McGinley, R (on the application of) v Schilling

J U D G M E N T

1. LORD JUSTICE PILL: Lord Justice May will give the first judgment.

2. LORD JUSTICE MAY: These are two joined appeals, each raising the same point, from a decision of McCombe J in the Administrative Court on 28th June 2004. The judge refused permission to appeal, but Auld LJ granted it.

3. Each of the respondents to this appeal were police officers who were retired for permanent disablement as a result of injury received in the execution of their police duty. The matter in issue is the amount of their injury pensions.

4. The appeal concerns the construction of Regulation H2 of the Police Pensions Regulations 1987 (SI 1987/257). The question is whether a medical referee determining an appeal under Regulation H2 against a certificate of a selected medical practitioner under Regulation H1 is confined to deciding whether the certificate of the selected medical practitioner was right or wrong at the date it was made and, perhaps, upon the evidence available to the selected medical practitioner, or whether the medical referee decides the appeal at the date of his decision and on such up-to-date evidence as is before him.

5. Miss McGinley had appealed against a certificate of a selected medical practitioner, Dr Steinberg, of 5th July 2001, holding that her degree of disablement was 35%. Dr Schilling was the medical referee in her case. He upheld the certificate of the selected medical practitioner, considering that the proper date for his determination was the date of the selected medical practitioner's determination. Miss McGinley applied for judicial review.

6. Mr Batchelor appealed against a certificate of the selected medical practitioner in his case, Dr Lloyd-Davies, on 10th April 2002 that his degree of disablement was 45%. The medical referee in his case, Dr Beck, held that the degree of disablement should be increased to 55%. It is argued, though not necessarily accepted on behalf of Mr Batchelor, that Dr Beck made his determination as at its own date and not as at the date of the selected medical practitioner's certificate.

7. Miss Slade QC, who appears for the appellant police authority, has shown us that Dr Beck did not apparently quarrel with the selected medical practitioner's decision at the date at which it was made. The Metropolitan Police Service applied for judicial review of this decision.

8. McCombe J heard the two matters together and gave one decision. He decided that Dr Beck was right and Dr Schilling wrong. Regulation H2, he held, required a determination by the medical referee as at the date it is made, not as at the earlier date of the decision of the selected medical practitioner. The Commissioner appeals to this court. It is a pure matter of construction of the Regulations.

9. The relevant part of the relevant Regulations are as follows. I say "relevant Regulations", because the Regulations have been amended. But we are not concerned with the amended Regulations which came into force later than the events of these particular cases.

10. First, I take them in the order in which they appear, Regulation A12(1) provides:

"A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent."

11. Sub-paragraph (3) of Regulation A12 provides:

"Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:

Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital."

12. Regulation A20 provides:

"Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:

Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled."

13. Regulation H1 provides:

"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:—

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above."

14. Points to notice about this Regulation are, first, that the decision is that of the police authority. The medical practitioner to whom the decision is referred is selected by them. Second, the selected medical practitioner may be asked to decide four matters, as detailed in Regulation H1(2). Third, the decision is expressed in the form of a certificate. That last appears from sub-paragraph (4) of Regulation H1 which provides:

"The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final."

15. Regulation H2(2) provides:

"If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the 'medical referee') to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final."

16. Regulation H3(2) provides:

"The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him for reconsideration on fresh evidence, and he shall accordingly reconsider his decision and, if necessary, issue a fresh certificate, which, subject to any further reconsideration under this paragraph or paragraph (1), shall be final."

17. The reference in Regulation H2(2) to the provisions of Schedule H are to provisions in that Schedule relating to medical appeals. Paragraph 3 of Schedule H provides:

"A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority."

18. Paragraph 5 provides:

"Any interview or examination may be attended by—

(a) the selected medical practitioner; and

(b) any duly qualified medical practitioner appointed for the purpose by either party."

19. This plainly indicates that the medical referee is entitled, and perhaps in certain circumstances obliged, to consider fresh evidence. He is certainly entitled to, because paragraph 3 refers to "such further interviews or examinations as he may consider necessary". He may be obliged to under paragraph 5 by inference if a duly qualified medical practitioner attends the examination or interview. No doubt such attendance would be and could only be useful if the duly qualified medical practitioner was going to be able to say something.

