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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 (13 October 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1099.html Cite as: [2011] ICR 242, [2010] EWCA Civ 1099 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MRS JUSTICE COX) CO/6062/2009
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUNBY
and
LADY JUSTICE BLACK
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Metropolitan Police Authority |
Appellant |
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- and - |
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Belinda Laws |
Respondent |
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- and - |
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Police Medical Appeals Board |
Additional Party |
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Mr Christopher Nugee QC and Mr David Lock (instructed by Lake Jackson) for the Respondent
Mr Simon Butler (instructed by Police Medical Appeals Board) for the Additional Party
Hearing dates : 10 June 2010
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Crown Copyright ©
Lord Justice Laws :
INTRODUCTION
THE REGULATIONS
"11(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').
11(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..."
The meaning of "permanently disabled" is given by Regulation 7:
"(1)... [A] reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision, and to that disablement, being, at that time, likely to be permanent...
(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."
"30(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 authority.
(2)... [W]here the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them, the following questions: (a) whether the person concerned is disabled; (b) whether the disablement is likely to be permanent...; and, if they are 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.
...
(6) 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 [regulation] 31..., be final."
"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... be final".
Finally, Regulation 37(1) provides:
"Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police 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 authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly".
THE FACTS
"Dr Porritt noted that there were now co-existing conditions of lower back pain, irritable bowel syndrome, and fibromyalgia, or chronic fatigue syndrome. She also noted that the claimant had completed a law degree on a part time basis and she concluded that the claimant was now capable of working 75 per cent of normal hours, that is 30 hours per week. Three comparative jobs were put forward by the MPA which, on a reduced hours basis, led Dr Porritt to assess the claimant's degree of disablement at 25 per cent."
On 1 October 2008 the claimant appealed to the Board against this assessment. The appeal was heard on 4 March 2009. The Board questioned Dr Porritt as to the change in her assessment from 85% (2005) to 25% (2008), and reported her answers as follows:
"She [sc. Dr Porritt] also mentioned that Ms Laws suffered from multiple pains; other medical factors had been suggested by the consultant neurologist, including chronic fatigue/fibromyalgia syndrome as well as irritable bowel syndrome.
The SMP was challenged over her previous assessment in 2005 when she had left the appellant with a degree of disablement of 85%. She reported that this was early in her career with the Metropolitan Police Service. At that time she had been advised that if the clinical disablement had remained unchanged, there was no need for her to alter the degree of disablement.
Since that time, however, there had been a significant change in the overall review process of all ill-health retirements and degree of disablement assessments. In the review process a much more robust approach is taken and in each and every case a job comparison study is undertaken.
It was pointed out that degree of disablement is fundamentally related to the impact upon earnings capacity, rather than the clinical condition per se."
The Board dismissed the claimant's appeal on 17 March 2009.
THE BOARD'S DECISION
"The task for the Board in this case is to assess the current impact upon earnings of the index event of 11/10/97 and then determine the degree of disablement as defined in the Regulations."
The Board noted that the claimant had not been in paid work since her retirement, and that she had obtained a law degree in July 2008. They described central aspects of the medical case, as the Board saw it, and expressed their conclusions as follows (pp. 9 – 10):
"In October 1997 the RIDDOR report indicated that she suffered an injury to her right thumb and left shoulder.
When questioned about the index event Ms Laws reported an injury to her left thumb and left shoulder, describing how she suffered the injury, whilst handcuffing a suspect, who was being held on the floor by another officer.
The inconsistency between the recorded event and the appellant's current account raises doubt as to the severity of that injury. The Board noted that the contemporaneous records merely indicate a slight soft tissue injury.
The level of reported functioning is inconsistent with the injury. There is evidence of marked illness behaviour, with widespread body pain and symptoms unrelated to the incident and not supported by clinical findings.
The report from a consultant neurologist (October 2008) and that of the SMP, are consistent with the Board's finding of no organic pathology. The Board note the co-existence of unrelated psycho-physical symptoms, in the form of the suggested diagnoses of chronic fatigue syndrome/fibromyalgia/IBS. The presence of these features requires a bio-psycho-social rehabilitation plan be put in place to enable her to return to work.
Functionally, she reports being able to walk, stand, sit and drive for periods of between 15 and 30 minutes. She is able to fully self-care and requires no assistance in this regard. She describes her memory and concentration as good.
From a competency point of view, she has a degree and therefore arguably she is capable of undertaking the roles put forward by the Police Authority, in terms of the administrative tasks required. It is however accepted that she may require adjustments in the work place but these would be in keeping with requirements under disability legislation.
Taking her level of functioning in the round, the Board consider she is capable of at least the 30 hours suggested by the SMP.
...
From questioning the appellant, it is clear that there has been a significant improvement since 1998, and it is manifestly clear that the argument that her condition has not improved is not sustainable.
...
Taken in the round the Board conclude that the appellant is capable of working 30 hours per week and has the competencies to carry out the roles put forward. No other roles have been suggested by the appellant."
And so the appeal was dismissed.
THE FIRST GROUND OF APPEAL: CONSTRUCTION OF THE REGULATIONS
"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."
"21... It is important from the point of view of disputes such as pension entitlement that a decision once made should be final if at all possible, and that is what is provided for by these Regulations... [I]t 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."
In view of further points in the case, to which I will come, it is convenient also to set out paragraph 23 of the decision in Turner:
"23. [Having referred to the decision of Ouseley J in Crocker [2003] EWHC Admin 3115 and Regulation 7(5)] It is apparent, therefore, that in considering questions of disablement earning capacity is important, but... Crocker... 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 defendant 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 alteration or change after 'such intervals as may be suitable'. There is no question of relitigation and, of course, 'suitable intervals' suggests that this is not a matter which should be revisited every year, nor is it."
"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".
THE THIRD GROUND OF APPEAL: RE-OPENING EARLIER FINDINGS
THE FOURTH GROUND OF APPEAL: THE CLAIMANT'S LAW DEGREE
THE FIFTH GROUND OF APPEAL: NUMBER OF HOURS WHICH THE CLAIMANT COULD WORK
THE SIXTH GROUND OF APPEAL: REMEDY
CONCLUSION
Lord Justice Munby
Lady Justice Black: