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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 450
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR MICHAEL SUPPERSTONE Q.C. sitting as a DEPUTY JUDGE OF THE HIGH COURT
LOWER COURT NOs: CO/4230/2007, CO/3221/2007, CO/3381/2007, CO/8987/2007
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE WILSON
| The Queen
on the application of
Martin Marrion, Neil Robert Burke and Andrew Scott
|Appellants / Claimants
|- and -
|The Boards of Medical Referees
London Fire and Emergency Planning Authority
(2)The Secretary of State for Communities and Local Government
|Respondents / Defendants
Interested parties / Respondents
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Lissack QC and Mr Keith Bryant (instructed by Keith Minear, Head of Legal & Democratic Services of the London Fire and Emergency Planning Authority) for the First Interested Party / Respondent
Ms Elisabeth Laing QC and Mr Kieron Beal (instructed by the Treasury Solicitors) for the Second Interested Party / Respondent and the Respondents / Defendants
Hearing dates : Wednesday 14th and Thursday 15th January 2009
Crown Copyright ©
Lord Justice Rix :
"5.5 The Board accepts that he would not be fit for operational firefighting because of his reduced hearing and because of his vulnerability to further hearing loss from noise exposure. However, even with his level of hearing loss, he would be fit for non-operational duties of his role as a regular fire-fighter. The expression "regular fire-fighter" is defined in the consolidated Firefighters' Pension Scheme 1992 Order as "…a whole or part time member of the Brigade other than a retained or volunteer member of the Brigade appointed on terms under which he is, or may be, required to engage in firefighting or, without a break in continuity of such an appointment, may be required to perform other duties as appropriate to his role as a fire-fighter (other than, or in addition to, engaging in firefighting) and whose appointment is not a temporary one." The duties of the role of fire-fighter are listed in the "Fire-fighter Role Map". He would be fit for FF1 "inform and educate your community to improve awareness of safety matters" and FF8 "contribute to safety solutions to minimise risk to your community."
5.6 Therefore, as the Appellant is medically fit to carry out some of the duties of his role as a fire-fighter instead of or in addition to firefighting, he cannot be deemed to be permanently disabled from the duties appropriate to his role according to the definition of a regular fire-fighter…"
The parties to the appeal
The essential structure of the Scheme
A2. (1) Part 1 of Schedule 1 to this Scheme contains a glossary of expressions…
Exclusive application to regular firefighters
A3. (1) Subject to paragraphs (3) and (4), this Scheme applies in relation to regular firefighters and their spouses and dependants…
A9. (1) Except in rule J4, references in this Scheme to a qualifying injury are references to an injury received by a person without his own default in the execution of his duties as a regular firefighter…
A10. (1) References in this Scheme to a person's being permanently disabled are references to his being disabled at the time when the question arises for decision and to his disablement being at that time likely to be permanent…
(2) Subject to paragraph (3), disablement means incapacity, occasioned by infirmity of mind or body, for the performance of duty, except that in relation to a child it means incapacity, so occasioned, to earn a living.
(3) 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 a qualifying injury; if, as a result of such an injury, he is receiving in-patient treatment at a hospital he shall be treated as totally disabled…
Compulsory retirement on grounds of disablement
A15. (1) Subject to paragraph (2), a regular firefighter may be required by the fire authority to retire on the date on which the authority determine that he ought to retire on the ground that he is permanently disabled.
(2) A retirement under this rule is void if, on an appeal against the medical opinion on which the fire authority acted in determining that he ought to retire the board of medical referees appointed under Part 1 of Schedule 9 decides that the appellant is not permanently disabled…
B3. (1) This rule applies…to a regular firefighter who is required to retire under rule A15 (compulsory retirement on grounds of disablement).
(2) A person to whom this rule applies becomes entitled on retiring
(a) if he is entitled to reckon at least 2 years pensionable service or the infirmity was occasioned by a qualifying injury, to an ill-health pension calculated in accordance with Part III of Schedule 2, and
(b) in any other case, to an ill-health gratuity calculated in accordance with Part IV of Schedule 2.
