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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 >> Boskovic, R (On the Application Of) v Chief Constable of Staffordshire Police  EWHC 14 (Admin) (12 January 2018)
Cite as:  WLR(D) 17,  ICR 1020,  EWHC 14 (Admin)
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QUEEN'S BENCH DIVISION
SITTING IN MANCHESTER
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of COLENE BOSKOVIC
|- and -
|CHIEF CONSTABLE OF STAFFORDSHIRE POLICE
Mr Jonathan Holl-Allen (instructed by Chief Constable of Staffordshire Police) for the Defendant
Hearing date: 31st October 2017
Crown Copyright ©
Mr Justice Kerr:
Relevant Statutory Provisions
"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
"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".
"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."
"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".
"… 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."
"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
Submissions for the Defendant
Reasoning and Conclusions
"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 …."