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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Boskovic, R (On the Application Of) v Chief Constable of Staffordshire Police [2018] EWHC 14 (Admin) (12 January 2018)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/14.html
Cite as: [2018] EWHC 14 (Admin), [2018] ICR 1020, [2018] WLR(D) 17

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Neutral Citation Number: [2018] EWHC 14 (Admin)
Case No: CO/6424/2016

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER

Royal Courts of Justice
Strand, London, WC2A 2LL
12/01/2018

B e f o r e :

MR JUSTICE KERR
____________________

Between:
THE QUEEN on the application of COLENE BOSKOVIC
Claimant
- and -

CHIEF CONSTABLE OF STAFFORDSHIRE POLICE
Defendant

____________________

Mr David Lock QC (instructed by Haven Solicitors) for the Claimant
Mr Jonathan Holl-Allen (instructed by Chief Constable of Staffordshire Police) for the Defendant

Hearing date: 31st October 2017

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Kerr:

    Introduction

  1. The claimant, now aged 45, is a former police officer who was discharged from the defendant's police force in 2002 after being certified as permanently unfit for duty by reason of disablement consisting of psychiatric injuries. A selected medical practitioner (SMP) at the time decided that the injuries had not been caused or substantially contributed to by an injury sustained in the execution of her duties.
  2. The defendant therefore decided that she was not entitled to an injury award under the relevant regulations in force at the time, the Police Pensions Regulations 1987 (the 1987 Regulations). The relevant regulations now are the Police (Injury Benefit) Regulations 2006 (the 2006 Regulations). The claimant appealed at the time, but withdrew her appeal and went to live in Cyprus for about three years, returning in 2006.
  3. In late 2015, she asked the defendant to agree to the issue of causation of her disability to be referred back to the SMP for reconsideration. There is a provision in the 2006 Regulations (regulation 32) permitting this to happen by agreement between the parties. The defendant refused to agree, a decision communicated in a letter dated 29 September 2016 and maintained in a further letter of 2 November 2016 (the first and second decision letters).
  4. The claimant challenges the defendant's decision to withhold her agreement to a referral back of the issue. The claimant says the defendant was bound in law to bestow her "agreement" under regulation 32. The relief she seeks is unusually phrased in the claim form: she asks that the defendant "accepts that there was a breach of his duty of care to the Claimant and is prepared to agree to the matter being referred back under Regulation 32(2) or 32(3) ..".
  5. Holman J granted the claimant permission to apply for judicial review on the first only of three grounds of challenge. He refused permission to advance the second ground (breach of the Article 1 of the First Protocol to the European Convention on Human Rights (ECHR)) and the third ground (breach of the public sector equality duty under section 149 of the Equality Act 2010).
  6. The sole issue before me is therefore whether the defendant's refusal to give her agreement under regulation 32(2) was, as stated in the grounds of challenge, "unlawful on its face for inadequate reasons and/or a failure to address the primary purpose of a Regulation 32(2) reconsideration". The defendant denies that the decision challenged was unlawful.
  7. Relevant Statutory Provisions

