Haworth, R (on the application of) v Northumbria Police Authority

This case concerns the statutory regulatory scheme providing for the award of an injury pension to police officers permanently disabled in the execution of their duties. The material Regulations for present purposes are those contained in the Police (Injury Benefit) Regulations 2006 (the ‘Regulations’). The claimant is a retired police officer in receipt of such a police IOD (“Injury on Duty”) pension. That pension was first awarded to her in 1996 under like predecessor regulations (the Police Pension Regulations 1987) but it is common ground that this case is to be determined by reference to those currently applicable.

By these proceedings the claimant seeks by way of judicial review to challenge the refusal of the defendant Police Authority acting through the Chief Constable (to whom it had lawfully delegated its duties and powers under the material Regulations) by a decision dated the 6^th of December 2010 to agree under regulation 32(2) to refer her case back to the material medical authority, in this case the Police Medical Appeal Board (the PMAB), for a reconsideration of a decision made by the Board in 2006 on a review of her police injury pension. That decision purportedly made under the review provisions contained in regulation 37, had had the effect of substantially reducing her pension.

Section 3 of the Form N461 states that the claimant seeks to challenge :

“the decision of the (defendant) made on the 6^th of December 2010 to refuse to refer the claimant’s case back to the PMAB under regulation 32(2) of the 2006 Regulations in breach of her rights under Article1 Protocol 1 of the European convention on Human rights and/or because such decision was irrational and/or because the decision was so unreasonable that no reasonable public body directing itself properly could lawfully have reached such a decision.”

This is a challenge to what is conceded to be an exercise of discretion on the part of the defendant. It is also conceded that to be lawful that discretion had to be exercised in accordance with the statutory purpose for which the discretion was given which it is to be presumed must be as a mechanism to promote the overall policy and object of the statutory scheme. For authority for such proposition one need look no further than the majority judgments in the House of Lords in Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997. ‘The discretion must be exercised by the Minister in accordance with the intention of the Act’ (per Lord Hodson at 1045 G). If it be the case that the defendant has, by reason of its misconstruing the Regulations or for any other reason, exercised the discretion contrary to the intention of the statutory scheme (as to the purpose of the power to agree to a reconsideration) in a way which ‘thwarts or runs counter to the policy and objects’ of the scheme, then this court will be entitled to intervene. See Lord Reid in Padfield at page 1030 B- D;

In Padfield the minister had refused to exercise his discretion under section 19 of the material Act to refer a genuine complaint by milk producers over the price they received for their milk to an independent committee of investigation under the statutory milk marketing scheme. It was held that the parliamentary intention, on proper construction of the Act, was that the appellants had no avenue for their complaint except through section 19 (Lord Pearce at 1052 D), any genuine complaint of this sort which was worthy of investigation by the committee should be referred to that committee (Lord Denning dissenting in the Court of Appeal at 1006 D-E); that although access to the committee was by the statute dependent on a direction of the minister, his discretion was not unfettered and the minister could not refuse to have such a complaint investigated without good reason. Those reasons might include that the complaint was frivolous or vexatious or had already been determined by an earlier investigation (Lord Reid 1030A) but what he was not entitled to do was ‘throw it unread into the waste paper basket. He cannot say (albeit honestly) “I think in general the investigation of complaints has a disruptive effect on the scheme and leads to more trouble than (on balance) it is worth”. (per Lord Pearce at 1053).” To allow him to do so ‘would be to give him power to set aside …the obvious intention of Parliament, namely that an independent committee should investigate grievances’.

Given the particular construction put on the Act in that case, Lord Hodson for example held that the reasons disclosed for not making the referral were not ‘good reasons for refusing to refer the complaint seeing they leave out of account altogether the merits of the complaint itself” (at 1049C) and “where as here the circumstances indicate a genuine complaint for which the appropriate remedy is provided if the Minister so directs, he would not escape from the possibility of control by mandamus through adopting a negative attitude without explanation’. He observed in a passage relied on by the claimant in the present case ‘as the guardian of the public interest he has a duty to protect the interests of those who claim to have been treated contrary to the public interest’.

But of course to apply these principles to the current case it is necessary for the court to determine what is the intention of the statutory scheme, what are its policy and objects, and thereby what is the statutory purpose of the particular regulation conferring the material discretion. These questions are to be determined ‘by construing the Act as a whole and construction is always a matter of law for the court’ (per Lord Reid in Padfield a 1030 C). “The intention of parliament ...must be implied from its provisions and its structure” (Lord Pearce at 1053E).

