Malekout v Secretary of State for Health [2004] EWHC 2879 (Admin)

Case No CO/5004/2004[2004] EWHC 2879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 10 December 2004
Before
THE HONOURABLE MR JUSTICE WILKIE
Between
CYRUS MALEKOUTClaimantTHE SECRETARY OF STATE FOR HEALTHDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
KENNETH HAMER (instructed by Christian Khan) for ClaimantELISABETH LAING (instructed by office of the Solicitor, DWP, DoH) for Defendant
JudgmentMr Justice Wilkie :This is the latest, and one hopes the last, in a series of applications for judicial review in which the entitlement and quantification of permanent injury benefit payable to the claimant has been in issue since 1990. It is a case which, regardless of the outcome of this application, reflects little credit on the defendant. I exempt from this counsel for the defendant who, together with counsel for the claimant, has presented the case effectively and efficiently. Both sides agreed that the hearing before me should be a combined application for permission and, in the event that permission was granted, the substantive hearing of the judicial review.As for application for permission, in my judgment the case for the claimant is manifestly arguable and I have no hesitation in granting permission. I now turn to deal with the substantive claim for judicial review.The History of the matterThe claimant is now 48 years of age. He qualified as a dentist in 1981 having studied dentistry at the London Hospital Medical College from 1976. He commenced practice as a dentist on 14 December 1981. Between 1981 and 1990 he was a registered practitioner with various Area Health Authorities serving Croydon, Merton, Sutton and Wandsworth; Lambeth, Southwark and Lewisham; and Bromley. In addition in July 1984 he commenced practice as a sole practitioner on a part time basis from premises at Wimbledon whilst continuing to work part time at NHS practices at Bromley,, Lambeth, Southwark and Lewisham.In January 1987 the claimant suffered a soft tissue neck injury which he sustained when he turned his neck briskly at breakfast. He was diagnosed as suffering symptoms of a mild cervical disc problem. He was treated with physiotherapy including rest. He stopped working. He resumed treating private patients on 7 September 1987 working part time for 4 to 5 hours per week but he never resumed his NHS work. In 1989 or 1990 the claimant’s symptoms altered for the worst. He began to suffer different, more serious and extensive, symptoms including acute episodes of pain and spasms in the muscles of his chest wall, headaches, pain in the left clavicular area, loss of power and sensory deficit and paraesthesiae. By October 1990 he was complaining of pain in the left scapular and cervical region. On 15 December 1990 he was medically retired. During the period 22 January 1987 to 30 November 1990 he received temporary injury benefits through his local Family Practitioner Committee under Regulation 4(5) of the 1974 National Health Service (Injury Benefits) Regulations (“the 1974 regulations”). These provide that where a person to whom the regulations apply is on leave of absence from an employment with reduced emoluments by reason of an injury or a disease, there shall be payable during the period of such leave an annual allowance which when added to existing emoluments will proved an income of 85% of his average remuneration.On being medically retired on 15 December 1990 the claimant’s temporary injury benefits ceased and he applied for permanent injury benefits under regulation 4(2) of the 1974 regulations. In February 1991 his claim to entitlement was rejected by the defendant. On 9 June 1993 it took a formal decision to maintain its position. That refusal resulted in the first judicial review proceedings issued on 11 August 1993. On 22 September 1993 Mr Justice Brooke, as he then was, directed that the application for permission should be heard orally. On 10 November 1993 the solicitor for the defendant confirmed by letter that the department was satisfied that the claimant fulfilled one of the conditions imposed by the 1974 regulations - that is to say that he fell within “regulation 3(1)(d)(ii).” That concession has given rise to an issue before me.On 25 November 1993 Mr Justice Popplewell granted leave to apply for judicial review. The parties agreed that the claimant should be further examined and, by an order dated 10 June 1994, Mr Justice Auld, as he then was, ordered by consent that the decision of 9 June 1993 be quashed and that the defendant effect an upto-date medical examination of the claimant for the purposes of re-determining the claimant’s eligibility for permanent injury benefit.Notwithstanding this order, on 25 February 1995 the defendant again determined that the claimant was not entitled to permanent injury benefit and on 4 April 1995 the claimant commenced the second judicial review proceedings seeking to quash that decision. On 23 June 1995 Mr Justice Latham, as he then was, granted leave to apply for judicial review. On 14 February 