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Cite as: [2012] EWHC 3828 (Admin)

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Neutral Citation Number: [2012] EWHC 3828 (Admin)
CO/7508/2011

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

Royal Courts of Justice
Strand
London WC2A 2LL
29 November 2012

B e f o r e :

MR JUSTICE STUART-SMITH
____________________

Between:
THE QUEEN ON THE APPLICATION OF LONDON FIRE AND EMERGENCY PLANNING AUTHORITY Claimant
v
BOARD OF MEDICAL REFEREES Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr K Bryant appeared on behalf of the Claimant
The Defendant was not present and was not represented
Mr M Seaward appeared on behalf of the Interested Party

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE STUART-SMITH: I am going to deliver a reasoned judgment but I do not believe in building up suspense. This challenge to the decision of the Board fails. The London Fire and Emergency Planning Authority ("LFEPA"), applies for judicial review of a determination of the Board of Medical Referees ("the Board") as set out in its report dated 9 May 2011. The Board's determination related to Mr Martin Coogan ("Mr Coogan") who is a regular firefighter employed by LFEPA and who is the first Interested Party in these proceedings. The second Interested Party is the Secretary of State for Communities and Local Government ("the Secretary of State") who is responsible for appointing members of the Board.
  2. The Board's determination was that Mr Coogan is permanently disabled within the meaning of the relevant statutory provisions to which I will refer below. LFEPA applies for the Board's determination to be quashed and for the matter to be remitted to a freshly constituted Board. The Board has taken no part in these proceedings. The Secretary of State has taken no active part in the proceedings but has indicated in a letter from the Treasury Solicitor dated 5 July 2011 that he was or would be prepared to agree to the quashing of the Board's decision and a remission to a freshly constituted Board. By his acknowledgment of service, the Secretary of State indicated that he did not intend to contest the claim. The real contest is therefore between LFEPA, which wishes the determination to be quashed, and Mr Coogan who wishes it to be upheld.
  3. The Legal Framework.

  4. Mr Coogan is a member of the Firefighters' Pension Scheme 1992 ("the FPS 1992"). The provisions of the FPS 1992 are set out in schedule 2 of the Firemen's Pension Scheme Order 1992 (SI 1992-129).
  5. Relevant rules of the FPS include the following:

    A10(1) references in this scheme to a person being permanently disabled are references to his being disabled at the time when a question arises for decision and to his disablement being at that time likely to be permanent.
    (1)(a) In determining whether a disablement is permanent, a Fire and Rescue Authority should have regard to whether the disablement will continue until the person's normal pension age.
    (2) Disablement means incapacity occasioned by infirmity of mind and body for the performance of duty except that in relation to a child it means incapacity so occasioned to earn a living.
    A13 The normal pension age of employers of a Fire and Rescue Authority appointed on terms under which they are or may be required to engage in firefighting is 55.
    A15.1(1) Subject to paragraph 2, a regular firefighter may be required by the Fire and Rescue Authority to retire on the date on which the Authority determined that he ought to retire on the ground that he is permanently disabled.
    (2) A retirement under this rule is void if, on appeal against the medical opinion on which the Fire and Rescue 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.
    H1 (1) The question whether a person is entitled to any and if so what award should be determined in the first instance by the Fire and Rescue Authority.
    (2) Subject to paragraph (3) before deciding for the purposes 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
    ...
    (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 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 Authority.
    H2 (1) where -
    (a) An opinion of the kind mentioned in rule H1(2) has been obtained and
    (b) Within 14 days of his being notified by the Fire and Rescue 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 and Rescue Authority in accordance with paragraph 1 of part 2 of schedule 9.
    (3) A Fire and Rescue Authority shall be bound by any decision on any issue referred to in subparagraphs (a) to (f) of rule H1(2) duly given on appeal under this rule.
  6. Further provisions relating to the appeal to the Board of Medical Referees are set out in part 1 of schedule 9 as follows.
  7. 2(1) On receiving a notice of appeal, the Fire and Rescue Authority shall supply the Secretary of State with two copies of the notice and two 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.
    (3) One member of the Board shall be appointed as chairman.
    (4) Where there is an equality of voting amongst the Members of the Board, the Chairman shall have a second or casting vote.
    4(1) Subject to subparagraph (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 and the Secretary of State shall supply a copy of the report to the appellant and to the Fire and Rescue Authority.
  8. The Department for Communities and Local Government periodically issues guidance in relation to the Firefighters' Pension Scheme. The relevant guidance for present purpose is a circular issued on 14 January 2010 which included:
  9. "This circular covers the details of the new contract for the Managing Boards of Medical Referees entered by CLG with Health Management Limited; the procedures for processing appeal cases; and the revision of forms as necessary in support of this.
    ...
    4.2. The members of the Board are all medical practitioners and HML are contracted to provide Boards with the following qualifications:
    Chairperson: a consultant physician who is a Fellow or member of the Faculty of Occupational Medicine.
    Second member: a consultant physician who is at least an associate of the Faculty of Occupational Medicine and
    Third member: a consultant physician who is a specialist in the medical condition relevant to the appeal.
    In some cases, it may be necessary to appoint two specialists to the Board."
  10. The actual terms of the contract and any ancillary arrangement are not before the court. It is to be noted that there is an apparent discrepancy between paragraph 2A(2) of schedule 9 which requires that a member of the Board shall be a specialist in a medical condition relevant to the appeal and the terms of the circular which says that the third member shall be a consultant physician who is a specialist in the medical condition relevant to the appeal.
  11. It is also to be noted that the circular expressly contemplates that in some cases it may be necessary to appoint two specialists to the Board. Schedule 9 requires that there shall be "not less than" three members of the Board but does not regulate the qualifications of the members of the Board other than by the terms of paragraph 2A which requires that all shall be medical practitioners and that there shall be a specialist in the terms I have already set out.
  12. Authoritative guidance has been provided on the conduct of references to the Board. The leading authority is R (on the application of Marrion and others) v The Board of Medical Referees and others [2009] EWCA Civ 450.
  13. The essential facts in Marrion for present purposes were that the IQMP had found that the firefighter was permanently disabled but that his disability was not caused by a qualifying injury. The firefighter appealed on the issue of whether he had suffered a qualifying injury. The Board found in its report that the firefighter was not permanently disabled. The Court of Appeal held that this finding was not open to the Board because it had not been an issue raised by the firefighter's appeal. In the course of his judgment, Rix LJ said:
  14. "[115]...Grounds of appeal within a strictly limited period (which there is no power to extend) are vital. What is the purpose of these grounds of appeal? In my judgment, to put before the Board an issue within rule H1(2) the appeal question is a reflection of this...
    [116] The appeal can be instigated only by the fireman. The authority has no right to appeal against the IQMP's decision. On the contrary, it is bound by it ("shall be binding on that higher authority" rule H1(2)). The rules do not say that if the fireman appeals to the Board the opinion ceases to bind the Authority to be replaced by whatever decision the Board renders. Plainly the IQMP's opinion continues to bind the Authority subject to being overridden by any decision by the Board on one of the issues referred to in rule H1(2). Thus rule H2(3) states:
    "A Fire Authority shall be bound by any decision on any issue referred to in subparagraphs (a) to (f) of rule H1(2) duly given on an appeal under this rule."
    Moreover, paragraph 6 of schedule 9 refers to the Board's "written report of its decision on the relevant medical issues" thus what is given by an IQMP? An opinion on an H1(2) issue or issues. What is decided by a Fire Authority? The Authority decides the same issue or issues being bound by the IQMP's opinion. What may be appealed? Any one or more of the same issues. What is decided upon appeal? The issue or issues appealed.
    [117] If on the contrary any ground of appeal by a fireman were to put all possible issues before the Board, there would be little point in limiting the right of appeal to the fireman or in demanding notice of his grounds. There would simply be a general review by the Board...
    [118] It is said that the medical examination on appeal shows that every issue is open for re-investigation but it does not follow. As happens regularly in the courts, what is in issue depends on the grounds of appeal. The appeal court takes what is not challenged as given as data. There is no reason why the same should not apply to the schemes appealed to a Board. This is emphasised in the context of the Board's power of interview and examination by para 4(1)(b) of schedule 9 which says that further interview and examination are possible "on such further occasions as the Board thinks necessary for the purpose of deciding the appeal." (Emphasis added). Thus the power of interview and examination and it is obligatory to interview and examine at least once, see paragraph 4(1)(a) is provided for the purpose of appeal but that is defined by the appellant's grounds...
    [119] It is granted that there is some artificiality in a Board which may take the view that the appellant fireman is suffering no disability whatsoever nevertheless being unable to impose its assessment to that effect on the Authority.
    ..."
  15. At paragraph 123, Rix LJ summarised this part of the decision as follows:
  16. "The correct construction of Part H in 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..."
  17. As set out above, rule H1(2) determines the types of question that must be referred to the IQMP. In the present case, it is common ground that the question that has been referred to the IQMP and which was subsequently the subject of the appeal to the Board was whether Mr Coogan's disablement was likely to be permanent. This agreement between the parties renders unnecessary any analysis that might otherwise have been required of Mr Coogan's notice of appeal and I do not refer to it further.
  18. What is not agreed and what must be determined later in this judgment is what the Board was entitled to consider in the course of its deliberations and report in the light of the agreed scope of the issue for its determination and the principles laid down in Marrion. I return to that dispute later.
  19. As in other specialist fields that are subject to the reviewing jurisdiction of the court, it is important to remember that the report of a Board should not be read as if it were a statute. In R (South Wales Police Authority) v the Medical Referee and others [2003] EWHC 3115 Admin, Ouseley J said of the process at paragraph 56 that it is a "process for making the assessment, which is comparatively informal, and one in which doctors and not lawyers or philosophers make the decisions."
  20. In R (London Fire and Emergency Planning Authority) v Board of Medical Referees and others [2007] EWHC 2805 Admin, Mr Justice Beatson took account of the context in which such reports are produced, namely that:
  21. "It was a report produced by doctors and should not apply the standards that one would expect from a reasoned decision of the court.": see paragraph 27.

    At paragraph 38 he expanded on this point further saying:

    "The decision in Stephan's case makes it clear that the extent and substance of the reasons required depends upon the circumstances. Reasons need not be elaborate or lengthy but they should be such as to tell parties in broad terms why the decision was reached."

    At paragraph 40 he referred to the judgment of Dyson LJ:

    "...it is important that a tribunal should state which evidence if any it accepts and which it rejects, giving reasons."
  22. On the basis of these authorities, the approach of the court should be to adopt a fair reading of the Board's report, bearing in mind that those to whom it is shown will have a detailed knowledge of the facts and the medical issues in the case. What is required is that the parties should, on a fair reading, be able to understand what decision has been reached and why.
  23. Factual Background

  24. The factual background to the case is set out at pages 2 to 4 of the Board's determination and is not contentious. In summary, Mr Coogan joined the London Fire Brigade in October 1993. There were no significant problems until he was absent from work with glandular fever in 2002. His return to work on 30 December 2002 coincided with the conclusion to the firefighters' strike and, after his return, Mr Coogan was conscious of a perception amongst his work colleagues that he had been on sickness absence to avoid personal involvement in the strike.
  25. From 2002, Mr Coogan suffered with a variety of troubling symptoms including persistent headache, dizziness and tinnitus. The last time that he worked as operational firefighter was January 2005 after which he had various periods of sickness interspersed with periods of light duties. The last time that Mr Coogan was at work was in May 2010. In the period from 2002 to 2010 he received extensive medical attention and a number of diagnoses. From March 2006 he was prescribed medication for depression. In October 2006 he was certificated with an adjustment disorder. In March 2007 the diagnosis was stated to be depression after specialist assessment by a neurologist. He was then referred for specialist psychiatric assessment and treatment. From that time onwards depression was recorded as the principal diagnosis and was the certificated reason for sickness absence. He has undertaken no fewer than 56 sessions of cognitive behavioural therapy with very limited benefit.
  26. It appears from a letter from Dr Shoba that further treatment under the National Health Service is likely to tail off, no doubt because it provides such limited tangible benefit. During the period in question he was also diagnosed with sleep apnoea. Eventually Mr Coogan was referred to the IQMP who provided his report on 13 July 2010. The IQMP was Dr Wallington.
  27. Dr Wallington recorded that he had received evidence in the form of reports from Dr Oxlade, a consultant psychiatrist; Professor Findlay, a consultant neurologist; Dr Master, a consultant psychiatrist, and various members of the community psychiatric team as well as from an ENT surgeon and a GP. Dr Wallington concluded that the nature of Mr Coogan's medical condition and incapacity was "depression and sleep apnoea". He did not confirm permanent disablement, stating that:
  28. "Evidence indicates that treatment is likely to result in his health being restored."

    Mr Coogan appealed to the Board against the opinion of the IQMP that he was not likely to be permanently disabled. The Board was originally going to be chaired by Dr Sheard, an occupational health physician. His colleagues were to be Dr Weddell, another occupational health physician and Dr Ibrahim, who is a psychiatrist. There is some evidence that he was selected for his expertise in sleep apnoea but detailed information about his qualifications and expertise is lacking. In the event an adjournment meant that the constitution changed. When the Board finally met, Dr Leeming-Latham, an occupational health physician, was the Chairman. His colleagues were Dr Groom, another occupational health physician and Professor Adrian Williams, whose primary expertise is in the field of sleep apnoea.

  29. In advance of the hearing, Mr McVeigh, who was representing Mr Coogan, submitted written submissions that were dated 28 March 2011. The issue was summarised at page 2 of the submissions as follows:
  30. "Paragraph 1.1. Mr Coogan was found not to be permanently incapacitated by an independent qualified medical assessor [IQMP] - there is no date on the actual report.
    1.2. Mr Coogan is suffering from a depressive illness for eight years and has been diagnosed with severe depressive episode without psychotic features and with elements of post-traumatic stress disorder."

    He referred to sleep apnoea at internal pages 20 to 22 of the submissions and concluded:

    "Mr Coogan has got sleep problems due to his depressive state and anxiety and the elements of post-traumatic stress disorder, not sleep apnoea."

    He then made written submissions under the heading "Severe depressive episode without psychotic features", which is an express categorisation under ICD-10, referring in passing to the opinion of Dr Master that:

    "7.3. He is suffering from a clinical depression of moderate severity. I think that Mr Coogan's depressive illness was precipitated by a hostile attitude of his work colleagues on his return to work.
    ...
    7.6. In his current state, Mr Coogan is unfit to work because of his depressive illness. The prognosis is uncertain at this stage. His illness has become chronic and the symptoms are of moderate severity. Those are poor prognostic factors. I suggest that his psychiatric condition should be reviewed when his CBT treatment has ended."

    At internal page 30 of the submissions, Mr McVeigh identified the key issues as being:

    "5.1. The LFEPA/IQMP do not accept that Mr Coogan is permanently disabled due to his infirmity.
    5.2. Mr Coogan believes that he is permanently disabled and he believes that his consistent approach to try and get better by the amount of treatment he was willing to pay for can attest to this.
    ..."
  31. In the course of the hearing before the Board, Mr Coogan expressly disclaimed the diagnosis that he had sleep apnoea. It is apparent from the report of the Board that the Board agreed with his disclaimer.
  32. Neither before nor during the hearing did any party express concern about the constitution of the Board. The LFEPA was represented at the hearing by three representatives including a Dr Alison, who is a medical doctor. It is a curious feature of the case that he was also the director of Clinical Governance at HML, the body which had contracted with the Secretary of State to provide the Board to which he was making representations. The LFEPA was also represented by Mr David Cross, its senior HR manager. Mr Coogan was represented by Mr McVeigh of the Fire Brigade's Union, who was very experienced in representing members at such hearings.
  33. The Board produced its report on 9 May 2011. It recorded that it had considered reports from Dr Iqbal, Dr Shoba and Dr Lockhart in addition to reports from Professor Findlay, Dr Master and Dr Oxlade, whose reports had been before the IQMP. Dr Iqbal is an accredited specialist in occupational medicine, Dr Shoba is a consultant psychiatrist, as is Dr Lockhart. The Board therefore had before them reports from four different psychiatrists: Dr Oxlade, Dr Master, Dr Shoba and Dr Lockhart. For present purposes it is sufficient to note that Dr Shoba's report gave as his diagnosis:
  34. "Adjustment disorder with prolonged depressive reaction (F43.21)."