  8. It is agreed that I need not be concerned with the 1987 Regulations and that for present purposes the 2006 Regulations govern the position, although the earlier regulations were in force at the time when the claimant left the defendant's police force in 2002. I will confine my brief account of the 2006 Regulations to provisions, as amended, that are material.
  9. Regulation 11 of the 2006 Regulations confers entitlement to a gratuity and an injury pension where a police officer "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" (regulation 11(1)). An injury is received in the execution of duty if it is received in the execution of the officer's duty "as a constable" (regulation 6(1)).
  10. Disablement means, so far as relevant here, "inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force ." (regulation 7(4)). Disablement is "deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or the condition for which treatment is being received" (regulation 8).
  11. An officer is "permanently disabled" if "at the time when the question arises for decision" the disablement is "at that time likely to be permanent" (regulation 7(1)). In deciding whether the disablement is permanent, receipt of "normal appropriate medical treatment" is assumed, but not medical treatment which it would be "reasonable in the opinion of the police pension authority to refuse".
  12. Part 4 of the 2006 Regulations contains the decision making machinery. Decisions on entitlement are made, in the first instance, by the police pension authority (PPA), which in this case, it is agreed, is the defendant (regulation 30(1)).
  13. When considering whether an officer is permanently disabled, she must (regulation 30(2)) refer to the SMP for decision two initial questions: (a) whether the person concerned is disabled and (b) whether the disablement is likely to be permanent.
  14. If the PPA is considering whether to grant an injury pension, she must refer to the SMP two further 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 (which is relevant for calculating the amount of an injury pension).
  15. The decisions of the SMP on the question or questions referred to the SMP must be expressed in the form of a report and "shall, subject to regulations 31 and 32, be final" (regulation 30(6)). Regulation 31 confers a right of appeal against decisions in a report from an SMP made under regulation 30(6). Such an appeal must be brought within 28 days of receiving the report, or such longer period as the PPA may allow (regulation 31(1)).
  16. The appeal is to a "board of medical referees" (regulation 31(2)), whose decision is "final" subject to the provisions of regulation 32. The latter regulation enacts another exception to the finality of an SMP's report made under regulation 30(6) and is the provision which lies at the heart of this case and two previous cases, to which I am coming. It is necessary, in this convoluted statutory scheme, first to refer to regulations 34, 35 and 36.
  17. Regulation 34 provides a right of appeal to a person aggrieved by refusal to admit a claim to receive as of right an award or a larger award than that granted, or by a decision of the PPA as to whether a refusal to accept medical treatment is reasonable for the purposes of regulation 7(3), or against a decision by the PPA that a pension should be the subject of forfeiture. In such cases there is a right of appeal to the Crown Court, subject to regulation 36.
  18. Regulation 35 then makes parallel provision granting rights of appeal on the same grounds to certain police officers in service overseas, again subject to regulation 36, but the appeal is to the Secretary of State who must appoint a three person appeal tribunal to hear it. From the decision of that appeal tribunal, an appeal lies to the High Court on a point of law.
  19. The time limit is 21 days for an appeal to the Crown Court under regulations 34 and 35 (rule 7(3) of the Crown Court Rules 1982). Regulation 36 deals with "[l]imitations on appeals". An appeal under regulation 34 or 35 does not lie against anything done by the PPA in the exercise of a power conferred by the 2006 Regulations "expressly declared thereby to be a power which they are to exercise in their discretion".
  20. And regulation 36(2) then provides that "[s]ubject to regulation 32(1)", in any proceedings under regulation 34 or 35 the court or tribunal shall be bound by any final decision of a medical authority within the meaning of regulation 32(1)". A "medical authority" is not a defined term in the 2006 Regulations. It bears the meaning in regulation 32, i.e. it means the relevant decision maker, which may be the SMP or a board of medical referees.
  21. A Crown Court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that evidence before the medical authority was inaccurate or inadequate, refer the decision back to the medical authority for reconsideration; and the resulting fresh report is, unless required to be reconsidered again by the same route, final: regulation 32(1).
  22. That brings me finally to the provision on which this case turns, regulation 32(2). It is not happily drafted. Omitting immaterial words and substituting intelligible words to alleviate exasperation and make better sense of the provision, the following remains:
  23. "The [PPA] and the claimant may, by agreement, refer any final decision of a medical authority[,] who has given such a decision[,]to [that medical authority] for reconsideration, and [that medical authority] shall accordingly reconsider [that medical authority's] decision and, if necessary, issue a fresh report, which, subject to any further reconsideration under this paragraph or paragraph (1) or [a pre-existing] appeal [under regulation 31], shall be final."

