Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor

Under the Police (Injury Benefit) Regulations 2006, earning capacity is an objective assessment of what the pensioner is capable of doing and earning by reason of the duty injury. It is not a labour-market assessment and does not require allowance for local job availability. Previous police earnings must ordinarily feature in assessing uninjured earning capacity, unless other circumstances make them unrepresentative; a tribunal departing from them must give reasons. Where an appeal determines that an injury pension should be altered on current evidence, the alteration takes effect from the date of the appeal decision, not retrospectively from the selected medical practitioner’s earlier decision.

The claimant, a retired police officer receiving an injury pension, challenged a Police Medical Appeal Board decision reducing his award to Band 1 and the Chief Constable’s decision to backdate that reduction to the date of the selected medical practitioner’s report.

He argued that the Board had used the wrong uninjured earnings comparator, inappropriate comparator jobs and an impermissible midpoint salary, and that any reduction should take effect only from the Board’s decision. The central issues concerned the assessment of earning capacity under regulation 7(5) and the temporal effect of an appeal decision under the 2006 Regulations.

1. Grounds one and four succeeded; grounds two and three failed. The Board’s decision was quashed to the extent required, and the backdating decision was quashed.
2. Regulation 7(5) required assessment of the extent to which earning capacity had been affected by the duty injury. “Earning capacity” concerned what the pensioner was capable of doing and earning. It was not a labour-market assessment and did not require allowance for whether an employer would offer work, competition with other workers or the availability of suitable work near the pensioner’s home. The approach in R (South Wales Police Authority) v Medical Referee (Dr Anton) [2003] EWHC 3155 (Admin) was consistent with that conclusion and was applied.
3. For uninjured earning capacity, the pensioner’s former police earnings had to feature in the analysis unless other injuries, acquired skills or lost skills made them unrepresentative. If the Board disregarded those earnings, it had to explain why. The Board’s reasoning did not explain why the suggested jobs represented the claimant’s uninjured capacity.
4. The Board was entitled to use the proposed comparator jobs and midpoint salaries for injured earning capacity. The evidence did not establish that a newly employed person had to start at the bottom of the salary range.
5. The duty to give reasons was modest but required reasons sufficient to identify the basis of the conclusion. The court accepted the principles stated in R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88, R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 and R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295.
6. An appeal to medical referees was a full reconsideration based on current evidence, as explained in R (McGinley) v Schilling [2005] ICR 1282. Where that reconsideration justified an altered pension, the alteration took effect when the Board recognised the changed circumstances, namely the date of its decision. The matter was remitted to the Board.

First-instance judicial review. Permission was granted by Blake J on 25 November 2016. The Administrative Court allowed the challenge on grounds one and four, dismissed grounds two and three, quashed the backdating decision and remitted the pension issue to the Board.