Between December 1997 and June 1999 the claimant police officer was the victim of three assaults while on duty which led to a period of sickness leave. She was prescribed medication for depression and returned to work in a non-operational role. Following examination by a consultant psychologist, the selected medical practitioner, an occupational health physician employed by the police force, certified under the H1(2) of the Police Pensions Regulations 1987, the equivalent predecessor provision to regulation 30(2) of the Police (Injury Benefit) Regulations 2006 concerning the reference of medical questions, that the claimant was likely to be permanently unfit for operational duty due to disablement caused by acute anxiety, depression and post-traumatic stress disorder. The claimant applied to the defendant Chief Constable as the relevant police pension authority for a police injury pension, to which an officer permanently disabled in the course of their duties was entitled on retirement, and retired from the police in June 2002 on the grounds of permanent disability. A psychiatric opinion stated that the claimant had not suffered from the stress disorder and that her depressive episode was due to a number of factors rather than the assaults alone. Acting on that opinion, the selected medical practitioner further certified that the claimant’s disability was moderate to severe depression which had not been caused or substantially contributed to by injury suffered during the course of her duties with the consequence that the claimant was not entitled to the injury pension. Having abandoned an appeal in April 2003 against that decision, the claimant invited the Chief Constable in April 2016 to accept that the certification as to the cause of her disability was or might have been incorrect and requested that the matter be referred back to a new selected medical practitioner for reconsideration “by agreement” under regulation 32(2) of the 2006 Regulations. The defendant considered the request to be frivolous and vexatious and refused to make the referral on the basis that the 14-year delay from the original assessment was such that no fair reconsideration was possible. The claimant issued proceedings for judicial review of that decision on the ground that it was unlawful for inadequate reasons and/or a failure to address the primary purpose of regulation 32(2). The judge, in dismissing the claim, held that the purpose of regulation 32(2) was to facilitate and promote correct pension payments and correct mistakes before going on to conclude that the decision had been lawfully taken.
On the claimant’s appeal—
Held, appeal dismissed. The purpose of regulation 32(2) of the Police (Injury Benefit) Regulations 2006 was to allow a claimant and a police pension authority, by agreement, to avoid an unfair outcome which the finality of decision might otherwise create. The key words in regulation 32(2) the were “by agreement”. It was a consensual and facilitative provision which enabled reconsideration of questions affecting pension entitlement with the agreement of the parties so as to avoid the delay and expense of an appeal or application for judicial review, particularly in the context of the statutory scheme of Part 4 of the Regulations which emphasised finality in decision-making. A police pension authority had to act reasonably on a request under regulation 32(2) and only take relevant considerations into account. The merits of the underlying claim would be a relevant factor, but it was not to be accorded any elevated status. Other relevant factors would include conflicting medical evidence into account and uncertainty as to diagnosis, any delay in applying for a further reference both in terms of whether fair consideration was possible and also given the public interest in finality of determining entitlement, and the cost of the reconsideration process, and it was for the decision-maker to determine the weight to be attached to each factor. A selected medical practitioner, in assessing whether an officer had suffered their disablement in the course of their duties and the degree of the disablement under regulation 30(2)(c)(d), was bound by the assessment of an earlier practitioner’s answers under H1(2) of the Police Pensions Regulations 1987 as to whether the officer had a disablement and whether it was likely to be permanent but was not so bound by any diagnosis which underpinned those answers. On analysis, the Chief Constable had had all relevant matters in mind and balanced them appropriately before reaching a conclusion that was clearly within the bounds of her discretion. Accordingly, the judge had been entitled and indeed correct to have held that it was permissible for the Chief Constable to have concluded that it was not possible to undertake a fair reconsideration of the claimant’s injury pension claim (paras 58, 59, 60, 62, 64–66, 68, 69).
David Lock QC and Richard Clarke (instructed by Haven Solicitors, Tadcaster) for the claimant.
Jonathan Holl-Allen QC and Aaron Rathmell (instructed by Chief Constable of Staffordshire Police, Stafford) for the defendant.