Deemed incapabu of work

Abstract

The Divisional Court in R. v. National Insurance Commissioner, ex parte Department of Health and Social Security,¹ has decided a short, yet important, point on the meaning of incapacity for work for the purposes of sickness and invalidity benefit. The claimant's doctor issued certificates that he had advised the claimant to refrain from work because of low backache and sciatica. Two D.H.S.S. medical officers reported that while the claimant was incapable of his normal work as a weighbridge operator he was capable of light work. The insurance officer then decided that the claimant was not entitled to invalidity pension since he had failed to prove his incapacity for work. This decision was upheld by the ld tribunal, but the National Insurance Commissioner held that the claimant could rely on regulation 3(L)(U) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1975. That regulation provided that a person who is not incapable of work “may be deemed to be incapable of work… [if] (i) he is under medical care in respect of a disease or disablement as aforesaid, (ii) it is certified by a registered medical practitioner that by reason of such disease or disablement he should abstain from work, and (iii) he does not work.”² The Divisional Court, by a majority of two to one, took the opposite view.