Malekout v Secretary of State for Health

Applications for permanent injury benefit begun under the former regulations were to be dealt with under the National Health Service (Injury Benefits) Regulations 1995, unless a valid election preserved the former provisions. A claimant who was a practitioner fell within the practitioner definition of average remuneration. His benefit was therefore calculated by reference to the yearly average of uprated earnings, rather than the best of his final three years’ pensionable pay. For a claimant eligible under regulation 4(2), the relevant deemed retirement date was the date employment ceased because of the injury. A prior period of temporary benefit under regulation 4(5) did not change that result, even if the calculation produced an unusual or disadvantageous outcome.

The claimant, a dentist and NHS practitioner, had suffered an employment-related injury and was medically retired in December 1990. Earlier proceedings had established his entitlement to permanent injury benefit. The remaining dispute concerned the regulations applicable to the calculation and the correct period over which his average remuneration was to be assessed.

The Secretary of State calculated the benefit under the National Health Service (Injury Benefits) Regulations 1995, using 16 December 1990 as the relevant end date. The claimant argued that the former 1974 regulations applied, or alternatively that his earlier temporary benefit under regulation 4(5) made January 1987 the relevant date.

1. Permission and substantive claim. Permission for judicial review was granted because the claim was manifestly arguable. The substantive claim failed.
2. Applicable regulations. Regulation 24 of the National Health Service (Injury Benefits) Regulations 1995 revoked the 1974 regulations and transferred pending applications to the corresponding 1995 provisions. Regulation 23 permitted an election against a provision which placed the claimant in a worse position, but only by written notice within the prescribed period or such longer period as the Secretary of State allowed. The claimant had never given such notice. The limited difference between the regimes was in any event de minimis. The 1995 regulations therefore applied.
3. Status of the claimant. The claimant was a practitioner within regulation 3(1)(b). The earlier reference to regulation 3(1)(d)(ii) was a typographical error and could not convert him into a person other than a practitioner. The relevant declaration under regulation 3(2)(a) remained binding for the purposes of the 1995 regulations.
4. Average remuneration. Regulation 2(1)(b), not regulation 2(1)(a), governed a practitioner. Average remuneration meant the yearly average of uprated earnings calculated under the pension regulations. The claimant could not rely on the provision concerning final-year pensionable pay, which applied only to a person other than a practitioner.
5. Relevant date. The claimant was eligible under regulation 4(2), which applied where employment ceased because of the injury. Regulation 2(1)(b)(iii) therefore required the calculation to proceed as if he had retired on the date his employment ceased. The relevant date was 16 December 1990. Regulation 4(5) applied only during employment and could not be combined with regulation 4(2) to produce a January 1987 date.
6. The resulting disparity between temporary and permanent benefit could be an anomaly, but the wording of the regulations was clear. The Secretary of State’s calculation of 16 September 2004 was lawful.

First-instance judicial review in the High Court (Administrative Court). The claimant’s application was dismissed. The judge extended time for an application to the Court of Appeal until 31 December 2004, but did not grant permission to appeal.