20. Regulation K2 is relied on by the appellant. It provides as follows:

"(1) Subject as hereinafter provided, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered; and if after such consideration the police authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly.

(2) Where the person concerned is not also in receipt of an ordinary, ill-health or short service pension, if on any such reconsideration it is found that his disability has ceased, his injury pension shall be terminated."

21. Referring back to Regulation H1(2) and the last part of that sub-paragraph, it is evident that a reassessment under Regulation K2 may result in the reference of the question of the degree of the former officer's disablement to a further determination by a selected medical practitioner, against whose decision there would, no doubt, be an appeal.

22. Finally, Regulation L3 provides that an injury pension is payable, subject to certain qualifications, from the date of retirement.

23. The appellant police authority appeals against the judge's decision, which I shall refer to in a moment, contending that it was wrong. The contention is, so far as it goes, supported by a guidance document issued in April 2003 by the Home Office. This in its text supports the appellant's construction. But the text equally says, and correctly says, that this has no statutory effect. The Home Office acknowledges that in paragraph 20 of that document. It is surprising, perhaps, in those circumstances that the guidance given in April 2003 took no account of and did not mention decisions of Sullivan and Rafferty JJ, both of which had been reached in 2001 and both of which were contrary in this relevant respect to the guidance given by the Home Office some two years later. We are told and have been provided with a hard copy of more recent guidance dated December 2003, which does anticipate further guidance after a case testing the issue has been resolved.

24. The judge gave four reasons for his conclusion. Firstly, he considered that Regulations A12(1) and A20, although directed to questions rising under sub-paragraphs (a), (b) and (c) of Regulation H1(2), suggested that the focus of the medical referee's decision was on the date on which it was made. That had been the conclusion of Sullivan J in the case of R (Caine) v Cavendish[2001] EWHC Admin 18. It had also been the conclusion of Rafferty J in R (Metropolitan Police Authority) v Bird[2001] EWHC Admin 753, and it had also been the conclusion of Keith J in a later case called City of London Police Authority v Medical Referee[2004] EWHC Admin 897. In paragraph 29 of his judgment in the Caine case, to which McCombe J referred to in paragraph 23 of his judgment, Sullivan J said:

"... I have no doubt that the intention underlying regulation H2 is that the medical referee should look at all of the questions set out in regulation H1(2) in the round as at the date of his/her examination and is not confined to considering the question of causation as at the date of the duly qualified medical practitioner's decision."

25. McCombe J's second reason was that Regulation H2(2) requires the medical referee to decide whether he disagrees with the selected medical practitioner on any of the questions referred to him. The questions, said McCombe J, are in the present tense and he reckoned that that indicated that the medical referee should address them in the present.

26. His third reason was that paragraph 3 of Schedule H allowed the medical referee to carry out further examinations and to hold further interviews. This suggested that his decision should encompass all matters, old and new, at the time of his decision.

27. His fourth reason was that the matter in Regulation A12(3) concerning the determination of a person's disablement could arise equally on appeal.

28. Miss Slade, who has appeared for the appellant before us, has made submissions which I summarise to this effect. Firstly, the scope of the medical referee's task is defined in Regulation H2(3). The question for the medical referee is whether he or she disagrees with the certificate of the selected medical practitioner. This must mean that they are each addressing the same question. You cannot otherwise disagree with the previous decision. Miss Slade submits that this provision does not say that the medical referee shall look at the questions afresh, unconstrained by the decision of the selected medical practitioner. She submits that Regulations A12(1) and A20 are not determinative. Regulation A20 is concerned with the prediction of permanent disablement and is a provision as to consequences. I paraphrase what I understood the submission was, but I regret to say that I was slightly bemused as to its real content.

29. Miss Slade submits that Regulation K2 provides for periodic reassessment of the degree of disablement. This suggests strongly that the appeal to the medical referee under Regulation H2 should not in effect do the same thing as a reassessment under Regulation K2, but should be limited to considering whether the selected medical practitioner got it wrong at the time of the selected medical practitioner's decision.

