“an entirely fresh assessment of the claimant’s degree of disablement and its causes, rather than directing their minds, as required by the Regulations, to whether her degree of disablement had substantially altered since the last review in 2005.” 12. The correctness or otherwise of the construction adopted by the judge is the first issue in the appeal. The strict point of interpretation involved depends on the relation between regulations 30(6) and 31(3) on the one hand, and regulation 37(1) on the other. As I have shown, regulation 30(6) provides that the decision of the SMP on the question or questions referred to her shall be final (and regulations 31(3) makes like provision in relation to the board’s determination of an appeal from the SMP). Accordingly, so the judge held, the SMP’s decision is not to be revisited save on an appeal under regulation 31 (or, it should be added, on a judicial review, if that were ever appropriate). The board’s determination on a regulation 31 appeal can only be revisited by judicial review, Regulation 37(1) then provides for periodic review at which the authority is to consider “whether the degree of the pensioner’s disablement has altered”
“28. It is clear from these provisions that each determination of the SMP, or on appeal by the board, is to be treated as being final. Thus, where an injury pension has been reassessed under regulation 37 and a decision has been made by the SMP concerning the degree of the recipient’s disablement at that date, that decision is final for all purposes, subject to the continuing duty, periodically, to reassess the pension under regulation 37. 29. While the [authority] clearly had a duty under regulation 37 to carry out from time to time further reviews of this claimant’s injury pension, they could only revise her pension if the SMP on referral, or the board on appeal, concluded that the claimant’s degree of disablement, as defined by regulation 7(5), had substantially altered since the last review.” 13. The judge’s decision was influenced … by the earlier judgment of Burton J in R (Turner) v Police Medical Appeal Board[2009] EWHC 1867 (Admin) at [21], where this was said: “It is important from the point of view of disputes such as pension entitlement that a decision by these Regulations … it is clearly fair both for the police force and for the community that someone who starts out on a pension on the basis of a certain medical condition should not continue to draw a pension, or any kind of benefit, which is no longer justified by reason of some improvement in his condition, or, of course, the reverse.”
“It is apparent, therefore, that in considering questions of disablement earning capacity is important, but … the South Wales Police Authority case … would not justify starting from scratch in relation to earning capacity, because in the present case what is posed under regulation 37 is the degree if any to which the pensioner’s disablement has altered. By 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 … Mr Lock accepts that if there is now some job available which the [pensioner] would be able to take by virtue either of some improvement in his condition or in the sudden onset of availability of such a job then that would be a relevant factor. But it would all hang on the issue of alternation or change after “such intervals as may be suitable”
“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. In my judgment, then, the judge below was right to construe the 2006 Regulations as she did. Burton J’s reasoning in para 21 of Turner’s case, which encapsulates the same approach, is also correct. 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. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the 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.” “an entirely fresh assessment of the claimant’s degree of disablement and its causes, rather than directing their minds, as required by the Regulations, to whether her degree of disablement had substantially altered since the last review in 2005.” “28. It is clear from these provisions that each determination of the SMP, or on appeal by the board, is to be treated as being final. Thus, where an injury pension has been reassessed under regulation 37 and a decision has been made by the SMP concerning the degree of the recipient’s disablement at that date, that decision is final for all purposes, subject to the continuing duty, periodically, to reassess the pension under regulation 37. 29. While the [authority] clearly had a duty under regulation 37 to carry out from time to time further reviews of this claimant’s injury pension, they could only revise her pension if the SMP on referral, or the board on appeal, concluded that the claimant’s degree of disablement, as defined by regulation 7(5), had substantially altered since the last review.” “It is important from the point of view of disputes such as pension entitlement that a decision by these Regulations … it is clearly fair both for the police force and for the community that someone who starts out on a pension on the basis of a certain medical condition should not continue to draw a pension, or any kind of benefit, which is no longer justified by reason of some improvement in his condition, or, of course, the reverse.”
“It is apparent, therefore, that in considering questions of disablement earning capacity is important, but … the South Wales Police Authority case … would not justify starting from scratch in relation to earning capacity, because in the present case what is posed under regulation 37 is the degree if any to which the pensioner’s disablement has altered. By 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 … Mr Lock accepts that if there is now some job available which the [pensioner] would be able to take by virtue either of some improvement in his condition or in the sudden onset of availability of such a job then that would be a relevant factor. But it would all hang on the issue of alternation or change after “such intervals as may be suitable”