South Wales Police Authority, R (On the Application Of) v Medical Referee & Anor

Under the Police Pensions Regulations 1987, the degree of disablement is assessed by reference to current earning capacity, not speculative future capacity or the likelihood that employers will offer employment. The assessment must identify the loss of earning capacity caused by the duty injury and disregard other causes.

Apportionment is required where another factor has independently caused part of the loss. It is not required merely because a duty injury aggravated an underlying condition which had caused no prior loss of earning capacity. A Medical Referee must address a properly raised apportionment issue within the assessment of the degree of disablement.

The South Wales Police Authority sought judicial review of a Medical Referee’s decision that Philip Crocker, a retired police officer, had lost 100 per cent of his earning capacity through a psychotic illness treated as an injury received in the execution of duty.

The Authority challenged the assessment of current earning capacity, the consideration of employer attitudes and future work prospects, and the failure to apportion loss between work-related stress and an underlying chemical imbalance. The central issues were the proper construction of the Police Pensions Regulations 1987 and whether the Medical Referee had failed to determine a material apportionment issue.

1. Current earning capacity. The Medical Referee was entitled to prefer the more recent medical evidence and conclude that Mr Crocker had no current earning capacity. The possibility of working at some unknown future date did not prevent a present assessment of total disablement.
2. Future prospects and labour market evidence. Regulation A12(3) requires assessment of how earning capacity “has been affected”. It does not require speculative forecasting of future capacity. The review mechanism in regulation K2 permits reassessment when circumstances change. The likelihood that employers would offer work, even in light of the Disability Discrimination Act, was irrelevant to earning capacity. The error was immaterial because the conclusion of no current capacity was independently supported by the medical evidence.
3. Apportionment. Under regulation A12(3), the decision-maker must assess the loss of earning capacity caused by the duty injury and discount every other contributing factor. Apportionment is not confined to separate duty and non-duty injuries. It is required where another factor has itself caused some loss of earning capacity. Where an underlying condition has caused no independent loss, but the duty injury has directly caused the loss by aggravating that condition, the loss is attributed wholly to the duty injury.
4. The question is one of causation and responsibility under the Regulations, rather than a purely medical classification of one or two injuries. The Medical Referee wrongly treated apportionment as outside his remit, following erroneous Home Office advice. The issue could affect the percentage band and had to be determined.
5. The application was allowed. The Medical Referee’s decision was quashed, and the appeal was to be reconsidered by a different Medical Referee with all relevant matters at large. The Authority was awarded costs, subject to detailed assessment if not agreed.