Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin)

Case No CO/4676/2016[2017] EWHC 455 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court Centre, 1 Oxford Row, Leeds LS1 3BGDate 08/03/2017
Before
MR JUSTICE GARNHAM
Between
THE QUEENClaimantOn the application of STANLEY JOHN FISHERClaimantTHE CHIEF CONSTABLE OF NORTHUMBRIA(1)DefendantsTHE POLICE MEDICAL APPEAL BOARD(2)Defendant
David Lock QC (instructed by Haven Solicitors Ltd) for ClaimantSam Green QC (instructed by Solicitor to the Chief Constable of Northumbria) for Second DefendantHearing Hearing dates: 14th February 2017
Judgment
[1]Mr Stanley Fisher, a retired police officer in receipt of a police “injury pension”, challenges the decision of the Police Medical Appeal Board, on appeal from a Review dated 20 June 2016, to reduce his injury pension to a Band 1 award, and the decision of the Chief Constable of Northumbria Police, dated 23 June 2016, to backdate the effect of the Board’s decision to 27 February 2015.[2]Permission was granted by Blake J on 25 November 2016. He concluded that grounds 1 and 4 of the grounds in the application were properly arguable. As to grounds 2 and 3 he indicated that he would not have granted permission if they had stood alone, but said that he would not “prevent the Claimant from raising the issue if so advised.” The Claimant did pursue grounds 2 and 3 before me. Accordingly I address all four grounds in this judgment.

