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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Simpson, R (on the application of) v Police Medical Appeal Board & Ors  EWHC 808 (Admin) (21 February 2012)
Cite as:  EWHC 808 (Admin)
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QUEEN'S BENCH DIVISION
Leeds Combined Court
1 Oxford Row
B e f o r e :
| THE QUEEN on the application of SIMPSON
|- and -
(1) POLICE MEDICAL APPEAL BOARD
(2) SECRETARY OF STATE FOR THE
(3) NORTHUMBRIAN POLICE AUTHORITY
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr O Sanders (instructed by Treasury Solicitors) appeared on behalf of the Second Defendant.
Crown Copyright ©
Mr Justice Supperstone:
"Northumbria Police can identify no cogent reason why we should not advise you (in your role as SMP) to place former Constable Simpson in the lowest band of Degree of Disablement. As a result we would like to draw your attention to the question and recommendation below.
In line with Police Injury Benefit Regulations 2(d), could you please confirm the degree of the former officer's disablement.
That in your assigned role as Selected Medical Practitioner you should place former Constable 1516 Simpson in the 0-25% Degree of Disablement banding on the grounds that he has reached State Pension Age and no longer has an earnings capacity for the purposes of the Police Injury Benefit Regulations."
"Further to Northumbria Police's referral letter, I reviewed the degree of disablement of the above named ex-officer in my capacity as Selected Medical Practitioner. I note that I am only asked to consider the non-medical question of 'Degree of Disablement' and am therefore precluded by the Police Pension Regulations from reviewing the questions of permanent disability, medical cause(s) and the relationship of these to an injury on duty.
I am advised that the Pensioner has reached State Retirement Age and therefore, in accordance with the Regulations, the Pensioner 'no longer has an earnings capacity for the purposes of the Police Injury Benefit Regulations'. Northumbria Police has also determined that there is no 'cogent reason' why the Pensioner should not therefore be considered to have 0% loss of earnings capacity as a consequence of their injury, and should be placed in the 0-25% Degree of Disablement banding.
I confirm that the above recommendations are consistent with Regulations. I attach a revised Statement of Injury."
All 79 reviews were conducted by Dr Broome as a paper exercise.
"(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.
"1. A gratuity under regulation 11 shall be calculated by reference to the person's degree of disablement and his average pensionable pay and shall be—
(a) in the case of a police officer all of whose service by virtue of which his pensionable service is reckonable was full-time, the amount specified as appropriate to his degree of disablement in column (2) of the Table in paragraph 3;
3. An injury pension shall be calculated by reference to the person's degree of disablement, his average pensionable pay and the period in years of his pensionable service, and, subject to the following paragraphs, shall be—
(a)in the case of a police officer all of whose service by virtue of which his pensionable service is reckonable was full-time, of the amount of his minimum income guarantee specified as appropriate to his degree of disablement in column (3), (4), (5) or (6) of the following Table
|Degree of disablement||Gratuity expressed as % of average pensionable pay||Minimum income guarantee expressed as % of average pensionable pay||Minimum income guarantee expressed as % of average pensionable pay||Minimum income guarantee expressed as % of average pensionable pay||Minimum income guarantee expressed as % of average pensionable pay|
|Less than 5 years' service||5 or more but less than 15 years' service||15 or more but less than 25 years' service.||25 or more years' service.|
|25% or less (slight disablement)||12.5%||15%||30%||45%||60%|
|More than 25% but not more than 50% (minor disablement)||25%||40%||50%||60%||70%|
|More than 50% but not more than 75% (major disablement)||37.5%||65%||70%||75%||80%|
|More than 75% (very severe disablement)||50%||85%||85%||85%||85%|
"(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.
(4) Subject to paragraph (5), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force except that, in relation to the child or to the widower or surviving civil partner of a woman member of a police force, it means inability, occasioned as aforesaid, to earn a living.
(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.
