The Queen v Lloyd Kelly

An appeal under regulation 34 of the Police (Injury Benefit) Regulations 2006 is not confined to the current annual rate of pension. A dispute about a larger award may include the total amount payable and the period for which pension is due. Regulation 11 creates the substantive entitlement when its conditions are met. A later medical referral or administrative determination identifies an existing entitlement; it does not create a new, prospective entitlement, and a claim is not a condition of entitlement. Regulation 43 generally makes the pension payable from retirement, subject to the limits for disablement after retirement. The Crown Court’s wide power to make a just order also includes ancillary interest, provided the order is consistent with the regulations.

The Chief Constable awarded Lloyd Kelly an injury award under the Police (Injury Benefit) Regulations 2006, but paid the injury pension only from the date of his 2016 claim. Mr Kelly appealed to the Crown Court, which held that the pension was payable from his retirement in 2005 and awarded interest.

On judicial review, Jefford J upheld the Crown Court’s conclusions on jurisdiction and retrospective entitlement but set aside the interest award. The Chief Constable appealed on jurisdiction and backdating. Mr Kelly cross-appealed on interest. The central issues were whether the Crown Court could determine the period for which the pension was payable and whether it could award interest.

Lord Justice Phillips delivered the leading judgment. Lord Justice Males and Lord Justice Moylan agreed.

1. Jurisdiction. Section 6 of the Police Pensions Act 1976 and regulation 34 of the Police (Injury Benefit) Regulations 2006 do not restrict an appeal about a larger pension or award to the annual amount payable in future. The wording encompasses the total amount of the award, including the period for which pension is payable and any arrears. The court did not need to resolve whether the first limb was confined to a complete refusal of an award. The Crown Court could declare the rights arising under the regulations and, if necessary, order payment.
2. Entitlement. Regulation 11 is the primary provision. It creates an entitlement to an injury award when the former officer has permanently suffered a qualifying injury without personal default. Regulation 30 concerns the procedure for determining relevant medical questions, while regulation 43 concerns payment and duration. Neither provision creates the entitlement. Determination of entitlement does not create it afresh, and the regulations do not make a claim a condition of entitlement.
3. Payment date. Regulation 43(1) makes the pension payable from retirement, subject to regulation 11(2). Where the officer was disabled at retirement, the pension is payable from retirement. If disablement arose later, payment begins when disablement occurred; if that date cannot be ascertained, regulation 7(7) supplies the date of claim. The contemporaneous nature of an SMP’s assessment does not make the resulting entitlement merely prospective. The approach was consistent with R (McGinley) v Schilling [2005] ICR 1282 and Tully v North Wales Police Authority (Transcript 30 November 2006).
4. Interest. Regulation 34 gives the Crown Court a broad power, after enquiring into the case, to make an order required by justice. That includes an ancillary order for interest to reflect the time value of money where sums were wrongly withheld. Such an order does not alter the statutory calculation in Schedule 3. The reasoning was supported by SPP Health Limited v The NHS Litigation Authority [2020] EWCA Civ 1574. Section 1 of the Police Pensions Act 1976 authorised the incidental provision. It was unnecessary to decide the arguments based on property rights or equitable jurisdiction.

The appeal was dismissed and the cross-appeal allowed. Judge Moore’s order was restored to the extent set aside by Jefford J.

• Court of Appeal (Civil Division): dismissed the Chief Constable’s appeal and allowed Mr Kelly’s cross-appeal, restoring the Crown Court’s interest award.
• Administrative Court: Jefford J dismissed the challenges to jurisdiction and retrospective entitlement but set aside the interest award.
• Crown Court sitting in Sheffield: Judge Moore held that Mr Kelly was entitled to an injury pension from retirement and awarded interest.