The Background

[3]Mr Fisher (the Claimant) was born on 18 January 1965. He joined Cleveland Police in 1985, transferring to Northumbria Police in 1988. On 31 December 1992 the Claimant was attacked with a knife whilst on duty and suffered some psychological injuries, but no significant physical injuries. He thereafter developed Post Traumatic Stress Disorder.[4]On the 14 March 1998 the Claimant was bitten by a security guard dog on the right arm whilst at work. That caused both physical injury and some psychological injury.[5]On 7 September 1999 Dr I Robinson, a medical practitioner selected by Northumbria Police Authority for the purpose, examined the Claimant and concluded that he disabled from performing the ordinary duties of a police officer by depression and soft tissue injury of the right forearm. On 29 September 1999 Dr Robinson decided that the disablement was permanent and was a result of an injury in the execution of duty. In consequence the Claimant was compulsorily retired from the Police service.[6]Following his retirement, the Claimant applied for and was awarded a “police injury pension” under the Police Pensions Regulations 1987 and the Police (Injury Benefit) Regulations 1987 (“the 1987 Regulations”). Those regulations were revoked and replaced by the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”) and police injury pension awards made under the 1987 Regulations are now treated as if made under the 2006 Regulations.[7]The 2006 Regulations require the Chief Constable, at such intervals as may be suitable, to consider whether the degree of a police pensioner’s disablement has altered. Where the Chief Constable commences a review of the level of pension paid to a former officer, the regulations require him to select a medical practitioner to act as a delegated decision maker on his behalf. That doctor is referred to as the Selected Medical Practitioner or “SMP”.[8]In 2010 the Chief Constable of Northumbria appointed Dr. Jon Broome to be the SMP in the claimant’s case and to carry out a review of the pension paid to the Claimant. Dr. Broome produced a report dated 27 February 2015 which concluded that there had been a significant change in the Claimant’s degree of disability. The SMP determined that his pension should be revised from a Band 4 injury pension to a Band 3 pension.[9]A police pensioner is entitled, pursuant to Regulation 31 of the 2006 Regulations, to appeal such a decision. The Claimant did so and the appeal was referred to a board of medical referees, the Police Medical Appeal Board (“the Board”). On such an appeal the award can be revised either upwards or downwards.[10]On 6 May 2016 the Board produced an interim report. In that interim report the Board set out its conclusion “that the Appellant’s degree of disablement has altered and the alteration is substantial”. The Board then indicated that it had “decided to remit back to the PPA (the Police Pensions Authority) and the Appellant the task of providing the Board with sensible alternative roles. To assist in identifying such roles the Board considers that the Appellant is now capable of:• Sitting for reasonable periods, writing, reading, using IT and using a phone• Walking, running and standing for reasonable periods of time.• Making decisions and reporting situations to others.• Evaluating information and recording details.• Understanding, retaining and explaining facts and procedures.”• Sitting for reasonable periods, writing, reading, using IT and using a phone• Walking, running and standing for reasonable periods of time.• Making decisions and reporting situations to others.• Evaluating information and recording details.• Understanding, retaining and explaining facts and procedures.”[11]The Board directed the parties to supply details, within 14 days, of the alternative roles which it was said the Claimant could fulfil. The parties did so. The Chief Constable responded to that direction by way of a letter dated 18 May 2016 from the Police Pensions Authority, (the responsibilities of which he has now assumed). That letter provided details of “roles which correspond with injured earnings capacity and roles which correspond with uninjured earnings capacity”. In the document attached to the letter are set out the salary range for two types of employment.[12]The first group contained two jobs; a case worker for South Wales Police and an investigator for the “Red Snapper Agency”. On the basis of these two jobs, the Chief Inspector suggested an “injured mean salary” of £29,974. The second group included an ASB officer for Gloucester City Council and a detainee custody officer for G4S at Gatwick. On the basis of those two jobs, the PPA suggested an “injured mean salary” of £25,146.[13]The Claimant was rather less helpful. An email from his solicitor included the following observations from the Claimant himself:
“As a direct result of my experience in Northumbria Police and subsequent treatment by the Force, I have no ability to work as part of a team and my people skills have diminished. I have no experience of taking orders from people since I left the job and would find this difficult. I have no trust in corporate organisations and discipline. Therefore I do not consider myself to be employable by a company. In consideration of this I am capable of being self-employed, working in isolation at home performing a computer based job working at intervals and working part time. I would estimate this to be a maximum of £10 per hour approximately for a maximum of 20 hours per week. This is equal to £9,600 per annum. I must emphasise that I have not been in any form of employment for the past 16 years since leaving the police service and I have no post school qualifications. I have difficulty in concentrating for long periods of time and therefore studying for a degree is not an option. In the short space of time I have been given to compile this, this is the only information I can give you.”
[14]In its final written report of 20 June 2016, the Board set out its conclusion that there was clear evidence of change in the degree of disablement since the 1999 decision. It decided that the improvement in the Claimant’s depressive illness was substantial and that he was capable of full-time administrative work. It found that the Claimant’s uninjured and injured earning capacity were the same and that therefore the degree of disablement, which they assessed at 0%, took the case into Band 1.[15]On the 23rd June 2016, the Chief Constable notified the Claimant that the change in the injury award from Band 3 to Band 1 would take effect from the 27 February 2015, the date of the SMP’s report. On the 28th June 2016 the Chief Constable notified the Claimant that, consequent upon the backdating of the change in the injury award, there had been overpayments totalling £19,567 and it was proposed to recover that by making a deduction of £250 per month from the ill-health pension.[16]On the 26 August 2016 the Claimant sent a pre-action protocol letter to the Chief Constable and on 14 September 2016 this claim was filed.