    Relevant Case Law

  24. I was referred to two cases containing reasoning criticised by the defendant as unsound. The claimant says the reasoning in them is sound and relies on them to support her claim. The first is R (Crudace) v. Northumbria Police Authority [2012] EWHC 112 (Admin), a decision of HHJ Behrens sitting as a judge of the High Court in Leeds, who heard argument from the same counsel as appeared before me.
  25. In Crudace, an SMP decided in 2009 that the claimant officer's level of disability was less than previously found, with the result that his pension was reduced. The officer appealed but then withdrew his appeal. Following a decision of the Court of Appeal, Metropolitan Police Authority v. Laws [2010] EWCA Civ 1099, the officer invited agreement to a referral back to the SMP under regulation 32(2) for reconsideration. In December 2010, the police authority refused to agree to this, a decision the officer challenged.
  26. The judge noted that the refusal to agree to a referral back was influenced by certain Home Office guidance which he considered to be incorrect. He also considered that the jurisprudence (especially the Laws case, mentioned above) showed that the downward reassessment of the officer's pension had been done on a flawed basis (see paragraphs 25 and 32 of the judgment).
  27. The judge also noted that the appeal had been withdrawn under a threat that the officer would have to pay costs and in response to a letter containing a confident assertion that the appeal was "bound to fail", particularly in the light of the same Home Office guidance. There were therefore very strong merits on the officer's side of the argument for reopening the downward reassessment; the officer would otherwise lose nearly half the amount of his pension (see paragraphs 2, 49 and 95.3 of the judgment).
  28. The judge rejected (see paragraphs 90-91) the chief constable's contention that the statutory purpose of regulation 32(2) was "not to provide a mechanism of appeal but to provide a simple method of reconsideration where the parties agree to a reference in cases where an appeal is made to the PMAB [Police Medical Appeal Tribunal, i.e. a board of medical referees] or where there are judicial review proceedings".
  29. He noted (paragraph 91) that while there are short time limits for appeals and an emphasis on finality, the references to finality in the provisions were always made expressly subject to reconsideration under regulation 32(2), which did not include any time limit; and that where officers are awarded pensions based on disablement incurred in the course of their duties through no fault of their own, "it may well be thought that the need for accuracy is at least as important as the need for finality".
  30. He saw "force" (paragraph 93) in the rival submission that the general power under regulation 32(2) exists as (in the words of Mr Lock's then skeleton argument):
  31. "part of the system of checks and balances in the Regulations to ensure that the pension awarded (either by way of an initial award or on a review) has been determined in accordance with the Regulations. [T]he purpose is to provide a mechanism to allow reconsideration in the event a former officer is being paid the wrong sum".
  32. Mr Lock had also referred in his skeleton argument, in the passage cited by the judge at paragraph 93, to Article 1 of the First Protocol to the ECHR and had submitted that regulation 32 provided a means to protect the former officer's pension rights without recourse to the court if, in practice, "the former officer raises a reasonable case that the pension paid is incorrect".
  33. The judge evidently accepted that the statutory purpose of regulation 32 was as submitted by the officer and that therefore the decision challenged had been flawed on the Padfield principle that the statutory discretion to grant or withhold "agreement" under regulation 32(2) must be exercised in harmony with the statutory purpose and not for a different purpose, at odds with the statutory purpose.
  34. HHJ Behrens therefore quashed the decision and the challenge succeeded. It was not enough, as recited in the decision letter, that the decision had been made in good faith and on rational grounds on the basis of the law and guidance which was, at the time of the decision, understood to set out the correct approach.
  35. The reasoning in Crudace was considered and approved by King J in a lengthy and detailed judgment in R (Haworth) v. Northumbria Police Authority [2012] EWHC 1225 (Admin). The facts were quite similar; in 2005-6, in a review and subsequent appeal from it, the former officer's pension was substantially reduced as a result of a decision reassessing downwards the level of her disablement on a basis which, the Court of Appeal in Laws subsequently confirmed, was wrong in law.
  36. When this became clear beyond doubt and the officer, in October 2010, asked for a referral back under regulation 32(2) of the 2006 Regulations, the police authority, in December 2010, refused the request on the ground of delay, failure to use earlier alternative remedies despite access to legal advice, the cost of reopening the process and the need for finality. The judge noted (paragraph 77 of his judgment) that the decision letter did not address the "underlying merits of the claimant's case for a reconsideration "
  37. The police authority's decision refusing to refer the matter back for reassessment was successfully challenged and quashed. At paragraph 90, King J said this:
  38. "I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any reconsideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration."
  39. The judge pointed out in the next paragraph that if regulation 32(2) had been tied to time limits such as those for appealing, it would have said so. He echoed Judge Behrens' observation that the references to finality in the statutory scheme were all subject to a reconsideration under regulation 32(2), which set no time limits on a request for reconsideration.
  40. In the rest of his judgment, he considered the statutory purpose of regulation 32(2) and found it to be the same as had Judge Behrens in Crudace. Regulation 32(2) was there "to correct mistakes as to fact or law which have or may have resulted in an officer being paid less than his full entitlement which cannot otherwise be put right" (paragraph 97, King J's italics).
  41. Therefore, the starting point for considering a request for reconsideration of pension entitlement should be the underlying merits, whether or not, at the time of the original decision, the jurisprudence had caught up with them (paragraphs 98-99). Delay was only relevant to the assessment of the underlying merits, e.g. if delay meant the authority could "legitimately conclude that no fair reconsideration is possible . for example where material medical records are no longer available" (paragraph 100).
  42. He went on in the same paragraph to comment to the effect that delay should not be allowed to eclipse consideration of the underlying merits. As to the cost of reopening the process, he accepted (paragraph 101) that it was a relevant consideration "only to the extent that they would justify the police authority refusing to consent to what in their reasonable assessment was a vexatious frivolous or otherwise unmeritorious application".
  43. The Facts

  44. The claimant joined the defendant's force in 1993, when she was 21. She often went out on patrol alone. From December 1997 until June 1998, she was involved in incidents at work in which she was assaulted by suspects she was arresting or attempting to arrest. She had time off work and showed symptoms including fatigue and depression, for which she was prescribed anti-depressant medication. She was commended for her bravery in a memorandum in July 1998, nominating her for an award.
  45. In medical memoranda from October 1998 to February 1999 from Dr Gandham, an occupational health physician with the force, he noted that the claimant was very anxious and emotional and that discussion of alternative job roles was hampered by her distress. The conclusion was that she returned to work in February 1999, but in a non-operational role. By August 1999, she was still working on reduced hours, having "mental problems" (in Dr Gandham's phrase) and taking anti-depressants.
  46. On 13 September 1999, a psychologist, Dr Khan, reported on the claimant's condition after meeting her. The report detailed the impact of the claimant's family history and personal life, as well as the traumatic effect on her of the assaults. Dr Khan noted a family history of psychiatric illness including depression. She diagnosed mild post-traumatic stress disorder, acute anxiety and depression, for which the claimant had not been treated appropriately.
  47. When assessed by another psychologist (Dr Bishop) in 2001, the claimant was still found to be depressed and was referred for counselling. In February 2002, Dr Gandham consulted Dr Emma Sutton, the claimant's GP, and obtained the agreement of Dr Sutton that the claimant's condition was permanent.
  48. On 28 February 2002, Dr Gandham signed a certificate for the purposes of the then 1987 Regulations that the claimant was suffering from acute anxiety and depression, that she was disabled from performing her ordinary duties and that the disablement was likely to be permanent. The document referred to medical information received from Dr Khan and Dr Sutton. Dr Gandham recommended a review in four years to determine whether the claimant had by then become capable of performing her duties.
  49. I pause to interject the following. It is agreed that Dr Gandham was the "SMP" for the purposes of the 1987 Regulations. In the terms of what became the 2006 Regulations, it is not disputed that Dr Gandham's certificate provided a binding affirmative answer to the two questions respectively posed by what is now regulation 30(2)(a) and (b): namely, "whether the person concerned is disabled" and "whether the disablement is likely to be permanent".
  50. The questions that remained to be determined, if the defendant was considering whether to grant the claimant an injury pension, were those posed in regulation 30(2)(c) and (d) respectively: "whether the disablement is the result of an injury received in the execution of duty", i.e. that injury had "caused or substantially contributed to the disablement or the condition" (regulation 8 of the 2006 Regulations); and (d) "the degree of the person's disablement".
  51. On 7 June 2002, Dr Gandham recommended in a memorandum that a psychiatrist be instructed to give an opinion on those two questions, since the claimant was seeking an injury pension. He stated that the issue was: "are the stated 3 assaults the cause of her disability and suffering as well as the current health problems affecting her mental health?"
  52. On 14 June 2002, the claimant was retired from the force under regulation A20 of the 1987 Regulations, which makes provision for compulsory retirement "on the ground that [s]he is permanently disabled for the performance of [her] duty" [sic]. The claimant then saw Dr Srinivasan, the instructed psychiatrist, on 16 August 2002.
  53. He reported on 20 August 2002. After setting out the history, he diagnosed a depressive illness of moderate severity and said he did not agree with Dr Khan's diagnosis of post-traumatic stress disorder. On the issue of causation, he said the claimant's "aversion to night shifts" was "one factor". That aversion:
  54. "was the result of an accumulation of negative experiences, I do not believe that work factors were acting in isolation. A positive family history for mental illness that has been elicited is a relevant factor. The acrimony in a relationship break-up at the relevant time also could not be ignored. I believe that the depressive illness had been multi-factorial in origin."

