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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chief Constable Of South Yorkshire Police, R (on the application of) v The Crown Court At Sheffield & Anor [2020] EWHC 210 (Admin) (06 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/210.html Cite as: [2020] WLR(D) 76, [2020] EWHC 210 (Admin), [2020] ICR 1311 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
1 Oxford Row Leeds LS1 3BG |
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B e f o r e :
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THE QUEEN On the application of THE CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE |
Claimant |
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- and - |
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THE CROWN COURT AT SHEFFIELD -and- LLOYD PATRICK KELLY |
Defendant Interested Party |
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David Lock QC (instructed by Slater and Gordon) for the Interested Party
Hearing date: 16 May 2019
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Crown Copyright ©
MRS JUSTICE JEFFORD:
Introduction
The regulations
"(1) Subject to the following provisions of this section regulations made under section 1 above shall make provision as to the court or other person by whom appeals are to be heard and determined in the case of any person who is aggrieved –(a) by the refusal of the police pension authority to admit a claim to receive as to right a pension, or a larger pension than that granted, under regulations made under that section, or(b) …."
(i) Definitions:(a) Regulation 2(c) provides that, unless the context otherwise requires, "any reference to an award, however, expressed, is a reference to an award under these Regulations".(b) Regulation 6 provides the definition of an injury received in the execution of duty by a member of a police force.(c) Regulation 7(1) provides that:"… 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."(ii) Regulation 7(7) provides:
"Where a person has retired before becoming disabled and the date on which he becomes disabled cannot be ascertained, it shall be taken to be the date on which the claim that he is disabled is first made known to the police pension authority."(iii) Regulation 11 (Police Officer's Injury Award):
"(1) This regulation applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Schedule 3 referred to as the "relevant injury").(2) A person to whom this regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Schedule 3; but payment of an injury pension shall be subject to the provisions of paragraph 5 of that Schedule and, where the person concerned ceased to serve before becoming disabled, no payment shall be made on account of the pension in respect of any period before he became disabled."(iv) Regulation 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 pension authority.(2) Subject to paragraph (3), where the police pension 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,except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 regulations …, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations … shall be binding for the purposes of these Regulations;and, if they are 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.…(6) 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 31 and 32, be final."
"Where a member of a home police force, or a person claiming an award in respect of such a member, is aggrieved by the refusal of the police pension authority to admit a claim to receive as of right an award or a larger award than that granted, ….he may, subject to regulation 36, appeal to the Crown Court and that court after enquiring into the case, may make such order in the matter as appears to it to be just."
"(1) Subject to the provisions of these Regulations, in particular of regulation 11(2) (limitation on payment of an injury pension to a person who ceased to serve before becoming disabled) and Part 5 (revision and withdrawal or forfeiture of awards), the pension of a member of the police force under these Regulations shall be payable in respect of each year as from the date of his retirement.….."
The facts
The Claimant's case
The Interested Party's case
The authorities
"32. Miss Slade submits, further, that since the pension is payable from the date of retirement (see Regulation L3)[2], 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."
"46. I acknowledge that there is some force in the submissions which Miss Slade makes with reference to regulations K2[3] 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 over-compensation. But if the police authority'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."
"Further, we are fortified in that view by asking the question, "What would be the purpose of including A12.4 and B5.4 in the regulations if A12.1 bears the meaning suggested by the respondent?". For, if that were the case, the permanent disablement would arise in every case on a date which would be readily ascertainable, namely the date when the question of disablement arose for decision under A12.4 and/or B5.4. The position, in our view, is this, that Parliament would not then have included A12.4 or B5.4 in the regulations at all as their terms would then be wholly otiose."
"55. It follows that the focus of that decision was on whether the effect of the injury should be addressed on appeal by the medical referee taking account of evidence as at the date of his decision. In my judgment, that decision says nothing directly about the date on which a change to the pension should take effect. ….56. However, if it is right that appeals are to be conducted on the basis of current evidence, and if it is right that current evidence can result in a change to the level of pension, it seems to me necessarily implicit in the scheme of the Regulations that the date on which the changed pension is to take effect is the date of the appeal. It would be odd in the extreme if an appeal were to be decided on the basis of evidence of recent change in disability, yet the altered pension were to run from some earlier date. In my judgment, it must be inherent in the scheme that the altered pension should take effect on the date when it is recognised that altered circumstances justify a change in pension."
The period or amount of the award
"The Appellant accepts that he acquires no legal right to claim a police injury pension until 2016. He is owed nothing by the PPA unless and until the SMP has made a decision in his favour under Regulation 30(2)(c) and (d). A referral ought to have been made in 2005 but it was not made. As a result of the failure of the Police Authority to make the appropriate referral, the appellant failed to be paid the pension he ought to have been paid in a timely manner between 2005 and 2006."
The appellate jurisdiction
(i) The Chief Constable considers whether to grant an injury pension without the officer having made any claim for the injury pension, and decides not to grant an injury pension. The officer may appeal under Regulation 34.(ii) The Chief Constable considers whether to grant an injury pension without the officer having made any claim for the injury pension and decides to grant the pension, but the officer is aggrieved at the amount of the annual pension calculated in accordance with Schedule 3 and the period over which the pension iss to be paid. The officer would then have the right to appeal under Regulation 34 in respect of the amount but, in respect of the period, his route of challenge would, on the Chief Constable's case, be a claim perhaps for declaratory relief or for damages for breach of a statutory duty to pay.
(iii) The officer makes a claim for an injury pension but the Chief Constable refuses to consider the claim. The officer may appeal under Regulation 34. This appeal route is the officer's only route of challenge because there is, on the Chief Constable's case, no breach in refusing to consider the claim.
(iv) Alternatively, the Chief Constable considers the claim but refuses to grant an injury pension. The appeal route is again open but it is difficult to see how there is any claim for damages for breach if the Chief Constable has acted in accordance with the decisions of the SMP.
(v) The officer makes a claim for an injury pension. The Chief Constable considers the claim and grants an injury pension but the officer is aggrieved at the annual amount and/or period of payment. Again, on the Chief Constable's case, the appeal route is open in respect of the annual amount but not the period of payment. On the Chief Constable's case, the officer should make a claim for damages for breach on the basis that an obligation to pay arose at an earlier date, albeit it may be pure chance whether that date is within or outside any limitation period.
Interest
Note 1 In terms equivalent to Regulation 34 [Back] Note 2 In the same terms as Regulation 43 [Back] Note 3 Providing for periodic re-assessment of the degree of disablement [Back]