The Statutory Scheme

[17]This case turns on the proper construction of Regulations 7, 11, 30, 31, 32, 37 and 43 of the 2006 Regulations. It is convenient to set out those regulations at this point: “7. Disablement(1) Subject to paragraph (2), 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. (5) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force: Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital. (6) Notwithstanding paragraph (5), “totally disabled” means incapable by reason of the disablement in question of earning any money in any employment and “total disablement” shall be construed accordingly. (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 . (8) In this regulation, “infirmity” means a disease, injury or medical condition, and includes a mental disorder, injury or condition. 11. 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. 30. Reference of medical questions (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, except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations or regulation 69 of the 2006 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations or, as the case may be, Part 7 of the 2006 Regulations shall be binding for the purposes of these Regulations; and, if they are further 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) above… 31. Appeal to board of medical referees (1) Where a person is dissatisfied with the decision of the selected medical practitioner as set out in a report under regulation 30(6) , he may, within 28 days after he has received a copy of that report or such longer period as the police pension authority may allow, and subject to and in accordance with the provisions of Schedule 6 , give notice to the police pension authority that he appeals against that decision. (2) In any case where within a further 28 days of that notice being received (or such longer period as the [police pension authority] may allow) that person has supplied to the police pension authority a statement of the grounds of his appeal, the [police pension authority] shall notify the Secretary of State accordingly and the police pension authority http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=62&crumb-action=replace&docguid=I1BE502B0E45411DA8D70A0E70A78ED65 - targetfn1shall refer the appeal to a board of medical referees, appointed in accordance with arrangements approved by the Secretary of State, to decide.(3) 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. 32. Further reference to medical authority (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 his 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. 37. Reassessment of injury pension (1) 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 pensioner's disablement has altered; and if after such consideration the police pension authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly. (2) Where the person concerned is not also in receipt of an ordinary, ill-health or short-service pension under the 1987 Regulations or the 2006 Regulations, if on any such reconsideration it is found that his disability has ceased, his injury pension shall be terminated. (3) Where payment of an ill-health pension is terminated in pursuance of regulation K1(4) of the 1987 Regulations or regulation 51(5) or (6) of the 2006 Regulations, there shall also be terminated any injury pension under regulation 11 above payable to the person concerned. (4) Where early payment of a deferred pension ceases in pursuance of regulation K1(7) of the 1987 Regulations or regulation 51(8)(d) of the 2006 Regulations, then any injury pension under regulation 11 above payable to the person concerned shall also be terminated. 43. Payment and duration of awards (1) Subject to the provisions of these Regulations, in particular of regulation 11(2) (limitation on payment of an injury pension to a person who ceased to serve before becoming disabled) and Part 5 (revision and withdrawal or forfeiture of awards), the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement. (2) Subject to the provisions of these Regulations, in particular of regulation 19 (limitations on child's special allowance), an adult survivor's special pension or child's special allowance shall be payable in respect of each week as from the death of the spouse or, as the case may be, the deceased civil partner or parent or, in the case of a special allowance payable to a posthumous child, as from the birth of the child. (3) Subject to the provisions of these Regulations, in particular of— (a) regulation 16 (termination of adult survivor's award on remarriage or other event); (b) regulation 19 (limitations on child's special allowance); (c) regulation 20(3) (adult dependent relative's special pension), and (d) Part 5 (revision and withdrawal or forfeiture of awards), a pension or allowance shall be payable for life and shall be discharged by payments in advance at such reasonable intervals as the police pension authority may, in their discretion, determine except that payment on account of a pension or allowance may be delayed, in whole or in part, pending the determination of any question as to the liability of the [police pension authority] in respect thereof, including any question as to the continuance of that liability. (4) Where a person dies after receiving a sum paid in advance on account of a pension or allowance, neither that sum nor any part of it shall be recoverable although referable to a period after his death.(5) Where an adult survivor remarries or enters into a civil partnership after receiving a sum paid in advance on account of a pension, neither that sum nor any part of it shall be recoverable although referable to a period after his remarriage or civil partnership.(6) Subject to the provisions of these Regulations, a gratuity under these Regulations shall become payable as soon as the entitlement to it arises and shall be paid forthwith in one sum except that— (a) payment on account thereof may be delayed, in whole or in part, pending the determination of any question as to the liability of the police pension authority in respect thereof, and (b) where the police pension authority are satisfied that it would be for the advantage of the beneficiary to pay a gratuity in instalments, they may pay it in instalments of such reasonable amounts and over such reasonable period as they think fit. (a) whether the person concerned is disabled; (b) whether the disablement is likely to be permanent, except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations or regulation 69 of the 2006 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations or, as the case may be, Part 7 of the 2006 Regulations shall be binding for the purposes of these Regulations; and, if they are further 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) above… (a) regulation 16 (termination of adult survivor's award on remarriage or other event); (b) regulation 19 (limitations on child's special allowance); (c) regulation 20(3) (adult dependent relative's special pension), and (d) Part 5 (revision and withdrawal or forfeiture of awards), a pension or allowance shall be payable for life and shall be discharged by payments in advance at such reasonable intervals as the police pension authority may, in their discretion, determine except that payment on account of a pension or allowance may be delayed, in whole or in part, pending the determination of any question as to the liability of the [police pension authority] in respect thereof, including any question as to the continuance of that liability. (a) payment on account thereof may be delayed, in whole or in part, pending the determination of any question as to the liability of the police pension authority in respect thereof, and (b) where the police pension authority are satisfied that it would be for the advantage of the beneficiary to pay a gratuity in instalments, they may pay it in instalments of such reasonable amounts and over such reasonable period as they think fit.