At the heart of this case – although other issues are before me including whether the decision under challenge is in breach of the Claimant’s property rights under Article 1 of the 1^st Protocol of the European Convention of Human Rights (ECHR) – is accordingly this issue as to the underlying purpose of the Scheme, and in particular a dispute between the parties whether within the Scheme - as contended by the defendant - there is to be found an overriding intention that there should as far as possible be finality and certainty in decisions both as to pension entitlement and current degree of disablement, such that there is to be inferred a presumption of finality in respect of the decisions of the material medical authority determinative of those questions subject only to an express time limited right of appeal from one level of medical authority to another and the provision for a consensual reference back for reconsideration which in principle should be expected to be utilised swiftly and without delay and not substantially out of kilter with the time limits applicable to any alternative mode of challenge, such as judicial review. The longer the delay in seeking reconsideration, the more – on this construction of the Scheme - it will require something truly exceptional for this court on a judicial review of a decision not to agree, to strike down that decision as unlawful or irrational.

The Claimant in contrast contends that the provision enabling consensual reconsideration should be construed as a free standing provision free of any implied time constraints, intended by Parliament to be a mechanism to enable mistakes, whether of law or fact, which have deprived a police officer of the pension to which he is entitled under the Regulations, and which otherwise cannot be put right, to be put right, and thereby to be a mechanism to promote the overall policy and object of the Statutory Scheme that former police officers get the pensions to which they are entitled under the Regulations. Its purpose it is said is to provide a mechanism to allow reconsideration of a pension payable to a former police officer in the event there is a reasonable case that the pension paid is incorrect and to be part of the system of a series of checks and balances to be found in the Regulations to ensure that both the entitlement and level of pension payable to a former officer is in accordance with the regulations. According to the claimant, delay in seeking such a reconsideration is relevant only to the extent that such delay has prejudiced a fair resolution of the issues sought to be raised on a reconsideration – such as the loss of material medical records.

As will be seen, the decision in relation to which the defendant has exercised its discretion not to agree to a referral back for reconsideration, was a decision on the degree of disablement of the claimant made on a review under regulation 37 carried out several years ago to the effect that only part of the Claimant’s disablement (that relating to her ankle and not that attributable to her back) was attributable to the index incident at work. This decision resulted in a severe reduction in the claimant’s pension from that originally awarded on the basis that the entirety of her disablement was work related. The reduction was of some 90%. At current values, it represented a reduction from some £1100 per month to that of £85 per month.

The defendant has done so not on the basis that there is no merit in the matters which the Claimant seeks to raise on such a reconsideration which go to the legality of the approach adopted by the medical authority as to the questions it was entitled to address on such a review as well as the lawfulness of the way it answered those questions.

The reasons given by the defendant for its decision do not involve any express consideration of those underlying merits. Indeed before this court the defendant has conceded that there may well be merit in the claim that the material decision was mistaken as a matter of law being contrary to the scheme of the regulations as interpreted and construed in recent case law. This is a reference to the decision of Burton J in R (Turner) v Police Medical Appeals Board [2009] EWHC 2867 subsequently approved by the Court of Appeal in R (on the application of Laws) v. The Police Medical Appeal Board [2010] EWCA Civ 1099, the now leading case dealing on the approach to reviews under the Regulations, decisions handed down respectively on the 8^th of July 2009 and 14^th October 2010. The Board on the review in 2006 under regulation 37 revisited the question of causation of disablement ,and the question whether the entirety of the claimed duty injuries were duty injuries which questions had originally been determined in the claimant’s favour when her entitlement to pension was first determined some years earlier. This on the basis of the decision in Laws it was not entitled to do.

To quote the defendant’s skeleton argument at paragraph 41:

“The Police authority accepts that the Board’s decision may well have been different had it been reached after the cases of Turner and Laws were determined. The Police Authority also accepts that the 2006 decision may have been susceptible to successful challenge had the Claimant sought permission to apply for judicial review of it at the time, although this would have depended on the approach taken to the statutory regime in the pre-Turner and Laws era”.

Rather the defendant has refused to agree to any reconsideration on the basis that it is entitled in exercising its discretion to take the stance that no matter how meritorious the underlying case which the claimant wishes to raise on the reconsideration she seeks, it is now far too late for the claimant to seek to challenge the decision of the material medical authority by way of such a reconsideration when she could have mounted such a challenge much earlier at or about the time of the decision either by way of seeking a judicial review or by way of seeking at that time a consensual reconsideration.

This stance is justified as being in pursuit of the need to maintain the finality and certainty of pension decisions under the Scheme which it is said is in the interests of both police authority and pensioners alike. Given the absence of such timely challenge it is said that the defendant was and is entitled to assume that the 2006 decision was and is final subject only to a review under regulation 37 if there is any substantial alteration in the degree of disability since the decision was made.

A line it is said has to be drawn somewhere. Mr Green on behalf of the defendant has prayed in aid in support of this stance by way of mutatis mutandis the principle said to be applicable in both criminal and civil law that time should ordinarily not be extended only on the ground that an authoritative judgment has rendered the previous understanding of the law to be arguably incorrect, citing R v Hawkins [1997] 1 Cr App R 234 ; Re J.Wignall &Sons’ Trade Marks [1919] 1 Ch 52 ; Greg Middleton & Co. Ltd v Denderowicz [1988] 1 WLR 1164. It is said it would be repugnant to principle for a police authority to be effectively compelled to agree to a reconsideration of an old decision on the basis of recent case law.

