“I have decided that (a) the officer is disabled from performing the ordinary duties of a member of the police force (b) the disablement is likely to be permanent …. I recommend that the police authority should consider a review in four years’ time to determine whether the … officer has again become capable of performing his [sic] duties as a police officer. I do not recommend that the police authority should at any time consider whether the disablement has ceased …. Based on all available medical information, including appropriate medical reports and my own clinical observations over a period of time, I have come to the conclusion that this person’s medical problem is likely to be permanent and hence I can safely label the officer as being permanently incapable of undertaking operational/frontline full police duties for the foreseeable future.”
“As to causation of illness, the ‘aversion for night shifts’ described by [the appellant] was one factor. The aversion was the result of an accumulation of negative experiences, rather than PTSD. I do not believe that work factors were acting in isolation. A positive family history for mental illness that has been elicited is a relevant factor. The acrimony in a relationship break-up at the relevant time also could not be ignored. I believe that the depressive episode suffered by [the appellant] has been multi-factorial in origin. As to prognosis, [the appellant] reports to be feeling better already. She was not sufficiently encouraged by her progress as to start reducing her medication. She has also tried periods of temp work without any adverse reports. I believe that the prognosis is good and [she] should make a full recovery in due course.”
“My mental health meant that I could not cope with anything that reminded me of the past, especially my service as a police officer. I saw battling to secure a police injury pension as part of my old life, because it continually reminded me of the circumstances in which I had become ill. I now appreciate that my actions of moving abroad were driven by my mental health condition as much as by a desire to get well. I had to get away from anything which could hinder my progress towards better mental health, and the battle to secure my injury pension was a strong reminder of what had made me ill in the first place. I simply didn’t have the energy or mental capacity to carry on the fight and so left it all behind when I went to Cyprus.”
“It is my decision that I do not agree to a further reference of Ms Boskovic to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe that the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude that no fair consideration is possible. Dr Gandham, the selected medical practitioner who made the original decision to not make an injury award, is no longer licensed to practice in the UK, and neither is Dr Srinivasan, consultant psychiatrist upon whose report Dr Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it.”
“In reaching a decision not to refer this matter back … the Chief Constable considered the purpose of the regulations and in particular the provision of an injury award. In this regard, it is only right that consideration is also given to the strength of your client’s assertion that Dr Gandham made a mistake in not concluding there was a causal link between her service as an officer and her disabling condition. In relation to this, it is of note that there is inconsistent evidence between the medical professionals involved as to the disabling condition. More recently, Dr Norris has concluded that your client was not suffering from PTSD (in agreement with Dr Srinivasan). In relation to causation, in 2002 when the SMP decision was given, it was certainly not clear cut that there was a causal link between [the appellant]’s service as an officer and her disabling condition. This is clearly important in relation to the passage of time that has now elapsed. As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully. Although it is accepted that delay of itself is not reason enough to refuse to refer the matter back to a new SMP as per the reasoning of King J in the Howarth case, that case involved a challenge to a decision made some four years earlier. In your client’s case, the delay has been significantly greater (we are now 14 years on) and delay has to be a relevant consideration for the Chief Constable. In light of the causation difficulties in this case, it is the Chief Constable’s view that the length of delay in this case would make it impossible for a fair reconsideration to be undertaken by a new SMP.”
“every regular policeman may be required to retire on the date on which the police pension authority, having considered all the relevant circumstances, advice and information available to them, determine that he ought to retire on the grounds 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 pension authority acted in determining that he ought to retire, the board of medical referees decides that the appellant is not permanently disabled.”
“(1) Subject as hereinafter provided, 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) 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. … (5) 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 H2 and H3, be final.”
“(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.”
“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 ….” 20. “Disablement” and “infirmity” under the 2006 Regulations are defined respectively in regulation 7(4) and (8) in identical terms to those used in regulation A12(1) and (5) of the 1987 Regulations set out above. Similarly, the process for determining the degree of a person’s disablement is defined in regulation 7(5) of the 2006 Regulations in the same terms as in regulation A12(3) of the 1987 Regulations. Under regulation 8: “For the purposes of these Regulations disablement … shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement ….”