30. If this submission is wrong, Miss Slade nevertheless submits the more limited point that although the three first instance judges who have considered this question might be right so far as they were addressing sub-paragraphs (a), (b) or (c) of Regulation H1(2), nevertheless sub-paragraph (d) (i.e. the degree of the person's disablement) stands in a different matter and should produce a different result.

31. Miss Slade submits that the previous first instance decisions were not concerned with the matter in Regulation H1(2)(d), the degree of a person's disablement. She does in fact submit, I think, that these decisions were wrong. She points out that Regulation H1(2)(c) concerns a question of historic causation (i.e. whether the disablement is the result of an injury received in the execution of duty), that this is addressed to the time when the police officer was serving, and is necessarily in the past. So far as sub-paragraphs (a) and (b) are concerned, the medical referee is concerned with whether the selected medical practitioner got it right. If the officer's condition has deteriorated, he or she can ask for a further certificate by a selected medical practitioner or can, with the agreement of the police authority, ask for the matter to be reconsidered under Regulation H3(2) or, indeed, has in due time the advantage of a reassessment under Regulation K2.

32. Miss Slade submits, further, that since the pension is payable from the date of retirement (see Regulation L3), a decision of the medical referee on appeal might result in an increased pension backdated to the date of retirement for a degree of disablement which did not exist at that date.

33. There is also a submission that the construction contended for by the respondents and adopted by the judge could make the appeal system open to abuse. It was suggested, at least in written submissions by Miss O'Rourke, that a delayed appeal could be the result of manipulation to achieve an increased pension if the officer's condition was deteriorating. This submission was not, I fear, assisted by the information provided on instructions that it sometimes takes the Secretary of State up to a year to appoint a medical referee. Nor was it assisted by the fact that the new guidance states that normally the time between the decision of the selected medical practitioner and the appeal hearing will be too short for the issue to be of any great consequence. There was a further submission, in writing at least, that it would be unfair to the police authority, who would not know where they stood for pension funding purposes.

34. I do not find these submissions persuasive. Provisions for appeal of this kind will often raise the question whether the appeal is a review or a rehearing, to use the language of Part 52 of the Civil Procedure Rules. There are, in my judgment, clear indications here that this appeal to the medical referee is a rehearing. It is an appeal from the decision of the police authority themselves, not from an independent decision. The medical referee is the first independent person to consider the matter. This suggests that the appeal should be a full reconsideration, taking account of, but unconstrained by, the previous decision of the selected medical practitioner. It would also in general be odd if a doctor was asked to do other than determine matters of this kind at the time at which he was making the determination.

35. Schedule H enables the medical referee to receive additional evidence. It would be very odd indeed, I think, if this was only directed to what the position had been at some date in the past. The same, it seems to me, applies to the fresh evidence provision in Regulation H3(2).

36. I do not find what I regard as a literalist submission as to the import of the word "disagrees" in Regulation H2(3) persuasive. You can readily disagree with someone else's decision upon different or additional information, your disagreement being formulated at a later time than the original decision. As the judge said, the questions themselves are in the present tense. The natural meaning, I think, of Regulation H2(3) is that the medical referee is disagreeing at the date of his decision.

37. I am not impressed with the delay point. The notice initiating the appeal has, so far as the officer is concerned, to be given within only 14 days of the receipt of the selected medical practitioner's certificate. It is, or should be, within the competence of the police authority to see that the appeal progresses reasonably quickly. Delay in appointing the medical referee cannot help this submission.

38. It seems to me that Sullivan, Rafferty and Keith JJ all reached correct decisions on the cases to which I have referred. Sullivan J, in addition to the passage that I have already quoted from McCombe J's decision, said this in paragraphs 31 and 32 of his judgment in Caine:

"31. The proviso to regulation A20 makes it plain that a retirement under regulation A20 shall be void if on an appeal the medical referee decides that the appellant is not permanently disabled. In my judgment, it follows from that that the medical referee is expected to look at the questions of disablement and permanency in the round as at the date of his examination of the officer. Against that background it would be anomalous if he was constrained to look at the question of causation by reference to another date, that is to say the earlier date upon which the examination had been carried out by the duly qualified medical practitioner. I accept Mr Holl-Allen's submission that the questions in paragraphs (a) - (d) in regulation H1(2) are all interlinked and it would be wholly artificial to seek to answer them by reference to different dates."

