Decision No: C1/92(SB)

SOCIAL SECURITY (NORTHERN IRELAND) ACTS 1975 TO 1991

SICKNESS BENEFIT

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Dungannon Social Security Appeal Tribunal
dated 30 May 1991

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal relating to his entitlement to invalidity benefit for a period of some 14 months.  I arranged an oral hearing at which claimant was represented by Mr Malachy Hughes and the Adjudication Officer was represented by Mr McAvoy.  At that hearing I granted leave to appeal and with the consent of both parties treated the application as an appeal.

2.	The facts as disclosed in the documents are that the claimant is a 57 year old electrician, who claimed sickness benefit from 18 December 1989 on account of low back pain.  He was examined by Medical Officers on behalf of the Department on 28 February 1990 and on 22 March 1990 and on each occasion the Medical Officers found him capable of his usual occupation; as a result of those medical opinions the Adjudication Officer disallowed his claim for benefit from 29 March 1990 to 24 April 1990.  However, claimant continued to submit medical certificates and the Adjudication Officer referred a variety of claims to the Social Security Appeal Tribunal after notice of appeal had been lodged against the previous decision.  The periods which were referred extended for over 12 months up to 28 May 1991, although claimant was never examined again during that period by any doctor on behalf of the Department, nor was any further medical evidence as to his condition over that period submitted to the Tribunal by the Adjudication Officer and the only medical evidence as to his condition during that period was the certificates issued by claimant's own doctor, certifying him incapable of work.
3.	At the hearing before me Mr Hughes drew attention to the fact that the claimant's General Practitioner had provided for the Tribunal his medical records but that there was a note on the records to say that they were not to be made available to the Tribunal.  Mr Hughes was unable to explain why the records were made available but were not allowed to be disclosed.  Mr Hughes argued that claimant had worked all his life, that this was the first time he had claimed sickness benefit and that it was unreasonable to expect him to seek alternative employment at his age and with his experience so soon after becoming sick.  He said that claimant had been treated by Mr Y... an Orthopaedic Surgeon and felt that if Mr Y...' opinion had been before the Tribunal then a different result may have been obtained.  

4.	Mr McAvoy could not explain why the medical notes were not made available.  He thought it strange that the doctor should send a file and then not let it be used.  He also commented upon the fact that there had been no medical examination or medical evidence from the Department from March 1990 and that the period which was considered by the Tribunal ran up to May 1991.  Mr McAvoy said that it would appear that claimant's condition was consistent throughout and that the Tribunal was entitled to assume that there was no change in his condition.  He argued that there was no error in law in the proceedings and said that infact the proceedings were recorded at length and that the Tribunal went to great pains to investigate the matter, and the decision was nothing short of exemplary.

5.	I have considered all that has been said and I have read all the papers in this case, including the extracts of reported decisions of Social Security Commissioners enclosed  with the submission of the Adjudication Officer to the Social Security Appeal Tribunal. This man is now 58 years of age.  He was never unemployed nor on sickness benefit, and was a tradesman who obviously must have carried out his trade for almost 40 years.  I am amazed that no reference has been made to R(S)7/60 which has been used as the foundation of sickness benefit cases for decades and it enshrines in it a quotation from R(S)11/51 which talks about work which a person is capable of doing, "having regard to his age, education, experience, state of health and other personal factors".  R(S)7/60 then goes on to consider at what point a Tribunal should cease to consider claimant's capacity for his usual occupation and seek to expand his normal field of employment and in what circumstances it would be reasonable to expect him to embark on a new career if the claimant's disability lasts for a long time the field of employment to be taken into account must be enlarged.  The facts of R(S)7/60 were that the claimant in that case was a 57 year old company director who had been receiving sickness benefit for 7 years before it was considered necessary to suggest that he should expand his normal field of employment from his usual occupation.  What surprises me is that in the instant case at no time was any reference made to claimant's usual occupation and to whether or not he would be able to resume his usual occupation within a reasonable time and what would be a reasonable time in the circumstances was not considered either.  This man had worked all his life as a tradesman, but within 2 months of him seeking sickness benefit it was immediately suggested that he should change his employment.  I think this is a case which must be looked at firstly from claimant's usual occupation and then after a reasonable period to decide whether or not he would be able to continue in the trade he had followed for 40 years, and only then would the question of alternative work arise.  It has always been the case that in circumstances like the present ones that that principle would apply.  It would appear that in this case it was not even considered.

6.	I am also concerned that the Tribunal thought that it had medical evidence to support its findings when the only medical evidence it had from the Department were 2 reports in February and March 1990 and upon that evidence it rejected medical certificates from the claimant's doctor extending over a period of some 14 months.  Clearly there was not sufficient evidence for the Tribunal to arrive at the decision it did for such a long period and I am very surprised that the Department did not consider having claimant examined over the lengthy period the matter was under consideration.

7.	I am satisfied that the period adjudicated upon by the Adjudication Officer, namely from 29 March 1990 to 24 April 1990 was a period in which the only consideration should have been claimant's capacity for his usual occupation.  The Tribunal held he could not follow his usual occupation for that period and I am satisfied therefore that it erred in law in not granting him the benefit for that period.  I now come to the referred period which began on 25 April 1990 and ran up to May 1991.  For most of that period the consideration should have been relating only to his usual occupation but the only evidence for that whole period was the evidence of claimant's General Practitioner who certified him as incapable of work.   I am satisfied that the Tribunal erred in law in finding that there was evidence to support the contention that the medical certificates of February and March 1990 supported and contradicted other medical evidence of a year later was an error in law.

8.	I therefore allow the appeal and set aside the decision of the Tribunal.

9.	I think that it would be unfair to send the matter back to be reheard.  No new findings of fact are necessary.   I am satisfied that the initial period from 29 March 1990 to 24 April 1990 should have been considered only in relation to claimant's usual occupation and I am also satisfied that there was no medical evidence to support any finding other than that claimant was incapable of work during the referred period, namely from 25 April 1990 to 28 May 1991.  I am satisfied that claimant was entitled to invalidity benefit for that period as well.

(Signed):  C C G McNally

COMMISSIONER

20 January 1992