"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) Subject to paragraph (3), where 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,
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, a final decision of a medical authority on the said questions under Part H of the 1987 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—
whether the disablement is the result of an injury received in the execution of duty, and
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 regulations 31 and 32, be final."
(1) 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."
Regulation 43(1) provides,
"(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."
The Guidance on Medical Appeals (section 5, paragraph 6) states:
"For the purposes of police injury awards 'degree of disablement' means the extent to which a medical authority (ie the selected medical practitioner (SMP) or, on appeal, a medical referee) assesses a person's earning capacity has been affected by the relevant injury. The link with earnings is necessary because injury pensions are based on a system of 'minimum income guarantee' designed to bring total income in retirement up to a certain level."
Annex C to the Guidance bears the heading "Home Office Guidance for Forces on Reviews of Injury Awards". By way of introduction it states:
"This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force."
Under the heading "Review of Injury Pensions once Officers reach Age 65" it states:
"Once a former officer receiving an injury pension reaches the age of 65 they will have reached their State Pension Age irrespective of whether they are male or female. The force then has the discretion, in the absence of a cogent reason otherwise, to advise the SMP to place the former officer in the lowest band of Degree of Disablement. At such a point the former officer would normally no longer be expected to be earning a salary in the employment market.
A review at age 65 will normally be the last unless there are exceptional circumstances which require there to be a further review."
The Medical Appeal Guidance is in substantially the same form as the Guidance. Paragraph 20 of section 5 of the Guidance on Medical Appeals provides:
"Once a former officer receiving an injury pension reaches the age of 65 they will have reached their State Pension Age irrespective of whether they are male or female. The force then has the discretion, in the absence of a cogent reason otherwise, to advise the SMP to place the former officer in the lowest band of Degree of Disablement."
"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 actually pay him to do what he is capable of doing, whether or not in competition with other workers.
"6.1 Regulation 37 of the PIBR 2006 requires police authorities to consider whether the degree of the pensioner's disablement has altered at such intervals as may be suitable and, if after such consideration the police authority finds that the degree of the former officer's disablement is substantially altered, to revise the award accordingly. ...
6.2 The question for determination upon such a review is whether there has been a change since the original decision (or last review) which has had the effect of altering the degree of disablement. It is not open to the SMP/PMAB to reach a different decision in relation to the fact of disablement, whether the disablement is likely to be permanent or whether the disablement resulted from a duty injury. In assessing degree of disablement by reference to the effect of an injury on earning capacity, as a prelude to assessing whether there has been an alteration, it is standard practice to compare assumed earning capacity 'but for' the injury, on the one hand, with actual earning capacity post-injury, on the other. This brings in the relevant guidance which is concerned with the choice of a comparative figure for assumed or 'but for' earnings capacity.
6.3 This is inevitably a hypothetical exercise but the Home Office considers it fundamental that what matters most is how much the individual could have been expected to earn 'but for' the injury and that this should be taken to indicate earning capacity. This rests on an assessment of what the individual would have been earning in reality and not what they could have been earning in theory. It would be artificial and unreal in the extreme to disregard the fact that someone has reached an age (in this case the Claimant is now 76 years old) at which he or she would have retired regardless of the duty injury."
"7.6 The relevant guidance suggests no more than that the following working assumptions can reasonably be made when the SMP or PMAB is assessing degree of disablement by reference to the degree to which the relevant person's earning capacity has been affected:
(1) until the age when the individual would have been compulsory retired from the police service ("CRA") it can be assumed that he or she would have remained in the service 'but for' the duty injury, and his or her earning capacity can therefore be assessed by reference to his or her police pay;
(2) from CRA onwards it can be assumed that the individual would no longer have been in the police service 'but for' the duty injury, and his or her earning capacity can therefore be assessed by reference to the average earnings of a person in his or her age group;
(3) From state pension age ("SPA") it can be assumed that the individual would no longer be in gainful employment 'but for' the duty injury, and his or her earning capacity can therefore be assessed as nil.