1997 Master McKenzie made a consent order. That order quashed the decisions of 24 February 1995 and a subsequent one of 19 October 1996 that the applicant was not entitled to benefit under the 1974 regulations. It declared that the applicant suffers and had at all times since December 1990 suffered an injury attributable to his employment as a dentist, namely thoracic outlet syndrome so that he satisfied the following regulations:- “Regulation 3(1)(d)(ii) of the 1974 Regulations and Regulation 3(2)(a) of the National Health Service (Injury Benefits) Regulations 1995.” That consent order was made explicitly on the understanding that the Secretary of State would reconsider his decision whether or not the applicant had suffered a diminution in his earning ability such that he qualified for benefit under Regulation 4 of the 1974 and/or 1995 Regulations.From that time on, the dispute between the parties has not been whether the claimant is entitled to permanent injury benefit but its quantification. I am informed by Miss Laing of counsel on instructions from the defendant that since that date attempts have been made to make payments on account to the claimant but these have been rebuffed. Accordingly, the scarcely believable situation has arisen that to date the claimant has received no permanent injury benefit in respect of his retirement from NHS service on 15 December 1990.Unfortunately the parties were unable to reach agreement as to the amount of permanent injury benefit, or even the basis upon which it should be calculated. At one point in the extensive correspondence on the subject the Pensions Agency, on 16 March 1998, confirmed to the claimant’s then solicitors that he was having his claim considered under the 1974 Regulations notwithstanding that, with the passage of time, different regulations, the 1995 Regulations, had come into force. The somewhat confusing reason they gave was that within the 1995 regulations was a regulation, Regulation 23, which, according to that letter, allows for continued consideration of a claim under earlier regulations if an applicant, who was being considered before the replacement took place, would be disadvantaged by any changes in the 1995 Regulations. However, the letter went on to state that the saving provision of Regulation 23 did not apply to the claimant as all the relevant Regulations were exactly the same in both the 1995 and the 1974 Regulations. This letter appears to signify an element of confusion on the part of the Pensions Agency as to which regulations were the relevant regulations. At any rate by 27 August 1998 the defendants’ continued refusal to change the calculation which they had put forward became sufficiently final for the claimant to launch the third application for judicial review on 27 November 1998. Mr Justice Carnwath, as he then was, gave leave to apply for judicial review on 15 January 1999. On 15 March 1999 the action was adjourned generally by consent pending a redetermination of the claimant’s entitlement to benefit “under regulation 4(4)”. It may be pointed out that, in argument before me, it was common ground that the claimant’s claim was not under regulation 4(4) of the 1974 or 1995 Regulations but under regulation 4(2) of one or other of those regulations.Pursuant to that exercise the Pensions Agency wrote a letter dated 9 April 1999 to the claimant’s then solicitors. That letter, though written in the context of a claim under regulation 4(4), appears to accept that the “key date” in respect of a calculation under regulation 4 was January 1987, rather than the date of retirement, 15 December 1990. This apparent position was confirmed by a subsequent letter from the Pensions Agency dated 22 January 2001. That letter contains the following passage:-“Because Mr Malekout’s reduction of earning ability is now accepted as having become permanent from 22 January 1987, his allowance under Regulation 4(2) is to be calculated by reference to his average remuneration computed as at that date rather than 16 December 1990 – that is to say that it will be calculated on the same footing as was the allowance under Regulation 4(5) which he received between those dates.”A little further on in that letter the Pensions Agency says as follows:-“As a result his allowance under regulation 4(2) fell to be calculated by reference to his total uprated remuneration, averaged over each year of service, that remuneration being computed in the same way as for pension purposes under regulation 71(2) of the NHS (Superannuation) Regulations 1980.”The two passages in this letter reflect the Pensions Agency’s then position on the two issues which remain in dispute between the parties. The first passage reflects the view of the regulations which is presently held by the claimant. That is a view which the defendant has subsequently resiled from. On the second issue the defendant maintains the correctness of that stated position whereas the claimant has, throughout, argued that this position is erroneous.The letter of 22 January 2001 was written after the conclusion