McGinley, R (on the application of) v Schilling

An appeal under regulation H2 of the Police Pensions Regulations 1987 is a rehearing, not a review confined to whether the selected medical practitioner was correct when issuing the certificate. The medical referee must determine the matter at the date of the referee’s own decision and may consider fresh and up-to-date evidence. This approach applies to disability, permanence, duty causation and degree of disablement because those questions are interlinked, although causation concerns an injury in the past. Periodic reassessment, concerns about backdating, delay and non-statutory guidance do not alter that construction.

These were two joined judicial review appeals concerning injury pensions for police officers retired for permanent disablement. Mary McGinley challenged Dr Schilling’s decision, as medical referee, to uphold a 35% disablement certificate. The Metropolitan Police Authority challenged Dr Beck’s decision to increase Stephen Batchelor’s assessment from 45% to 55%.

McCombe J heard the claims together in the Administrative Court on 28 June 2004. He held that Dr Beck was correct and Dr Schilling wrong, construing regulation H2 as requiring the medical referee to decide the appeal at the date of the referee’s own decision. The common issue was whether the appeal was confined to the correctness of the earlier certificate or required a determination on the up-to-date evidence available to the medical referee.

1. Disposition. May LJ delivered the leading judgment. Pill LJ agreed with his conclusion and reasons. The two appeals were dismissed.
2. Nature of the appeal. Regulation H2 provides a rehearing rather than a limited review of the selected medical practitioner’s certificate. The appeal is from the police authority’s decision, and the medical referee is the first independent person to consider the matter. The referee must undertake a full reconsideration, taking account of, but remaining unconstrained by, the earlier decision.
3. Date and evidence. The medical referee determines the appeal at the date of the referee’s own decision. Schedule H permits further interviews and examinations, and the attendance provisions contemplate additional medical evidence. Regulation H3(2), concerning reconsideration on fresh evidence, reinforces the same approach. The word disagrees in regulation H2(3) does not confine the referee to the information or circumstances existing when the original certificate was made.
4. Interlinked questions. Regulation A12(1) refers to disablement at the time when the question arises for decision. Regulation A20 also uses present-tense language when referring to the medical referee’s decision. Those provisions apply to the referee’s decision as well as the selected practitioner’s decision. The questions in regulation H1(2)(a)–(d) are interlinked and should not be answered by reference to different dates. The contemporary approach therefore applies to degree of disablement, although causation concerns an injury received in the past and may be determined on additional evidence. The court followed R (Caine) v Cavendish [2001] EWHC Admin 18, R (Metropolitan Police Authority) v Bird [2001] EWHC Admin 753 and City of London Police Authority v Medical Referee [2004] EWHC Admin 897.
5. Practical objections and orders. Regulation K2’s periodic reassessment scheme and regulation L3’s provision for payment from retirement did not outweigh the clear construction of regulation H2. Concerns about delay, manipulation, funding or overcompensation did not justify a different interpretation. Administrative delay was a matter for the police authority and the Home Office. Guidance issued to medical referees had no statutory effect and could not determine the construction of the Regulations. The appellant was ordered to pay the respondents’ costs in both appeals, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): On 29 April 2005, the appeals were dismissed. The appellant was ordered to pay the respondents’ costs in both appeals, and permission to appeal to the House of Lords was refused.
• High Court of Justice, Queen’s Bench Division, Administrative Court: McCombe J heard the joined judicial reviews on 28 June 2004, held that Dr Beck was right and Dr Schilling wrong, and decided that the medical referee determined the matter at the date of the referee’s decision. McCombe J refused permission to appeal; Auld LJ subsequently granted permission.