This of course begs the question whether any kind of time limit should be impliedly read into the regulation providing for reconsideration.

In taking this stance the defendant further asserts it is entitled to have regard to its own need for fiscal stability and the ability properly to budget for anticipated calls on its resources and not have to accommodate the sudden need to find monies to pay arrears of pension going back several years. A witness statement of Nicholas Wirz, Principal Solicitor employed by the Defendant, suggests that if delay is not a permissible consideration to decide not to agree to a reconsideration, the potential costs to the authority could be one approaching some £5m. Although he refers to the costs of reconsideration itself, the principal anticipated costs identified are those attributable to the consequences of an anticipated successful reconsideration of old awards. This is of course a concession that it may well be the case that these officers are being currently underpaid if their pensions were assessed by reference to the Scheme as now interpreted.

The material parts of Mr Wirz’ statement are as follows :

“3)

Northumbria Police authority manages 592 awards. these are broken down as follows. There are 197 awards in band 1 (0 -25%), 226 awards within band 2 (26-50%). 120 awards within band 3 (51-75%) and 49 awards within band 4 (76-100%);

4)

Since 1988, 439 appeals have been notified to the Police Authority. Currently an SMP referral consumes about two days of SMP time, which costs the Authority approximately £2,000. The current cost of a medical appeal to the Medical Appeals board (“the Board”) is £7,440 (more if more than one medical speciality is involved). The SMP will also attend a medical appeal (about £1,000). The costs of administering the appeal and attending are very variable; however, they will average out at about £1,000. Each SMP referral and appeal therefore costs the administering Authority approximately £11,500.

5)

Those former officers in receipt of bands 3 and 4 awards seem, for understandable reasons of self–interest, unlikely to challenge or to re-open these conclusions. It is the officers in receipt of bands 1 and 2 awards who would be most likely to seek to re-open matters.

6)

The authority accepts that when a pensioner seeks a reconsideration either of the SMP’s decision or the Board’s decision, it has a discretion under Regulation 32(2) Police (Injury Benefit) Regulations 2006 to consent to the same. In determining how to exercise that discretion in the case of Susan Haworth, it has taken into account the fact that the decision she wishes to re-open hails back to 2006. The authority contends that it ought, in the exercise of its discretion, be permitted to take account of the need for fiscal stability, and, in doing so, to rely upon the statutory presumption that a Board’s decision is final. The Authority further considers that it ought to be awarded a wide margin of appreciation in determining where the line should be drawn. Otherwise, how far back is it obliged to go in facilitating a pensioner’s wish to reopen an old case?

7) However, if delay by a pensioner in seeking the Authority’s consent to a reconsideration under Regulation 32(2) is not a permissible consideration, there is potential for up to 423 former officers to re-open their awards, with a potential cost to the Authority of up to £4,864,500.If only 10% of such officers seek to do so, that is still nearly £1/2 million.”

Part of the defendant’s defence to this claim is moreover that the these proceedings are an abuse and a misuse of the judicial review process, amounting to an improper collateral attack on the Board’s decision of June 2006, designed to circumvent the rule governing applications for judicial review that any claim be brought promptly and in any event within 3 months (see CPR Part 54.5). It is said that the failure of the claimant to seek now to challenge the 2006 decision of the Board by way of judicial review, is a recognition that she would almost certainly be refused permission on grounds which would include inordinate delay. It is submitted that she only “alighted” upon a request in October 2010 for a consensual reconsideration of the 2006 decision under regulation 32(2) and then the decision of the defendant in December 2010 to refuse that request, to be the subject of the present judicial review proceedings, as a device to circumvent the delay rule applicable to such proceedings.

In this context the defendant relies upon the expression of principle in the judgment of Laws J. (as he then was) in R v Secretary of State for Trade and Industry ex parte Greenpeace (No 1) [1998] Env.L.R.415 which Laws J described as a ‘common principle which is not dependent upon an appeal to the rules relating to delay’. The principle was expressed thus:

‘It is that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If after the act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late.”

The claimant roundly attacks the stances taken by the defendant in these various regards as wholly misunderstanding and misapplying the statutory intent and purpose both of the scheme as a whole and the particular provision providing for consensual reconsiderations.

I have already set out the rival contentions as to what is the proper construction of the Scheme and the particular provision. The claimant’s case is that the stance taken by the defendant frustrates the purpose of both, and in focussing in its decision only upon its own financial position and the passage of time, without paying any consideration to the merits of the claim and whether the wrong pension was being paid to the claimant, the defendant has used its discretionary power for a purpose inconsistent with the purpose of the regulations namely to ensure that someone in her position is paid the pension to which she is lawfully entitled under the Regulations. In accordance with fundamental principles of jurisprudence the legal position under the scheme as explained in recent judgments of the courts, is no more than declaratory of what the true position in law has always been.

The claimant emphasises that the effect of the defendant’s decision not to agree to a reconsideration if it is not struck down, will be that the claimant will be deprived for the rest of her life of the shortfall to which in law as now established she would in all likelihood be otherwise entitled. The only other avenue open to her to redress this deficiency would be by way of a further review under regulation 37 but it is now established that such a review can be concerned only with the question as to whether there has been any substantial alteration in the degree of disablement since the last review. Upon any such review the starting point on disablement has to be taken as that reached by any previous review as a matter of substance and a new review cannot lawfully seek to re-open questions on disablement, and in particular on causation, already determined by earlier decisions of the material medical authority. Indeed this is the ratio of the very case law relied on by the claimant to undermine the lawfulness of the review decision of 2006 in respect of which reconsideration is sought .

In other words – and this again is conceded by the defendant – no review of her case under regulation 37 applying the law as it has now been established, can correct the mistakes said to have been made by the PMAB in 2006. Any review will have to take as its starting point that determined by the Board in 2006, namely that any disablement attributable to the claimant’s back condition does not arise from a duty injury. Accordingly any loss of earning capacity and hence any pension based on such loss, will have to be heavily discounted to reflect this finding, notwithstanding a contrary finding was made when the initial award of pension was made. The claimant points to the paradox that if the PMAB had today the same freedom to make fresh decisions as the PMAB (wrongly following Laws) thought it had in 2006 she would be able to continue to assert that her back injury was a duty injury. To quote paragraph 13 of the claimant’s recent witness statement “I have therefore lost out both ways’.

Hence the claimant attacks the decision made both as an unreasonable exercise of discretion and as amounting to a case of unjust enrichment in so far as the defendant is seeking to be entitled to withhold monies (such as the £4.5 m identified by Mr Wirz) to which on any proper application the Regulations retired police officers are entitled .

Within the rival contentions presented to me is a further fundamental dispute as to what is meant by the claimant’s “pension entitlement under the Regulations”. The defendant does not dispute that the claimant has an entitlement to be paid an IOD pension in accordance with the Regulations or that such a entitlement is a property right entitled to protection under the 1^st Protocol of the ECHR but consistent with its submissions on finality and certainty, asserts that this means only that the claimant is entitled to that which has been set by the Appeal Board in an unchallenged final decision under regulation 37. To quote the defendant’s skeleton argument: “Her entitlement has been established by the 2006 decision of the Board which she did not promptly challenge either by way of judicial review or inviting a reconsideration under Regulation 32(2)”. In other words the defendant does not accept the claimant’s underlying premise that her pension entitlement is different from that which she is actually getting.

Before considering further these rival contentions I turn to set out the material facts of this case and the material provisions of the statutory scheme under the 2006 Regulations. I start with the Scheme.

Under regulation 11 a person who ceases or who has ceased to be a member of a police force and is permanently disabled as a result of an injury received without default in the execution of his duty (a ‘relevant injury’) is (under regulation 11(2) entitled (“shall be entitled”) to an injury pension calculated in accordance with Schedule 3. Under regulation 7(1) a reference in the regulations to a person being permanently disabled is a 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”. Under regulation 7 (4) (subject to paragraph (5)) ‘disablement’ means, material to this case, the inability to perform the ordinary duties of a member of the police force.

Regulation 7(5) deals with “degree of disablement” and in effect provides that 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 a relevant injury. Schedule 3 established four degrees or bands of disablement: band 1 which is 25% disablement or less (referred to as slight disablement); band two – more than 25% but not more than 50% (minor disablement); band 3 – more than 50% but not more than 75% (major); band 4 – more than 75% (very severe). Calculation of the degree of disablement in the requisite percentage terms is achieved by comparing the earning capacity it is assumed the person would be earning but for the relevant injury (usually taken to be the income the person would be earning if still a police officer of the rank at which he sustained the relevant injury) with what the person is now actually capable of earning.

There are thus two questions to be determined. The first is as to entitlement. The second is as to calculation of the pension, the question of quantum.

The scheme of the Regulations is that although the question whether a person is entitled to any and if so to what awards under the Regulations is determined by the police authority, the underlying medical questions relevant to both entitlement and quantum, namely (a) whether the person concerned is disabled (b) whether the disablement is likely to be permanent (c) whether the disablement is the result of a relevant injury (d) the degree of the person’s disablement, are questions which the police authority must refer to a medical authority and it is that body who is to be the decision maker on these matters.

They are decisions in the first instance for a selected medical practitioner (SMP) acting under regulation 30 subject to an appeal under regulation 31 to a higher medical authority, referred to in the regulations as a board of medical referees and currently known as the Police Medical Appeal board (PMAB).

Thus Regulation 30 provides as far as is material:

‘Reference of medical questions

30 – (1) Subject to the provisions of this Part, 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)

Subject to paragraph (3), (irrelevant for present purposes) 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 :

whether the person concerned is disabled;

whether the disablement is likely to be permanent;

except (irrelevant) ………………..