    He said the prognosis was good; the claimant was already feeling better, had reduced her medication and he believed she "should make a full recovery in due course".

  55. On the strength of that psychiatric opinion, on 22 August 2002, Dr Gandham certified that the claimant's disablement "HAS NOT been caused or substantially contributed to by an injury received in the execution of duties as a Police Officer". The parties disagree about whether that judgment was properly open to Dr Gandham or not on the evidence available to him.
  56. On 20 September 2002, the claimant appealed against Dr Gandham's decision. She instructed Dr Norris, a clinical psychologist. He interviewed the claimant "in depth" on 3 February 2003 and prepared a detailed report dated 18 March 2003 in support of the claimant's appeal. He reviewed the documented medical history in detail. He formed the view that the claimant had not been psychologically vulnerable prior to the three assaults.
  57. He agreed she had not suffered from post-traumatic stress disorder. He characterised her psychological problems from 1998 onwards as a "severe and chronic adjustment disorder with mixed anxiety and depressed mood". He opined that there was some reason to believe the claimant may be right in attributing her emotional difficulties principally to her experiences as a police officer. He thought the symptoms "should continue to remit spontaneously".
  58. The following month, the claimant withdrew her appeal, left this country and went to live in Cyprus. In a witness statement made just over 13 years later, she explained that she lacked the "mental resilience to continue the battle". There is no psychological or psychiatric evidence of her mental condition at any later time than 2003. She returned to this country in 2006.
  59. In her recent witness statement, she says she feels she is in a "Catch 22" situation because if she had had the "mental toughness" to fight for her pension back in 2003, she might well not have fulfilled the criteria making her entitled to it; whereas, conversely, she regards the mental condition grounding her entitlement to the pension as the same mental condition that deprived her of the ability to fight for it.
  60. After the decision of the Court of Appeal in Laws (see above) led to claims such as those in Crudace and Haworth, in which regulation 32 of the 2006 Regulations was relied upon to seek the reopening of certain pension decisions, the claimant became aware from seeing a Facebook page that she might be able to achieve the reopening of her case and perhaps obtain the injury pension to which she felt entitled.
  61. She sought legal advice. Her solicitors took up her cause in lengthy and detailed correspondence starting in October 2015 with requests for information. The defendant searched old records and answered some of the requests in a letter of 10 February 2016, also adding that as it was nearly 13 years since the appeal had been withdrawn, "we do not feel that there are sufficient grounds to reopen her application for an Injury Award".
  62. The claimant's solicitors continued to press, with a 45 paragraph letter of 1 April 2016 relying heavily on, among other things, the reasoning of King J in Haworth. This eventually elicited the first refusal letter challenged in this case, dated 29 September 2016, signed by the Chief Constable herself after taking legal advice. She said this:
  63. " I do not agree to a further reference to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe that the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude that no fair reconsideration is possible. Dr Gandham, the [SMP] who made the original decision to not make an injury award is no longer licensed to practise in the United Kingdom, and neither is Dr Srinivasan upon whose report Dr Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it."
  64. The solicitors responded with a further six page letter, dated 12 October 2016, disagreeing at length with the decision not to reopen the case and making many points including some now relied on by Mr Lock QC. Ms Natalie Dent, a lawyer acting for the defendant, took instructions from the defendant and wrote to the solicitors on 2 November 2016 stating that the decision not to reopen the matter was maintained. She added:
  65. "In reaching her decision not to refer this matter back under Regulation 32(2) the Chief Constable considered the purpose of the Regulations and in particular the provision of an injury award. In this regard, it is only right that consideration is also given to the strength of your client's assertion that Dr Gandham made a mistake in not concluding there was a causal link between her service as an officer and her disabling condition. In relation to this, it is of note that there is inconsistent evidence between the medical professionals involved as to the disabling condition. More recently, Dr Norris has concluded that your client was not suffering from PTSD (in agreement with Dr Srinivasan). In relation to causation, in 2002 when the SMP decision was given, it was certainly not clear cut that there was a causal link between [the claimant's] service as an officer and her disabling condition. This is clearly important in relation to the passage of time that has now elapsed.
    As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully. Although it is accepted that delay of itself is not reason enough to refuse to refer the matter back to a new SMP as per the reasoning of King J in the Howarth [sic] case, that case involved the challenge to a decision made some 4 years earlier. In your client's case the delay has been signfificantly greater (we are now 14 years on) and delay has to be a relevant consideration for the Chief Constable. In light of the causation difficulties in this case, it is the Chief Constable's view that the length of delay in this case would make it impossible for a fair reconsideration to be undertaken by a new SMP.
    ."