“32(1) A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct, and the medical authority shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final. (2) The police pension authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him, or as the case may be it, for reconsideration, and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final. (3) If a court or tribunal decide, or a claimant and the police pension authority agree, to refer a decision to the medical authority for reconsideration under this regulation and that medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner or board of medical practitioners selected by the court or tribunal or, as the case may be, agreed upon by the claimant and the police pension authority, and his, or as the case may be its, decision shall have effect as if it were that of the medical authority who gave the decision which is to be reconsidered. (4) In this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from a decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police pension authority, the police pension authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal.”
“Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police pension authority shall, at such intervals as may be suitable, consider whether the degree of the pension’s disablement has altered; and if after such consideration the police pension authority finds that the degree of the pension’s disablement has substantially altered, the pension shall be revised accordingly.”
“34. The questions that have to be answered clearly distinguish between (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled (which I refer to hereafter as ‘the disablement questions’) and (2) whether the disablement in question is the result of an injury received in the execution of duty (which I refer to hereafter as ‘the causation question’). None of them requires the SMP or board concerned to diagnose the infirmity or injury concerned much less do the regulations make any such diagnosis final. It is only the decisions (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled and (2) whether the disablement in question is the result of an injury received in the execution of duty that are final. 35. Each SMP asked to answer the disablement questions will have to arrive at a diagnosis (or possibly a range of diagnoses) as part of the chain of reasoning leading to the SMP’s answer to the question he is asked, not least for the purpose of demonstrating the relevant disablement has been caused by an ‘… infirmity of mind or body …’ as required by regulation 7(4) of the 2006 Regulations (or regulation A12 of the 1987 Regulations) – a concept which is further defined by regulation 7(8) of the 2006 Regulations. However, there is nothing within the 2006 Regulations that requires the SMP (or for that matter the [Board]) considering the causation question to consider itself bound by the diagnosis arrived at by the SMP (or the [Board]). My reasons for reaching these conclusions … in summary are that (a) such a conclusion more naturally arises from the language of the regulations (b) the alternative conclusion is likely to result in anomalous results if not absurd ones whereas (c) that is not or is much less likely to be so if the approach set out above is adopted.” 29. So far as the language of the regulation was concerned, the judge observed (at paragraph 36, that: “whilst it is no doubt necessary for an SMP or a Board to arrive at a diagnosis for the purpose of demonstrating that the officer concerned is or is not disabled by an ‘infirmity of mind or body’ just as it will be necessary for him or it to be satisfied that the officer concerned suffers from an inability to perform the ordinary duties of a police officer, it is only the answer to the question whether the officer is disabled that is final, not the reasoning that led to that conclusion.”
“the strict point of interpretation involved depends on the relation between regulations 30(6) and 31(3) …. regulation 30(6) provides that the decision of the SMP on the question or questions referred to her shall be final (and regulation 31(3) makes like provision in relation to the board’s determination of an appeal from the SMP).” 32. Rejecting the police authority’s argument, Laws LJ said (at paragraph 16): “It cannot sit with the language of the 2006 Regulations. The requirement of finality in regulation 30(6) does not merely apply to the percentage figure arrived at to represent the pensioner’s disability. It applies to the decision of the SMP ‘on the question or questions referred to him under this regulation’. This must include the essential judgment or judgments on which the decision is based.”
“18. So much is surely confirmed by the terms of regulation 37(1), under which the police authority (via the SMP/board) are to ‘consider whether the degree of the pension’s disablement has altered’. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: ‘substantially altered’, in the words of the regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement. 19. ….The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/board to reduce a pension on a regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong ….[T]he clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.”
“36. … The legislature could, of course, have provided for entitlement to an injury pension to be determined solely by reference to criteria set out by the 2006 Regulations. The legislature, however chose not to do so. 37. There is, in fact, a sound policy reason for that decision. As Mr Lock submitted, police officers who are required to retire on the grounds of permanent disablement are entitled to a degree of finality in respect of their entitlement to pensions. A police officer who has to retire as a result of what is then considered to be permanent disablement caused in the line of duty should not be at the mercy of a subsequent medical assessment that he or she was not, in fact, permanently disabled. That applies to an injury pension as much as it does to a disablement pension. In the absence of statutory wording to the contrary, there is no reason to treat the injury pension as a more fragile form of benefit. 38. Leaving aside for the moment the case law, as a matter of pure statutory construction of regulation 30, I consider that what is made binding is not just the bare answers to questions (a) and (b) but also the reasons (that is to say, the diagnosis) underpinning those answers. Regulation 30(6) provides in terms that the decision ‘shall be expressed in the form of report and shall, subject to regulations 31 and 32 [appeals] be final’. By requiring a report, the legislature has, I find, made evident the indivisibility of the answer to the question and the reasons for that answer.”