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.”

Similarly under regulation 31 which provides for the appeal to the PMAB, the obligation of the appeal board is to decide whether it disagrees with the decision made by the SMP concerning any of the questions referred to the SMP and to give a report of any such decision. See regulation 31(3).

The right of appeal under regulation 31 is however time limited. Under paragraph (1) a person dissatisfied with the decision of the SMP has 28 days from receipt of the report of the SMP (‘or such longer period as the police authority may allow’) in which to give notice of appeal to the police authority and under paragraph (2) has a further 28 days (or again such longer period as the authority may allow) to submit grounds of appeal to the police authority. Upon receipt of such grounds within such time, the police authority has two obligations, namely ‘to notify the Secretary of State accordingly’ and to refer the appeal to the board.

The scheme of the Regulations is further that these medical decisions of the material medical authority are to be binding upon the police authority and pensioner alike and are to be taken as (i) final subject only to the right of appeal from the SMP to the PMAB under regulation 31 and (ii) the provisions in regulation 32 for further reference to medical authority with which these proceedings are concerned.

Thus 30(6) provides

“the decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31and 32, be final”

while Regulation 31(3), referable to an appeal to board of medical referees, provides:

“The decision of the board of medical referees shall, if it disagrees with any part of the report of the selected medical practitioner, be expressed in the form of a report of its decision on any of the questions referred to the selected medical practitioner on which it disagrees with the latter’s decision, and the decision of the board of medical referees shall, subject to the provisions of regulation 32, be final.”

There is no further right of appeal against any of these medical decisions within the regulations. The board’s determination on a regulation 31 appeal can only be revisited by judicial review, subject always to the reconsideration provisions in regulation 32.

Although regulation 34 provides for a right of appeal to the Crown Court (where a person claiming an award is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award, or a larger award than actually granted) that appeal cannot embrace any discretionary matters (see regulation 36 (1)) and under 36(2), the court “shall be bound” by “any final decision of a medical authority within the meaning of regulation 32” (see regulation 36(2)). However this too is subject to the power of the Crown Court under regulation 32(1) to refer the so called final decision back to the medical authority for reconsideration ‘in the light of such facts as the court ….may direct’ if the court ‘considers that the evidence before the medical authority who has given the final decision was inaccurate or inadequate’. Again however, any fresh report issued by the medical authority following upon reconsideration is to be final subject only to any further reconsideration under the same paragraph (1) of regulation 32, (see again regulation 32 (1)).

The pension awarded as a result of such medical decisions is however open to re-assessment on a periodic review under regulation 37. It is contained in Part 5 of the regulations which has the general heading ‘Revision and Withdrawal or Forfeiture of Awards’. This provides as follows, again as far as is material:

“Reassessment of injury pension

37(1) Subject to the provisions of this Part, 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.”

Such a review is by the very wording of regulation 37(1) concerned only with whether the degree of the pensioner’s disablement has substantially altered since the previous decision of a material medical authority. Hence under regulation 30(2) on the occasion of such a review it is only question (d) which is to be referred under regulation 30. Given that that degree is defined as the degree to which earning capacity has been affected by the qualifying injury, that alteration may come about as a result of an improvement in the underlying medical condition for example or as a result of external factors such as the sudden availability of a job but the critical principle is that the review is concerning itself with changes in circumstances that have occurred since the last relevant decision and is looking to see if as a result there has been any alteration in degree of disablement which is substantial.

It might be thought self evident in these circumstances that on any review, the medical authority can not go outside the narrow question referred to it and cannot revisit prior questions, for example the question relating to causation under (c) (‘whether the disablement is the result of an injury received in the execution of duty’) arrived at on the initial assessment or revisit the degree of disablement arrived at on a previous occasion, be it the initial assessment or the last review, by revisiting the clinical judgments taken on that previous occasion. However – critically for present purposes – that was only made crystal clear by the Court of Appeal decision in Laws, in which the court endorsed the approach to Regulation 37 adopted by Burton J in Turner, to which I have already referred.

In Laws the police authority was contending that the requirement of finality under regulation 30(6) and 31(3) meant only that the Board had to accept whatever pension had been previously fixed as the starting point for the review in considering the pensioner’s current degree of disablement compared with the previous assessment – which it equally contended was the exercise to be undertaken on any review. It contended that it was not however obliged to accept all the clinical judgments made in or for the purpose of any previous assessment. This approach was firmly rejected by the Court of Appeal as contrary to the both the language and purpose of the Regulations. The effect of the Court of Appeal decision is that on any review, the reviewing body does not start from scratch but rather it must take the earlier decision as to degree of disablement as a given as a matter of substance and not merely as the percentage figure arrived at to represent the pensioner’s disability. The exercise to be undertaken, and the reviewing body’s duty and only duty on such a review, is to decide whether since then there has been a substantial change. See Laws LJ at paragraphs 16 and 18.

What is forbidden is summarised in paragraph 19 of the judgment:

“In my judgment the learned judge below was right to construe the regulations as she did. Burton J’s reasoning at paragraph 21 of Turner which encapsulates the same approach is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally of course they may not increase a pension by reference to a previous conclusion ….the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was the driver of the pension that was then awarded.”

I turn to regulation 32. It is headed: ‘Further reference to medical authority’.

Regulation 32(1) concerns the reference back of a medical decision to the medical authority which made it, by the Crown Court on hearing an appeal under section 34, (or a tribunal hearing an appeal under regulation 35) where the court is concerned as to the evidential and factual basis of the decision. It provides as follows:

“(1)

A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct and the medical authority shall accordingly reconsider his, or as the case may be its decision and, if necessary issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final.”

I have already referred to this power to order a reconsideration when considering the provision for an appeal to the Crown Court in the regulations and its limitations. See paragraph 40 above. I would accept the claimant’s contention that the purpose of this particular provision must be to ensure as far as possible that decisions of a medical authority are made on a proper evidential basis.

I turn then to Regulation 32(2) with which this claim is directly concerned. It provides as follows:

“(2)

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 or as the case may be it, for reconsideration ,and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision, and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final.”

It is to be noted at once that (i) what is provided for is a consensual reference back, that is to say one to which both the police authority and the claimant officer must agree, (ii) there is no express time limit within which such a reference back must be made and (iii) again any fresh decision made following such reconsideration is to be treated as final subject only to any further reconsideration pursuant to regulation 32(2) or any appeal under 31(1) which had already been instigated by way of notice before the reference back was made.

On the first of these noted aspects, I would accept the defendant’s submission that it does not necessarily follow that the only circumstances contemplated by parliament in which this joint power would come to be exercised would be, as submitted by Mr Lock QC before me, where an aggrieved claimant seeks the agreement of the police authority. It is of course correct that no public law duties lie upon a claimant so that unlike in the case of a refusal to agree by a police authority, such a refusal by a claimant would not be open to challenge by public law proceedings, but if the medical decision in question is itself open to judicial review with good prospects of success, a properly advised claimant might well be prepared to agree to a reference back in an appropriate case rather than run the risk of an adverse order for costs in the event of a successful challenge which he has opposed.

This said however, it equally by no means follows that this analysis must mean that parliament contemplated that this power should be exercised only if judicial review proceedings, or an appeal under the regulations themselves, were still a viable alternative by which to challenge the medical decision in question. As indicated there is no expressly prescribed time limit for seeking a re-referral under this regulation. My attention was drawn to the guidance given in paragraph 23 of the Home Office Guidance on Police Medical Appeals (‘HOG’) which states as follows:

“Internal review of a medical decision

23.

Both the decision of the SMP, if no appeal has been heard, and the decision of the appeal board may be referred back to the medical authority which took it by agreement between the officer and the police authority. Such a procedure will normally be followed where there is a reasonable prospect that further consideration of the issues will resolve the matter without the need for an appeal hearing in the case of an SMP’s decision or need for Judicial Review in the case of an appeal board’s decision.”

The defendant relies upon this guidance as ‘the most obvious and accessible source of information as to the purpose of the provision contained within regulation 32 (2)’ but I would agree with the claimant that such guidance cannot be decisive of this question of purpose which must be determined by reference to the statutory scheme as a whole. As a matter of principle such extra statutory guidance cannot be effective to cut down the scope of a statutory power or to impose limits on the circumstances in which the power to agree to a reference back can be exercised unless the limitations can be inferred from the statutory language or the statutory scheme as a whole.

It is to be further noted that it is only a ‘final decision’ of a medical authority which can be sent back for reconsideration and that the meaning of ‘final decision’ for these purposes is defined in paragraph (4) in these terms:

“(4)

in this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police authority, the police authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal.”

It can be seen from this definition that at least in the case of a medical decision of a SMP, the scheme under regulation 32 (2) contemplates the possibility of an agreed reference back after the time limit for an appeal has expired and hence outside the time limits imposed for such an appeal, as well as where notice of appeal has been given but as yet not further progressed.

For the sake of completeness I record that paragraph (3) of regulation 32 provides for the reference back of the decision to a different medical authority agreed upon by the parties (in the case of a reference under 32(2)) where the original medical authority is unwilling or unable to review it.

The Claimant was born on the 29^th of January 1966. She joined the police force in January 1991. She had a previous history of injuries to her back but had suffered no back problems prior to her joining the force. In July 1991 whilst on duty she sustained injury when she fell into an open manhole. She injured her back and her ankle. In May 1995 she was retired from the police on medical grounds with a permanently disabling condition of ligament strain of the right ankle and lumbro sacral strain.

