R Sidwell v Police Medical Appeal Board The Chief Constable of the Derbyshire Constabulary (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] EWHC 122 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2015 |
| Docket Number | Case No: CO/14609/2013 |
[2015] EWHC 122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/14609/2013
and
Martin Westgate QC (instructed by Pattinson & Brewer) for the Claimant
John Beggs QC and Sarah Simcock (instructed by Force Solicitors) for the Interested Party
The Defendant was not represented
Hearing date: 22 January 2015
On 4 July 2013 the Police Medical Appeal Board ("PMAB") decided that the claimant was not permanently disabled within the meaning of Regulation A12 of the Police Pensions Regulations 1987. Had they decided the issue in the claimant's favour, and the claimant was then retired, he would have been able to have claimed three extra earlier years of pension payments, so the decision had a real economic impact on him. The claimant wishes to challenge that decision. There is no statutory right of appeal against a decision of the PMAB. The only route of challenge is judicial review. The claimant mounted his claim on 3 October 2013 and was granted permission on 28 February 2014. I heard the application on 22 January 2015.
The decision is challenged on traditional grounds. First it is said that the PMAB erred in law; second, that is gave inadequate reasons; and third that its reasoning is absurd and/or perverse and/or irrational.
The PMAB is a specialist tribunal. Its members are all medically qualified. Here the Board in question had as its chairman a consultant occupational health physician and as its second member an occupational health physician. The board also had a "specialist member", that is to say a member who specialised in the field the subject matter of the appeal. In this case the specialist member was Dr Nehaul, a consultant psychiatrist.
The highly specialised role and function of the board is illustrated by the fact that the specialist member acts not only as a decision maker but as an expert witness as well. This seems to blur traditional lines of demarcation from a lawyer's perspective but no-one has suggested that this is improper. Thus in this case the specialist member performed a clinical examination on the claimant on the day of the hearing, 21 June 2013. His evidence deriving from that examination was part of the material on which the board, which included him, based its decision.
It is trite law that this court will pay considerable respect to the decision of an expert and informed tribunal, and will only interfere where the grounds of challenge are clearly made out: see Law Society v Salsbury [2008] EWCA Civ 1285 [2009] 1 WLR 1286 per Jackson LJ at para 30.
Inasmuch as the challenge is made to the alleged inadequacy of the reasons I remind myself of the words of Munby LJ (as he then was) in Re A and L (Children) [2011] EWCA Civ 1611 at paras 34 and 35:
'There are two principles in play here. The first is that explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. So far as concerns a judge's approach to a case and his reasoning his "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account." An appellate court, Lord Hoffmann continued, "should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
The other principle, relating to the adequacy of a judge's expressed reasons, is that explained by Lord Phillips of Matravers MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [17]–[21]. For present purposes it suffices to refer to how Thorpe LJ put it in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035, para [11]:
"the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?"
Thorpe LJ had previously observed that one should not ignore the "seniority and experience" of the particular judge, the "huge virtue in brevity of judgment", and that the "more experienced the judge the more likely it is that he may display the virtue of brevity." I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons.'
Where the decision is written by members who are not legally qualified and who do not have the benefit of assistance from a legal adviser I should be especially careful not to subject their reasoning to intense narrow textual scrutiny. I should not expect their reasoning to resemble a judgment written by Lord Birkenhead.
Although the words "permanently disabled" are plain and simple English words which one might expect would not require an elaborate, or indeed any, definition, that is not the case here. While Regulation A12 does not define the concept of permanence, it subjects disablement to an elaborate and tortured definition. The definition, so far as is material to this case, is as follows:
"(2) … disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.
…
(5) In this regulation, "infirmity" means a disease, injury or medical condition, and includes a mental disorder, injury or condition."
It is not clear to me why the draftsman has included a separate reference to disease or injury when these are plainly medical conditions or why he spells out a mental disorder, injury or condition when these are obviously medical conditions of the mind. It seems to me that the definition is replete with tautologies.
It has been decided that an inability to perform the ordinary duties of a member of the force means all of those duties ( R v Sussex PA ex p Stewart [2000] EWCA Civ 101). Further, that the reference to "the force" is to the actual force in which the claimant serves ( R (Ashton) v PMAB [2009] ICR 51).
It has been decided that the reference to a medical condition is to an actual medical condition and not to a putative one which the claimant is vulnerable to suffer from at some point in the future ( R (Northumbria Police Authority) v Broome [2006] ICR 555). Further, and unsurprisingly, it has been held that a medical condition has to be one recognised by medicine ( ibid).
To my mind the concept of permanence is best defined by saying that the decision maker must be satisfied that the inability will continue for the foreseeable future.
Accordingly it seems to me that for the purposes of Regulation A12 "permanent disablement" requires proof of three distinct matters namely:
i) an inability to perform all the ordinary duties of a member of the force in question; and that
ii) the inability is caused by a medical condition of the body or mind (but excluding vulnerability to such a condition); and that
iii) the inability is likely to endure for the foreseeable future.
The first matter is a question of pure fact. The second and third matters are also questions of fact, but they will need to be resolved with the benefit of expert medical evidence.
Where a question of permanent disablement arises the first step in the procedure is that a Selected Medical Practitioner ("SMP") is appointed to make the initial determination. He provides a report and a certificate 1. If the officer does not like the decision of the SMP he can appeal to the PMAB, which in effect determines the matter de novo, although obviously the determination of the SMP will be part of the material before it. Curiously, there is no right of appeal afforded to the Police Force if it wishes to challenge the decision of the SMP. In that event it has to seek judicial review. That is what happened in R (Northumbria Police Authority) v Broome [2006] ICR 555.
I now turn to the facts of this case. The claimant joined the Derbyshire Police in 1985. He was a diligent and conscientious officer and was promoted to Sergeant in 1997. He was transferred to the fraud squad (later the economic crimes unit ("ECU")) in 2004. Things seemed to start going wrong for him in 2006 when his marriage broke down. He moved out of his matrimonial home and went to stay with a friend, who was a fellow police officer in the ECU. That friend became the subject of a police investigation for corruption. The claimant was put under pressure to move out of his friend's house while the investigation continued. Later in November 2008 the claimant was transferred against his will out of the ECU to another department, again because of his friendship with the officer under investigation. This seems to have triggered
feelings of anger resentment embitterment and antipathy by the claimant towards his employer, which steadily increased in intensity. His hostile feelings were aggravated when he was accused of underperforming at work. In February 2009 he was signed off work as sick and has not worked since. His GP recorded at that time that he was in a "depressed mood" and that he was under "work-related stress".The claimant consulted Dr Michelle Shepherd, a consultant psychiatrist for an opinion about his mental state. She reported on 29...
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David Ian Sharp v The Chief Constable of West Yorkshire Police The Police Medical Appeal Board (Interested Party)
...need for this court to pay respect to the decision of an expert tribunal. He cited a passage from R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin), where Mostyn J began by making a number of observations, including, at p......