the tribunal may want to see this kind of evidence. Clearly people using illegal drugs are unlikely to have receipts for their purchases. But corroboration could be in the form of a letter from a worker who has observed the level of drug use or from a health professional who is willing to write saying that the stated level of use is consistent with your clients physical and mental condition and/or behaviour.

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Latest guidance for decision makers.

Until early 2007, the guidance for decision makers in relation to substance abuse and dependency was contained in the Disability Handbook. However, this has now been superseded by medical guidance which forms part of the Customer Content Management system. You should bear in mind that this is merely guidance given to decision makers by the DWP. It has no legal standing and tribunals are free to ignore it completely. What are alcohol related disorders? http://www.dwp.gov.uk/medical/med_conditions/major/alcohol/ Sources of evidence http://www.dwp.gov.uk/medical/med_conditions/major/alcohol/sources_of_ev_alcohol .asp Care and mobility considerations http://www.dwp.gov.uk/medical/med_conditions/major/alcohol/care_mob_alcohol.asp Length of award http://www.dwp.gov.uk/medical/med_conditions/major/alcohol/prognosis_alcohol.asp

Claiming DLA on mental health and dual diagnosis grounds training

"Very comprehensive. Very Informative . . . Invaluable." Una Ball, CDAT, Swansea. "Steve's sense of humour makes an often very dry subject enjoyable . . . keeps you on your toes - and awake!" Liz Angus, Missing Link Based on the very popular 'Best Possible Disability Living Allowance claims' course, but dealing solely with the particular problems faced by clients with mental health conditions - some of whom may also abuse drugs or alcohol. No previous knowledge of disability living allowance is required. By the end of the day you will have learnt how to:

identify clients who may be eligible for DLA on mental health or dual diagnosis grounds; help complete the claim packs; help clients get supporting medical and non-medical evidence; help clients prepare for a medical visit; help clients access professional support in relation to their claim.

For more details of this and other Benefits and Work in-house training days, visit www.benefitsandwork.co.uk email info@benefitsandwork.co.uk or call 01823 602796

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