B4. (1) This rule applies to a regular firefighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury.
(2) A person to whom this rule applies is entitled –
(a) to a gratuity, and
(b) subject to paragraphs (3) and (4), to an injury pension,
both calculated in accordance with Part V of Schedule 2.
(4) A deferred pension becomes payable
(a) from the 60th birthday of the person entitled to it, or
(b) from any earlier date on which he becomes permanently disabled [for engaging in firefighting or performing any other duties appropriate to his former role as a firefighter].…
Child's special gratuity
(3) No allowance under this Part shall be paid in respect of a person who has attained the age of 17 unless -
(a) he is permanently disabled…
G2. (1) A regular firefighter shall…pay pension contributions to the fire authority at the rate of 1p per week less than 11% of his pensionable pay…
Determination by fire authority
H1. (1) The question whether a person is entitled to any and if so what awards shall be determined in the first instance by the fire authority.
(2) Subject to paragraph (3), before deciding, for the purpose of determining that question or any other question arising under this Scheme –
(a) whether a person has been disabled,
(b) whether any disablement is likely to be permanent,
(c) whether any disablement has been occasioned by a qualifying injury,
(d) the degree to which a person is disabled,
(e) whether a person has become capable of performing the duties of a regular firefighter, or
(f) any other issue wholly or partly of a medical nature,
the fire authority shall obtain the written opinion of an independent qualified medical practitioner selected by them and the opinion of the independent qualified medical practitioner shall be binding on the fire authority…
(3) If by reason of the person's refusal or wilful or negligent failure to submit to medical examination by the practitioner selected by them the authority are unable to obtain the opinion mentioned in paragraph (2), they may –
(a) on such other medical evidence as they think fit, or
(b) without medical evidence,
give such decision on the issue as they may in their discretion choose to give.
Appeal against opinion on a medical issue
H2. (1) Where –
(a) an opinion of the kind mentioned in H1(2) has been obtained, and
(b) within 14 days of his being notified of the fire authority's decision on the issue the person concerned applies to them for a copy of the opinion,
the authority shall supply him with a copy, together with a statement informing the person concerned that, if he wishes to appeal against the opinion, he must give the authority written notice of his grounds of appeal, together with his name and address, within 14 days of the date on which he is so supplied.
(2) If the person concerned is dissatisfied with the opinion which has been supplied to him under paragraph (1), he may appeal against it by giving notice to the fire authority in accordance with paragraph 1 of Part 1 of Schedule 9.
(3) A fire authority shall be bound by any decision on any issue referred to in sub-paragraphs (a) to (f) of rule H1(2) duly given on an appeal under this rule.
(4) Further provisions as to appeals under this rule are contained in Part 1 of Schedule 9…
Cancellation of ill-health and injury pensions
K1. (1) As long as a person –
(a) is in receipt of an ill-health pension, and
(b) would not, if he had continued to serve as a regular firefighter instead of retiring with an ill-health pension, have become entitled to retire with an ordinary pension, and
(c) if he had continued so to serve, could not have been required to retire on account of age,
the fire authority may, if they wish to exercise the powers conferred by this rule, consider, at such intervals as they in their discretion think proper, whether he has become capable of performing the duties of a regular firefighter…
(3) If on any such consideration it is found that he has become capable of performing the duties of a regular firefighter, the authority may terminate the unsecured portion of his ill-health pension…
(4) If within one month after the termination…he presents himself for service in the brigade –
(a) the fire authority shall permit him to resume service forthwith in a rank not lower than the rank he held when he retired with his pension, and
(b) if they do not, the termination…shall be deemed never to have taken effect…
Reassessment of injury pension
K2. (1) Where a person is in receipt of an injury pension the fire authority shall, at such intervals as they think fit, consider whether the degree of his disablement has substantially altered; if they find that it has, the pension shall be reassessed accordingly…
GLOSSARY OF EXPRESSIONS…
"Regular firefighter" In relation to any time before 1st March 1992, the expression means a regular fireman as defined in article 2 of the 1973 Scheme. In relation to any time after 29th February 1992 but before 13th September 2004, the expression means a whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting whose appointment is not a temporary one. [In relation to any time after 13th September 2004 [and before 1st October 2004], the expression means a whole-time or part-time member of a brigade, other than a retained or volunteer member of a brigade, appointed on terms under which he is, or may be, required to engage in fire-fighting or, without a break in continuity of such an appointment, may be required to perform other duties as appropriate to his role as a firefighter (other than, or in addition to, engaging in firefighting) and whose appointment is not a temporary one.] [In relation to any time on or after 1st October 2004, the expression means a person who is employed (a) by a fire and rescue authority (whether whole-time or part-time), other than as a retained or volunteer firefighter, and (b) on terms under which he is, or may be, required to engage in fire-fighting, or, without a break in continuity of such employment, may be required to perform other duties appropriate to his role as a firefighter (whether instead of, or in addition to, engaging in fire-fighting) and whose employment is not temporary.]…
APPEAL TO BOARD OF MEDICAL REFEREES
1. (1) Subject to sub-paragraph (2), written notice of appeal against an opinion of the kind mentioned in rule H1(2) stating –
(a) the grounds of the appeal, and
(b) the appellant's name and address,
must be given to the fire authority within 14 days of the date on which he is supplied by them with a copy of the opinion…
2. (1) On receiving a notice of appeal the fire authority shall supply the Secretary of State with 2 copies of the notice and 2 copies of the opinion.
(2) The Secretary of State shall refer an appeal to a board of medical referees ("the board") and shall supply them with a copy of the notice and a copy of the opinion.
2A. (1) The board shall consist of not less than three medical practitioners appointed by, or in accordance with arrangements made by, the Secretary of State.
(2) One member of the board shall be a specialist in a medical condition relevant to the appeal…
4. (1) subject to sub-paragraph (4), the board –
(a) shall interview and medically examine the appellant at least once, and
(b) may interview or medically examine him or cause him to be interviewed or medically examined on such further occasions as the board thinks necessary for the purpose of deciding the appeal…
6. The board shall supply the Secretary of State with a written report of its decision on the relevant medical issues…
(3) Where the board –
(a) decides in favour of the appellant, and
(b) does not otherwise direct,
The fire authority shall refund to the appellant the amount specified in sub-paragraph (4)…
9. The amount is the total of –
(a) any personal expenses actually and reasonably incurred…"
The three appellants
"The purpose of the medical examination is to obtain medical information to assist the Board in addressing the Appeal Question…"
"5.5 The Board accepts that he would not be fit for operational firefighting because of his reduced hearing and because of his vulnerability to further hearing loss from noise exposure. However, even with his level of hearing loss, he would be fit for the non-operational duties of his role as a regular fire-fighter…The duties of the role of fire-fighter are listed in the "Fire-Fighter Role Map". He would be fit for FF1 "inform and educate your community to improve awareness of safety matters" and FF8 "contribute to safety solutions to minimise risk to your community".
5.6 Therefore, as the Appellant is medically fit to carry out some of the duties of his role as a fire-fighter instead of or in addition to fire-fighting, he cannot be deemed to be permanently disabled from the duties appropriate to his role according to the definition of a regular fire-fighter. The Board felt that his hearing difficulty could be improved with appropriate measures, such as hearing aid, lip reading and assistive listening devices.
5.7 As he cannot be deemed to be permanently disabled from carrying out the duties appropriate to his role as a fire-fighter, there is no basis to consider a degree of disablement percentage…
7.1 The Board concluded that the Appellant is not permanently disabled from performing the duties appropriate to his role as a fire-fighter other than, or in addition to, engaging in fire-fighting.
7.2 There is therefore no basis to consider calculating degree of disablement."
"1. The Appellant is not fit to undertake operational fire-fighting duties, but he is not permanently disabled from performing other duties appropriate to his role.
