Simpson v Police Medical Appeal Board

On a permission appeal in judicial review, the court is concerned with arguability rather than the substantive merits. Where a proposed challenge to generally applicable guidance is plainly arguable as inconsistent with the governing Police Injury Benefit Regulations 2006, permission should be granted so the Administrative Court can determine the issue. An individual appeal mechanism does not necessarily dispose of a wider challenge to guidance affecting other cases. Standing and delay may carry less weight where the issue is of general public importance and permission is granted on related grounds. Permission may nevertheless be confined to the genuinely arguable grounds.

The appellant received a disability pension under the Police Injury Benefit Regulations 2006. Following guidance issued by the Home Department concerning review of injury pensions when former officers reached 65, his pension was reduced to the lowest degree-of-disablement band.

The Police Medical Appeal Board stated that it did not rely on the guidance, but upheld the reduction on the facts of the appellant’s case. Langstaff J refused permission to challenge the guidance and its effect, treating the challenge as academic because of the appeal to the Board. The appeal concerned whether permission should be granted to argue the lawfulness of the guidance and the police authority’s decision.

1. Appeal allowed. The Court of Appeal granted permission to pursue the arguable grounds and directed that the issues return to the Administrative Court for determination. The court did not decide the substantive lawfulness of the guidance.
2. Per Moses LJ, the guidance was plainly arguable as inconsistent with regulation 37 read with regulation 7(5) of the Police Injury Benefit Regulations 2006. It was also arguable that the guidance wrongly treated earnings as equivalent to earnings capacity, and that the police authority, acting through the selected medical practitioner, had acted unlawfully. Those issues required argument on their merits.
3. The court emphasised the limited scope of the appeal. Permission was granted only for grounds 1A, 1B and 2. Alleged breaches of Article 1 of the First Protocol of the Convention and EU Council Directive 2078 were treated as makeweight grounds and permission was refused in relation to them.
4. Lord Justice Sullivan agreed that permission should be granted on the grounds identified by Moses LJ.
5. Lord Justice Carnwath agreed in the result and separately considered that Langstaff J had given excessive weight to standing and delay. Where a challenge concerns guidance of general application and raises an issue of public importance, those matters may take a secondary role, particularly where permission is already being granted on part of the case. Clarification of the general issue may justify allowing the wider challenge to proceed.

• Court of Appeal (Civil Division): Appeal allowed. Permission granted on grounds 1A, 1B and 2, with the substantive issues to return to the Administrative Court.
• Queen’s Bench Division, Administrative Court: Langstaff J refused permission to challenge the guidance and its effect, considering the issue academic because of the appeal to the Police Medical Appeal Board.