of the third judicial review proceedings. Those proceedings had come on for hearing before Mr Justice Silber on 8 November 2000. The application was disposed of by consent on the basis that the defendant’s decision of 16 August 1990 be quashed. The defendant, by the order, undertook to reconsider the claimant’s application for benefit “under the 1995 Regulations” and to take into account its letter of 9 April 1999 already referred to. The letter of 22 January 2001, to which I have referred, makes it clear that the Pensions Agency was still applying the 1974 Regulations and not, as it had undertaken before Mr Justice Silber, the 1995 Regulations. The claimant’s then solicitor took issue with this obvious failure on the part of the Pensions Agency to comply with the terms of the undertaking given to Mr Justice Silber.The parties continued to correspond without agreement but apparently with the area of disagreement being limited to the issue arising from the second above quotation from the 22nd January 2001 letter. That position changed radically in the latter part of 2002. The first harbinger of this difficulty is in a letter of 29 July 2002 from the solicitor to the defendant to the claimant’s present solicitors. This letter postponed a meeting which had been scheduled for 1 August on the basis that, in preparing for it, some problems had come to light and that their clients were considering the implications. What those implications were became apparent on 4 October 2002 when the Pensions Agency wrote to the claimant’s solicitors withdrawing the letter of 22 January 2001 and substituting for it a new determination. That determination, as I have indicated already, reversed the position adopted by the Agency as had been expressed on the first issue namely whether the calculation of average remuneration should be by reference to a period ending on 15 December 1990 and not 22 January 1987 as had previously been its position. This remains one of the issues between the parties. Further correspondence between the parties concluded with a letter from the Pensions Agency dated 20 February 2004 setting out its calculation of arrears of permanent injury benefit for the period from 16 December 1990 to 5 April 2004. That decision gave rise to the fourth application for judicial review made on 18 May 2004. This fourth application was apparently disposed of by a consent order drawn on 22 September 2004 on the basis that the defendant agreed to reconsider the matter. Unfortunately, that order was wrongly drawn up. In the meantime, on 16 September 2004, the defendant re-determined the matter by confirming the decision which had been taken on 4 October 2002. Thereafter this application for judicial review was issued on 14 October, subsequently amended on 18 November. On 18 October 2004 Mr Justice Munby changed the purported order of 22 September, thereby bringing those proceedings to an end, and gave directions in respect of the present proceedings.Which regulations?The first question for me to consider is whether I should be applying my mind to the 1974 or the 1995 regulations. The 1995 regulations contain regulation 24 which deals with revocations and savings. Sub- paragraph (1) provides that, amongst others, the 1974 regulations are revoked in their entirety. Sub- paragraph (2) provides as follows:-“Anything done under, or by virtue of, any regulation revoked by these regulations, if it could have been done under or for purpose of the corresponding provision of these regulations, shall be deemed to have been done under or by virtue of the corresponding provision of these regulations and anything begun under, or by virtue of, any such regulation may be continued under these regulations as if begun under these regulations.”The effect of this is that applications such as the claimant’s for permanent injury benefit begun prior to the coming into effect of the 1995 regulations are to be dealt with under the 1995 regulations.There is, of course, a possibility that the 1995 regulations place a person in a worse position than he would have been under the 1974 regulations. The effect of regulation 24 would, absent any saving provision, mean that the 1995 regulations applied to such a person to their disadvantage. Accordingly, regulation 23 gave to persons detrimentally affected by the 1995 regulations an option. Sub- paragraph (1) applied its terms to any benefit which was “payable” to a person who had ceased to serve before the 1995 regulations came into force. Sub- paragraph (2) provides as follows:-“Where, in a case to which this regulation applies, any provision of these regulations would operate in relation to any person so as to place that person in a worse position than he would have been if that provision had not applied, that person may elect that the provision shall not apply by giving notice in accordance with paragraph (3).
[1]MR JUSTICE WILKIE: For the reasons set out in the judgment handed down today, the claimant's application for judicial review fails.[2]MR HAMER: My Lord, we have agreed a form of order.

