Boskovic, R (On the Application Of) v Chief Constable of Staffordshire Police

Regulation 32(2) of the Police (Injury Benefit) Regulations 2006 is a consensual and facilitative mechanism. It permits a police pension authority and a claimant to agree that a final medical decision should be reconsidered. It does not create a further right of appeal or require consent whenever the claimant presents a reasonably arguable case.

The authority must act reasonably and consider relevant matters. These include the underlying merits, evidential uncertainty, delay, the public interest in finality and the cost of reconsideration. Their weight is for the authority.

An earlier determination that an officer is permanently disabled is binding when causation and degree of disablement are later assessed. The medical diagnosis underlying that determination is not binding and may be reconsidered.

The appellant, a former police officer retired through permanent disablement, was refused an injury award in 2002 because the selected medical practitioner concluded that her disablement had not been caused or substantially contributed to by an injury received in the execution of duty. She began an appeal but withdrew it in 2003.

In 2016 she asked the Chief Constable, as police pension authority, to agree under regulation 32(2) of the Police (Injury Benefit) Regulations 2006 to refer the medical decision for reconsideration. The Chief Constable refused because of the 14-year delay, the unavailable practitioners, conflicting medical evidence and concern that fair reconsideration was impossible.

Kerr J dismissed her judicial review claim in [2018] EWHC 14 (Admin). The appeal concerned the nature of the regulation 32(2) power, the permissible considerations governing consent, and whether an earlier diagnosis bound a practitioner subsequently deciding causation and degree of disablement.

1. Appeal dismissed. Regulation 32(2) of the Police (Injury Benefit) Regulations 2006 is a consensual and facilitative provision. It allows the claimant and police pension authority to agree upon reconsideration of questions affecting pension entitlement, thereby avoiding the expense and delay of an appeal or judicial review. The words “by agreement” do not impose an obligation to consent whenever an officer presents a reasonable case. The contrary interpretations in Crudace and Haworth strained the statutory language and gave insufficient effect to the scheme’s emphasis on finality: paras 58, 68.

2. The police pension authority must decide a request reasonably, taking relevant considerations into account and excluding irrelevant matters. The merits of the underlying claim are relevant but have no overriding status. Delay is relevant both to whether fair reconsideration remains possible and independently because of the public interest in finality. The cost of reconsideration is also relevant. The weight of those matters belongs to the decision-maker: paras 59–60, 68.

3. A reference under regulation 32(2) may concern any final decision of a medical authority. Unlike a periodic review under regulation 37(1), its scope is not confined to whether the degree of disablement has changed. The medical authority may therefore revisit the diagnosis and evidence underlying the decision under reconsideration. Excluding that material would be illogical and unworkable: paras 61–64.

4. An earlier final answer under regulation H1(2) of the Police Pension Regulations 1987 that an officer is disabled and that the disablement is likely to be permanent remains binding for the purposes of the 2006 Regulations. The diagnosis supporting those answers does not bind the practitioner who later determines causation and degree of disablement under regulation 30(2)(c) and (d). The court preferred Doubtfire on this point and disagreed with Evans: paras 65–66, 68.

5. The conflicting diagnoses, long delay and unavailability of the original practitioners entitled the Chief Constable to conclude that fair reconsideration was impossible. It was unnecessary and inappropriate for the reviewing court to decide whether the original refusal of an injury award was itself wrong: paras 60, 67–69.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld Kerr J’s order, both for his reasons and on the additional ground advanced in the respondent’s notice: [2019] EWCA Civ 676.
2. High Court, Administrative Court: Kerr J dismissed the judicial review claim but granted permission to appeal because the interpretation of regulation 32 of the Police (Injury Benefit) Regulations 2006 was uncertain: [2018] EWHC 14 (Admin).