R v Sussex Police Authority, Ex parte Stewart

Under the Police Pensions Regulations 1987, the ordinary duties of a police officer are the duties of the office of constable. They include operational duties and the essential functions which an officer may properly be required to discharge. An officer does not cease to be disabled merely because that officer can perform sedentary or other restricted work undertaken by some members of a modern police force.

A police authority retains a discretion under Regulation A20 whether to require a disabled officer to retire. Once the authority has retired the officer, it cannot invoke Regulation K1(2) to terminate the pension unless the relevant disability has ceased.

The appellant police officer retired on grounds of permanent disablement after an ankle injury left her unable to undertake operational duties. She could nevertheless perform sedentary office work. The Sussex Police Authority later issued a notice under Regulation K1(2) of the Police Pensions Regulations 1987, on the basis that she could return to restricted police work.

Dyson J dismissed her application to challenge the notice. The officer appealed with his leave. The sole issue was whether the ordinary duties of a member of a police force meant the essential duties of the office of constable, including operational duties, or any ordinary work performed by some category of police officer.

1. Appeal allowed unanimously. Simon Brown LJ gave the leading judgment. Hale LJ agreed. Sir Christopher Staughton agreed that the appeal should be allowed and that the notice should be set aside.

2. Regulation A12(2) of the Police Pensions Regulations 1987 referred to the duties of the office of constable. Its historical context showed that the original 1948 wording corresponded with the duties which police officers had to be physically and mentally fit to perform. The continuing reference to male and female members reflected the different duties then assignable to them and probably survived later equality of duties through oversight.

3. The hypothetical member contemplated by Regulation A12(2) was therefore a holder of the office of constable who might properly be required to discharge any essential function of that office. Those functions included operational duties. The growing availability of technical, clerical and sedentary police work did not justify an ambulatory construction under which ability to perform any work undertaken by some police officer would end disablement.

4. This construction did not enable officers to compel medical retirement. Regulation A20, through the words “may” and “ought”, conferred on the police authority a discretion whether to require a disabled officer to retire. An authority could retain an officer capable of useful restricted work while preserving its ability to retire officers when operational fitness was required.

5. An officer retired under Regulation A20 could not subsequently be required to return for a restricted working life, or lose the pension, merely because non-operational work had become possible. Regulation K1(2) became available following cessation of the relevant disability, including upon a full recovery.

6. The appellant remained unable to perform operational duties and was therefore still disabled. The Regulation K1(2) notice was invalid. She was entitled to remain retired and continue receiving her pension. Sir Christopher Staughton acknowledged that either competing interpretation could produce unfortunate consequences, but concluded that the court could not rewrite the Regulations to create an intermediate test.

1. Court of Appeal: Allowed the officer’s appeal unanimously and set aside the notice issued under Regulation K1(2) of the Police Pensions Regulations 1987.

2. High Court: Dyson J dismissed the officer’s challenge on 29 November 1999, holding that she could perform the ordinary duties of a member of the force because she could undertake duties ordinarily carried out by police officers. He granted leave to appeal.