“the diagnosis of the first SMP must be accepted, with all that entails. The second SMP/PMAB then needs to determine, on what it would have to regard as a clinical hypothesis, the issue of causation and the degree of disablement. As regards the latter, Mr Lock pointed to the words ‘has been affected as a result of an injury received’ in regulation 7(5), which deals with the degree of disablement. The words ‘has been’ require a backward-looking exercise, by reference to the date of retirement: regulation 43(1). That degree of disablement, once fixed, is then reviewed at regular intervals pursuant to regulation 37.” “the diagnosis of the first SMP must be accepted, with all that entails. The second SMP/PMAB then needs to determine, on what it would have to regard as a clinical hypothesis, the issue of causation and the degree of disablement. As regards the latter, Mr Lock pointed to the words ‘has been affected as a result of an injury received’ in regulation 7(5), which deals with the degree of disablement. The words ‘has been’ require a backward-looking exercise, by reference to the date of retirement: regulation 43(1). That degree of disablement, once fixed, is then reviewed at regular intervals pursuant to regulation 37.”
“whilst it is true that the regulations do contain references to finality, each of those references is expressly made subject to the power in regulation 32(2). It has to be borne in mind that the regulations are concerned with the provision of pensions for former officers who were disabled in the course of duty through no fault of their own. In such a case it may well be thought that the need for accuracy is at least as important as the need for finality.” 38. At paragraph 95 he added: “Decisions under regulation 37 are not absolutely final. They are final subject to reconsideration under regulation 32(2). It is not, in my view, a proper reason to refuse to agree to a reconsideration on the basis that the regulation 37 decision is final. Such a reason would deprive regulation 32(2) of its proper effect.”
“97. … I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case …. 98. It should in my judgment have been the starting point of any decisionmaking process by the defendant in deciding whether to give the requested consent in this case to have this purpose in mind and hence the starting point should have been to assess the strengths of the merits of the underlying case sought to be pursued on the reconsideration by the former officer and the longterm likely effect upon her if she were denied the opportunity to have those mistakes corrected.”
“This is not to say that the fact of delay since the decision sought to be reconsidered was made is entirely irrelevant to the exercise of the police authority’s discretion whether to consent to a reconsideration under regulation 32(2). But in my judgment delay can be relevant only to the police authority’s assessment of the underlying merits of the application. In an appropriate case the delay may be such that the authority can legitimately conclude that no further consideration is possible, in other words no further resolution of the issues sought to be raised on the reconsideration is possible – for example where material medical records are no longer available. And the longer the delay, I would see nothing improper in the police authority considering more anxiously than might otherwise be the case, whether the underlying merits have sufficient strength to justify re-opening an old case, although in principle I would agree that in the absence of good reason to the contrary consent should be given if the officer can demonstrate a reasonable case capable of being resolved on a reconsideration that the pension he is being paid is significantly incorrect by virtue of a decision not in accordance with the regulations.”