MR JUSTICE WILKIE: Yes.

calculated as if he had retired –

[4]MR HAMER: We are happy with that. I do not know if it has come into your Lordship's hands yet.

MR JUSTICE WILKIE: (Handed) Thank you.

[6]MR HAMER: The only issue being permission to appeal which obviously is in dispute.[7]MR JUSTICE WILKIE: Yes. Right.[8]MR HAMER: Can I just mention a couple of things? It does not affect your Lordship's judgment, but I think it a matter of courtesy and just sensible to mention it.

MR JUSTICE WILKIE: Yes, sure.

[10]MR HAMER: My learned friend had a case of Brennan v Bolt Burdon. Your Lordship did not cite it in your Lordship's judgment, but, as the way of the world, the Court of Appeal reversed the learned judge and the decision appeared in Friday's Law Report after we finished last week. So there it is, I mention it, but I do not think my learned friend is going to invite you to change the judgment.

MR JUSTICE WILKIE: No.

[12]MR HAMER: You did not mention Bolt Burdon. If you had mentioned it it might have been prudent. The only other matter I just mention, again I do not invite your Lordship to change your judgment, but as a matter of courtesy I should mention it, and that is that Dr Malekout tells me that it was on advice of his former solicitors that he did not accept any of the offers of payment.

MR JUSTICE WILKIE: Right.

[14]MR HAMER: Be that as it may, I mention it.

MR JUSTICE WILKIE: Yes, on the record, thank you very much.

[16]MR HAMER: On the record. The other matter is, he says, and again I have not considered it, he says that there was an affirmation by the NHS doctor in 96, shortly after the 95 Regulations came into effect, which he says would be sufficient "notice" under Regulation 23. I am not going to invite your Lordship to go through that issue again. It does not matter because your Lordship has found against me on the critical issue.

MR JUSTICE WILKIE: Exactly.

[18]MR HAMER: So the rest of it is --

MR JUSTICE WILKIE: It was de minimis anyway.

[20]MR HAMER: Well, I would not say de minimis, I would say subsidiary.

MR JUSTICE WILKIE: Yes.

[22]MR HAMER: That is the position, so I --[23]MR JUSTICE WILKIE: I am sorry, such difference as there was disadvantageous between 95 and 74 was very much on the margins.[24]MR HAMER: I take your Lordship's point on that, yes. The main thing is that the two regulations were the same insofar as the critical date is concerned.

MR JUSTICE WILKIE: Correct, yes.

[26]MR HAMER: I lost on that. Having lost on that the rest of it, in a sense, is arithmetic, de minimis or otherwise.

MR JUSTICE WILKIE: Yes.

[28]MR HAMER: If I cannot get home on 87 then the calculations are small.

MR JUSTICE WILKIE: Yes.

[30]MR HAMER: So I mention that. What I invite your Lordship to do is to make the order in the terms that my learned friend and I have agreed, subject to your Lordship's view on it. May I just invite your Lordship to grant me permission to appeal? I say that for this reason. This is not just a formal application to your Lordship, it is a quite serious one and I invite it for this reason: at the heart of this case it is the meaning of the words "average renumeration".

MR JUSTICE WILKIE: Yes.

[32]MR HAMER: And the heart of this case is whether it is 87 or 90. That is a matter of pure construction of those regulations. It is plainly, as your Lordship courteously said, arguable for the purposes of getting permission to apply for judicial review.

MR JUSTICE WILKIE: Yes.

[34]MR HAMER: I appreciate your Lordship has said you have come to a firm view of the construction, of course that is what your Lordship would come to, and any judge would come to, but I do say it is pure law. In relation to a matter of law it is a matter in which, in my submission, your Lordship should seriously consider granting permission to appeal in the same way as the learned judge in the other Malekout case, which was only an insurance policy. That was a pure issue of construction, the meaning of the word "condition" in a medical context in the policy, and he did in fact grant me permission to appeal. So it is --

MR JUSTICE WILKIE: I think successfully.

[36]MR HAMER: Well, I was successful in the event. Yes, I was successful, but that in no sense detracted from the learned judge's judgment.

MR JUSTICE WILKIE: No, no.