2. Therefore there is no basis to consider whether the Appellant has suffered a Qualifying Injury."
The practical, jurisprudential and legislative contexts of the duty issue
"10…The contribution rate is notably high. It can be contrasted with the 6% contribution rate which other employees of the fire authority, such as control staff and non-operational staff, pay to the Local Government Pension Scheme. It is not in dispute that the Scheme operates not only as a pension scheme but also as an insurance scheme. Its benefits are generous. The generosity of its benefits reflects both the significant monetary contributions made by the regular firefighters and the fact that they are engaged in a hazardous occupation in serving the public."
Secondly, he referred to the contractual position as follows (at paras 23/26). Standard terms and conditions incorporated the Scheme of Conditions of Service (known as the "Grey Book"). This distinguished between operational staff, control staff and non-operational staff. Only regular firefighters fell into the former. Moreover there was no flexibility clause which might have allowed the authority to change job descriptions. Mr Lockwood complained that he had been transferred to light duties comprising clerical, fire safety, training and equipment maintenance, but that he felt outcast and dissatisfied and "I cannot call myself a firefighter because I can no longer fight fires". But it was also recognised that the Grey Book provided that the responsibilities of a qualified firefighter went beyond the principal duties of fighting fires and attendance at emergencies (at para 32).
Against that background, Peter Gibson LJ answered issue (1) as follows:
33. To my mind it is clear beyond argument that the Scheme distinguishes between those who are, or may be, required to engage in fire-fighting and those who are not…The rationale for the high contributions and generous benefits under the Scheme is that the regular firefighters are exposed to hazards in the course of their duties (recognised in the definition of qualifying injury in Rule A9)…That the Scheme is limited to those who are concerned directly with fighting fires is consistent with the 1947 Act, the Discipline Regulations and the Appointment Regulations. It is also consistent with the contractual documents."
"40 … I cannot see how the Authority's construction of the meaning of "duty" in Rule A10(2) accords with the structure of the Scheme. It would be absurd if a firefighter who was so disabled as to be incapable of firefighting could not be treated as disabled merely because he was capable of performing some other duties which in themselves are not characteristic of a firefighter. As the table in Part V of Sch 2 shows, it is contemplated that a person may be permanently disabled for the purposes of the Scheme even though his disablement is measured as 25% or less, and it is highly improbable that those with a slight disablement would be incapable of performing some of the duties of a firefighter other than firefighting. Like the judge I regard Rule K1(3) as significant, as being the mirror image of Rules A10(2) and A15, and the reference in Rule K1(3) to the recipients of the ill-health award becoming capable of performing the duties of a regular firefighter must reflect what was intended in Rule A10(2) by "incapacity…for the performance of duty" which led to the ill-health award… The judge rightly explained why Rule A10(2) was worded as it was rather than referring to the performance of the duties of a firefighter. As he pointed out, Rule A10(2) is not a definition clause leading on only to Rules A15 and B3, but it defines disablement for the purposes of all other Rules, including Rule B4 and its mirror image K2 and the table in Part V of Sch 2. Further, incapacity for the performance of duty must mean something different from incapacity to earn a living, the expression found in the latter part of Rule A10(2) in relation to a child."
"Secondly, I see no good reason why [the police constable's] construction should not be preferred as a matter of policy. I simply cannot accept [the police authority's] submission that, on this approach, police officers are in a position to exploit the regulations to their advantage. Regulation A20 manifestly vests in the police authority a discretion whether or not to enforce retirement on the grounds of disablement. A combination of the words "may" and "ought" in the Regulation make plain that it is they who can compulsorily retire the officer, not he who can compel them to do so. So far, therefore, from police officers being able to exploit the Regulations, the construction I favour would allow the police authority to retain any officer they wish to retain and at the same time enable them to ensure that they have as many fully fit officers as the force requires, for example in times of emergency."
"9.10 Some of these changes could be accomplished within the existing pension scheme. For example, the Central Fire Brigade's Advisory Council has already agreed to broadening the definition of "regular" firefighter to cover roles wider than operational firefighting and to strengthen the provision of independent medical advice and the qualifications required in providing that advice. We recommend that action should be taken on the existing draft proposals within the next 6 months."