Common Ground

[18]At the commencement of the hearing before me the Claimant submitted a list of matters which it was said were not in issue. Very helpfully, that list was subsequently agreed by the Respondent. Accordingly I can now set out what is common ground between the parties.[19]It is agreed first, that the Claimant was a police officer who was required to retire from the Northumbria Police Force under Regulation A20 of the Police Pensions Regulations 1987 (“the 1987 Regulations”) because he was found to be permanently disabled from being able to perform the duties of a police officer.[20]Second, it was agreed that that decision had three broad consequences:(i) It entitled the Chief Constable to take a lawful decision that the Claimant should cease to be a police officer and thus ceased to received a police salary;(ii) The Claimant became entitled to an ill health pension under the 1987 Regulations (i.e. the pension payable to disabled former police officers regardless of the cause of their disablement); and(iii) Once the Claimant had ceased to be a police officer, he became entitled to apply for an injury pension.[21]Third, it was agreed that the test for his entitlement to an injury pension was whether he had become permanently disabled as a result of an injury receive, without his own default, in the execution of his duty. This is commonly known as “duty injury” under Regulation 11 of the Police (Injury Benefit) Regulations 2006. An “injury” includes any injury or disease, whether of body or mind.[22]Fourth, a decision was made that the Claimant had suffered a duty injury and he was awarded a Band 4 injury pension.[23]Fifth, Regulation 43 provides that a former officer who is awarded an injury pension is entitled to the pension payment “in respect of each year as from the date of his retirement”, namely for life.[24]Sixth, the Chief Constable has a duty to review the degree of disablement of all police pensioners at such intervals as he considers: see Regulation 37(1). The Chief Constable can therefore review the level at which the injury pension is paid but, under this Regulation, cannot remove the pension entirely. An injury pension can be removed under Regulation 39 (resumption of services a police officer) or under Regulation 40 (criminal conviction).[25]Seventh, the Chief Constable is required to delegate decision-making about any initial entitlement to an injury pension, and any review of an injury pension, to a doctor selected by the Chief Constable. This doctors is known as the Selected Medical Practitioner or “SMP”

The Arguments

[26]I had the benefit of lengthy and detailed skeleton arguments from both parties and I heard oral submissions from Mr David Lock QC, on behalf of the Claimant, and Mr Sam Green QC, on behalf of the Chief Constable. No summary by me would do justice to the parties’ careful argument and I provide the following brief summary only to set in context the discussion of the relevant issues which appears in the following section.[27]The Claimant advances 4 grounds. First, he says that the Police Medical Appeals Board erred by failing to use the Claimant’s potential police earnings as the uninjured earnings comparator. Second, he argues that the Board erred in assessing the Claimant’s injured earning capacity by reference to jobs he could not reasonably have been expected to apply for or secure; or alternatively the Board used an incorrect approach to the assessment of loss of earning capacity. Third, it is said that the Board erred in assessing the Claimant’s current injured earnings capacity by reference to the mid-point of salaries for jobs when the Claimant could only have secured an entry level salary. Finally, it argued said that the Chief Constable erred in SMP’s review decision of 20 February 2015 when, in law, the Board’s decision took effect at the date it was made.[28]In response the Chief Constable argues that identifying the uninjured earnings comparator involves assessing what the pensioner would have been capable of doing and therefore earning had the qualifying injury not been sustained. In the alternative, he contends that the uninjured earnings comparator used was not outside the range of reasonable comparators and as an expert specialist appellate tribunal, the Board should be afforded a significant margin of deference.[29]As to the second ground, the Respondent says that the task facing the Board is to determine what the pensioner is capable of earning, not to conduct a labour market assessment.[30]In response to the third ground, the Chief Constable said that it is not for the court to “micro-manage” the arithmetic approach of the Police Medical Appeal Board to cases such as this.[31]Finally, the Chief Constable argues that the decision of the SMP is void once the board makes its decision and the old decision is replaced by the new so that the steps taken in reliance upon the defunct decision have to be rectified. Discussion The first ground – Choice of uninjured earnings comparator