    And that Dr Lockhart stated in his summary at page 971 of the bundle:

    "In my opinion Mr Coogan is suffering from a severe depressive episode without psychotic features. This disorder is directly related to his experiences in the workplace as noted above and well-documented in other reports and would not have occurred had these events not taken place."
  35. In addition to receiving evidence by way of reports, the Board carried out a clinical assessment which was carried out by Professor Williams. The Board's report recorded his assessment as follows:
  36. "Opinion. The medical records available indicate that the appellant had been well-adjusted and fit prior to December 2002 when he developed what has been repeatedly confirmed to be depression and which has been subject to all usual treatments to no avail. A number of neurological assessments during this time have not revealed any meaningful physical diagnosis, which is supported by the current interview and examination. The reported obstructive sleep apnoea was not firmly diagnosed and the common symptoms associated with this condition are not currently present, perhaps as a result of a septoplasty, improving his nasal airway. An incidental report of dream enactment suggests a diagnosis of REM sleep behaviour disorder. The depression appears to be work-related, resulting from an adjustment disorder which has been appropriately treated but persists and therefore can be considered permanent. Additional reasonable treatment options are not available but it can be concluded, therefore, that he is permanently incapacitated."
  37. The Board set out its detailed case discussion and determination, pages 7 and 8 of the report, as follows:
  38. "Case Discussion.
    Key Medical Consideration
    The key medical consideration in this appeal is whether or not the Appellant has a disablement which can be considered to be permanent and, if that is the case, whether the Appellant is able to undertake regular employment.
    Detailed Case Discussion
    The Board considered carefully all of the material adduced in this case, including the contents of the case work papers, the written submissions, the verbal submissions at the hearing and the findings at the clinical examination.
    The Board decided that the Appellant is suffering from depression in the form of an adjustment disorder.
    The Board recognised that there is no evidence of a diagnosis of sleep apnoea today.
    The Board recognised that the Appellant has an additional diagnosis of REM sleep behaviour disorder.
    The Board decided that the REM sleep behaviour disorder is not relevant to his incapacity to work, in that an individual with that disorder would not normally have difficulty in pursuing gainful employment.
    The Board decided that the Appellant's symptomatology is a somatoform manifestation of the adjustment disorder.
    The Board recognised that the adjustment disorder and its consequences have resulted in intermittent incapacity to attend work over the past eight years.
    The Board came to the view that the Appellant's current absence from work, since May 2010, appears to be due to ongoing symptoms associated with the adjustment disorder, together with a perception of pressure from the attendance and disciplinary management processes.
    The Board decided that the Appellant's condition has become habituated with disabling somatoform symptoms over eight years despite substantial, sustained and appropriate treatment interventions under the supervision of a consultant psychiatrist.
    Despite the suggestion that further options are available for treatment, the Board noted that no specific further treatments have been suggested by any of the experts and other doctors involved in the case.
    The Board came to the view that treatment has been reasonable and there is no evidence that the Appellant has not cooperated fully with all the treatment offered.
    The Board accepted that there is no realistic prospect of the Appellant being able to return to work in the Fire Service.
    After careful consideration of all the aspects of this case, the Board came to the opinion that the Appellant should be considered to be likely to be permanently disabled from performing his duty as a firefighter.
    In addition, at assessment at the Board hearing, the Board decided that the Appellant is unlikely to be able to undertake regular employment, as defined in the legislation, at present.
    However, the Board considers that the prognosis for subsequent improvement, such that the appellant could take up gainful employment, is good, outside the Fire Service.
    Determination of the Board
    The Board came to the unanimous decision that the Appellant is suffering from depression in the form of an adjustment disorder, and that this disablement should be considered to be permanent.
    The Board decided that the Appellant is not, at present, able to undertake regular employment."
  39. As can be seen, Professor Williams's recorded view was that Mr Coogan was suffering from depression which appeared to be "work-related resulting from an adjustment disorder..." The Board went further than Professor Williams and referred to Mr Coogan as suffering from an adjustment disorder. It is not in dispute that depressive episodes and adjustment disorders are treated differently in the categorisation under ICD-10. Both fall within chapter V, which is headed "Mental and behavioural disorders".
  40. Depressive episodes fall under category F32 and expressly exclude adjustment disorders. Adjustment disorders fall under the subheading "Neurotic, stress-related and somatoform disorders" and form category 43.2. However, there may be overlap in the manifestation of depressive episodes on the one hand and of adjustment disorders on the other, as is clear from the terms of F43.2, which states:
  41. "States of subjective distress and emotional disturbance usually interfering with social functioning and performance arising in the period of adaptation to a significant life change or a stressful life event...the manifestations vary and include depressed mood, anxiety or worry (or a mixture of these)...the predominant feature may be a brief or a prolonged depressive reaction or a disturbance of other emotions and conduct."

    Grounds of Challenge

  42. The claimant challenges the legality of the Board's report on four grounds.
  43. Ground 1. It is alleged that the Board was incorrectly constituted from the start because there was no psychiatrist on the panel.
    Ground 2. It is alleged that the Board should have adjourned and appointed a psychiatrist when it was clear that sleep apnoea did not form any part of Mr Coogan's proper diagnosis. Alternatively, it is said that it should have adjourned for further reports from a psychiatric specialist.
    Ground 3. It is alleged that the Board's diagnosis was irrational because it is said to be unsupported by any proper reasoning. Specifically, it is alleged to be unclear from the Board's report whether they concluded that Mr Coogan was suffering from depression which was likely to be permanent or that he was suffering from an adjustment disorder which was likely to be permanent. It is also alleged that if and insofar as the Board relied upon the diagnosis of an adjustment disorder, there was no proper indication of the Board's reasoning.
    Ground 4. It is alleged that the Board's conclusion on permanence was irrational.

    Discussion of the issues.

  44. LFEPA developed two strands of its main argument under ground 1. First, it submits depression was a medical condition relevant to the appeal within the meaning of paragraph 2A(2) of schedule 9 and that it was therefore a statutory requirement that there should have been a psychiatric specialist on the Board. It submits that sleep apnoea was not a medical condition relevant to the appeal and that therefore Professor Williams was not a suitable member of the Board. Accordingly, submits LFEPA, the Board was not properly constituted.
  45. In support of this submission, LFEPA points to paragraph 4(1) of schedule 9 which renders it mandatory for the Board to interview and medically examine the appellant at least once which, it says, points to the need for a specialist member for each condition relevant to the appeal. It also points to paragraph 2A(1) which states that the Board shall consist of "not less than three" medical practitioners, which it says shows that the rule contemplates a need for there to be more than three members of the Board if the complexity of the medical conditions demands it.
  46. As a separate strand of its submission relying upon the requirement that "the Board shall not consist of less than three medical practitioners appointed by or in accordance with arrangements made by the Secretary of State" it points to paragraph 4.2 of the circular which states, as I have already said:
  47. "Third member: a consultant physician who is a specialist in the medical condition relevant to the appeal.
    "In some cases it may be necessary to appoint two specialists to the Board." [Underlining added]

    That shows, so LFEPA submits, that there must be a specialist for every condition relevant to the appeal. Mr Seaward, who has considerable experience in this field, confirmed that although three was the usual number of members on the Board, he had occasionally come across a Board with more than three members.

