Laws, R (on the application of) v The Police Medical Appeal Board

On a periodic review of a police injury pension, the decision-maker must compare the pensioner’s degree of disablement with the position at the last review. It must decide whether any alteration, measured by the effect of the duty injury on earning capacity, is substantial. It must not conduct a fresh assessment of the original injury, causation or previously determined issues. Factors unrelated to the duty injury, including qualifications subsequently obtained through the pensioner’s own efforts, must be excluded. A decision based on an unsupported inference that part-time study demonstrates capacity for substantial open-market employment is irrational.

The claimant, a former police constable, challenged the Police Medical Appeal Board’s decision reducing her injury pension from 85 per cent to 25 per cent. The reduction followed a review under the Police (Injury Benefit) Regulations 2006, after she had completed a law degree as a part-time disabled student.

The claimant contended that the Board had failed to compare her position with that at the previous review, had revisited findings already finally determined, and had wrongly taken her law degree into account. The central issues were the proper scope of a review under regulation 37 and whether the Board had lawfully assessed earning capacity under regulation 7(5).

1. The claim succeeded. The Board’s decision was quashed because it failed to address the statutory questions required by the Police (Injury Benefit) Regulations 2006.
2. Regulation 37 required the decision-maker to compare the claimant’s degree of disablement at the 2008 review with her position at the last review in 2005. The relevant question was whether her disablement, measured by the effect of the duty injury on earning capacity under regulation 7(5), had substantially altered. The Board instead assessed the current impact of the original incident and conducted what was effectively a fresh investigation.
3. The earlier determination of the claimant’s disablement and the findings that her psychological symptoms were genuine and caused, or substantially contributed to, by the duty injury were final, subject only to lawful periodic reassessment. They could not be reopened under regulation 37. The approach confirmed in R (on the application of) Turner v the Police Medical Appeal Board [2009] EWHC Admin 1867 was applicable. The same distinction between the original entitlement questions and later reassessment was reflected in R (Pollard) v West Yorkshire Police Authority and the Police Medical Appeal Board [2009] EWCA Admin 88.
4. The Board also erred by treating the claimant’s law degree as an increase in earning capacity resulting from the duty injury. Regulation 7(5), read with regulation 30(1)(d), confined the assessment to loss caused by the duty injury. Other factors, including an independently acquired qualification, had to be discounted. The approach in R (South Wales Police Authority) ex parte Anton and Crocker [2003] EWHC Admin 3115 supported that conclusion.
5. In any event, it was irrational on the evidence to infer that part-time study, undertaken with extensive support and flexibility, demonstrated capacity for 30 hours’ open-market employment. The claimant was therefore entitled to relief, with the precise order to be settled following the judgment, including permission out of time to challenge the SMP’s decision.

This was a first-instance judicial review. The claim challenged the decision of the Police Medical Appeal Board dated 17 March 2009. Nicol J had ordered a rolled-up hearing and refused permission to challenge the Selected Medical Practitioner’s decision separately because the Board’s decision was the effective decision. Mrs Justice Cox granted relief after the parties resolved the procedural issue concerning renewal of permission.