Marrion & Ors, R (on the application of) v Board of Medical Referees & Ors

Permanent disablement under rule A10(2) is assessed against the duty for which the firefighter is actually being considered under his contract. It is not measured against every theoretical duty in the role.

Where operational firefighting is the only available duty, incapacity for that duty can satisfy the medical gateway to ill-health retirement. A Board of Medical Referees hearing an appeal under Part H and Schedule 9 must confine its decision to the medical issue or issues identified by the firefighter’s grounds of appeal. It cannot revisit an unchallenged issue.

Three London firefighters obtained medical opinions that they were permanently disabled from operational firefighting. They appealed to Boards of Medical Referees only on questions concerning qualifying injuries or the degree of disablement. The Boards instead held that they remained fit for theoretical non-operational duties and concluded that they were not permanently disabled.

The High Court upheld the Secretary of State’s position on both the construction of rule A10(2) and the Boards’ jurisdiction. The original Board decisions were also accepted to have breached natural justice because the appellants had not been warned that their limited appeals might jeopardise their pensions. The remaining appeals concerned the proper meaning of permanent disablement and the scope of an appeal under Part H and Schedule 9.

Lord Justice Rix gave the leading judgment. Lord Justices Dyson and Wilson agreed. The appeals were allowed.

1. Duty issue. Rule A10(2) requires permanent disablement to be assessed by reference to the duty within the firefighter’s contract for which he is being considered. This includes operational firefighting and any additional non-operational duty within the contractual role which the authority proposes and can make available. It does not include merely theoretical duties. If no redeployment is available, the assessment stops with operational firefighting.
2. The court rejected the Secretary of State’s construction that the firefighter had to be unfit for every theoretical duty in the role. The broader definition introduced by the Firemen’s Pension Scheme (Amendment) Order 2004 was intended to preserve employment and Scheme membership where suitable alternative work was available, not to create a no-job, no-pension result.
3. The earlier approach in R v. West Yorkshire Fire and Civil Defence Authority ex p McCalman and Lockwood (CA, 30 June 2000, unreported), which focused on principal or essential operational duties, no longer governed the amended Scheme. The analogous decision in R v. Sussex Police Authority, ex parte Stewart [2000] ICR 1122 was considered in that historical context.
4. Jurisdiction issue. An appeal under rule H2 is an appeal against the IQMP’s opinion on the issue or issues identified under rule H1(2) and by the firefighter’s grounds of appeal. The Board’s power to interview and examine the appellant is for deciding that appeal. It does not permit the Board to make a binding decision on an unchallenged issue.
5. Each appellant’s IQMP opinion that he was permanently disabled from operational firefighting remained binding because it had not been appealed. The Boards were wrong to revisit permanent disablement. The appellants retained their ill-health pensions and, subject to fresh Board decisions, their limited appeals concerning injury pensions.

1. Court of Appeal (Civil Division) — In [2009] EWCA Civ 450, the remaining Wave 1 appeals were allowed. The Court held that the Boards had misinterpreted the Scheme and exceeded their jurisdiction.
2. High Court, Queen’s Bench Division, Administrative Court — The deputy judge upheld the Secretary of State’s position on the construction and jurisdiction issues.