  48. Dealing with LFEPA's second argument first, I reject the submission that paragraph 4.2 of the circular taken in conjunction with the opening words of paragraph 2A(1) renders the constitution of this Board defective. The opening words of paragraph 2A(1) are concerned with who shall appoint the Board. They contemplate that instead of appointing the Board himself, the Secretary of State may make arrangements for someone else, in this case HML, to appoint it. There would be no breach of the requirement that three medical practitioners be "appointed by...the Secretary of State" if the Secretary of State appointed the Board directly but one of them was of the wrong specialism. By the same token, there is no breach of the requirement that the three medical practitioners be "appointed...in accordance with arrangements made by the Secretary of State" if the Secretary of State arranges for the appointment to be made by someone else and that person makes the appointment even though one of the appointees is of the wrong specialism.
  49. To my mind, there is no justification for including within the word "arrangements" each and every provision which the Secretary of State may choose to insert in the contract with HML. To the contrary, it would be highly undesirable to give the phrase such a wide meaning as it would give the opportunity for minor breaches of ancillary "arrangements" to be relied upon in support of submissions that the Board lacked jurisdiction even where it is plain that the Board was fully qualified to determine the issues before it.
  50. I therefore turn to LFEPA's first strand of argument. paragraph 2A(2) of Schedule 9 is not happily drafted. If it were the intention of the rule that the Board should include a specialist in every relevant medical condition, that could easily have been stated; but it was not. Little help can be obtained from the terms of the circular since the primary document setting out the terms of HML's document are not before the court and it is clear that the wording of paragraph 4.2 departs from the wording of paragraph 2A.
  51. Looking at the wider context, however, lends support to LFEPA's submission. It is self-evident that the purpose of the Board is to provide an expert medical panel which is suitably qualified to determine the issues before it. Where only one medical condition is involved, the suitability of the Board is ensured by having one member who is a specialist in that medical condition. However, the appeal may raise issues relating to numerous medical conditions. That being so, it seems to me that the more natural interpretation of paragraph 2A(2) is that the Board should contain specialist medical practitioners whose expertise covers all medical conditions relevant to the appeal. This does not involve a tick-box mentality in relation to each condition that can possibly be identified but it does require the appointment of a Board whose members between them have suitable expertise to consider the case as a whole.
  52. Does it follow that this Board was improperly constituted because Professor Williams was a specialist in sleep apnoea and not in depression? I do not consider that the answer to this question is self-evident. It is to be remembered that it is common ground that the issue for the Board to decide was whether Mr Coogan's disablement was likely to be permanent. The Board contained two highly experienced occupational physicians of consultant status. The specialism of occupational medicine has, as a large component, the treatment of illnesses caused by stress in the workplace and includes what may more broadly be referred to as depression since these are common problems arising in the context of occupational health. It is also to be remembered that, in a different context, LFEPA submits that the question of diagnosis of the underlying condition was simply off limits for the Board in this case because the issue raised in the appeal was the Rule H1(2)(b) issue whether the disablement was permanent and not what the causes of the disablement may have been.
  53. The logical consequence of that submission, as LFEPA accepted during argument, was that if the Board were to decide as a result of its investigations that the underlying diagnosis by the IQMP as the reason for an unquestioned disablement was wrong, it would not be entitled to say so. This startling submission focuses attention on Rule H1(2) because, if it is correct, it could be said that the diagnosis of depression and therefore the medical condition itself was not relevant to the appeal. That would provide an insurmountable obstacle to LFEPA's argument under ground 1.
  54. Rule H1(2) identifies the questions that must be referred to the IQMP. All of those questions are medical questions, which is why they have to be referred to the IQMP. They are also all "issues wholly or partly of a medical nature" as is clear from the terms of Rule H1(2)(f). Although it can be said that "depression" was a medical condition that was relevant to the appeal to the Board, the issue to be determined by the Board was the issue of the permanence of Mr Coogan's disablement. There is nothing in the articles or rules that limits the scope of the enquiry that the Board was entitled to carry out when considering the issue before it. To the contrary, it is quite unrealistic to suggest that the Board was simply not allowed to consider the underlying diagnosis when considering the issue before it.
  55. The diagnosis is not the disablement, which was a given before the Board. It is the label attached by the medical profession to determine the nature and identity of the disease suffered by Mr Coogan based on an analysis of the signs and symptoms and his mental history. I reject the suggestion that the diagnosis reached by the IQMP was in any way "off limits" for the boards. What was off limits was the fact of his disablement, not the underlying diagnosis that had been reached. It was open to the Board to look at the question of diagnosis when considering the question of permanence of the disablement.
  56. I would find against LFEPA on this limb of ground 1 because it has not been established that the Board did not have sufficient expertise to consider the medical condition of depression in the context and for the purposes of deciding the issue before it, namely whether Mr Coogan's disablement was permanent. However, if I were to be wrong about that, I would hold that LFEPA is not entitled to rely upon any deficiency in the constitution of the Board as a ground for quashing the Board's decision that his disablement was permanent.