7.7 Each of these assumptions is expressly amenable to rebuttal by way of a cogent reason. In relation to assumption (1), for example, it would be open to the individual to show that he or she had intended to leave the police service well before compulsory retirement age and take up more highly paid employment elsewhere. The relevant guidance therefore seeks simply to offer a framework and structure for the assessment of these matters and thereby to help promote consistency of approach, while making it clear that the PIBR 2006 take primacy and must be followed, the proposed assumptions may not apply and each case must be considered on its own individual merits."
"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 by these Regulations. But causation questions having been put aside, 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.
23. It is apparent, therefore, that in considering questions of disablement earning capacity is important, but, of course, Crocker would not apply straightforwardly to the present case. It 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. To that extent, therefore, the approach by the SMP, had it been justifiable, which it was not because it had been overturned on appeal by the PMAB, would have been relevant. 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."
"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 pensioner'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. In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J's reasoning in paragraph 21 of Turner, 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.
"...following the decision of the Administrative Court dated 12 November 2009 in R(Laws) v PMAB  EWHC 3135 Admin, (which did not bear directly on the issues raised in this case) all further use of the relevant guidance was in effect suspended by way of interim guidance issued in early 2010. This interim guidance was promulgated by way of a letter from Mr Gilbert dated 10 March 2010. ... In short, it was announced that the review of the relevant guidance had been suspended pending the outcome of the appeal to the Court of Appeal in the Laws case and that police authorities should defer any further injury benefit reviews under the PIBR 2006, except in cases involving the deterioration of a condition."
"Our review of the relevant guidance was revived following the Court of Appeal decision in Laws dated 13 October 2010 ( EWCA Civ 1099) and revised draft guidance was circulated by the PMAB and other stakeholders under cover of a letter from me dated 7 January 2011 which included the following. ...
'The guidance issued under HO Circular 46/2004 has attracted significant comment, including criticism by former officers and those representing them, who felt that the guidance was the catalyst for some Police Authorities reducing a number of injury pensions when individuals had reached or beyond age 65. Our aim in this draft revised guidance, as it was with the original guidance, is to encourage greater transparency in this process and consistency, providing the framework within which Police Authorities and Forces might carry out injury award reviews. Clearly, notwithstanding guidance from the Home Office, the duty and power to conduct such reviews under the 2006 Regulations remains very clearly the discretion of the relevant Police Authority. The draft revised guidance provides a firmer framework for forces to conduct reviews, with an emphasis on:
- each case being treated individually and on its merits;
- the rights of the former officer at review;
- transparency over the process by which a medical practitioner reviews the degree of disability and any change in earnings capacity;
- a review not being completed solely on papers if there has been any significant change in circumstances which is likely to lead to a change in banding of the degree of disablement, ie any change in the level of the award;
- the police authority considering whether there are particular exceptional reasons not to review a former officer, particularly where a modest income level is involved (ie to avoid hard cases);
- clarity of process, particularly where the police authority intends to carry out any further review after age 65."
"9.11 I have not exhibited a copy of the proposed draft guidance attached to my letter because we have since received various comments on it, our thinking has moved on and the text is no longer current. (I understand the claimant's advisors already have a copy in any event). As things stand, our review of the relevant guidance has been suspended again pending the outcome of these proceedings. I do not think it relevant to outline where our thinking had got to on the relevant guidance prior to the suspension of the review following the grant of permission on 1 December 2011. At that point, it was still our intention to address the subject matter of the relevant guidance in some way but we had not yet re-consulted on any advised draft guidance and we will now have to revisit the topic in the light of the Court's ruling in this case in any event. Should it appear that repeated legal challenges and uncertainty are likely to continue in this area, one possible option is the withdrawal of the relevant guidance and the abandonment of any attempt to give central guidance on the topic."
MR LOCK: I am grateful for your Lordship's judgment; I am particularly grateful – I know my learned friend is as well – that your Lordship was able to produce it so quickly.
