DGR/SH/AH/CM/18
				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

[ORAL HEARING]

1.	My decision is that the decision of the social security appeal tribunal given on 19 September 1996 is erroneous in point of law, and accordingly I set it aside.  I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.  

2.	This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 19 September 1996. In view of the difficulties of this case, I directed an oral hearing.   At that hearing the claimant, who was present, was represented by Mr David Simmons from the Welfare Rights Unit of the National Association of Citizens Advice Bureau (London Region), whilst the adjudication officer appeared by Mr J Heath of the Solicitor’s Office of the Department of Health and Social Security.

3.	The question for determination by the tribunal was whether the claimant on 29 April 1996, or at any time up to the date of the hearing, ceased to be incapable of work, in which event she was, from the relevant date, no longer entitled to incapacity benefit.  In the event, the tribunal, upholding the decision of the adjudication officer, decided that the claimant failed in her appeal, because she was unable to satisfy the All Work Test.  She could only score two points, whereas she required under the physical descriptors 15 points in order to succeed.

4.	Unfortunately, there is one aspect of the case which the tribunal overlooked.  A letter was presented to them by a consultant physician at the Jeffrey Kelson Diabetic Centre indicating that the claimant was under the care of the Diabetic Centre with thyrotoxicosis and would require a thyroidectomy in the near future.  The letter also stated that she was under the care of the Samaritan Hospital for Women, and would need a gynaecological operation.  Manifestly, this letter suggested the possibility that the claimant might be able to rely on regulation 27(d) of the Social Security (Incapacity for Work) (General) Regulations 1995 [S.I.1995 No 311] in the form they were prior to the amendment which took effect from 6 January 1997.  The fact that the tribunal failed to consider the possible application of this provision renders their decision erroneous in point of law, and accordingly I must set it aside, and direct that the appeal be reheard by a differently constituted tribunal.  However, the construction of regulation 27(d), in the light of the decision of Mr Justice Collins in Regina v. Secretary of State for Social Security Ex parte Adrian Michael Moule [“Moule”], poses considerable difficulty, and I must accordingly give guidance to the new tribunal on how the regulation is to be applied.

5.	Regulation  27, before the amendment, read as follows:-

“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.”

6.	The effect of Moule, which was decided on 12 September 1996, was to declare regulation 27 ultra vires so far as it provided that the opinion of a doctor approved by the Secretary of State would be the sole factor in deciding whether  a person should be treated as capable or incapable of work.  The learned judge, however, declared that the position could be rectified if the offending words in regulation 27, namely “in the opinion of a doctor approved by the Secretary of State”, were deleted.  The effect of this was that the adjudicating authorities would take the place of “a doctor approved by the Secretary of State”, and they would, without restriction, determine whether the claimant could take advantage of regulation 27.  Although in Moule the matter in issue fell within paragraph (b), it is quite clear that the observations of the learned judge applied to all the paragraphs of regulation 27.  The effect then of Moule is that the opening words of regulation 27 should be treated as if they read:-

“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 .....”

7.	However, a problem arises with reference to paragraph (d). For, whereas it speaks of the claimant’s being treated as incapable of work if he would, “within three months of the date on which the doctor so approved examined him”,  have a major surgical operation, under the judgment of Mr Justice Collins the words at the commencement of the regulation, namely “in the opinion of a doctor approved by the Secretary of State”, have to be treated as deleted, and this creates uncertainty as to the date from which the three months period referred to in paragraph (d) should start.  The words “the doctor so approved” in paragraph (d)must refer back to “a doctor approved by the Secretary of State” mentioned in the opening words of the paragraph, and as those words have under Moule to be deleted, there can have been no examination carried out by “the doctor so approved”, and, as a result, on the face of it, there is no starting date for the three months’ period.

8.	The position has been rectified for all cases arising after the amendment to the Regulations, which took effect on 6 January 1997.  Regulation 27 now reads as follows:-

	“	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?

9.	Regulation 27 in its pre‑amended form contemplated that a claimant, who could not satisfy the All Work Test, would nevertheless be treated as incapable of work if a doctor approved by the Secretary of State considered that he would have a major surgical operation within three months of the date on which he examined the claimant.  The effect of Moule was to remove the decision‑making from a doctor approved by the Secretary of State and vest it in the adjudicating authorities.  However, the adjudicating authorities do not have the medical expertise to say whether or not a claimant will have an operation within three months, and in practice will rely upon a medical opinion, as Mr Justice Collins himself acknowledged in the Moule case:-

“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.”

10.	If I apply the principle, which Mr Justice Collins was applying in Moule, to the unamended regulation 27(d), there will still in practice have to be a medical opinion from some source - of course, it need no longer be from a doctor approved by the Secretary of State - and that opinion will be directed to whether the claimant will have an operation within three months of the date on which the claimant was examined for the purposes of forming that opinion.  If the adjudicating authorities accept that opinion, then the claimant will continue to be entitled to incapacity benefit. And, as I see it, that examination can take place at any time after the claimant has failed the All Work Test.

11.	In the present case, the claimant appears from the letter of 8 May 1996 to have been examined with a view to her undergoing an operation, but no view is expressed in that letter as to exactly when such operation would take place.  The new tribunal will have to investigate whether there was a medical opinion which contemplated that an operation would take place within three months from the date of the examination giving rise to that opinion, and if there was such an opinion, the tribunal will have to decide whether they accept it .  If they do, the claimant will be treated as incapable of work from the date of the examination giving rise to the above-mentioned opinion, and will continue to be treated thereafter as incapable of work, and therefore entitled to benefit, unless and until her award is reviewed.

12.	I allow this appeal.

					(Signed)	 D G Rice
							Commissioner

					(Date)	7 April 1998