  57. On the assumption that the constitution of the Board was defective, there is a distinction to be drawn between defects giving rise to an absence of jurisdiction, which no consent or waiver can rectify, and a procedural irregularity which does not of itself mean that the Board or a tribunal has no jurisdiction but which may yet be a material irregularity either because it affects the fairness of procedure or otherwise. In the latter case acquiescence may be a bar to a subsequent complaint either because it amounts to a waiver or as a matter going to the exercise of the court's discretion when deciding whether to quash the decision. See Administrative Law, Wade & Forsyth, 10th addition at pages 201 to 203; and see R (exp. English) v East Staffordshire BC and National Football Centre Limited [2010] EWHC 2774 (admin) at paragraph 39 per Flaux J as an example of the approach that will be taken by the court where a procedural irregularity does not amount to an absence or give rise to an absence of jurisdiction.
  58. On the facts of this case, if and to the extent that the constitution of the Board was defective, it was at most a procedural irregularity: the jurisdiction of the Board stems from the fact of its appointment. There can be no suggestion of procedural or unfairness or any breach of the requirements of natural justice as LFEPA was fully aware of the constitution of the Board and was evidently content to have the issue determined by the Board. It was only later, when the Board produced a result that it did not like and LFEPA began to look for reasons to overturn it, that this issue was identified.
  59. On the assumption that I am wrong in my primary conclusion that it has not been established that the constitution of the Board was defective, I would therefore in any event decline to exercise my discretion to quash the decision of the Board on the basis of the arguments advanced by LFEPA in ground 1. For the same reasons I would reject the submission under ground 2 that the Board's report should be quashed because the Board should have adjourned and been reconstituted halfway through the hearing with a specialist on depression as a member of the reconstituted Board.
  60. LFEPA offered a fallback alternative submission that when Mr Coogan expressly disallowed the diagnosis of sleep apnoea during the hearing the Board should have adjourned for further specialist psychiatric reports pursuant to paragraph 4(1)(b) of Schedule 9. Once again, this is a retrospective submission that was not made at the time and I would reject it on that basis alone. However, I would not in any event accept there was any obligation upon the Board to seek further psychiatric evidence at that stage of the proceedings. The Board already had at least four separate reports of which two were recent. LFEPA has not articulated what advantage, if any, would have derived from yet another report and none is apparent. The power to seek further reports in paragraph 4(1)(b) is to be exercised "as the Board thinks necessary for the purposes of deciding the appeal." It is clear that the Board did not think that further reports were necessary and there is no reason to find that it was not entitled to hold that view.
  61. LFEPA ran its oral submissions on grounds 3 and 4 together. I have already explained why, in my judgment, the Board was entitled to consider the underlying diagnosis and I have set out the passages from the report which record the Board's approach and finding noting the progression from the position adopted by Professor Williams on page 6 of the Board's report to the apparent adoption and the diagnosis of adjustment disorder on pages 7 and 8.
  62. LFEPA criticises the absence of reasons for the diagnosis. In my judgment this criticism is well-founded even when making due allowance for the fact that the report is a document written by medical practitioners for parties who are fully aware of the facts and underlying medical issues. Although it is possible to find in the report reference to circumstances which may have justified a diagnosis of adjustment disorder not least in the section headed "Occupational History/Background to the Case" and it is plain that the medical evidence included material which, if accepted, would have justified a diagnosis of adjustment disorder, the Board did not take any steps to identify specifically what evidence, lay or medical, it relied on in reaching the diagnosis and did not carry out any balancing exercise at all to show that it had taken into account competing considerations. On this question, the absence of reasons cannot be remedied by even the most generous contextual reading of the report.
  63. There are two potential explanations for the lack of precision in approaching the question of diagnosis. The first is that the Board simply failed to consider the issue properly for no good reason. The second is that the Board in fact was concentrating upon the issue which was before it, namely the permanence of Mr Coogan's disability, and that it therefore did not devote the same attention to its formulation of the question of diagnosis as it might have done if diagnosis had been the central issue before it. I consider that there are a number of reasons for preferring the second explanation.
  64. First, it is clear that the Board asked itself the right question. At the top of page 2 of the report, the Board set out the basis for the appeal as follows:
  65. "The appellant has appealed against the opinion of the IQMP that he is not likely to be permanently disabled from performing his duty on account of depression and sleep apnoea. The Board was to consider whether or not the appellant has a permanent disablement. If the Board considered that there was a permanent disablement then the Board was to consider whether the appellant would be able to undertake regular employment as defined in the regulations."
  66. The submissions of both parties concentrated on the issue of permanence of disablement: see the last two paragraphs on page 4 and the last two paragraphs on page 5 of the report. In addition, the Board identified the issue which it set out to address on the top of page 7 of the report:
  67. "Key medical consideration. The key medical consideration in this appeal is whether or not the appellant has a disablement which can be considered to be permanent and, if that is the case, whether the appellant is able to undertake regular employment."

