Commissioner's File: CIS/1748/1997
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"27. - A person who does not satisfy the All Work Test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State -
(a) he suffers from a previously undiagnosed potentially life-threatening condition; or
(b) he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work; or
(c) he suffers from a severe uncontrolled or controllable disease; or
(d) he will, within three months of the date on which the doctor so approved examined him, have a major surgical operation or other major therapeutic procedure."
"A person who does not satisfy the All Work Test shall be treated as incapable of work if in the opinion of the adjudicating authorities ....."
" 27. - (1) A person who does not satisfy the All Work Test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.
(2) The circumstances are that -
(a) he is suffering from a severe life-threatening disease in relation to which -
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and
(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
(b) he suffers from a previously undiagnosed potentially life threatening condition which has been discovered during the course of a medical examination carried out for the purpose of the All Work Test by a doctor approved by the Secretary of State;
(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within 3 months of the date of a medical examination carried out for the purposes of the All Work Test."
It will be seen that, under the new statutory provision, the difficulty referred to above is resolved by linking the three months' period to "the date of a medical examination carried out for the purposes of the All Work Test". Seemingly, the actual medical evidence indicating that a claimant actually requires a major surgical operation can stem from a doctor approved by the Secretary of State (usually a BAMS doctor), or from any other doctor, or from a hospital or similar institution. But although the position would seem to be clear in all cases where regulation 27 applies in its amended form, what is the position under regulation 27 in its previous form?
"I suspect that in the vast majority of cases the end result [i.e. after the deletion of 'in the opinion of a doctor approved by the Secretary of State'] would not be any different since the adjudication officer would invariably seek the opinion of a doctor as an expert under section 53 of the Social Security Administration Act 1992 and would be likely to act upon that opinion. Indeed it may well be that at the end of the day the result for this applicant will be the same."
(Signed) D G Rice
(Date) 7 April 1998