    Submissions for the Claimant

  66. Mr Lock, for the claimant, submitted that this case was one like Crudace and Haworth where the claimant had raised a reasonable case for reopening her pension entitlement and it was, accordingly, unlawful for the respondent to withhold her consent under regulation 32(2) to a referral of the matter back to the SMP for reconsideration. The SMP did not have to be Dr Gandham, if he was unavailable; the 2006 Regulations allow for a different SMP to be appointed on a reconsideration.
  67. Mr Lock emphasised that the right to an injury award, where the conditions for receiving one are met, is a statutory right and that if the wrong amount is paid or an award is wrongly refused, that amounts to the denial of a statutory right. Furthermore, he emphasised the importance of the right because of the service to society performed by serving police officers and the risk of injury that is inherent in the performance of their duties.
  68. Mr Lock submitted that there was a strong case that Dr Gandham had erred in law in treating Dr Srinivasan's opinion as justifying refusal of an award. Dr Srinivasan had found that the cause of the claimant's mental condition was "multi-factorial". He had not ruled out the three assaults as factors at least contributing more than minimally to the claimant's mental difficulties, disablement and consequent unfitness to perform her duties.
  69. That was sufficient in law for the purposes of causation under regulation 8 of the 2006 Regulations, Mr Lock argued. It is enough if the contribution of the officer's execution of duties was more than a marginal cause of the disablement; it does not have to be the predominant cause (see R (Crocker) v. Medical Referee (Dr David Anton) [2003] EWHC 3115 (Admin) per Ouseley J at paragraphs 2, 11-12, 20 and 53-55).
  70. The withdrawal of the claimant's appeal was understandable in view of her mental fragility at the time and should not be held against her. The court should accept her evidence that it was a psychological consequence of the condition from which she suffered, more than minimally contributed to by the three assaults, that she was unable to muster the mental resilience to see her appeal through to a conclusion.
  71. Mr Lock submitted that in the initial decision letter and the subsequent letter giving further reasons for maintaining the decision, the defendant failed to address properly the question whether a review was needed to correct mistakes of fact or law which have or may have resulted in the officer being paid less than her full entitlement to an injury award, as King J had put it in Haworth.
  72. Rather, said Mr Lock, the defendant had relied heavily on the fact of delay, a consideration found by King J to be irrelevant except to the cogency of the evidence on the merits, even though the defendant in the second decision letter accepted that delay is of itself not sufficient reason to refuse consent to a review under regulation 32(2).
  73. He criticised as irrational the observation in the first decision letter that the delay was such that no fair reconsideration was possible. That could not be so in a case where the original relevant documents were all available and to hand and it was not necessary to use the same SMP on a reconsideration as for the original decision.
  74. Further, he said it was wrong to invoke the length of the delay that had occurred as a factor to be weighed against the apparent merits of the claim to an injury award. King J in Haworth had indicated that a review should take place if an officer raised a case that she had been or may have been paid less than her full entitlement. That reasoning could not be defeated by relying on the length of the delay before a reconsideration is requested.
  75. Furthermore, the reference in the second letter to the defendant being "keeper of the public purse" betrayed reliance on the irrelevant consideration of the cost of the process. King J said (paragraph 101 in Haworth) the cost of reopening the process could only be relevant "to the extent that they [the costs] would justify the police authority refusing to consent to what in their reasonable assessment was a vexatious frivolous or otherwise unmeritorious application".
  76. Here, the phrase "frivolous and vexatious" had been used in the first decision letter, in the context of the long delay; but the phrase was grossly misplaced because the underlying merits were strong. Any contrary view was necessarily irrational and ungrounded. The correct approach was that the cost of the decision making process was part and parcel of the statutory right to an injury award.
  77. Mr Lock reminded me that the statutory right to one is a "state of affairs". It is not subject to any time limit for applying. It can arise years after a police officer has left a police force. A decision whether to agree to an injury award is triggered by an informal request. There is no requirement to meet any formal requirements as a precondition of entitlement. Thus, if an officer waits many years before asking for an injury award, the question of entitlement must be judged at the time the request is made, even if that is many years after the officer has left her force. Consequently, delay is of little moment in the statutory scheme.
  78. If one stands back from the challenged decision in this case and asks the question what the central or predominant purpose of the decision was, Mr Lock submitted that it was not possible to determine from the two letters, setting out the reasons, what the predominant purpose was; but on any view it must have been a purpose that offended against the Padfield principle, since it was not the statutory purpose, namely to secure the officer's just entitlement.
  79. Submissions for the Defendant