    That was the correct question and the question which the Board then set out to address.

  68. Second, there is no evidence to suggest that the Board considered that a diagnosis of adjustment disorder as opposed to a diagnosis of depression would affect its view on the likelihood of the disablement being permanent.
  69. Third, the very lack of precision being adopted suggests that the Board did not consider that the precise diagnosis was material to the outcome of its deliberations on permanence.
  70. Fourth, it is apparent from the last paragraph on page 7, which starts with the words, "After careful consideration of all the aspects of this case..." that the Board had not lost sight of the issue which it was required to decide, and that the preceding paragraphs on page 7 are not the central determination of the Board but aspects of the case which had been taken into account in reaching its determination of the correct issue.
  71. These reasons serve to confirm that ground 4 contains the substance of LFEPA's case. I mean no disrespect to the care with which LFEPA's submissions have been advanced by dealing with the point relatively shortly. I would accept that at first sight the report is short on reasoning in support of the Board's conclusion that the disablement is permanent. However, if one stands back and adopts a fair reading of the report, bearing in mind once again the context in which and the parties for whom it was prepared, this criticism falls away. The reason is that when the last paragraph of page 7 and the first two paragraphs of page 8 are read in that light, it is obvious that what the Board has done is to accept the evidence of Dr Lockhart since the three paragraphs in the report reflect and track Dr Lockhart's views as set out in his report at pages 972 to 973 of the bundle so closely that any other conclusion is impossible.
  72. LFEPA picks up on the statement by the Board that "despite the suggestion that further options are available for treatment, the Board noted that no specific further treatments have been suggested by any of the experts and other doctors involved in the case" and relies on a partial quotation from Dr Lockhart which, taken alone, contradicts the statement.
  73. However, when that passage is taken in context, it is clear that Dr Lockhart's view was that there are no treatments that have any real likelihood of returning Mr Coogan to duty, which is the essential question the Board was required to answer. Once the Board's report is read in the knowledge of the full terms of Dr Lockhart's report, it makes plain to anyone who is likely to have to read it (including, most importantly, the parties affected by the decision) the issue being decided by the Board, the competing contentions of the parties, the decision reached by the Board and the reasons why the Board reached that conclusion. In my judgment, although it would have been formally more elegant for the Board to have amplified its reasons for concluding that the disablement was permanent, the report is sufficiently clear and the conclusion which the Board reached was a conclusion to which it was entitled to come on the basis of the evidence that was available before it.
  74. In those circumstances I would not exercise my discretion to quash the report or the determination of the report on the grounds of the absence of reasons identified by LFEPA in ground 3 because on the central issue, namely permanence, I would hold that the report is sufficient. For these reasons, this challenge fails.
  75. MR SEAWARD: Thank you very much, my Lord. May I apply for the Interested Party's costs?
  76. MR JUSTICE STUART-SMITH: Yes.
  77. MR SEAWARD: Thank you. We've got cost schedules so it's up to your Lordship whether they should be dealt with summarily now or by detailed assessment. I think both parties are quite relaxed about whether it should be either summary or detailed.
  78. MR JUSTICE STUART-SMITH: Just give me one moment because I think I have got your schedule.
  79. MR SEAWARD: Thank you. Can I just explain that we would be seeking to add today's attendance to the figures they quote. I can give you those figures.
  80. MR JUSTICE STUART-SMITH: On reflection, whether or not I've got your schedule, I can only find Mr Bryant's, so could you possibly hand me a copy.
  81. MR SEAWARD: Yes. Thank you very much (Handed).
  82. MR JUSTICE STUART-SMITH: Just give me a moment.
  83. So your fee is effectively for preparation and attendance is 6 and a half?
  84. MR SEAWARD: Yes, it is.
  85. MR JUSTICE STUART-SMITH: And your previous work on this case, were you charging on an hourly basis, on an hourly rate?
  86. MR SEAWARD: Yes.
  87. MR JUSTICE STUART-SMITH: Can you tell me what the hourly rate was?
  88. MR SEAWARD: I can't off hand but I would imagine it's in the region of 200, 250. My solicitor has it there. It might be slightly more for this particular type of work but I think it's usually 250. We haven't got it.
  89. MR JUSTICE STUART-SMITH: But something in the region of 250?
  90. MR SEAWARD: Yes, indeed.
  91. MR JUSTICE STUART-SMITH: Thereabouts. That I think is probably sufficient for Mr Bryant's purposes.
  92. Mr Bryant, first of all, do you wish to make detailed submissions on this?
  93. MR BRYANT: Not particularly detailed, my Lord, no. I have a very few points to make. I am not going to go through calculations (Inaudible) in a position to do that.
  94. MR JUSTICE STUART-SMITH: No.
  95. MR BRYANT: There was one general point that I was going to make and it was that I had assumed that the hourly rate that was being claimed of 325 was Mr Stilliard's rate as the partner supervising the matter and it's clear from Mr McBride's statement if nothing else where he says, "I have conduct of this case," that someone else was dealing with it under Mr Stilliard's supervision.
  96. I am told during some whispers a few moments ago that Mr McBride is also grade A. I don't know if that is the rate for Mr McBride as well. If it is then I do not have anything further to say about it.
  97. The point that follows on from that that I am asked to make is that in my submission this is not a case that required a grade A fee earner to do every single aspect of the work. Every phone call, every letter, every bit of photocopying to an absurd extent appears to have been done and been charged at grade A. That was simply not warranted in this case.
  98. The further point that I make is this: if one looks at the third page of the schedule, the third numbered page.
  99. MR JUSTICE STUART-SMITH: Yes.
  100. MR BRYANT: One has a heading towards the very bottom of that page that says "documents" and someone was engaged at the rate of 325 an hour for nearly 17 hours doing what we don't know. This was my client's application. You would expect my client to be doing the bulk of the running, as it were. As I understand it, we undertook to put the bundles together and incur the costs and the time of doing that.
  101. It appears, on the face of it -- and I put it no higher than this -- that a 17-hour charge at a grade A fee earner for doing something with documents is simply too much. Further than that, that's really all I can say on the question of costs.
  102. MR JUSTICE STUART-SMITH: Mr Seaward, additional costs for today?