My Lord, the only other matter is the questions of costs and costs clearly follow the event and, following that, the only question is whether your Lordship would be comfortable in ordering an interim payment on those costs. Your Lordship will appreciate this matter has been somewhat protracted, including going up to the Court of Appeal, where we have an order for costs. Our costs are in the region of £50,000 because we are on a conditional fee agreement. My Lord, I am afraid it is a high success fee, but this was not a case where, when we started it, it was not the equivalent of a road traffic accident for a passenger; it was a matter of considerable complexity and considerable uncertainty. Therefore I would ask for our costs.
MR JUSTICE SUPPERSTONE: Do you ask for them to be assessed if not agreed with an interim payment?
MR LOCK: Yes. There are two issues. One is the basis - I do ask for my costs on an indemnity basis. The reason I ask for indemnity basis is that, as my learned friend raised yesterday before you, we have repeatedly attempted to persuade the Home Office to accept the logic of the position and they have dragged us to a hearing on the basis that the Guidance was defensible on either the narrow or the wider basis, neither of which, as I understand your Lordship's judgment, has been accepted today. Therefore repeated attempts to try to resolve this matter have failed. I ask for an interim payment of about 50 per cent of the amount. There is a schedule if your Lordship is minded, but given the complexity of the issues I trust your Lordship will not think that, particularly on a CFA case, the sums are out of kilter and I ask for an interim payment of £30,000.
MR JUSTICE SUPPERSTONE: Mr Sanders, first of all costs.
MR SANDERS: I accept that we have to pay costs, my Lord. First of all, I should echo Mr Lock's gratitude to you for producing the judgment so quickly, which will assist the Home Office in moving forward from here.
MR JUSTICE SUPPERSTONE: Thank you. I understand there is no shorthand writer in court so I think my clerk has informed you that I am content for what I have read out to be sent to you on the basis that that is not the approved judgment.
MR SANDERS: I fully understand the caveat but we are grateful for that. In terms of costs, there are really two issues. One is whether the costs should be on an indemnity basis which does not nowadays make as much difference as it once did. My response to that would be that if were to have to pay indemnity costs because we lost the judicial review, it would follow in every judicial review. The fact that we defended the Guidance is neither here nor there. The difficulty that we always face with agreeing a consent order to quash or accept unlawfulness of certain parts of the Guidance, it would leave open the question as to the depth at which unlawfulness had been established.
MR JUSTICE SUPPERSTONE: I think it became clear during the course of submissions yesterday that the fundamental issue to be determined is not so much the wording of this Guidance. I am not suggesting that any concessions were made there. The fundamental issue is as to whether any different approach should be adopted for those 65 and over.
MR SANDERS: My Lord, yes, and simply settling a consent order would not resolve that. Obviously I accept that we have been unsuccessful in defending the Guidance but that should not lead me to indemnity costs in my submission.
In terms of interim payment on account, of course we would not oppose that in principle. I would oppose the amount. I think that when it comes to detailed assessment there will be an issue about the success fee that has been claimed in this case. What I would propose is 50 per cent of the base costs that are claimed in the schedule.
MR JUSTICE SUPPERSTONE: What is that figure?
MR SANDERS: It is around £50,000.
MR LOCK: I have various pages here that I have not considered in detail. £52,000 is the bottom line on page four.
MR SANDERS: I think the un-uplifted amount would be about £30,000 on that basis so I would accept an interim payment of £15,000.
MR JUSTICE SUPPERSTONE: As a matter of interest, how long should it take to get costs assessed in a case such as this, if it goes to assessment?
MR SANDERS: I have no idea, my Lord.
MR LOCK: I think in practical terms what tends to happen is this, that if a realistic interim payment is set there is then a negotiation and somewhere between the sum claimed and the interim payment matters are generally agreed. Therefore the answer is that assessments are quite rare. Having said that, my understanding is that you have three months in which to issue your bill for assessment and then it can take up to nine months to actually go through the detailed assessment. Sometimes in cases bills are issued and then there is a settlement. That is the way it works.
