The Queen (on the application of the Chief Constable of South Yorkshire Police) v Lloyd Kelly
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Males,Lord Justice Moylan |
| Judgment Date | 19 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1699 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2020/0497 |
[2021] EWCA Civ 1699
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISON
ADMINISTRATIVE COURT
MRS JUSTICE JEFFORD DBE
CO/3817/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Males
and
Lord Justice Phillips
Case No: C1/2020/0497
Dijen Basu QC (instructed by South Yorkshire Police) for the Chief Constable
David Lock QC and Julia Smyth (instructed by Slater and Gordon Lawyers) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 5 May 2021
Approved Judgment
On 5 June 2005 the first respondent (“Mr Kelly”) was required to retire as a serving police officer due to permanent disablement. Although his disability arose from injuries suffered in the course of police service, it was not until 19 May 2016 that Mr Kelly claimed an injury award under regulation 11 of the Police (Injury Benefit) Regulations 2006 (“the PIBR”), comprising a gratuity and injury pension. On 25 July 2017 the appellant (“the Chief Constable”) awarded the appropriate gratuity and correctly calculated the annual amount of injury pension, payable as from the date of the claim in May 2016, but refused to back-date the pension to Mr Kelly's retirement. Mr Kelly appealed that decision to the Crown Court under regulation 34 of the PIBR.
The Chief Constable resisted Mr Kelly's appeal, contending (i) that the Crown Court did not have jurisdiction to determine the dispute, an appeal under regulation 34 being limited to the issues of whether there was a right to an award and, if an award was made, the amount of the gratuity or annual pension, not the period in respect of the pension would be paid; and, in any event, (ii) that Mr Kelly's entitlement to an injury award only arose upon determination in 2017 and was payable from the date he made a claim, there being no obligation on the Chief Constable to make payments retrospectively to the date of Mr Kelly's retirement.
On 20 July 2018 His Honour Robert Moore (sitting as a Deputy Circuit Judge in the Crown Court in Sheffield) (“Judge Moore”) rejected both of those contentions, declaring that Mr Kelly was entitled to an injury pension from the date of his retirement and awarding interest on all sums at 3% per annum from 27 July 2017.
The Chief Constable challenged the Crown Court's decision in the Administrative Court by way of judicial review 1, the Crown Court being the defendant to those proceedings and Mr Kelly being joined as an interested party. Following a reserved judgment dated 6 February 2020, Jefford J dismissed the challenges, save that she set aside the award of interest on the ground that the Crown Court had no power in that regard.
The Chief Constable appealed to this Court in relation to the questions of the substantive jurisdiction of the Crown Court (ground 1) and, if there was jurisdiction, the entitlement to a back-dated injury pension (ground 2). Mr Kelly cross-appealed against the finding that the Crown Court had no power to award interest. Each of the issues so raised effectively turns on the interpretation of the relevant regulatory provisions. Permission to appeal was granted in respect of each of them.
The background facts
The following summary of the facts, as to which there was little disagreement, is drawn largely from the accounts set out in the judgments below.
Mr Kelly served as a member of the South Yorkshire Police from 29 December 1976 until his retirement on 5 June 2005. In the performance of his duties he was engaged in
surveillance of suspected criminals, during which he was discovered by them and subjected to serious mistreatment. This was the main cause of Mr Kelly suffering from post-traumatic stress disorder, a condition which led to him being referred to a selected medical practitioner (“SMP”) for assessment. On 11 April 2005 the SMP determined that Mr Kelly was disabled and that the disability was likely to be permanent. As a result, Mr Kelly was required to retire on 5 June 2005 pursuant to regulation A20 of the Police Pensions Regulations 1987, whereupon he became entitled to an “ill health” pension under regulation B3 of those regulations (“the 1987 Regulations”)At the time of Mr Kelly's retirement, the police pension authority did not go on to consider whether his established permanent disability was the result of an injury received without his own default in the execution of his duty, entitling him to an injury award above and beyond the ill health pension, and so did not refer to the SMP the further question of how the injury was caused.
It was not until 19 May 2016 that Mr Kelly wrote to the Chief Constable, asking to be referred to the SMP for a medical assessment to determine whether he was entitled to an injury pension. He was duly referred to Dr Iqbal.
On 14 July 2017 Dr Iqbal reported that Mr Kelly's permanent disablement was the result of an injury received in the execution of his duty. As there was no suggestion that the injury was due to any default of Mr Kelly, he was therefore entitled to an injury award. Dr Iqbal subsequently determined that Mr Kelly had a 54.64% degree of disablement (Band 3), entitling him to a gratuity of 37.5% of his average pensionable pay at retirement and an injury pension guaranteeing a minimum income (taking into account other benefits) of 80% of that average.
By letter sent on behalf of the Chief Constable dated 25 July 2017, Mr Kelly was informed that he had been granted an injury award, which would be backdated to 19 May 2016, the date of his application. On 7 September 2017 the Pensions Administrator wrote to Mr Kelly informing him of the gratuity he would receive. On 13 November 2017 he wrote again, informing Mr Kelly of the amount of the first injury pension payment he would receive (in December 2017), which included “Arrears 19 th May 2016 to 30 th November 2017: £22,125.39”. Mr Kelly's case is that such arrears should have been in the order of £157,000, dating back to his retirement.
As prefaced above, on 26 February 2018 Mr Kelly lodged an appeal to the Crown Court.
The relevant provisions
The governing statute is the Police Pensions Act 1976 (“the PPA”), as amended, section 1 of which provides for regulations to be made as to police pensions. References to the “police pension authority” in the PPA and in the regulations under it are (in relation to forces such as the South Yorkshire Constabulary) to the Chief Constable.
Section 6 of the PPA provides for a right of appeal as follows:
“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 of right a pension, or a larger pension than that granted, under regulations made under that section….”
The PIBR are regulations made under section 1 of the PPA. Regulation 7 includes the following in relation to disablement:
“(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.
“(7) 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.”
Regulation 11 sets out the entitlement to a 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.”
Regulation 30 2 provides for the determination of entitlement to an award as follows:
“(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,
…;
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)...
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The Queen (on the application of the Chief Constable of South Yorkshire Police) v Lloyd Kelly
...of the Chief Constable of South Yorkshire Police) Appellant and (1) Lloyd Kelly (2) The Crown Court Sitting in Sheffield Respondents [2021] EWCA Civ 1699 Lord Justice Moylan Lord Justice Males and Lord Justice Phillips Case No: C1/2020/0497 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL ......