C2/93(SB)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	SICKNESS BENEFIT

	Appeal to the Social Security Commissioner
	on a question of law from the decision of
	Belfast Social Security Appeal Tribunal
	dated 4 June 1993

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant appeals, with the leave of the Tribunal Chairman, against the decision of Belfast Social Security Appeal Tribunal; whereby it was decided that he was not entitled to sickness benefit or invalidity benefit for the period from 23 December 1992 to 9 June 1993.

2.	The claimant is a 43 year old telephone engineer, who became unfit for work on 19 June 1992 by reason of "back and neck pain".  He was paid statutory sick pay by his employer up to 31 July 1992, and thereafter claimed and was paid sickness benefit on the same grounds from 1 August 1992.  Following examinations on 30 October 1992 and 14 December 1992 by different Medical Officers of the Department, both of whom expressed the opinion that the claimant was capable of his usual occupation, the Adjudication Officer disallowed the claim from 23 December 1992 on "not incapable" grounds.  The claimant's response was to submit his own medical evidence and appeal against the Adjudication Officer's decision.

3.	At the hearing before the Appeal Tribunal the Presenting Officer stated that in view of the medical reports of the claimant's doctor she was prepared to concede that the claimant "would not be fit for his usual occupation; but would be fit for work within limits."  This was a point which had been referred to briefly in the Adjudication Officer's written submission to the Tribunal, with the comment that if the Tribunal were unable to resolve the question on the existing evidence they might wish to consider adjourning the case for further investigation.  There was, however, no discussion as to the stage at which, in this case, it might be appropriate to consider the question of the claimant's capacity for work other than that of a telephone engineer.

	In disallowing the appeal in respect of the period from 23 December 1992 to 5 January 1993 the Tribunal recorded the following findings of fact:-

		"Mr C... is aged 42, married, (wife a teacher) with three young
		children.

		Owing to back problem he would not be capable of usual occupation as
		telephone engineer as that job involved climbing heights and working
		in confined underground spaces.  He is very honest about his alcohol
		related problems and by facing them and seeking help has taken the
		first step towards overcoming these.  He agrees that when he was working this alcohol problem did not affect his work in that he never actually drank whilst on duty but obviously the standard of his work may have been affected generally.  He would be interested in work in the 
		electrical/electronic field and realises he should get back into the
		labour market as soon as possible."

	The reasons for decision were:-

		"Claimant not fit for usual occupation but would be fit for work
		within limits.

		In particular he would be capable of work within electrical/electronic
		engineer field which would require retraining and updating of his skills."

	The Tribunal also dealt with referred periods by recording:- "Appeal disallowed in respect of period 6/1/93 to 27/4/93 and 28/4/93 to 9/6/93".  Although, as the Adjudication Officer has since pointed out, technically there was no appeal in respect of these periods, it is in my view clear that the Tribunal were really deciding that benefit was not payable to the claimant for the periods in question, because he was then considered to be "fit for work within limits."

4.	The grounds of the claimant's appeal to the Commissioner are as follows:-

		"That the Tribunal erred in law by finding me fit for alternative
		work which involved retraining.  This is contrary to Commissioners
		decision R(S) 6/85 which set down that the test to be applied is
		whether "the claimant was capable of any work which he could 
		reasonably be expected to do and to consider his 'employability'
		state without retraining".

		To find me incapable of my own job but to deem me capable of 
		un-named jobs within the electrical/electronic field requiring
		retraining is, in my opinion, an error of law."

5.	In his observations on the appeal, the Adjudication Officer now concerned with the case accepted that the Tribunal might have erred in law in holding that the claimant was not entitled to benefit on the grounds of his fitness for work for which formal retraining would be required.  He further suggested that the Tribunal might also have been wrong to apply the alternative work rule at such an early stage.  Finally, as already mentioned, he drew attention to the Tribunal's purported disallowance of a non-existent appeal in respect of the referred periods.  

6.	I have considered this matter and agree that the Tribunal erred in law in disallowing the claimant's appeal on the basis of a finding that he was capable of alternative work for which formal retraining would be required.  The claimant has relied upon the decision of the GB Commissioner in R(S) 6/85, which is clearly relevant.  As I pointed out in Decision No: C5/93(IVB), the comments of the Commissioner in R(S) 6/85 on the subject of retraining should be treated with caution, and do not in my opinion apply to the kind of informal training normally given to a new member of staff in almost every field of employment.  However, in the present instance I accept that the retraining envisaged by the Tribunal as necessary to equip the claimant for work within the electrical/electronic engineer field would be of a formal nature.  By implication, the Tribunal must also have concluded that without such training the claimant would not have been fit for alternative employment of that type, and they did not go on to consider whether he might be fit for any other class of work for which retraining would have been unnecessary.  Their decision was accordingly, as I have said, erroneous in point of law.  I therefore allow this appeal and set aside the decision of the Appeal Tribunal.

7.	The Adjudication Officer now concerned with the case has also questioned whether the Appeal Tribunal should have considered the claimant's fitness for alternative work after a period of incapacity of only 6 months.  I have already held that the Tribunal's decision was erroneous in law on other grounds and it is therefore unnecessary for me to express a final view on this matter.  I would, however, point out that lapse of time is only one factor which should be taken into account in deciding whether or not the claimant's scope of employment should be widened.  Of equal or greater importance is the nature of the claimant's disability, and if it is clear that he will never again be fit for his former work, it may be entirely proper to consider alternative forms of employment after an interval of time of even less than 6 months.  

8.	The final point raised by the Adjudication Officer in relation to the Tribunal's disallowance of an appeal in respect of the referred period is also one on which it is unnecessary for me to express any firm opinion.  Technically the Tribunal were incorrect; but their meaning was clear and if their decision had otherwise been free from error in law, I doubt if I would have allowed this appeal on that ground alone; particularly as it was not a matter in respect of which there was any objection from the claimant.

9.	I have considered whether I should exercise my power under section 21(7) of the Social Security Administration (Northern Ireland) Act 1992 to give the decision which the Tribunal should have given, rather than refer the case to another Tribunal.  As I have pointed out, the Tribunal which decided the case on 4 June 1993 did so solely on the basis of the claimant's fitness for work for which formal retraining was required.  In that respect they erred in law; but there is no way of telling what their decision might have been if the question of the claimant's fitness for alternative work had been investigated in the greater detail which is normal in these cases.  That would suggest that I should now refer the case for decision by another Tribunal.  At the same time, however, I do feel that it was a little soon to be thinking in terms of alternative work, although I repeat that I have not held that the Tribunal erred in law in so doing.  On balance I have reached the conclusion that this is a proper case in which I should give the decision which the Tribunal should have given.  I find that the claimant has established his incapacity for work during the periods under consideration.  I therefore allow his appeal against the disallowance of his sickness benefit for the period from 23 December 1992 to 5 January 1993 and further hold that benefit is payable for the referred periods from 6 January 1993 to 27 April 1993 and from 28 April 1993 to 9 June 1993.  I wish, however, to make it clear that my decision should not be regarded as affording any indication of my views on the question of the claimant's capacity for work - whether as a telephone engineer, or in some alternative field of employment for which formal retraining would be unnecessary - for any subsequent period.

10.	The claimant requested an oral hearing of his appeal; but having considered all the circumstances of the case and the reasons put forward for the request I am satisfied that the appeal can properly be determined without a hearing.  The request has therefore been refused.

	Signed):  R. R. Chambers

	CHIEF COMMISSIONER

	8 March 1994