[38]MR HAMER: It is pure law on this issue of construction. It is a short point. It is a big point because, leaving aside the de minimis point, the figures are big. So I would ask your Lordship that.[39]The second reason is this: your Lordship effectively has recognised that we have here an anomaly in the sense that I use the word "anomaly", my learned friend recognised that, and your Lordship said it would be a rare case because you have 0.5 per cent and so on. It is a lacuna or anomaly, or whatever word you like to call it, and that is why we have had to come to the court. There is this lacuna in the regulations, and in fairness to all parties the construction has been in my favour, so to speak, on this issue for three or four years, and then against me, resiled from their construction in the last couple of years, on the big issue of 87 or 90, and that construction the Department recognised for 3½ years.[40]MR JUSTICE WILKIE: Are you simply asking for permission to appeal on the question whether the date is 1987 or 1990, or are you also asking for permission to appeal in respect of the other issue?[41]MR HAMER: I have drafted -- I can hand it up to your Lordship -- if your Lordship would bear to read it.

MR JUSTICE WILKIE: No, just tell me if both the issues --

[43]MR HAMER: Both issues --

MR JUSTICE WILKIE: -- are canvassed.

[45]MR HAMER: Yes, both issues, although it is fair to say that out of six paragraphs four of them are on the main point, but it is all on construction. As before, it is the two issues before us, it is all on construction. Therefore, in those circumstances it is law, and there is this situation, and I would invite your Lordship to grant me permission. One thing I would invite your Lordship to do, and I think there is no opposition on this, and that is, in any event, could you kindly give me a 7 day extension. The period is 14 days now from today which would mean any notice of appeal or application for permission to appeal must be in by Christmas Eve. My learned friend has very kindly said she is happy to extend that to 31st December which is 7 days. I assume Christian Khan will be working a few days in that week.[46]MR JUSTICE WILKIE: Yes, yes, thank you. Do you have any observations?[47]MISS LAING: My Lord, I resist my learned friend's application for permission to appeal. In my submission this is a question where if permission is to be granted it should be granted by the Court of Appeal. There are really two reasons for that. Firstly, your Lordship has reached a very clear view on the question of construction in this case, and, secondly, this case, although I accept one which is important to the claimant himself, is one which is very unlikely to recur in the sense that it is an almost unique case on its facts. For those reasons it would be my submission that if leave to appeal is to be granted it should be granted by the Court of Appeal itself.[48]Finally, if your Lordship is against me on that and leave to appeal were to be granted, I would submit it should be restricted to the issue of construction which your Lordship mentioned a moment ago.

MR JUSTICE WILKIE: The 1987 and 1990 and not the other point?

[50]MISS LAING: Yes, my Lord, how one would characterise the other point.

MR JUSTICE WILKIE: Yes.

[52]MISS LAING: Can I just, while I am on my feet, mention one point in relation to the draft order?

MR JUSTICE WILKIE: Yes, yes.

[54]MISS LAING: The question of costs: I have not mentioned specifically in the draft the costs of the application before Munby J on 18th October. My understanding is that it is not necessary to mention those costs expressly, but they were reserved to the judge who heard the substantive application. So I thought I ought to mention them to your Lordship.

MR JUSTICE WILKIE: He was dealing with two judicial review applications, was he not?

[56]MISS LAING: He was --

MR JUSTICE WILKIE: Putting to bed the fourth and --

[58]MISS LAING: But my recollection is that he specifically said that the costs of that application should be reserved to whoever dealt with the substantive application.

MR JUSTICE WILKIE: You mean that application, that judicial review application, or --

[60]MISS LAING: No, the costs of the application on that day.[61]MR JUSTICE WILKIE: On that day, yes. Well, I think they would be rolled up with these.[62]MISS LAING: Yes, that would be my understanding, but I thought I ought to mention that.

MR JUSTICE WILKIE: Mr Hamer?

[64]MR HAMER: I agree with that, they get rolled up.

MR JUSTICE WILKIE: Perhaps that can be added to paragraph 3 for the avoidance of any doubt.

[66]MR HAMER: Including the costs of --

MR JUSTICE WILKIE: What was the date of that?

[68]MISS LAING: 18th October.[69]MR JUSTICE WILKIE: Yes, thank you. Well, for the reasons advanced by Miss Laing it seems to me that, notwithstanding the fact that this is a matter of construction, it is a matter where Mr Hamer should seek his permission to appeal from the Court of Appeal, but I will extend time for applying for permission by 7 days.[70]MR HAMER: I am grateful, my Lord. If we could say to 31st December 2004 to be on the safe side.

MR JUSTICE WILKIE: Extend time to apply for permission to Court of Appeal until 31/12/04.

[72]Thank you both.

Cited in 1 later judgment