Crudace, R (on the application of) v Northumbria Police Authority

On a review of a police injury pension under regulation 37, the decision-maker must ask whether the pensioner’s degree of disablement has altered since the previous decision and, if so, whether the alteration is substantial. A review cannot reopen the original clinical assessment or proceed on an assumption that earning capacity falls to zero at state pension age. Guidance cannot lawfully displace that statutory test.

The power under regulation 32(2) is a general safeguard enabling reconsideration of a final medical decision where necessary to ensure that the pension is calculated in accordance with the Regulations. A decision to refuse reconsideration must address the merits and statutory purpose. A purported decision by an officer without demonstrated delegated authority is invalid.

The claimant was a former police inspector receiving a Band 3 injury pension. On 20 February 2009, the Selected Medical Practitioner reduced the award to Band 1 after a review undertaken because the claimant had approached the age of 65. The review relied on Home Office guidance and involved no medical examination.

The claimant later sought reconsideration under regulation 32(2), following the Court of Appeal’s decision in Metropolitan Police Authority v Laws. On 21 December 2010, an HR manager refused consent, purportedly on behalf of the Chief Constable. The issues were whether the 2009 review was lawful, whether the delay should be excused, whether the HR manager had authority, and whether the reasons for refusing reconsideration were lawful.

1. Regulation 37 review. The statutory question was whether the degree of the claimant’s disablement had altered and, if so, whether the alteration was substantial. The earlier assessment was a given. Regulation 37 did not permit the Selected Medical Practitioner to reconsider the original clinical basis of the award or start afresh on earning capacity. The approach stated in R (on the application of Pollard) v The Police Medical Appeal Board and West Yorkshire Police Authority, [2009] EWHC 403, and followed in R (on the application of Turner) v The Police Medical Appeal Board and Metropolitan Police Authority, [2009] EWHC 1867 (Admin), was correct. The Court of Appeal’s reasoning in Metropolitan Police Authority v Laws, [2010] EWCA Civ 1099, confirmed that approach.
2. Guidance. Home Office guidance suggesting that, absent a cogent reason, a pensioner reaching 65 should be placed in the lowest band was inconsistent with regulation 37. The guidance could not authorise an assumption that uninjured earning capacity became zero. The claimant had not received a valid review because the decision relied solely on age and the guidance.
3. Delay. Applying the principles stated in R v Dairy Produce Quota Tribunal for England and Wales, ex parte Carswell, [1990] AC 738, there was good reason for the 22-month delay. The claimant had withdrawn his appeal after receiving materially incorrect advice that it was hopeless and that medical evidence was irrelevant, and it was reasonable to await the outcome in Laws. Relief would not be detrimental to good administration.
4. Regulation 32(2). The provision was not confined to cases where an appeal or judicial review was already pending. It formed part of the system of checks and balances and could be used where a reasonable case existed that the pension was incorrect, including following a change in the law. A refusal had to promote the statutory purpose, consistently with Padfield and Others v Minister of Agriculture, Fisheries and Food and Others, [1968] AC 997. The reasons given failed to consider the merits, wrongly treated the earlier decision as absolutely final, and placed undue weight on the claimant’s withdrawal of his appeal.
5. Authority and order. The Police Authority could delegate the regulation 32(2) discretion to the Chief Constable, but there was no evidence that the Chief Constable had authorised the HR manager to exercise it. The 21 December 2010 decision was therefore invalid. The decision of 20 February 2009 was quashed. The judge would also have quashed the later decision on both authority and merits grounds. It was unnecessary to determine the Disability Discrimination Act arguments.

First-instance judicial review. No appellate history is stated in the judgment.