"Part II of the 2004 Act is headed "Functions of the Fire and Rescue Authorities". Sections 6 to 9 appear under the heading "Core Functions". A fire and rescue authority is now under a duty to make provision for the purpose of promoting fire safety in its area (section 6); for the purpose of extinguishing fires in its area and protecting life and property in the event of fires in its area (section 7); for the purpose of rescuing people in the event of road traffic accidents and protecting people from serious harm in the event of such accidents (section 8); and for the purposes of responding to certain emergencies set out in the Fire and Rescue Services (Emergencies) (England) Order 2007 (section 9). The role of a fire and rescue authority is accordingly no longer confined merely to fighting fires, but also extends to other core functions."
Thus section 6 now requires authorities to make provision for community fire safety. This has given the authorities the opportunity and the responsibility to create jobs which can be suitable for those no longer able to fight fires.
"Fire and rescue authorities can require any reasonable activity to be carried out by an individual employee within his or her role map."
"7.1 Changes to the Firemen's Pension Scheme (the "FPS") are needed to meet commitments made in the White Paper "Our Fire and Rescue Service" (Cm 5808) in relation to ill-health retirement. These changes are as follows:
• To broaden the definition of "firefighter" to allow a firefighter, who is no longer fit enough to engage in operational duties, to remain in the FPS rather than be retired with an ill-health pension. Such firefighters could be redeployed on a range of other duties, including community safety. The current definition is one of the causes of the high level of ill-health retirements amongst firefighters.
• To place an obligation on Fire and Rescue Authorities to use independent medical assessment before approving ill-health retirements."
At para 8.2 the Explanatory Memorandum continued, under the heading "Impact":
"The impact on the public sector is that it will increase the flexibility available to fire and rescue authorities to employ regular firefighters on part-time duties, and allow them to retain in service staff who, whilst not fit for operational duties, are capable of doing other appropriate work…"
GUIDANCE ON IMPLEMENTING KEY CHANGES
(a) Amendment to the definition of "regular firefighter"…
Eligibility for full membership of the FPS is limited to regular firefighters only. The definition of "regular firefighter" includes a requirement to engage in firefighting. This remains a term of eligibility for joining the FPS. However, the definition has been amended to allow a firefighter who subsequently becomes permanently disabled for firefighting while remaining fit for other related duties to continue as a member of the FPS. This is on condition that there has been no break in service. Consequently, if a FRA are of the view that the retention of a firefighter would be of value to the service, redeployment to other duties, as appropriate to the role of a firefighter, should be considered and would be allowable under FPS rules. If the FRA cannot offer other employment, fitness to perform other duties would not be relevant and the person may be retired with an ill-health award."
"Eligibility for full membership of the FPS is limited to regular firefighters only. The definition of "regular firefighter" includes a requirement to engage in firefighting and to perform other duties as appropriate to his role as a firefighter (other than, or in addition to, engaging in firefighting). The test in assessing whether a regular firefighter ought to retire on the grounds that he is permanently disabled under Rule A15 is whether he is permanently disabled for firefighting and for performing other duties appropriate to the role."
"3.16 A firefighter is permanently disabled if he/she is medically unfit to carry out all the duties expected of him/her as listed in the role map for his/her role (rank). Provided the member can carry out one of the duties of the role he/she cannot be permanently unfit."
"As a context for their work, the group had full regard to the statement made during the course of an adjournment debate on 22 January 2008 by the, then, Fire Minister, Parmjit Dhanda MP, when he said "It was never the Government's intention for an injured firefighter not to receive an appropriate award or to be left with no job or recompense. It is really important to have that on record so that the fire and rescue authorities are aware of that when they take these decisions"…
That may well have been the catalyst for this review.