In May 1996 she was awarded an IOD pension under the equivalent of regulation 11 of the current regulations, calculated in accordance with the equivalent of Schedule 3. Her pension was fixed at band 3, in other words on the basis of a major permanent disablement within the meaning of the regulations which was the result of a duty injury to both her back and her ankle. This was the outcome of a determination by a SMP to which the relevant questions under the equivalent of regulation 30 (a) to (d), had been referred. The police authority did not seek to challenge the decision of the SMP which accordingly became final under the equivalent of regulation 30(6). Although the police authority had no right of appeal within the regulations, it is not in dispute that it had been open to the authority to seek a judicial review of the decision.

In 2005 the police authority carried out a review of the claimant’s pension under the equivalent of regulation 37(1) pursuant to which the authority referred the claimant’s case to a SMP, a Dr Broome, consultant occupational physician, or more precisely referred the question set out in the equivalent of regulation 30(2)(d) (‘the degree of the person’s disablement’). If the authority – and indeed the SMP – was to be faithful to the terms of the material regulation 37(1), this was for the purpose of finding whether or not the claimant’s degree of disablement had substantially altered. Dr Broome produced a report dated the 19 of August 2005 in which he reduced the claimant’s pension from band 3 to band 2. The basis upon which he did so is not entirely clear although his report (according to the subsequent PMAB report) purportedly considered that the current back injury was not in fact an injury on duty and the loss of earning capacity could be assessed only on the basis of the ankle injury. In other words Dr Broome appears to have applied his mind to a question which was not referred to him namely the equivalent of question (c) in the now regulation 30(2) (whether ‘the disablement is the result of an injury received in the execution of duty’).

The claimant exercised her right of appeal to a PMAB against this SMP decision pursuant to the equivalent of regulation 31(1). A hearing was held on the 21^st of June 2006 which resulted in a report of the 5^th of July 2006 which further reduced the claimant’s award to band 1. The claimant has duly been paid a pension at band 1 level from July 2006 and continues so to be paid. As already indicated in present day values, her monthly pension was reduced from some £1100 when it was paid on band 3 to some £84.

The report of the PMAB reveals that the PMAB itself revisited, amongst other questions, the question of causation reflected in the equivalent of question (c) under regulation 30(2). As regards the back injury, it found, following a review of the claimant’s medical records and medical evidence from 1995, that the claimant was likely to have been suffering from degenerative changes in her back before joining the police force, that the index incident had merely brought forward the symptoms in the claimant’s back by some 10 to 20 years and ‘cannot be seen to be the causative event of the disability from her back’ and was rather a case of ‘acceleration’. It then purported to apply the case of ‘Jennings’ (a reference to Jennings v Humberside Police [2002] EWHC 3064) in determining that ‘as such’ (that is say as a case of acceleration) ‘applying Jennings this would not be considered as being an injury on duty’ and hence was a ‘non qualifying injury’ for the purposes of any calculation of pension (see the report at internal page 13). As regards the ankle injury, the Board found that whilst it accepted that this was an on duty injury (absent any ‘reliable evidence to suggest the ankle had been compromised prior to the index incident’) (report page 11) which would prevent the clamant from carrying out the duties of a police officer, it played no role in her current inability to earn. It found a total loss of earning capacity of some 35.5% of which however it found that the non qualifying back symptoms represented ‘the major component’ (report page 13) and applying ‘apportionment’ in order to determine the degree to which that loss was the result of a qualifying injury, calculated a loss of earnings capacity attributable to the injury on duty (i.e. the ankle injury) of 8.9% and hence placed the claimant in band 1.

Mr Lock has sought to identify any number of reasons why this decision of the PMAB was wrong in law.

I would accept that in relation to both the back injury and the ankle injury, the Board appears not to have focused on their statutory obligation under Regulation 37(1) of determining whether there had been an alteration in the claimant’s degree of disablement since the award, and if so whether it was substantial, but were seeking to replicate the process, in particular in relation to causation of disablement, which led to the original SMP decision and the initial award of pension back in 1996 (when answering questions equivalent to (a), (b) & (c) within regulation 30(2)), in order to see whether they would have made the same findings. They agreed with those findings relating to the ankle but disagreed with those relating to the back. For the reasons already outlined this was not permissible and was outside the task which they had to undertake under regulation 37 which was confined to question (d) (‘the degree of the person’s disablement’) and whether there had been any substantial alteration since the initial award or the last review. Its task was to undertake a comparative exercise to assess the extent to which the loss of earning capacity of the former police officer due to the already determined on duty injury, had changed since the injury pension was initially awarded, or since the last review whichever be the later. It was not entitled to revisit the earlier clinical findings underlying the earlier assessment of degree of disablement and award of pension. See again Laws at paragraph 19. It was not entitled to re-determine as it appears to have, questions under (a), (b) & (c), already answered on the occasion of the initial award, as to the original causes of the claimant’s injuries.

In these circumstances the approach of reducing the IOD by reason of an ‘apportionment’ referable to its findings on causation revisiting those previously made, would not appear to have been one open to the Board on a review (as distinct from the position on any initial assessment).

