R v Sussex Police Authority, ex parte Stewart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LADY JUSTICE HALE,SIR CHRISTOPHER STAUGHTON |
| Judgment Date | 04 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0404-16 |
| Date | 04 April 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBCOF 1999/1283 C |
[2000] EWCA Civ J0404-16
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE DYSON
Lord Justice Simon Brown
Lady Justice Hale and
Sir Christopher Staughton
Case No: QBCOF 1999/1283 C
Mr G. Millar (instructed by Russell Jones & Walker of London WC1X 8DH, solicitors) for the appellant
Miss M. O'Rourke (instructed by The Sussex Police Authority Legal Dept) for the respondent
Introduction
Under the Police Pensions Regulations 1987 (the Regulations) police officers may be required to retire on pension if they are disabled and their disablement is thought likely to be permanent. If later it is found that their disability has ceased, they may be invited to rejoin the force, and whether or not they do so, their pension will be terminated. Disablement for these purposes is defined to mean:
"… inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be."
The central, indeed sole, issue raised on this appeal is what are "the ordinary duties of a … member of the force"?
The question of disablement usually arises in connection with enforced retirement. Here, however, it arises in the context of the respondent police authority's invitation to the appellant to rejoin the force. Their contention is that she is now able to perform the police duties which they would assign to her (essentially sedentary work in an office) and thus is no longer disabled within the definition. She, however, argues that the ordinary duties of a member of the force include operational duties and these she could not perform.
Let me at this stage set out the three Regulations at the heart of this appeal:
"Disablement
A12. (1) 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.
(2) … disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, … "
"Compulsory retirement on grounds of disablement
A20. Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:
Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled."
"Cancellation of ill-health and injury pensions
K1. (1) As long as a person -
(a) is in receipt of an ill-health pension; …
the police authority may, if they wish to exercise the powers conferred by this Regulation consider, at such intervals as they in their discretion think proper, whether his disability has ceased.
(2) If on any such consideration it is found that his disability has ceased, the police authority may give the person concerned notice that if he wishes to rejoin the force as a regular policeman within a period of not less than three months from the date on which he has been given such notice he will be permitted to do so.
(3) If the person concerned within the period referred to in paragraph (2) offers to rejoin the force as a regular policeman, he shall be permitted to do so in a rank not lower than that he held immediately before he retired with the ill-health pension.
(4) On the person concerned rejoining the force as mentioned in paragraph (3) or, where he does not offer to rejoin within the period referred to in paragaph (2), at the end of that period, there shall be terminated -
(a) the unsecured portion of his ill-health pension, … "
On 18 September 1998 the respondents issued a notice to the appellant under Regulation K1(2). That is the decision which the appellant challenges in these proceedings. Her application failed before Dyson J on 29 November 1999. With his leave she now appeals to this Court.
A number of issues arose below. The true construction of Regulation A12(2), however, is the only one still alive, and of the rest I shall say nothing. The point of statutory construction is, submits counsel for the respondent authority "a very significant point for police officers and police forces around the country".
The Facts
This being a point of general application, the facts of the present case are of no particular relevance. It is nevertheless conventional to say something of them and in any event they serve to illustrate the problem. They can be summarised as follows.
The appellant is thirty-one years of age. She joined the Sussex Constabulary in 1987. On 3 June 1995 she sustained a fracture of her left ankle whilst on duty. She underwent an operation to fix internally the medial malleolus which required the insertion of two screws. Having made what appeared to be a good recovery she returned to work in September 1995. In June 1996, however, during an operation to have the screws removed, she suffered ligament/tendon damage. On 18 April 1997 she was certified as permanently disabled from performing the ordinary duties of a member of the police force by reason of scarring of ligaments and tendons of the left ankle, and on 22 May 1997 she was retired from the force on the ground of permanent disability pursuant to Regulation A20.
Following her retirement, the appellant obtained employment in an office with a company in Worthing. On 13 February 1998 she was recalled to see the force medical adviser, Dr O'Donnell, for further examination under Regulation K1. On 18 February 1998 Dr O'Donnell issued a certificate to the effect that she was not disabled from performing the ordinary duties of a member of the police force. The following day, Inspector Prout, an inspector in the respondents' employee relations department, wrote to the appellant enclosing a copy of Dr O'Donnell's certificate and giving the relevant notice under Regulation K1(2). The letter related to the doctor's opinion that "whilst you are not fit for all police duties you are fit for those duties with a low risk of confrontation".
On receipt of that notice the appellant exercised her right of appeal to a medical referee under Regulation H2 (which I need not recite). She contended that she was still disabled because she was "unable because of infirmity to perform all, or the overwhelming majority of, the ordinary duties of a police officer". Inspector Prout stated to the medical referee:
"It is our view that Miss Stewart is perfectly capable of discharging the ordinary duties of a police officer. What she may not be able to do is discharge all of the roles. She might have a problem as a beat officer in Brighton for example but it is unlikely that she would have a problem discharging her duties in a similar role in a country area i.e. the risk of confrontation is very much reduced. We look at the ordinary duties of a particular post and not one which is manufactured. Looked at in this way very few posts require full fitness.
If Miss Stewart had accepted the medical recall she would have been working in the control room at Bognor Police Station and in reality her duties would be no different from the work that she carries out at present i.e. the driving would be the same and in physical content the work would be the same."
The medical referee examined the appellant and produced a report on 21 August 1998. He said that the most likely diagnosis of her condition was chronic tenosynoritis or tendonitis. Having stated that she was capable of carrying out regular sedentary work in an office, and of driving to and from that office for some distance, his report continued:
"It is, on today's evidence, unlikely that this lady would function very well in extreme circumstances, i.e. where she may be needed to run or apprehend or tackle an individual. Under these circumstances she might have difficulty and I would have thought not only would she be vunerable but her reliability would certainly be in question. Outside of these circumstances it is clear, by her own volition, that she would be able to function.. … If therefore the definition of 'fit for service' is as outlined by Inspector Prout, then this lady is clearly fit for work of some nature in the police force, and if the nature of that work was similar to the work she is presently doing, then there could be very little argument. If by contrast the definition 'fit for service' means that she must be capable of attending to all situations, however vigorous in the police force, then I would doubt whether she could reasonably be said to be fit."
Following that report, the respondents on 18 September 1998, relying on their own view of "disablement", issued their further notice under Regulation K1(2), the notice under challenge in these proceedings.
It is convenient at this stage to set out certain further evidence given by Inspector Prout in the course of this case. In his statement to the medical referee he had explained how, until comparatively recently, "there tended to be a requirement by the divisional commanders that all officers should be completely fit for all possible duties." By 1996, however, he and Dr O'Donnell had concluded that medical retirement was becoming too easy. He said:
"By retiring officers, waste was occurring in both a financial and practical...
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