“85. What is the statutory purpose of regulation 32(2)? In two decisions made by judges with much experience and expertise in this field, it has been held that the purpose is to secure the just entitlement of a former officer and not, as was unsuccessfully argued in those cases, to provide a convenient way of giving swift effect to the position agreed between the officer and the PPA. Those decisions are, undeniably, entitled to the highest respect. 86. In the two decisions, the judges adopted a policy driven, interventionist interpretation of regulation 32(2), which strained the language used in the provision, so as to require the compulsory or closely circumscribed ‘agreement’ of the PPA to a course that is plainly not consensual in any real sense. Indeed, the ‘agreement’ of the recalcitrant Chief Constable may have to be wrested from her by judicial review or at least the threat thereof. 87. There are dangers in construing a provision such as this in a manner that sits so uneasily with the language the legislature has chosen, by an appeal to wider considerations of policy not found in the language of the provision itself. It may be safer to discern the policy of the legislature from the language it has used than to construe the language of the provision by reference to a broad judicial evaluation of the overall policy of the statutory scheme. 88. If the words ‘by agreement’ are given their full content and ordinary meaning, they would mean what they say. That would mean the reasoning in Crudace and Haworth would have to be regarded as unsound. It would have been simple for the legislature to have fashioned regulation 32(2) as an obligation on the PPA to refer the matter back for reconsideration if presented with a reasonable case that the original decision was wrong; or to require the agreement of the PPA not to be unreasonably withheld. 89. For those reasons, I confess to some unease about the interpretation of regulation 32(2) adopted in the two cases. On the other hand, as a matter of broad justice, it has much to commend it. As the judges correctly observed, the references to finality in other surrounding provisions are expressly made subject to regulation 32(2). While that point is consistent with both the competing interpretations, it can be read as supporting the claimant’s interpretation rather than that of the defendant. 90. Furthermore, the importance of securing just pension entitlement is incontestable, as is the injustice arising from wrongly withheld or underpaid pensions for officers who render such important service at everyday risk to life and limb. That point supports the claimant’s policy-based interpretation and could be said to outweigh the defendant’s answer that procedural rules and deadlines do not offend justice even where they lead to loss of entitlement. 91. I think the right course, despite my reservations, is to observe judicial comity and assume that the purposive construction of regulation 32(2) adopted by King J and HHJ Behrens is the correct one …. 92. In abbreviated form, the statutory purpose which I assume to be correct is to facilitate and to promote correct pension payments and to correct mistakes. Withholding agreement to a reconsideration which, if it takes place, is likely to enable that to happen is, on that assumption, unlawful. It follows that if the decision letters showed that the purpose of the decision to withhold agreement was to deny the claimant has just pension entitlement, that would be unlawful.”
“97 … it would be unlawful for the defendant to disregard the merits of the claimant’s claim to an injury award. The law required the defendant to consider and assess the strength of the argument that Dr Gandham made a mistake when certifying that the three assaults did not cause or materially contributed to the claimant’s disabling depressive illness. The defendant did have regard to that argument in this case; on her instructions, in the second letter Ms Dent referred to conflicting medical evidence of the diagnosis and to the issue of causation as ‘not clear-cut’.” 43. Turning to other considerations to which the decision maker was entitled to have regard, the judge continued: “98. Is it permissible for the defendant to take account of delay, other than as a factor in the assessment of whether a fair reconsideration as possible? In my judgment, it is. I see nothing in the statutory scheme which rules out delay per se as a permissible consideration. Delay may, obviously, be relevant to whether a fair reconsideration is possible; but it is also relevant to the public interest in finality in determining police pension issues. Reconsideration of the pension issue requires publicly paid staff to be diverted from other important policing functions. 99. I see no warrant for requiring primacy to be given to one relevant consideration over another, provided the statutory purpose is respected. The weight given to a relevant consideration is a matter for the decision-maker, not the court, unless statute provides otherwise. I would not, with great respect, go so far as King J in Haworth when he said, at paragraph 100, that ‘delay can be relevant only to the police authority’s assessment of the underlying merits’; and, in the next sentence, that while ‘delay may be such that the authority can legitimately conclude that no fair reconsideration as possible’, it is not a relevant consideration in its own right.”
“100. Having examined carefully the two decision letters, I find myself unpersuaded that the decision challenged was vitiated by illegitimate reliance on delay. I accept Mr Holl-Allen’s submission that the delay was very long here and that it was properly open to the defendant to weigh the length of the delay and the resulting unavailability of Drs Gandham and Srinivasan against the less than ‘clear cut’ case on causation, to which evidence from Dr Gandham personally would be relevant. That was, moreover, a rational foundation for the proposition that no fair reconsideration was possible, a conclusion which itself bears directly on the merits of the underlying claim for an injury award. 101. I also ask myself what the predominant purpose of the decision was. It is true that its effect was to prevent the reopening of an injury award claim that, if reopened, might well succeed. But it would succeed, in the defendant’s properly held view, only after a reconsideration process that would not be fair. I find that the predominant purpose was to prevent a reconsideration process that would be unfair. The unfairness cannot be overlooked on the ground the claim to an injury award is a strong one. Whether it is or not can only be judged by a fair process, not by an unfair one. 102. Assuming, as I do, that the statutory purpose of regulation 32(2) is as King J described in the Haworth case, I do not accept the proposition either that the predominant purpose of the decision-maker was one that was contrary to the statutory purpose, or that her decision was vitiated by taking account of delay as a relevant consideration. The words ‘frivolous and vexatious’ may not have been very polite, but they do not, read in their context, refer to anything worse than a long delay rendering a fair reconsideration impossible in the defendant’s view.”