I further accept that even if these questions of causation were questions open to the Board on a review, the Board’s interpretation of the principles to be derived from Jennings was arguably wrong and a medical authority is required to award an injury pension if the duty injury aggravates a previously asymptomatic underlying medical condition . See the subsequent authority of Walther v Metropolitan Police Authority 2010 EWHC 3009 (Admin). However as Mr Lock rightly submitted the important point for present purposes is that in the context of this case and the claimant’s back symptoms, this was a decision for the material medical authority on the initial award and once decided at that stage was final. See again Laws.

In the round therefore I accept that there must be a good arguable case that the decision of the PMAB in 2006 offended against the finality of decisions already made by the material medical authority on the initial grant in 1996, and the narrow confines of the statutory question to which the Board was limited on a review under regulation 37. In other words I accept that there is and was always a good arguable case that this decision of the PMAB was wrong in law. Mr Green would say that this is so at least since the decision of the Court of Appeal in Laws, if not the High Court decision in Turner, as to the correct interpretation of regulation 37 and as I have already set out he has conceded that the Board’s decision ‘may well have been different had it been reached after the cases of Turner and Laws were determined’. But of course the quality of such good arguable case does and did not at the time flow from those decisions themselves which merely reflected the acceptance of arguments derived from the very wording of the regulations which could have been made at any time. In other words the decision of the PMAB in 2006 was always susceptible to a challenge by way of judicial review with a more than reasonable prospect of success notwithstanding the decision in Laws had yet to be handed down.

The claimant did not however thereafter seek to judicially review the decision of the PMAB on any of these bases, or at all. In her witness statement of the 19^th of September 2011 she says (paragraph 5) that she had been devastated by the decision but “was not aware that I was able to challenge it”. She refutes the suggestion of the defendant in their letter of 6 December 2010 that she had accepted the findings of the PMAB. Her failure actively to mount any challenge was simply because she had not known how to do so.

The Claimant says she did approach the Police Authority in early 2010 and sought a further regulation 37 review of her pension because she considered that her medical situation was becoming more serious but that that this was refused because the Authority were awaiting clarification on the law relating to such reviews and further the Authority informed her of a Home Office letter of 10 March 2010 advising police authorities to cease conducting reviews pending the decision of the Court of Appeal in Laws in which the material police authority were seeking to appeal the successful challenge at first instance to the approach of the PMAB.

The Court of Appeal decision in Laws was handed down on the 13 October 2010. The claimant says that the Police Federation then put her in touch with her present solicitor who shortly after wrote the letter of 29^th of October 2010 seeking the agreement of the Police Authority to a reference back of her case under regulation 32 (2) to the PMAB for a reconsideration . It is unnecessary to set out the entirety of the letter. Having set out the history of the claimant’s initial award of pension, the review carried out by Dr Broome and the appeal to the PMAB in 2006, it continued as follows:

The detailed reasons for seeking this review (sic) are set out below,

however in essence the decisions of both the SMP and the PMAB were

Both of these decisions are therefore unlawful, and not made in accordance with the Injury Benefit Regulations.

Having referred to the material Home Office Guidance on the application of regulation 32(2), the letter continued (any emphasis in italics is the emphasis of this court):

“Close reading of the decision of the PMAB does not offer any support to the proposition that the PMAB asked themselves whether there was a substantial alteration to the Claimant’s degree of disablement. On the contrary the PMAB appear to have focused on the issue of causation and the introduction of apportionment. The words ‘substantial alteration’ do not appear in any part of the decision.

It is the Appellant’s case that the PMAB wrongly revisited causation as to the original injury and then applied a degree of apportionment, irrespective of the fact that apportionment had never been considered prior to the PMAB of 21 June 2006.

We would suggest that it is now common ground that the PMAB were wrong to revisit causation in what has already been determined by the Force’s SMP in this case, when he determined the Appellant should be retired due to, permanent disablement and when he assessed the degree of disablement at band 3 in May 1995.

It therefore appears that the NPA determined the case on a basis that was plainly flawed in that it is clear that the PMAB did not address the issue as to whether the claimant’s degree of disablement had substantially altered.

The Appellant’s request for the PMAB to reconsider the final decision contained in their report is primarily, but not exclusively, founded on the clarification given in the judgment of TURNER …..[2009] and the Pension Ombudsman’s determination in the case of AYRE and Humberside, in that the PMAB had failed to determine there had been a substantial medical change in the disablement caused by the injury sustained in the execution of duty since the last assessment, wrongly revisited causation and wrongly applied apportionment.

Clearly the recent Court of appeal case of Laws v MPC confirms the position further, in that those cases of Turner and Pollard are confirmed as the correct method in carrying out an IOD review.

It is not right that the Northumbria Police Authority rely upon a final unlawful decision of the SMP and or PMAB to refuse this request that the earlier unlawful decisions may subject to this reasonable 32(2) request.’