R Graeme Ferguson v Police Medical Appeal Board
| Jurisdiction | England & Wales |
| Judge | Davis-White |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWHC 1292 (Admin) |
| Docket Number | Case No: CO/4881/2020 |
| Date | 18 May 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
The Combined Court Centre
1 Oxford Row,
Leeds LS1 3BY
HH JUDGE Davis-White QC (SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CO/4881/2020
and
Mr Aaron Rathmell (instructed by Taylor Law) for the Claimant
Neither the Defendant nor the Interested Party appeared or were represented
Hearing dates: 12 May 2021
Approved Judgment
HHJ Davis-White QC:
Introduction
This is a renewed application for permission to proceed with judicial review brought by Graham Ferguson against the Police Medical Appeal Board (the “PMAB”). The decision in question is the dismissal of an appeal from a decision of a selected medical practitioner regarding the degree of impairment of the claimant. The degree of impairment is one of the factors used in determining the quantum of the claimant's entitlement to an injury pension as a former member of the Northumbria police force who sustained an injury while acting in the course of his duty. The decision of the PMAB is contained in a report of the PMAB dated 6 August 2008 (the “Report”).
The Chief Constable of Northumbria police is joined as an interested party. He has filed an acknowledgement of service with summary grounds of resistance. The PMAB has not responded to the claim.
Permission was initially refused on the papers by order of His Honour Judge Saffman, sitting as a Judge of the High Court, dated 7 April 2021. Before me, Mr Aaron Rathmell appeared for the claimant. Neither defendant nor interested party appeared or were represented. I am grateful to Mr Rathmell for his written and oral submissions. I have also had the benefit of an acknowledgment of service from the interested party.
The claimant, a former officer with the Northumbria police, sustained injuries on 15 March 1989 while on duty as the driver of a police van. On that day, the claimant was in pursuit of the rider of a stolen motorcycle. The police van, driven by the claimant, crashed into another vehicle. The claimant was thereby injured.
The question of entitlement to a police injury pension was at that time governed by the then Police Pensions Regulations 1987 (the “1987 Regulations”). A Selected Medical Practitioner (an “SMP”) determined that the claimant was permanently disabled from performing the ordinary duties of a constable by reason of “ cervical and lumbar degeneration, a disablement received in the execution of his duty.” Accordingly, he became entitled to a police “Injury Award” and an “Injury Pension” under the 1987 Regulations.
The relevant Regulations now governing the claimant's right to an Injury Pension are the Police (Injury Benefit) Regulations 2006 (the “2006 Regulations”). Unless otherwise stated, a reference in this judgment to a “regulation” (or “reg”) is a reference to the relevant numbered regulation of the 2006 Regulations. The 2006 Regulations revoke and re-enact provisions relating to relevant police injuries formerly contained in the 1987 Regulations and the Police (Injury Benefit) Regulations 1987.
A very convenient and helpful summary of the main provisions of the 2006 Regulations is set out in the judgment of Linden J in R (on the application of Goodland) v Chief Constable of Staffordshire Police [2020] EWHC 2477 (Admin) esp. paragraphs [12]–[46] (the “ Goodland case”).
The interested party in this case, the Chief Constable, is the police pension authority (the “PPA”) for Northumbria Police. The PPA of the force in which the relevant member was serving when he received his injury is the entity responsible for the payment of the claimant's injury pension (reg 41). It also has other duties under the 2006 Regulations, including making certain determinations regarding awards and pensions.
Under the predecessor to what is now reg 11, the claimant became entitled to an injury pension as a person who ceased to be a member of a police force and who was permanently disabled as a result of an injury received without his own default in the execution of his duty. That pension is for life (regulation 43) (subject to the 2006 Regulations, which provide in various circumstances for variation as to quantum, forfeiture and withdrawal, among other things).
The quantum of the injury pension is calculated by reference to the person's degree of disablement, his average pensionable pay and the period in years of his pensionable service under a formula provided for by what is now Schedule 3 para 3 of the 2006 Regulations. A key element in the equation is therefore the degree of the person's disablement. The degree of disablement is 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 the police force (see now regulation 7).
Schedule 3 of the 2006 Regulations provides for four bands of degrees of disablement: 25% or less, above 25% up to 50%, above 50% up to 75% and more than 75%.
When initially assessed, the claimant's degree of disablement was assessed at 76%. This placed him in the band for “very severe disablement in respect of the degree of his loss of earning capacity”, this is usually referred to as “Band 4”.
The 2006 Regulations (and their predecessors) provided for reviews of the degree of disablement to be undertaken so that, if appropriate, the level of pension is adjusted to reflect developments. Under what is now reg 37 (1) it is provided as follows:
“ 37.—Reassessment of injury pension
(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police pension 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 pension authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly.”
Although the PPA is the primary decision maker regarding police injury pensions, certain medical questions have to be referred by the PPA for determination by a duly qualified medical practitioner selected by the PPA (a “SMP”). (There is also an ability to refer to a board instead of to a sole SMP). The decision of the SMP will be final, subject to a right of appeal by the member (or former member) of the police force claiming entitlement to the pension (see regs 30 & 31).
As pointed out in the Goodland case:
“ [23] The SMP is appointed by, but otherwise independent of, the PPA. Obviously, they are subject to the statutory duties specified by the 2006 Regulations as well as the other professional and legal obligations which apply to them”.
The appeal is to a board of medical referees (“BMR”), appointed in accordance with arrangements approved by the Secretary of State (see reg 31). Sub-paragraph (3) of reg 31 provides:
“(3) 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.”
Regulation 32 deals with limited circumstances in which a matter may be referred back to an SMP or to a BMR.
In the Goodland case, the Judge referred to the process to be undertaken under a referral under regulation 37 as follows:
“ [42] …it is for the SMP to compare the earlier degree of disablement with the present degree of disablement with a view to deciding whether it has altered substantially. This will entail identifying any relevant change in circumstances since the previous assessment, including any change in the effects of the duty injury or any other change which affects the pensioner's earning capacity. On the logic of Laws, if there have been no changes then the previous assessment stands. But if there have been, and there is a substantial alteration in the degree of disability, then the pension will be adjusted by reference to the Table in Schedule 3 to the 2006 Regulations.
[43] I respectfully agree with Burton J in Turner that on this approach, issues of causation may be less central as it is a given that the pensioner is permanently disabled as a result of an injury received in the execution of duty. But it is possible to envisage cases where earning capacity has gone down...
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