The Queen (on the Application of the Commissioner of Police of the Metropolis) v Police Medical Appeal Board
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 20 February 2020 |
| Neutral Citation | [2020] EWHC 345 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2661/2019 |
| Date | 20 February 2020 |
[2020] EWHC 345 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/2661/2019
and
Jonathan Holl-Allen QC (instructed by Directorate of Legal Services) for the Claimant
David Lock QC (instructed by Penningtons Manches Cooper LLP) for the Interested Party
Hearing date: 7 November 2019
Approved Judgment
The Claimant is the former employer 1 of the Interested Party, Mr Neil Brown, who was a police officer in the Metropolitan Police Service (MPS). The Claimant is also the Police Pension Authority for serving and retired members of the MPS. Mr Brown left the MPS in circumstances which I will detail below. He applied for an injury pension under regulation 11 of the Police (Injury Benefit) Regulations 2016 (‘the PIBR’).
The mechanism to determine whether or not Mr Brown was entitled to an injury pension culminated in a decision of the Defendant, the Police Medical Appeal Board (‘the PMAB’). The PMAB concluded that Mr Brown's psychiatric injury and permanent disablement was received in the execution of his duty as a police officer, that being the relevant test under the PIBR.
The Defendant is a statutory decision maker and there is no appeal from its decisions. The Claimant challenges the decision of the Defendant by way of judicial review. The Defendant's policy is not to contest a judicial review and it has played no part in these proceedings. The Claimant says that Mr Brown's psychiatric injury was not received in the execution of his duty as a police officer.
Nigel Poole QC, sitting as a Deputy High Court Judge, gave the Claimant permission to apply for judicial review, by order dated 7 August 2019.
The Legal Framework
The Police Pension Regulations 1987 established a pension scheme for police officers. Those who are required to retire on grounds of permanent disablement are entitled to an ill-health pension. However, where the disablement has been caused by the execution of their duties as police officers they are also entitled to additional pension, known as an injury pension. The rules governing the injury pension were originally part of the Police Pension Regulations 1987, but are now contained in the PIBR. Regulation 11 PIBR provides:
“(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…”
Under the PIBR ‘injury’ is defined in Schedule 1 as including: ‘any injury or disease, whether of body or of mind.’ Regulation 6 contains the definition of an injury received in the execution of duty as follows:
“(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a
constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if—
(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or
(b) he would not have received the injury had he not been known to be a constable, or
…].”
Regulation 8 PIBR states ‘disablement … shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received.’ It follows that there may be more than one causal injury of the disablement, but in order to qualify under PIBR, the injury received in the execution of duty must be a substantial cause of the disablement.
Where a person has been determined as permanently disabled under the Police Pensions Regulations 1987, that determination remains binding under the PIBR. In determining an award under regulation 6 PIBR, the Police Pension Authority (in this case the Claimant) refers the individual to a duly qualified medical practitioner to determine whether the disablement is a result of an injury received in the execution of duty and the degree of the person's disablement (regulation 30(2) PIBR). The duly qualified medical practitioner is referred to as the selected medical practitioner (‘the SMP’).
In the event that the individual is dissatisfied with the decision of the SMP he or she may appeal to a ‘board of medical referees’ (regulation 31(1) PIBR), which is the Defendant in this case, the Police Medical Appeal Board. Regulation 31(3) PIBR provides:
“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.”
The reference to regulation 32 is not relevant in this case.
Although the PMAB is precluded from reconsideration of whether or not the individual is permanently disabled, it is not precluded from a reconsideration of the diagnosis or the question of causation, namely whether the disablement was a result of an injury received in the execution of duty ( R (Boskovic) v Chief Constable of Staffordshire Police [2019] EWCA Civ 676 at paragraphs 64 and 65). The question of the diagnosis/disablement is a matter of fact and the question of causation is a matter of fact and law.
The leading authority is R (on the application of Stunt) v Metropolitan Police Service 2 [2001] EWCA Civ 265. I have set the background out in some detail as well as extracts from this authority for reasons that will become apparent. The case was decided under the Police Pension Regulations 1987, but the relevant parts of those regulations are identical to the subsequent PIBR. Mr Stunt was a police officer who was on duty outside the Palace of Westminster when there was an altercation between him and the headmaster of a school, who was in charge of a group of students visiting the Palace. Mr Stunt arrested the headmaster for a public order offence, but this was later set aside. The headmaster complained about Mr Stunt's conduct. The complaint was investigated and a decision was made that no criminal proceedings would be taken against Mr Stunt, but a charge would be brought against him under the Police Discipline Code for arresting the headmaster without good and sufficient cause.
Mr Stunt went on sick leave complaining of mental stress to which he had been subjected by reason of the investigation. He never returned to his employment with the police service and the papers relating to the proposed disciplinary hearing were never served on him. The first medical examination undertaken certified that Mr Stunt was permanently disabled by depression, but that his condition was not the result of any injury received in the execution of duty as a member of the police force. Mr Stunt appealed and the second examination by Dr Mallett, consultant psychiatrist, included (at paragraph 15 of Stunt):
“The events leading up to retirement consisted of what he described as malicious allegation against him while he was working in the House of Parliament. He was made subject of an internal investigation by the police, felt betrayed by his colleagues and treated like a criminal. He felt a mixture of anger, frustration and hopelessness at fighting against a seemingly implacable system.
‘Opinion: Mr Stunt suffered a severe depressive illness following proceedings brought against him [in 1993] and to some extent he is suffering from the after effects of this … The disablement is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive [sic] as a result of his reaction to the internal proceedings brought against him.’ …”
Paragraph 16 of Stunt is as follows:
“In a supplemental report dated 8 January 1999, Dr Mallett said this:
“Mr Stunt's problems arise from both the fact that he feels it was a ‘terrible wrong’ that the investigation took place at all,
mainly because he felt he conducted himself appropriately and this should have been clear to anyone taking an unbiased view of the situation and in addition, he feels he has a genuine grievance about the way in which the investigation was conducted once it started. He formed a strong impression that conclusions were drawn before the investigation even started, that the investigating officers had made up their mind and that this view is backed-up by the fact that he was strongly encouraged by the Investigation Team to plead guilty to the allegations and that they even spoke to his daughter at one point to encourage her to try and persuade him to change his mind.”
The leading judgment was given by Lord Justice Simon Brown (as he then was). The judgment analyses a number of previous first instance authorities and in particular refers to the decision of Richards J (as he then was) in R v Kellam, ex parte South Wales Police Authority and Milton [2000] ICR 632 where an analysis of earlier authorities was undertaken. In Kellam, the police officer making the claim, Mr Milton, had suffered a psychiatric injury. His wife, who was also a police officer, had made a number...
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