Hodgson, R (on the application of) v National Policing Improvement Agency

A police authority’s decision under regulation A19 of the Police Pension Regulations 1987 to require an officer’s compulsory retirement is susceptible to judicial review. The phrase “general interests of efficiency” concerns the efficiency of the force as a whole and is not confined to the individual officer’s performance. Procedural fairness ordinarily requires the officer to be told of the proposed decision and given an opportunity to make representations before it is taken. A later appeal will not necessarily cure that failure. Where detailed representations are made on appeal following an absence of any prior opportunity to be heard, the appellate decision-maker must engage with them sufficiently to demonstrate that they were considered.

The claimant, a detective constable participating in a non-statutory 30+ Retention Scheme, challenged the South Wales Police Authority’s decision under regulation A19 of the Police Pension Regulations 1987 not to retain him after the first annual review and to require him to retire. The authority had applied force-wide criteria concerning operational efficiency, specialist skills, workforce transformation, recruitment and promotion. The claimant argued that the decision was not susceptible to judicial review, that regulation A19 was confined to personal effectiveness, and that the decision was unlawful because he had not been given an opportunity to make representations before it was made. The central issues were the scope of regulation A19 and the procedural fairness required before compulsory retirement.

1. The court granted permission and treated the rolled-up hearing as a substantive judicial review. The decision to require a police officer to retire under regulation A19 was amenable to judicial review. The statutory basis of the decision, its compulsory effect, and its relevance to the efficiency of the force distinguished it from the operational decision in R (Tucker) v Director General of the National Crime Squad [2003] ICR 599. The approach in R v The Cleveland Police Authority ex parte Rodger [1998] EWHC Admin 726 and the principle stated in R v Kent Police Authority and others ex parte Godden [1971] 2 QB 663 supported that conclusion.

2. Regulation A19 had to be read as a whole and in the context of its enabling legislation. The natural meaning of “the general interests of efficiency” was the efficiency of the police force as a whole. The authority was therefore entitled to consider matters wider than the claimant’s personal efficiency or effectiveness, including operational requirements and force-wide workforce considerations.

3. Because the decision was subject to judicial review, fairness required that the claimant be alerted to the proposed decision and given an opportunity to make representations before it was made. The information obtained from his line manager and divisional commander did not provide an adequate substitute. His later detailed submissions illustrated the material he could have placed before the original decision-maker.

4. The appeal procedure did not cure the illegality. In the circumstances, the appeal decision-maker had to engage with the detailed representations actually made. The appeal response did not show that this had occurred.

5. The court did not determine the separate irrationality challenge. It observed that a comparative exercise might be relevant, but left the issue for a case supported by evidence directed specifically to it. The decision requiring the claimant to retire was quashed.