National Association of Colliery Overmen, Deputies and Shot Firers, R (on the application of) v Secretary of State for Work and Pensions

When a public authority maintains non-statutory guidance, it must consider material evidence that the guidance is being misunderstood or misapplied in practice. A decision to leave guidance unchanged is irrational where there is a significant risk that decision-makers are using a procedure for a purpose outside the authority’s stated policy. The court should not decide disputed medical policy or prescribe the wording of revised guidance. Its role is to identify the legal flaw and require the authority to correct the guidance consistently with its intended policy.

The claimant, a trade association assisting former miners, challenged the Secretary of State’s decision not to amend the Notes on the Diagnosis of Prescribed Diseases concerning the cold water provocation test for prescribed disease A11, vibration white finger.

The Secretary of State’s policy was that a positive result might assist a claimant whose history was inconclusive, but that a negative result should have no diagnostic significance. The claimant relied on evidence suggesting that some medical advisers were nevertheless using negative results to support adverse diagnoses. The central issue was whether the decision to maintain the guidance, pending a wider review, was unlawful because it failed to address that risk.

1. The claim was allowed. The Secretary of State’s decision not to amend the Notes on the Diagnosis of Prescribed Diseases was flawed and irrational.
2. The cold water provocation test could rationally be retained as an opportunity for a claimant to demonstrate blanching. However, the Secretary of State’s policy was that a negative result could not support a conclusion that the claimant did not suffer from prescribed disease A11.
3. The evidence demonstrated a significant risk that some medical advisers were using the test as a negative diagnostic tool. The relevant question was whether the test was being used for a purpose which the Secretary of State did not intend, not whether claims had been wrongly refused.
4. Training and supplementary guidance did not adequately address the problem. The Secretary of State was required to consider making the intended limitation explicit in the written guidance. Maintaining the status quo pending the Industrial Injuries Advisory Council’s wider review did not rationally address the immediate risk.
5. The court did not decide whether the test was medically obsolete or prescribe the wording of the amendment. The appropriate relief was an order requiring the Secretary of State to modify and revise the existing guidance, or issue fresh guidance, so as to reflect that a negative test result had no diagnostic value.

First-instance judicial review in the Administrative Court. The judgment does not state any subsequent appellate decision.