39. Parenthetically, I agree with that last point. McCombe J made the same point in paragraph 22 of his judgment, where he said:

"I must confess that I would be very surprised if a different date applied to only one out of the four questions arising under the very same sub-paragraph of the Regulations from the date applicable to the other three."

40. Going back to Sullivan J and his paragraph 32, he said this:

"32. Regulation A12 seeks to define the point in time at which it is decided that someone is permanently disabled. If the matter does not proceed beyond the duly qualified medical practitioner, in this case the force medical officer, I quite accept Mr Hudson's submission that the relevant time for the decision will be the certificate by the duly qualified medical practitioner. But the duly qualified medical practitioner's decision is made final subject to regulations H2 and H3, which allow for appeals to the medical referee. H2(3) refers in turn to the decision of the medical referee. Thus, in my judgment, that decision then becomes the relevant time for the purposes of regulation A12. So for those reasons, I am satisfied that Mr Cavendish was entitled to look at the question of causation (the issues of disablement and permanency not being in contention) as at the time of his examination of the claimant."

41. I would add to that that the same considerations apply equally, if not with more force, to Regulation H3(2). I have already referred to the text of this. It refers to the medical authority (which in the context can include the medical referee) reconsidering his decision. It is plain, in my judgment, that the provision of Regulation A12, a reference to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision, can apply equally to the medical referee's decision as it would of course apply to the selected medical practitioner's decision.

42. Keith J in his decision took account of and essentially said the same thing as Sullivan J had said in the two paragraphs to which I have just referred in sub-paragraphs (i) and (ii) of paragraph 19 of his judgment. In his sub-paragraph (iv), he said that the construction of Regulation A12(1) advanced by the authority could produce surprising results. He said this:

"Take the case of an officer whose symptoms were such that, when he was examined by the medical practitioner, his permanent disablement could not be said to be likely. But suppose that, by the time he came to be examined by the medical referee, his symptoms were such that a prognosis could be made. It would be odd if effect could not be given to the view of the medical referee, simply because there was no basis to criticise the prognosis which the medical practitioner had made on the basis of the symptoms which were present then. The officer would be left with having to persuade the police authority to refer his case once again to a medical practitioner under reg. H1(2)."

43. For my part, I find that particularly persuasive. It seems to me to be odd in the extreme if the proper construction of these Regulations meant that a question of whether the disablement was likely to be permanent could not be addressed on appeal by the medical referee taking account of evidence and circumstances which apply as at the date of his decision. Keith J went back to the decision of Sullivan J in Caine, and also agreed with the decision of Rafferty J in the case of Bird.

44. As I say, in my judgment these three first instance decisions all reached the same conclusion. I do not think there is any escape for the appellant in the present case from the wording of Regulation A12(1) in particular, which I construe as applying as much to a decision of the medical referee as to one of the selected medical practitioner.

45. It also seems to me that the import of Regulation A20, applying as it does to a particular decision of the medical referee, makes quite plain that the decision in that case is to be taken at the time the medical referee takes the decision. The reason why it is plain is because the last words of Regulation A20 refer to the medical referee deciding that the appellant is (in the present tense) not permanently disabled. It would be hopelessly contorted, as was at least at one time suggested and is Miss Slade's fallback position, to conclude that the medical referee has to make a contemporary decision for the purposes of Regulation H1(2)(a), (b) and (c), but not for sub-paragraph (d). Questions under each of these could well arise in the same appeal. Although I grant that a decision as to causation under sub-paragraph (c) concerns matters in the past, the medical referee is not limited to evidence before the selected medical practitioner. However, decisions under sub-paragraphs (a) and (b) are decisions which are amenable to reconsideration on contemporary facts, and it would be very odd if a medical referee who properly concluded that an officer was permanently disabled at the time of his decision is to exclude later developments, and only consider whether the selected medical practitioner was right at the time of that practitioner's decision.