  80. Mr Holl-Allen's argument for the defendant was that her decision to refuse agreement to a reconsideration was lawful because she was entitled to take the view that the delay that had occurred made a fair reconsideration of the merits of the matter impossible. That was the core of the reasoning in the first decision letter, which stated: "the delay of 14 years from the original assessment is such that I conclude that no fair reconsideration is possible".
  81. Mr Holl-Allen submitted that if that was correct, it was the end of the case and there was no inconsistency between the defendant's reasoning here and the reasoning of the judges in Crudace and Haworth. The unavailability of Dr Gandham and Dr Srinivasan, Mr Holl-Allen submitted, was not answered by the point that other medical experts could step into their shoes. They were the original doctors involved in 2002.
  82. Dr Gandham's decision based on Dr Srinivasan's report had been lawfully open to him and could not be impugned, Mr Holl-Allen argued. And where an original decision maker is unwilling or unable to act on a reconsideration, that can contribute significantly to the practical difficulties involved in reopening the matter so long after the original decision. If a different SMP were appointed now, he or she would have to look back at the position in 2002.
  83. Mr Holl-Allen pointed out that there is no psychiatric or other medical evidence, and no psychological evidence, postdating the report of Dr Norris in early 2003. Dr Norris' evidence, in agreement with Dr Srinivasan, was that the claimant's symptoms would remit quite rapidly. The decision to withdraw the appeal at the time and the failure to request a reconsideration until over 12 years later, had to be viewed in that light.
  84. He accepted that "frivolous and vexatious", used by the defendant in the first decision letter and echoing King J's words "vexatious frivolous or otherwise unmeritorious" (Haworth, paragraph 101), were not apt if understood in their usual sense in litigation, where the words connote a complete lack of merit. However, the words should not be understood in that sense; in their context, the epithets "frivolous and vexatious" were expressly stated to refer to the problem that the 14 year delay meant no fair consideration could take place.
  85. Mr Holl-Allen went on to submit in the alternative that if Haworth decides that delay is an irrelevant consideration even if it is inordinate and inexcusable, except where the delay results in a fair reconsideration not being possible, that part of the reasoning is obiter, is wrong and should not be followed. The delays in Haworth and in Crudace were short and not such as to prevent a fair reconsideration; that part of the judges' reasoning was therefore not necessary for their decisions.
  86. He argued that there is no reason why lengthy and inexcusable delay should not be balanced against a rational view of the merits. The reasons for the delay in the other two cases were better than in this case: both claimants acted relatively promptly after the 2010 decision of the Court of Appeal in Laws became available. This claimant's case goes back in time further than that of the other two claimants and she waited much longer before requesting a reconsideration.
  87. If it is accepted, for present purposes, that the statutory purpose of regulation 32(2) is to secure full entitlement to an injury award, Mr Holl-Allen submitted that fulfilment of that purpose does not require toleration and disregard of inordinate and inexcusable delay, however long, in all cases save where the delay can rationally be said to make a fair reconsideration impossible.
  88. In answer to a question from the court, Mr Holl-Allen accepted that if delay were to be treated as a free standing relevant consideration, not tied to the underlying merits and the possibility of a fair reconsideration, it would be open to a chief constable to have a written policy on delay provided it was not inflexibly and rigidly applied; for example, a policy that delay of over two years would normally lead to refusal to agree to a reconsideration.
  89. That would reflect the administrative law orthodoxy that it is normally for the decision maker to select and have regard to considerations that are rationally regarded as relevant. The same orthodox approach could be applied to consideration of the cost of reopening the process. While Mr Holl-Allen accepted that the cost of any injury award or any increase in such an award could not lawfully be taken into account, there is no reason why the costs of the process should not be material.
  90. In the further alternative, Mr Holl-Allen submitted that the judges in Crudace and Haworth had both fallen into error when discerning the statutory purpose of regulation 32(2), for the purposes of applying the Padfield principle. The judges had underestimated the importance of finality and the short time limits which circumscribed the bringing of appeals within the statutory scheme.
  91. It was a well known feature of adjudication processes, he argued, that a person entitled to a benefit could be shut out if he failed to take procedural steps and meet deadlines necessary to secure the entitlement. It is correct that an application for an injury award can be made informally at any time but, once it is made, the decision making process must relate back to the time when it was made, which can be many years earlier if long delays are permitted.
  92. The statutory purpose, Mr Holl-Allen argued before me as he had unsuccessfully argued before HHJ Behrens, is, rather, to provide a convenient and consensual mechanism for reconsideration, unconstrained by time limits, to deal with cases where there is genuine agreement, to avoid the cumbersome and expensive machinery of an appeal to, or a judicial review of, a board of medical referees. If that was correct, the decision here was plainly lawful.
  93. Reasoning and Conclusions