"1.9 The onus is on a fire and rescue authority to make every effort, through reasonable adjustments, including reasonable re-designing of jobs within an authority – to enable and encourage firefighters to stay in work within the role if they can, rather than be retired early….But of course it will not always be possible for firefighters to stay in work. In considering the case for ill-health retirement the fire and rescue authority will need to consider the application of the criteria in the regulations in the light of the facts and circumstances of individual cases…The absence of a realistic prospect of suitable employment within the role at the end of this process is material to the decision on whether the criteria apply, and whether an award is made…"
"…If there is a realistic prospect that a job within the role is likely to be available within that timescale [three months], the fire and rescue authority should defer reference to the IQMP in order to redeploy. When reference is made to the IQMP, the fire and rescue authority should set out in its report to the IQMP all the steps it has taken in its management of the case."
"Guidance for Independent Qualified Medical Practitioners (IQMP)
1.12 The Ill Health Review Group considered the wording of the relevant parts of the Guidance for IQMPs issued under cover of FPS Circular 8/2007, issued on 5 September 2007, and agreed that the second sentence of paragraph 3.16 should be deleted (i.e. the words "Provided the member can carry out one of the duties of the role he/she cannot be permanently unfit"). Other changes are also being made to reflect the fact that IQMPs may need to clarify issues with the fire and rescue authority before reaching a final decision, and will need to assess incapacity based on the member's job within the role, and any other jobs within the role which are actually available for him/her to take up. This ensures that this important element of individual facts and circumstances can inform the final decision by the fire and rescue authority."
The respondent's notice
"1. The Secretary of State…does not seek to uphold the learned judge's conclusion on what he referred to as "the construction issue" [ie the "duty" issue]…
7. The upshot is that a person will be a regular firefighter for the purposes of the  definition on three bases. These are: if he is or may be required to undertake either one of three strands of obligation:
a. firefighting; or
b. other appropriate tasks, and no firefighting; or
c. firefighting, plus other appropriate tasks…
12. The effect of the interaction of these provisions [rules A10(2) and A15(1) is that if a person becomes permanently disabled for the performance of his duty, the fire authority have a discretion to require him to retire, if they determine that he ought to retire on those grounds…
14. There are three steps: determining
a. what the relevant duty is;
b. whether the firefighter is disabled from performing it; and
c. whether he ought to be required to retire.
15. First, the relevant duty is found by looking at the definition of "regular firefighter" [with its three strands]…
16. Second, the firefighter is only therefore disabled from performing his duty if he is disabled from fighting, and the fire authority do not require him to perform other appropriate duties minus firefighting (the third [sc the second] strand). For his "duty" at any time depends on which of the three strands…he can at that time be required under his contract of employment, and the fire authority in fact require him to perform.
17. The third question is how that discretion is to be exercised. If the firefighter is disabled from firefighting, and the fire authority have no alternative work to which they can re-deploy him under his contract of employment, the discretion is to be exercised by requiring him to retire. Any other exercise would be inconsistent with the manifest purpose of the scheme, which is to provide firefighters with an ill-health pension if, as a result of disability, there is no duty which they can be required to do. If, however, the fire authority are able to re-deploy the firefighter (that is, they have appropriate work other than firefighting for him to do, and it is work which he can be required under his contract of employment to do), then there is no case for exercising the discretion under rule A15(1)…
19. It follows that the Secretary of State accepts that, as a result, the decisions of each of the Boards…are inadequate, as no material was put before each Board on this topic, and the relevant Board did not investigate it. In each case the Board only decided that no appellant was permanently disabled, because each was medically able to carry out some of the duties of the role of firefighter instead of firefighting (ie, strand [two]). No criticism attaches either to the Board or to the Authority in this regard, as they were following the Secretary of State's guidance.
20. For the avoidance of doubt, the Secretary of State contends that the learned judge's conclusion on what he referred to as the "jurisdiction issue" should be upheld, for the reasons which he gave."
"4. The Secretary of State asks this Court to uphold the Judge's order for the reasons he gave in relation to both the Jurisdiction Issue and the Construction Issue. The Secretary of State does not advance the construction in the Respondent's Notice."