Discussion

[32]In its final report, and having considered the responses to its interim report, the Board repeated its observations of the functions of which it had concluded the Claimant was now capable. It observed there was little evidence that he was suffering from significant depression. It was said that the Claimant had normal cognition, memory and mood.[33]Against that background the Board rejected the Claimant’s arguments that he was only capable of working part-time and decided “that he is medically capable of a full time administrative role. Utilising the two additional roles provided by the PPA to represent his uninjured earnings capacity, the simple arithmetic means that his un-injured and injured earnings capacity are the same and the degree of disablement falls into Band 1.”[34]Although the Board’s reasoning on the issue of uninjured earnings capacity is thin in the extreme, it is apparent from the single sentence at the end of its detailed case discussion, that the Board was accepting the Defendant’s figures for the appropriate uninjured earnings comparator.[35]Mr Lock advances what are essentially three arguments. First, he says that what the Board had sought in its interim report was information as to “suitable alternative roles” given the Claimant’s present capabilities. That request, he submits, was not directed at obtaining evidence of the Claimant’s uninjured earning capacity at all; instead it was seeking information about his earning capacity in his injured state. In my judgment, there is simply no other way of reading the interim ruling of 10 February.[36]Second, and in any event, Mr Lock argues, there was no evidence of any change to the Claimant’s uninjured earning capacity and no finding of fact support such a conclusion. Again, I agree. The Board’s focus throughout its determination was on the Claimant’s injured capabilities and capacity, not on his uninjured state. The Board simply did not address what the Claimant’s earning capacity would now be if he had not been injured. Even when addressing the possibility that he was suffering from PTSD or his loss of skills, it did so in the context of seeking to determine his injured, not his uninjured, capacity. It did not refer to anything evidencing a change in his uninjured earning capacity.[37]Third, Mr Lock says that the decision to adopt the Defendant’s suggested uninjured earning capacity is unreasoned. Beyond the fact that the Board says it is “utilising the two addition roles provided by the PPA”, that is absolutely correct.[38]It is conceded by Mr Green, on behalf of the Defendants, that the duty imposed on the Board by Regulation 31 is to provide a report of any disagreement with the decision of the SMP. Mr Green accepts that implicit in that is a duty to give reasons for the disagreement. That must be right.[39]I also agree with Mr Green that the duty to give reasons is modest in its extent. As Mr Green submits, relying on R (Asha Foundation) v Millennium Commission [2003 EWCA Civ 88 at [27] “where reasons are required to be given, the obligation is to give appropriate reasons having regard to the circumstances of the case”. Further, those reasons can sometimes be inferred from other material (see R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 at [35]). I also agree that reasons do not need to be lengthy or deal with every single point (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC at 295 [170]).[40]In my judgment, however, the reasoning given must be sufficient to identify, at least, the basis for the Board’s conclusion. Even taking into account its interim report, the Board fails to give any explanation at all as to what it is about the Claimant’s condition or circumstances which mean that his uninjured earnings capacity is now fairly to be represented by the earnings for the two jobs suggested by the Defendant.[41]Mr Lock argues that what the Board should have done was to use the Claimant’s police earnings as the starting point for the calculation of the uninjured earning capacity. Mr Lock refers to Home Office guidance on this topic which includes at paragraph 11 the following “there would then need to be a direct comparison between the person’s earnings when employed as a police officer and the potential earnings in an outside job.”[42]The task for the Board is to assess what the pensioner would have been capable of earning if he had not suffered the injury in question. Since all the claimants appearing before the Board previously worked as police officers, and since the precondition for a claim to an injury award is the fact that the Claimant suffered an injury on duty, the previous police earnings must, it seems to me, at least feature in the Board’s analysis.[43]It may well be that there is evidence to suggest, in a particular case, that police earnings do not fairly represent the pensioner’s current earning capacity if he had not suffered the injury on duty under consideration. The pensioner may have suffered other injuries, or may have acquired other skills, or lost skills he previously displayed, so that his earning capacity, had he not suffered the duty injury, would not fairly be represented by earnings in the police. But absent circumstances such as that, what the pensioner previously earned in the police must at least be a relevant consideration in determining his uninjured earning capacity.[44]Furthermore, if the Board is going to disregard the police earnings in reaching its assessment, then in my judgment, it must explain why it is doing so. Given the nature of the cases that come before it, it is not open to the Board simply to disregard previous police earnings without explanation. It appears to me that that is what they have done on the facts of the present case. On these grounds alone the approach of the Board was flawed and this decision cannot stand.

