Simpson, R (on the application of) v Police Medical Appeal Board & Ors

Guidance cannot alter the statutory test for reviewing a police injury pension. Under regulation 37(1) of the Police (Injury Benefits) Regulations 2006, the decision-maker must first ask whether the pensioner’s degree of disablement has substantially altered since the award or last review. It must not conduct a fresh assessment and use it to reopen the earlier determination.

Earning capacity concerns what the individual is capable of doing and earning. Reaching age 65 does not justify an assumption that earning capacity is nil, or impose a presumption which the pensioner must rebut by showing a cogent reason. Guidance adopting that approach is inconsistent with the Regulations and unlawful.

The claimant was a former police officer receiving an injury pension under the Police (Injury Benefits) Regulations 2006. After he reached age 65, his pension was reviewed and reduced from Band 2 to Band 1. His appeal to the Police Medical Appeal Board was dismissed.

The decisions reducing the pension were later quashed by consent. The remaining judicial review concerned whether Home Office Guidance 46/2004 and paragraph 20 of the Guidance on Medical Appeals unlawfully directed decision-makers to place officers aged 65 or over in the lowest disablement band unless there was a cogent reason otherwise. The issues were whether that approach was consistent with regulation 37(1), and whether it wrongly equated earning capacity with actual earnings or assumed retirement from gainful employment.

1. The court held that departmental guidance of this kind was amenable to judicial review for error of law, notwithstanding its non-statutory and non-binding status. The relevant question was whether the Guidance contained an error of law.

2. Regulation 37(1) requires the authority to consider whether the pensioner’s degree of disablement has altered since the award or last review and, only if it has substantially altered, to revise the pension. The earlier assessment is treated as a given. The SMP or PMAB cannot conduct a fresh assessment of uninjured and actual earning capacity and then infer an alteration by comparing the result with the earlier award. A fresh quantum assessment is permissible only after substantial alteration has first been established.

   This approach was approved in R (Turner) v Police Medical Appeal Board [2009] EWHC 1867 Admin and confirmed by the Court of Appeal in Metropolitan Police Authority v Laws 2010 EWCA Civ 1099.

3. There was no statutory basis for applying a different regulation 37 approach after age 65. Regulation 7(5) focuses on the individual’s earning capacity and does not require an assessment of whether an employer would actually pay for the work which the person is capable of doing. The scheme did not permit an assumption that a person at State Pension Age would have nil earning capacity merely because he or she would normally have retired.

   The “cogent reason” requirement imposed an unjustified burden and displaced the neutral, individual assessment required by regulation 37(1). The challenged provisions of the Guidance were therefore inconsistent with the Regulations and unlawful.

4. The claim was not academic. The Guidance raised a live and practical question of general importance, and the statutory appeal to the PMAB did not provide an alternative remedy for determining its legality. The court declared the section headed “Review of Injury Pensions once Officers Reach Age 65” and paragraph 20 of the Guidance on Medical Appeals inconsistent with the Regulations and unlawful.

   Costs were payable by the Secretary of State, to be assessed if not agreed. No indemnity costs were ordered, and an interim payment of £20,000 was directed.

• Court of Appeal: Permission to apply for judicial review was granted on grounds 1A, 1B, 2 and 3. The claimant’s challenges to the individual pension decisions were later resolved by consent, and those decisions were quashed.
• High Court (Administrative Court): The remaining challenge to the lawfulness of the Guidance succeeded. A declaration was granted.