On the indemnity point, my Lord, all I say is this, that if the Home Office wanted to come here to test what was a sub-issue, that they accepted that the Guidance was essentially in its rigidity unlawful but they really wanted to test the sub-issue as to how deep it goes, that is fine, but my client should not have to pay any part of that, bearing in mind the difference between full costs and recovered costs is a cost that my client will have to pay and in effect, therefore, concessions should have been made to narrow the issues and they were not. My client should not be left with, in effect, the public policy argument between the court and the Home Office determining precisely as to how wide they deviated from what was acceptable.
MR JUSTICE SUPPERSTONE: Your client chose to continue with this claim - I am not criticising your client for one moment – against the second defendant in circumstances where he had been restored to his original band. So it was always a public issue claim after that.
MR LOCK: Yes, but it would have been perfectly proper for the Home Office to say that we accept the original Guidance was improperly worded. It could not be defended; we will go away and produce fresh guidance which we think sets the right approach. They may well have made a mistake even then judging by Mr Spreadbury, but they would have made less of a mistake than they did under the original Guidance they were trying to defend. That is the first point.
The second point as far as quantum is concerned, logically I do not think the amount of work undertaken at the base cost of £30,000 is going to be substantially reduced and I cannot see that it could be said at any point that this was a claim run only on a CFA – could only be run on a CFA – where a substantial uplift was not entirely appropriate. Therefore in terms of making an assessment of setting a point which, on any view will be less, will not be greater than the amount covered on assessment which is in principle why interim costs are there, to help narrow the gap and assist. The approach that my learned friend takes, which I think would produce an interim payment of about £15,000 to £20,000, sets the bar far too low and I have asked for £30,000 against a £50,000 bill and submit that, roughly speaking, that is the approach I would like your Lordship to take. Otherwise it assumes that effectively this was a case with no risk and it was not. It was not, apart from anything else, because judicial review is always a discretional remedy and your Lordship was urged at the end yesterday not to exercise the discretion and if your Lordship had acceded to that no doubt there would have been an argument, that in the absence of a proper remedy costs should not flow. That is how I invite your Lordship to approach it.
MR SANDERS: Your Lordship, on the question of costs and in terms of assessment, there is a live issue about the amount of costs because this is a case where – I am not casting any aspersions on Mr Simpson's advisers – the same argument has been run several times in several sets of proceedings, most notably in Crudace and so therefore there is an issue as to whether or not costs claimed for skeleton arguments and preparation and so on claimed in this case are justifiably claimed in terms of the amount because they have been claimed in other cases along the way.
MR JUSTICE SUPPERSTONE: Mr Lock would say that he has done all this work answering your submissions in this case.
MR SANDERS: I am sure that component of the work absolutely, but in terms of the skeleton argument itself it is an argument which has been run several times and there were several cases where it failed at the permission stage.
MR JUSTICE SUPPERSTONE: I understand.
MR SANDERS: So there are live issues about taxation.
MR JUSTICE SUPPERSTONE: Thank you both very much. Costs to be paid by the second defendant to claimant, to be assessed if not agreed; no indemnity costs; interim payment of £20,000.
MR LOCK: Would your Lordship wish me to draft an order?
MR JUSTICE SUPPERSTONE: Would you do that, Mr Lock?
MR LOCK: Of course.
MR JUSTICE SUPPERSTONE: Thank you very much. Thank you both again for very interesting submissions.
MR SANDERS: I have one other matter. I should ask you for permission to appeal. I am not saying necessarily that the Secretary of State would wish to do that, but it is an issue of general importance that does have a potential policy impact and therefore, in order to get this out of the way, I ask you for permission to appeal.
MR JUSTICE SUPPERSTONE: I quite understand but no, you will have to go elsewhere, Mr Sanders.
MR SANDERS: Thank you.
MR JUSTICE SUPPERSTONE: Thank you both very much.