The second ground - Use of inappropriate “comparator jobs”

[45]By this ground, the Claimant attacks the comparator jobs used by the Board in calculating his injured earning capacity. It is pointed out that the Claimant lives in Morpeth, Northumbria. It is argued that his current earning capacity is the salary he would be able to secure, working in the role of which the Board says he is capable, within a reasonable commute of his home in Morpeth.[46]In my judgment that argument is hopeless. The test provided by Regulation 7(5) is the degree to which the pensioner’s earnings capacity has been affected as a result of the injury. The concept of “earning capacity” in the regulations imports no element of earning prospects and warrants no allowance for market conditions. As Ouseley J said in R (South Wales Police Authority) v Medical Referee (Dr Anton) [2003] EWHC 3155 Admin at paragraph 42:
“The task in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would pay him to do what he is capable of doing, whether or not in competition with other workers. ”
[47]Mr Lock argues that analysis cannot survive the judgment of Laws LJ in R (Metropolitan Police Authority) v Laws [2010] EWCA Civ 1099. The claimant in that case, Ms Laws, was arguing that the fact that she had obtained a law degree should be left out of accounts in determining the injured earnings comparator. On the appeal to the Court of Appeal, Laws LJ said this: “27 [The judge] has approached Regulation 7(5) as if it meant that the pensioner's earning capacity is fixed, unaffected by anything save the duty injury. That would be highly artificial, and is not what the Regulation contemplates. Its terms allow for the obvious possibility that the pensioner's earning capacity may vary from time to time by force of external factors (and of course one pensioner's earning capacity will differ from another's). Objectively, the extent to which a pensioner remains disabled from work by reason of a duty injury must be capable of being affected by the acquisition of new skills. The question under 7(5) then is, what is the impact of the duty injury on the pensioner's earning capacity as the SMP/Board find it on the facts before them. I have some sympathy with the view, forcefully urged by Mr Nugee, that if matters such as his client's law degree were taken into account, there would be a “disincentive to acquiring new skills” (skeleton argument paragraph 7.3). But the regime is designed to meet objective need; and Burton J in Turner was surely right to observe at paragraph 23 that “[b]y virtue of Regulation 7(5) that would include a scenario in which the degree of the pensioner's disablement had altered by virtue of his earning capacity improving… 28. [T]he claimant will enjoy the benefit of the 2005 review until her case is reviewed again under regulation 37(1) of the 2006 Regulations. The issue as to the claimant's law degree will not be a determinant of the appeal's result but the impact of her law degree will fall to be considered on any such further review. I would venture the opinion that, unless there are then further facts now unknown to us, its impact is likely to be modest. While of course her gaining the degree demonstrates a level of intellectual ability as well as determination on the claimant's part, unless it has concrete results in terms of actual job prospects (and the degree is not, of course, a professional qualification) its effect on her earning capacity seems to me to be largely speculative”.[48]In my judgment, that observation is wholly consistent with the approach of Ouseley J in Anton. The court in Laws was concluding that the obtaining of a new academic qualification did not of itself affect earning capacity. That is plainly right. But the reference to a degree not affecting earning capacity unless it has “concrete results” in terms of actual job prospects does not import into the test for earning capacity the requirement of availability of work in the location where the Claimant lives. A degree is potentially relevant to earning capacity, but only if it widens the range of work an employee can perform. That is the concrete results to which Laws LJ was referring. It does not mean that because a Claimant chooses to live in an area where there are no jobs of the sort for which he is suited that he can claim his earning capacity is zero.[49]In those circumstances, it cannot be said that the Board was not entitled to adopt the approach they did to this issue. The second ground must fail.