  94. It is common ground that, in accordance with the Padfield principle, the agreement of a chief constable acting as the PPA under regulation 32(2) must be bestowed or withheld in accordance with the statutory purpose of the provision, read in the context of the statutory scheme of which it forms part. The decision whether to agree to or refuse such a request must not be made for a purpose that is extraneous to and such as to frustrate that statutory purpose.
  95. What is the statutory purpose of regulation 32(2)? In two decisions made by judges with much experience and expertise in this field, it has been held that the purpose is to secure the just entitlement of a former officer and not, as was unsuccessfully argued in those cases, to provide a convenient way of giving swift effect to a position agreed between the officer and the PPA. Those decisions are, undeniably, entitled to the highest respect.
  96. In the two decisions, the judges adopt a policy driven, interventionist interpretation of regulation 32(2), which strains the language used in the provision, so as to require the compulsory or closely circumscribed "agreement" of the PPA to a course that is plainly not consensual in any real sense. Indeed, the "agreement" of the recalcitrant chief constable may have to be wrested from her by judicial review or at least the threat thereof.
  97. There are dangers in construing a provision such as this in a manner that sits so uneasily with the language the legislature has chosen, by an appeal to wider considerations of policy not found in the language of the provision itself. It may be safer to discern the policy of the legislature from the language it has used than to construe the language of the provision by reference to a broad judicial evaluation of the overall policy of the statutory scheme.
  98. If the words "by agreement" are given their full content and ordinary meaning, they would mean what they say. That would mean the reasoning in Crudace and Haworth would have to be regarded as unsound. It would have been simple for the legislature to have fashioned regulation 32(2) as an obligation on the PPA to refer a matter back for reconsideration if presented with a reasonable case that the original decision was wrong; or to require the agreement of the PPA not to be unreasonably withheld.
  99. For those reasons, I confess to some unease about the interpretation of regulation 32(2) adopted in the two cases. On the other hand, as a matter of broad justice, it has much to commend it. As the judges correctly observed, the references to finality in other surrounding provisions are expressly made subject to regulation 32(2). While that point is consistent with both the competing interpretations, it can be read as supporting the claimant's interpretation rather than that of the defendant.
  100. Furthermore, the importance of securing just pension entitlement is incontestable, as is the injustice arising from wrongly withheld or underpaid pensions for officers who render such important service at everyday risk to life and limb. That point supports the claimant's policy-based interpretation and could be said to outweigh the defendant's answer that procedural rules and deadlines do not offend justice even where they lead to loss of entitlement.
  101. I think the right course, despite my reservations, is to observe judicial comity and assume that the purposive construction of regulation 32(2) adopted by King J and HHJ Behrens is the correct one. It was characterised thus by King J in Haworth at paragraphs 96-7:
  102. "96 regulation 32(2) should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.
    97 In other words I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right ."
  103. In abbreviated form, the statutory purpose which I assume to be correct is to facilitate and promote correct pension payments and to correct mistakes. Withholding agreement to a reconsideration which, if it takes place, is likely to enable that to happen is, on that assumption, unlawful. It follows that if the decision letters showed that the purpose of the decision to withhold agreement was to deny the claimant her just pension entitlement, that would be unlawful.
  104. Another closely related way of measuring the legality of the decision is to enquire whether it is flawed by reliance on irrelevant considerations or by disregard of relevant ones. The case for the claimant includes the submission that the defendant disregarded the strong merits an important and relevant consideration and had illegitimate regard to the passage of time. The defendant says the passage of time is a relevant consideration; it can be weighed in the balance against the perceived merits and its relevance is not confined to ascertaining whether a fair reconsideration is possible.
  105. Generally, decision makers have considerable scope for deciding for themselves what considerations are relevant to the exercise of a statutory power or duty, as well as the weight to be given to them. But there are exceptions; some considerations are necessarily irrelevant so that it is unlawful to have regard to them; some are so obviously relevant that it would be unlawful to disregard them; see the discussion in the judgment of Cooke J in CREEDNZ Inc v. Governor-General of New Zealand [1981] NZLR 172, at 183, approved by the House of Lords in Re Findlay [1985] AC 318, per Lord Scarman at 333-4, observing the distinction between obligatory and permissible considerations.
  106. Returning to the Padfield doctrine requiring public powers to be exercised in accordance with their statutory purpose and not in such a manner as to thwart that purpose, I conclude that the mandatory relevant considerations here are those which it would be contrary to the statutory purpose of the enactment to disregard. It does not necessarily follow that there are not other permissible considerations, to which the decision maker may have regard provided she does not thereby thwart the statutory purpose.
  107. If the enquiry is as to the purpose in furtherance of which the decision was made, I think the right course is to enquire after the predominant purpose, which is the second of six possible tests discussed in the paragraphs on "[p]lurality of purposes" in de Smith's Judicial Review, 7th edition, at 5-109 ff, describing the topic as "a legal porcupine which bristles with difficulties as soon as it is touched". I prefer the second test to the other five (not set out here) because it is easiest to apply and, in my judgment, best promotes justice.
  108. Applying that learning to the facts here, it would be unlawful for the defendant to disregard the merits of the claimant's claim to an injury award. The law required the defendant to consider and assess the strength of the argument that Dr Gandham made a mistake when certifying that the three assaults did not cause or materially contribute to the claimant's disabling depressive illness. The defendant did have regard to that argument in this case; on her instructions, in the second letter Ms Dent referred to conflicting medical evidence of the diagnosis and to the issue of causation as "not clear cut".
  109. Is it permissible for the defendant to take account of delay, other than as a factor in the assessment of whether a fair reconsideration is possible? In my judgment, it is. I see nothing in the statutory scheme which rules out delay per se as a permissible consideration. Delay may, obviously, be relevant to whether a fair reconsideration is possible; but it is also relevant to the public interest in finality in determining police pension issues. Reconsideration of a pension issue requires publicly paid staff to be diverted from other important policing functions.
  110. I see no warrant for requiring primacy to be given to one relevant consideration over another, provided the statutory purpose is respected. The weight given to a relevant consideration is a matter for the decision maker, not the court, unless statute provides otherwise. I would not, with great respect, go as far as King J in Haworth when he said, at paragraph 100, that "delay can be relevant only to the police authority's assessment of the underlying merits"; and, in the next sentence, that while "delay may be such that the authority can legitimately conclude that no fair reconsideration is possible", it is not a relevant consideration in its own right.
  111. Having examined carefully the two decision letters, I find myself unpersuaded that the decision challenged was vitiated by illegitimate reliance on delay. I accept Mr Holl-Allen's submission that the delay was very long here and that it was properly open to the defendant to weigh the length of the delay and the resulting unavailability of Drs Gandham and Srinivasan against the less than "clear cut" case on causation, to which evidence from Dr Gandham personally would be relevant. That was, moreover, a rational foundation for the proposition that no fair reconsideration was possible, a conclusion which itself bears directly on the merits of the underlying claim for an injury award.
  112. I also ask myself what the predominant purpose of the decision was. It is true that its effect was to prevent the reopening of an injury award claim that, if reopened, might well succeed. But it would succeed, in the defendant's properly held view, only after a reconsideration process that would not be fair. I find that the predominant purpose was to prevent a reconsideration process that would be unfair. The unfairness cannot be overlooked on the ground that the claim to an injury award is a strong one. Whether it is or not can only be judged by a fair process, not by an unfair one.
  113. Assuming, as I do, that the statutory purpose of regulation 32(2) is as King J described it in the Haworth case, I do not accept the proposition either that the predominant purpose of the decision maker was one that was contrary to the statutory purpose, or that her decision was vitiated by taking account of delay as a relevant consideration. The words "frivolous and vexatious" may not have been very polite, but they do not, read in their context, refer to anything worse than a long delay rendering a fair reconsideration impossible in the defendant's view.
  114. Finally, I consider the reference in the second letter, from Ms Dent, to the defendant being the "keeper of the public purse". In my judgment, this reference stated a subsidiary or secondary purpose of the decision, not its predominant purpose. There is nothing to indicate that Ms Dent was referring to the cost to the public purse of paying the claimant an injury award and pension, if she should establish entitlement to it. It would be very unlikely that Ms Dent or the defendant would have had that cost in mind, given Ms Dent's familiarity with the reasoning of King J in Haworth.
  115. I consider that Ms Dent was referring to the cost of the process of reconsideration, which would be saved if the request were refused. Once again, I can see nothing in the statutory scheme which makes this an impermissible consideration. It is true that the cost of decision making is part of the price of the undoubted statutory right of police officers to injury awards and pensions, where they are found to fulfil the criteria. But the additional cost of a reconsideration process after withdrawal of an appeal is avoidable if the appeal is not withdrawn.
  116. I do not see why that additional cost should be an impermissible or irrelevant consideration. To take a hypothetical example, if there had been no long delay, but a fair reconsideration would require the presence of a particular doctor who was only willing to attend on payment of exorbitant expenses and loss of earnings compensation, I cannot see why the cost of that would have to be disregarded.
  117. Here, Ms Dent's reference to the defendant being keeper of the public purse referred to a subsidiary purpose of avoiding wasteful expenditure on a process that would not be fair because of the lapse of time and the unavailability of the two principal medical expert witnesses. I see nothing wrong or unlawful about that subsidiary purpose playing its part in the decision.
  118. I should add, as a postscript, that Mr Lock's skeleton argument contained a "reasons" challenge, i.e. a challenge to the adequacy of the reasons given in the decision letters. It was said in the skeleton argument that the reasoning was insufficient. The argument was not developed in oral argument and in my view the criticism of the reasoning is not justified. Reasons for a decision such as this need not be extensive. The reasons here were concise, but sufficient to inform the claimant why her request had been turned down.
  119. Conclusion

  120. For those reasons, although I have considerable sympathy for the claimant, I do not think there was anything unlawful about the decision she has challenged and I must refuse the application.


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