Evans & Anor v South Wales Police

Paragraphs 7(1) and 7(2) of Schedule 3 to the Police (Injury Benefit) Regulations 2006 must be read together. The provisions governing benefit scales include the statutory framework, including section 150 of the Social Security Administration Act 1992. Annual uprating machinery and orders are its operation and result, not changes to the framework. They do not trigger the proviso. The full prevailing weekly amount of additional benefits must therefore be deducted. The proviso applies only where the statutory framework changes and the change produces a higher deduction than would otherwise apply. A temporary amendment for 2009/10 did trigger the proviso, so the appeal succeeded to that limited extent.

Two former South Wales police officers received injury pensions and additional social security benefits arising from their injuries. The Chief Constable deducted the benefits at their prevailing annual rates. The appellants argued that annual uprating changed the governing provisions and that deductions should have been frozen at their retirement-year levels.

Haddon-Cave J answered the preliminary question in the affirmative and dismissed the claims in [2017] EWHC 2835 (QB), granting permission to appeal. The appeal concerned the construction of paragraph 7(2) of Schedule 3 and, alternatively, whether subsequent legislative amendments had activated its proviso.

1. Disposition. The appeal was dismissed on ground 1 but allowed to the limited extent agreed on ground 2.
2. Construction. Henderson LJ, with Coulson LJ and Lady Arden agreeing, held that paragraphs 7(1) and 7(2) of Schedule 3 to the Police (Injury Benefit) Regulations 2006 had to be construed together within the statutory scheme. The phrase provisions governing scales of additional benefits referred to the statutory framework governing entitlement, calculation and uprating, including section 150 of the Social Security Administration Act 1992. It did not refer merely to annual uprating orders.
3. Annual uprating machinery and the orders made under it were the operation and outcome of the existing framework. They did not themselves change the governing provisions. The full weekly amount of additional benefits at the prevailing rate therefore had to be deducted. The proviso was engaged only by a change to the statutory framework, and only where that change produced a higher deduction than would have applied without it. The construction contended for by the appellants would frustrate paragraph 7(1), create an increasing windfall and be inconsistent with the linked uprating of injury pensions and benefits. The statutory link was explained by the decision in R (The Staff Side of the Police Negotiating Board and others) v Secretary of State for Work and Pensions and others [2011] EWHC 3175 (Admin).
4. Ground 2. Section 23 of the Welfare Reform Act 2009 introduced temporary subsection 150(2A), allowing benefits to be increased in 2009/10 even though prices had not risen. This altered the statutory framework and increased the benefits deductible in 2010/11 beyond the counterfactual level. The proviso therefore applied to increases arising from the 2010 Up-rating Order between 12 April 2010 and 14 April 2011.
5. The deductible benefits from 2010/11 onwards had to be recalculated as if the increases made under subsection 150(2A) had not occurred, with corresponding adjustments to later base levels. The exercise extended until the relevant benefits ceased, or for as long as industrial injuries disablement benefit remained payable.

• Court of Appeal (Civil Division) — allowed the appeal only to the limited extent agreed under ground 2 and otherwise dismissed it.
• High Court of Justice — Haddon-Cave J answered the preliminary question affirmatively and dismissed the claims in [2017] EWHC 2835 (QB); permission to appeal was granted.