The third ground – Use of a “midpoint salary”

[50]Mr Lock argues on behalf of the Claimant that because he had not been in employment since his compulsory retirement from the police he would have only been able to secure a full time administrative role as a new employee. Accordingly the panel erred, he says, in adopting the midpoint salaries proposed by the Defendants for injured earnings capacity.[51]In my judgment that argument too is misconceived. The salaries identified by the Defendants in response to the panel’s request provided a range of earnings for each of the two roles identified. There was nothing to suggest that someone newly employed in one of the roles was bound to commence work at the bottom of the range. On the contrary, it seems to me highly likely that a former police officer of the Claimant’s age and with the Claimant’s previous experience of police work, would be in a position to secure employment at the salary in the middle of the relevant range.[52]But that issue is not, in the first instance, a matter for me. The issue I have to decide is whether the Board were entitled, on the evidence before them, to reach such a conclusion. In my judgment they plainly were so entitled. Ground Three must also fail.

The fourth ground – Backdating the decision to February 2015

[53]As Mr Lock correctly asserts, the key question under ground four is whether a decision of a Board to reduce a former officer’s pension banding takes effect from the date of that decision or from the date of the SMP’s decision, which in this case was 18 months earlier. Although there are observations on this issue in decisions of the Pension Ombudsman, there is no case law precisely on the point.[54]Both parties, however, refer to the decision of the Court of Appeal in R (McGinley) v Schilling [2005] ICR 1282. In that case the police authority referred the question of the degree of disablement to a SMP. The officers concerned appealed to medical referees against the degrees of disablement found by the SMPs. On appeals by the police authority the court held that an appeal to a medical referee under the 1987 Regulations was a full reconsideration of the matter taking account, but unconstrained by, the decision of the SMP and that the medical referee was required to determine the officers’ degree of disablement as at the time at which he was making the determination, not the time of the medical practitioner’s certificate.[55]It follows that the focus of that decision was on whether the effect of the injury should be addressed on appeal by the medical referee taking account of evidence as at the date of his decision. In my judgment, that decision says nothing directly about the date on which a change to the pension should take effect. In paragraph 46 of his judgment in McGinley, May LJ said that Regulation L3 of the 1987 Regulations (the predecessor to Regulation 43 under the 2006 regulations) provides for the pension to be paid from the date of retirement but “there is no necessary link…..between the decision of the medical practitioner or the medical referee and that date.”[56]However, if it is right that appeals are to be conducted on the basis of current evidence, and if it is right that current evidence can result in a change to the level of pension, it seems to me necessarily implicit in the scheme of the regulations that the date on which the changed pension is to take effect is the date of the appeal. It would be odd in the extreme if an appeal were to be decided on the basis of evidence of recent change in disability, yet the altered pension were to run from some earlier date. In my judgment it must be inherent in the scheme that the altered pension should take effect on the date when it is recognised that altered circumstances justify a change in pension.

Conclusions

[57]In those circumstances the first and the fourth ground of challenge must succeed and the second and third must fail.[58]I will hear submissions from Counsel on the appropriate relief but my preliminary view is that, as to ground one, it would be appropriate for me to remit the matter to the Board to determine the appropriate new pension in the light of the judgment I have given.[59]In consequence of the Claimant’s success on ground four, the decision of the Chief Constable to seek to back date the reduction in pension must be quashed. Any alteration, as determined by the Board in the light of my decision on ground one, must run from the date of the Board’s decision.

Cited in 2 later judgments