46. I acknowledge that there is some force in the submissions which Miss Slade makes with reference to Regulations K2 and L3, but they lose much of their force when it is appreciated that the Regulations expect an appeal to take place quite soon after the selected medical practitioner's decision. In addition, Regulation L3 provides for the pension to be paid from the date of retirement, and there is no necessary link in all cases between the decisions of the selected medical practitioner or the medical referee and that date.

47. Acknowledging, as I do, that these submissions have some force, they nevertheless do not persuade me that what I consider to be the clear import of Regulation H2(2) should be seen as wrong.

48. In any case, there may be an element of swings and roundabouts here. The police authority suggest that backdating may result in overcompensation. But if the appellant's construction is correct, there could equally be undercompensation if the officer's condition deteriorated to an extent greater than had been anticipated by the selected medical practitioner.

49. In my judgment, McCombe J's decision was entirely correct and I would dismiss these appeals.

50. LORD JUSTICE PILL: I agree. Lord Justice May has defined the point at issue, which turns on the construction of the Police Pensions Regulations 1987. I agree with the conclusion he has reached and for the reasons he has given. I make a few further statements, only because of general concern on two points which have arisen in the course of the hearing.

51. The party to the appeal is the Metropolitan Police Force and not the Home Office, who have not been represented. My comments must be read on the basis that the court has not had the advantage of submissions from them.

52. The first point is as to the delay which has occurred in these cases and which we are told frequently occurs when appeals are made under the Regulations by police officers. Miss Slade QC, when making her submissions for the police authority, stated that such delays could work injustice and might lead to the abuse of the system by appellants. The court felt it necessary to enquire into that. The delay concerned is that between the decision of the selected medical practitioner appointed by the police authority under Regulation H1(2), and the decision of the medical referee appointed by the Secretary of State under Regulation H2(2).

53. The time in which a police officer can appeal is limited under Regulation H2(2) to a period of 14 days, though the police authority may allow a longer period. We are told by Miss Slade that it has taken up to a year for the Secretary of State to exercise his power under Regulation H2(2) to appoint a medical referee. It is not suggested that delays have arisen because police officers are generally prone to delay pursuing their appeals. If delay is a problem and has the results which Miss Slade contends may occur, and the point of construction does not depend on that part of her submission, it is in the power of the police authority and the Home Office to deal with it.

54. The second point is in relation to the guidance issued to medical referees which has been included in the bundle of documents with the court. The guidance included is that from the Policy Pensions and Retirement Policy section of the Home Office. It is dated April 2003 and headed "Medical appeals under the Police Pensions Regulations 1987". It is addressed to medical referees and begins in heavy type with the exhortation:

"Before you agree to act as medical referee, it is important that you read through this guidance."

55. At paragraph 7, under the heading "The conduct of the hearing", it stated, amongst other things:

"you are reviewing the decision of the medical practitioner as far as practicable as at the time it was taken ..."

56. I agree with Lord Justice May that it is surprising that such guidance was issued in April 2003, having regard to the earlier decisions to which Lord Justice May has referred. Guidance is naturally going to be taken very seriously by the medical referees appointed.

57. We have been told that fresh guidance dated June 2004 has been issued, but we have not been supplied with a copy of it. There was amended guidance, the relevant part of which we have been given, dated December 2003. That merely states:

"Normally the time between the decision of the SMP and the appeal hearing will be too short for the issue of whether there are any circumstances in which the purpose of the appeal is to review the decision of the SMP at the time it was taken. Further guidance on this point will be issued as soon as practicable once a case testing this issue has been resolved."

That guidance is in a different format from the earlier guidance to which I have referred.

58. I add only that obviously it is important that guidance issued to medical referees on the legal test to be applied reflects an up-to-date statement of the law under the Police Pensions Regulations.

ORDER: Appeal dismissed; the appellant to pay the costs of the respondent in both appeals; permission to appeal to the House of Lords refused.

(Order not part of approved judgment)