  103. MR SEAWARD: Yes, my Lord. I can't remember exactly what I sketched on the back but your Lordship has my copy and what --
  104. MR JUSTICE STUART-SMITH: I have got a figure of 1,085.
  105. MR SEAWARD: Yes.
  106. MR JUSTICE STUART-SMITH: Does that look hopeful?
  107. MR SEAWARD: 500 for me plus VAT.
  108. MR JUSTICE STUART-SMITH: 500 for you and 487.50 --
  109. MR SEAWARD: 487.50 is at one and a half hours. It's gone a bit more than that--
  110. MR JUSTICE STUART-SMITH: I am very sorry about that.
  111. MR SEAWARD: That's what's sketched on the back there.
  112. MR JUSTICE STUART-SMITH: So that comes to about 32,000 altogether?
  113. MR SEAWARD: Yes, it's about that, my Lord.
  114. MR JUSTICE STUART-SMITH: What do you say --
  115. MR SEAWARD: About Mr McBride?
  116. MR JUSTICE STUART-SMITH: There's two points. No disrespect at all to Mr McBride but certainly looking at this case overall I would have thought that there is work here which could sensibly have been done by someone who is not a grade A solicitor and that links into the point on documents. At the moment I don't really understand either the justification for 16 and a half hours or why that would need to be done by a grade A solicitor. I fully accept the importance of this to your client, but even so.
  117. MR SEAWARD: Indeed. My client is, I hope you will forgive me for saying this, but quite a difficult person; quite a difficult client to have, in a sense.
  118. MR JUSTICE STUART-SMITH: He hasn't walked out of court when you've said it. Whether he will forgive you or not I think is another matter.
  119. MR SEAWARD: And your Lordship has seen the extent of the FBU submissions. The sort of work that Mr McVeigh had to put in to presenting this case. I think, if I was to say that my client is verging on the obsessive in terms of detail and attention to documents, understandably --
  120. MR JUSTICE STUART-SMITH: That would not come as a surprise to me nor would I take it as a criticism.
  121. MR SEAWARD: But it was necessary for those instructing me to review the documents. The 17-hour figure, I am instructed, is a total; it is a computerised record of hours spent with documents over the course of the case. It's not one big exercise.
  122. MR JUSTICE STUART-SMITH: From the time of the issuing of the --
  123. MR SEAWARD: Letter before action. That's right, isn't it? From the time of receiving the letter before action so if looks a little bit odd at 17 hours I would agree and that's the sort of time you would expect counsel would spend poring through the bundles but not necessarily a solicitor.
  124. As to the grade of Mr McBride, he wasn't acting under Mr Stilliard's supervision at that point. Mr Stilliard had to go on leave and Mr McBride had to step in and take over this complicated case at quite a critical time. I remember because he telephoned me and asked me about matters and he is the one who basically put together the witness statement that dealt with the correspondence with --
  125. MR JUSTICE STUART-SMITH: I don't think there is any criticism of Mr McBride being involved; I think the criticism or the challenge is that there is work in this case which, even with a demanding client, could have been dealt with by a lower grade figure.
  126. MR SEAWARD: It's a matter for your Lordship. In my submission this is a complicated stuff. Mr Stilliard has accumulated an experience in dealing with this matter which probably saved a lot of time and money on -- that another solicitor would have spent much longer on. Mr McBride came in and I think a solicitor with less experience would have had great difficulty picking this case up and running with it in the way that he did, so I think it's swings and roundabouts. I appreciate that in most cases grade A might be a little bit too high for all of the work but not in this sort of work. It's specialist work and if you get it wrong in this sort of case the consequences are dramatic.
  127. MR JUSTICE STUART-SMITH: So the figure of 32,000 is the VAT inclusive figure and the figure I shall give you will be the VAT inclusive figure.
  128. MR SEAWARD: Thank you very much.
  129. MR JUSTICE STUART-SMITH: Anything else you want to say?
  130. MR SEAWARD: No, my Lord.
  131. MR JUSTICE STUART-SMITH: Anything in reply?
  132. MR BRYANT: On costs, no, my Lord.
  133. MR JUSTICE STUART-SMITH: I fully accept that Mr Coogan may be, in litigation terms, a difficult client although I am sure from his perspective what he does is entirely justified and I don't mean that as any criticism of Mr Coogan. But it does seem to me that even taking that into account there is work in this bill or in this summary which could reasonably have been delegated to people at a lower level and a lower charging rate and it also seems to me that the documents figure is somewhat heavy although not outrageously so given the explanation that I've been given that it goes back to the date of receipt of the letter for action.
  134. It seems to me that I can do no more than adopt a very broad brush, an impressionistic approach, in coming to a figure but I think there should be a reduction to reflect those two features and the figure which I end up, which is a VAT inclusive figure, is 27,500.
  135. MR SEAWARD: Thank you very much, my Lord.
  136. MR BRYANT: My Lord, at the risk of incurring a further bill, if not wrath from various places, I have one further application I am instructed to make and it's an application for permission to appeal. I see you shaking your head and I am more than happy to develop the submission if it's likely to change your Lordship's mind.
  137. MR JUSTICE STUART-SMITH: You can if you like but ultimately I have exercised -- while making a finding of effectively a waiver or however you like to express it, I have turned you down as an exercise of discretion on grounds 1 and 2. It's effectively a ground of discretion on ground 3 and on ground 4 I think the position is clear, so if you want permission you're going to have to get it from the Court of Appeal.
  138. MR BRYANT: I am grateful.
  139. MR JUSTICE STUART-SMITH: Thank you very much.
  140. MR SEAWARD: My Lord, can I trespass on your patience just for one matter and that is that in the course of the read out judgment your Lordship referred to articles in the Firefighters' Pension Scheme and they are in fact rules. It's not a big point but it may be you prefer the judgment to accurately reflect. For example your Lordship said article H1 and it should be rule H1.
  141. MR JUSTICE STUART-SMITH: Okay. Right, well I'll take your word for it because I am sure you're probably right. I thought that when we got to schedule 9 it was rules.
  142. MR SEAWARD: No, schedule 9 is paragraphs. Paragraphs of the schedule and HR rules.
  143. MR JUSTICE STUART-SMITH: Yes, you're quite right. Sorry about that. Well, if anybody decides they want it take this further what I will do is I'll probably be asked to approve a transcript and if that happens I will try and remember that, failing which I'll ask for help.
  144. MR SEAWARD: I am sure we can both help in that regard.
  145. MR JUSTICE STUART-SMITH: Yes. Thank you both for your help.


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