R the Chief Constable of South Yorkshire Police v The Crown Court at Sheffield

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Jefford
Judgment Date06 Feb 2020
Neutral Citation[2020] EWHC 210 (Admin)
Docket NumberCase No: CO/3817/2018

[2020] EWHC 210 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Leeds Combined Court Centre

1 Oxford Row

Leeds LS1 3BG

Before:

Mrs Justice Jefford DBE

Case No: CO/3817/2018

Between:
The Queen on the Application of the Chief Constable of South Yorkshire Police
Claimant
and
The Crown Court at Sheffield
Defendant

and

Lloyd Patrick Kelly
Interested Party

Dijen Basu QC (instructed by the Force Solicitor, South Yorkshire Police) for the Claimant

David Lock QC (instructed by Slater and Gordon) for the Interested Party

Hearing date: 16 May 2019

Approved Judgment

Mrs Justice Jefford

Introduction

1

These proceedings concern the judicial review of the decision of His Honour Robert Moore on 20 July 2018 on a statutory appeal under Regulation 34 of the Police (Injury Benefit) Regulations 2006. The Crown Court is accordingly a defendant in this action but, in reality, this is a dispute between the Interested Party, Mr Kelly, and the Chief Constable as the relevant police pension authority.

2

An application was made to the judge to state a case which the judge refused to do. That was the basis of the first ground for judicial review. Lane J granted permission on all grounds, giving the claimant permission to challenge directly the conclusions of the Crown Court addressed in Grounds 2 to 4 without the need for the matter to be referred back to the Crown Court to state a case. That follows the approach in R (Skelton) v Winchester Crown Court [2007] EWHC 3118 of taking the fewest additional steps to resolve the matter. Accordingly, I am concerned with the three grounds of challenge: (1) that the Crown Court lacked jurisdiction over the dispute; (2) that there is, in any event, no retrospective entitlement to an injury award; and (3) that the Crown Court had no power to award interest.

The regulations

3

I set out first the relevant Regulations in order to put the largely uncontroversial facts in context.

4

The Police Pensions Act 1976 (as amended) provides for the making of regulations in relation to police pensions. In particular, section 6 (Appeals) provides:

“(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) ….”

5

The Police Pensions Regulations 1987 were such regulations and were followed by the Police (Injury Benefit) Regulations 2006 (which are specifically concerned with awards on injury or death as a result of the execution of the duties of a police officer and included relevant amendments to the 1987 Regulations).

6

So far as the 2006 Regulations are concerned, the following are referred to in the course of this judgment:

(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.”

7

Regulation 31 then provides for an appeal to a board of medical referees where a person is dissatisfied with the decision of the medical practitioner. Under Regulation 31(3), the decision of the board of medical referees shall, if it disagrees with the report of the selected medical practitioner, also be in the form of a report and the decision of the board shall, subject to Regulation 32, be final. Regulation 32 makes provision for reconsideration of the decision of a medical authority, in summary, in two circumstances: (i) where a court (hearing an appeal under Regulation 34) or a tribunal (hearing an appeal under Regulation 35) considers that the evidence before the medical authority that has given the final decision was inaccurate or inadequate and (ii) where the police pension authority and the claimant agree.

8

Regulation 34 (appeal by a member of a home police force):

“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.”

9

Regulation 43 (Payment and duration of awards):

“(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.

…..”

10

As set out in regulation 11(2), the calculation of an injury pension is dealt with in Schedule 3 and I refer to this Schedule below.

The facts

11

Mr Kelly was, between December 1976 and June 2005, a serving police officer. As a result of various incidents which took place during his service, the detail of which it is not necessary to set out, he developed Post Traumatic Stress Disorder. Mr Kelly was referred to a duly qualified medical practitioner, Dr Shahed Khan, under regulation H1(2) of the 1987 Regulations (equivalent to Regulation 30(2) in the 2006 Regulations) for a decision as to whether he was disabled and whether the disablement was likely to be permanent. I shall refer to the selected duly qualified medical practitioner as the “SMP”. On 11 April 2005, Dr Khan decided that Mr Kelly was disabled and that that was likely to be permanent. Mr Kelly was required to retire, pursuant to Regulation A20, on 5 June 2005. That answered questions (a) and (b) as set out above. The police pension authority did not go on to consider whether to grant an injury pension and did not refer the further questions (c) and (d) to the SMP. Mr Kelly did not make any claim for an injury pension.

12

On 19 May 2016, however, Mr Kelly did make such a claim. He was seen by a second SMP, Dr Zahid Iqbal, who, on 14 July 2017, determined that his disablement was the result of an injury received in the execution of his duty. He subsequently assessed his degree of disablement.

13

On 25 July 2017, Mr Kelly was awarded an injury pension backdated to the date of his claim in May 2016.

14

In February 2018, Mr Kelly appealed to the Crown Court at Sheffield under Regulation 34. The matter proceeded to a 2 day hearing in July and judgment was given in Mr Kelly's favour on 20 July 2018.

15

The main thrust of Mr Kelly's appeal was that he was aggrieved by the refusal of the police pension authority to admit a claim to receive a larger award than that granted, that is, a claim for an amount that...

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