The judge's solution on the "duty" issue
"68. In my view the background to the 2004 Order makes clear that the purpose of the amendment to the Scheme included the provision of a broader definition of "regular fire-fighter" as a consequence of which persons capable of performing non-operational duties were entitled to remain in the Scheme. Accordingly I accept Mr Beal's submission as to the meaning of the word "duty" in Rule A10(2)."
The duty issue: discussion and conclusion
The jurisdiction issue: discussion and conclusion
"50. In my view the jurisdiction conferred on the Board by Rule H2 is not limited by reference to the ground or grounds of appeal submitted by an appellant. By Rule H2(2) the appeal is against the "opinion" of the IQMP; it is not an appeal against one of the issues referred to in sub-paragraphs (a) to (f) of Rule H1(2). The fact that paragraph 1 Part 1 of Schedule 9 requires the submission of a written notice of appeal against an opinion stating the grounds of the appeal and that there exists the practice of formulating the Question for the Board by reference to the grounds of appeal does not curtail the jurisdiction of the Board. In the absence of any rules limiting the scope or nature of the appeal, the appeal to the Board constitutes a full appeal against the opinion of the IQMP.
51. The rules as presently formulated provide no basis for an argument that the Board is obliged to disregard the findings that they make or conclusions they reach as a result of interviewing and medically examining an appellant…"
(i) The correct construction of A10(2) is the relevant duty construction. The question for the IQMP and, if raised on appeal, for the Board, is whether the fireman is (permanently) subject to incapacity for the performance of his operational firefighting duty and any other duties within the definition of "regular firefighter" and within his contract which it is proposed that he perform, but not any additional duties. If therefore no redeployment away from operational firefighting is available, then the question stops with (permanent) incapacity for the performance of operational firefighting. That is part of the ratio of my judgment.
(ii) The correct construction of Part H and Schedule 9 is that an appeal is from the opinion of the IQMP on an issue within rule H1(2). It is not within the jurisdiction of the Board to give a binding decision which trespasses on issues which are not subject to a fireman's appeal. That is part of the ratio of my judgment. What follows is guidance.
(iii) I would suggest that if no question beyond that of operational firefighting is raised for the IQMP, so that an authority's A15(1) decision is taken on that basis, that authority cannot refuse ill-health retirement on the ground that non-operational redeployment is now available without putting the matter back to an IQMP for a further opinion. It follows that there is good sense in the guidance given in paras 1.9/10 of the 2008 guidance, developed with the assistance of the Ill-health Review Group. I would prefer to think that the new opinion would arise on issues under rule H1(2)(a) and (b), rather than (f).
(iv) Even if an issue of permanent disablement is before a Board, it cannot review that issue save by reference to the relevant duties in terms of which it was presented to the IQMP from whose opinion the appeal to the Board proceeds, whether they are limited to operational duties or extend beyond that.
(iv) Once an authority has taken an A15(1) decision on the basis of permanent disablement for operational duty in the absence of any proposal on its part for redeployment to non-operational duties, it is too late for that decision to be avoided by a Board's decision that the ex-fireman concerned is fit for non-operational duties.
(v) Similarly, a fireman who has retired on ill-health grounds on the basis of permanent disablement for operational firefighting duty is not at risk under Part K on the basis that a non-operational job has now become available.
(vi) It remains for argument whether an issue of disablement is necessarily implicit in a limited appeal to a Board on an issue relating only to a qualifying injury. I am inclined to think that it is not, at any rate in the absence of a clear direction otherwise.
Lord Justice Dyson :
Lord Justice Wilson :
Note 1 Inserted by the 2005 Order [Back] Note 2 Inserted by the 2005 Order [Back] Note 3 The provision of the 2004 Order [Back] Note 4 The additional provision of the 2005 Order [Back]
Note 1 Inserted by the 2005 Order [Back]
Note 2 Inserted by the 2005 Order [Back]
Note 3 The provision of the 2004 Order [Back]
Note 4 The additional provision of the 2005 Order [Back]