Ferguson, R (On the Application Of) v Police Medical Appeal Board

On a renewed application for judicial review, permission depends on an arguable ground with a realistic prospect of success. A medical appeal under the Police (Injury Benefit) Regulations 2006 is a rehearing based on the up-to-date evidence. A medical appeal board may reasonably require complete medical records where they are necessary to assess changes in earning capacity and disablement. However, it may be arguable that a board acted perversely by deciding that records were unavailable after directing its secretariat to obtain them, if there is evidence that the records had in fact been supplied or that the request was never made. The court will not generally give guidance on unresolved legal questions in the absence of a decision requiring determination.

The claimant, a former police officer receiving an injury pension, challenged a report of the Police Medical Appeal Board dated 6 August 2020. The Board dismissed his appeal from a Selected Medical Practitioner’s reduction of his pension band following the development of Alzheimer’s disease, because it considered that administrative difficulties had prevented it from obtaining complete medical records.

Permission was initially refused on paper by HH Judge Saffman. On renewal, the claimant pursued three grounds concerning access to medical records, the Board’s alleged perversity in saying that it lacked the records, and the alleged perversity of finding the available information insufficient.

1. Outcome. Permission was granted on ground 2, subject to any necessary amendment of the grounds. Permission was refused on grounds 1 and 3. Grounds 4 and 5 were not pursued.
2. The applicable permission threshold was whether there was an arguable ground for judicial review having a realistic prospect of success, adopting the formulation in Sharma v Brown-Antoine [2007] 1 W.L.R. 780.
3. The process under regulation 31 was a rehearing rather than a review. The Board was required to act on the up-to-date evidence before it, consistently with R (on the application of Michaelides) v Chief Constable of Merseyside Police and Police Medical Appeal Board [2019] EWHC 1434 (admin).
4. There was no arguable basis for saying that the Board’s view that the available medical information was insufficient was irrational. The Board explained why complete records were relevant to comparing the claimant’s present position with the earlier assessment. The reasoning in R (on the application of Goodland) v Chief Constable of Staffordshire Police [2020] EWHC 2477 (Admin) supported that conclusion.
5. Ground 2 was arguable because the claimant had evidence that GP records had been sent to the Board’s secretariat. If the secretariat had the records, the Board arguably had them. It was also arguable that the Board had proceeded on the basis that records had not been received when its secretariat might not have made the requested enquiry. The claimant was directed to issue any amendment application within seven days.
6. Ground 1 was not arguable because the Board had not decided that the medical records must be disclosed to the interested party’s non-medical representatives. It had left the access questions unresolved and dismissed the appeal because the administrative difficulties were said to be insurmountable. The court would not ordinarily provide advice in a vacuum.
7. Although the claim was late and no extension application had been made, permission was not refused for delay in the particular circumstances. If the Board had in fact received the records, the parties were encouraged to consider remittal under regulation 32.

• High Court (Administrative Court): permission had initially been refused on the papers by HH Judge Saffman on 7 April 2021. On renewal, HH Judge Davis-White QC granted permission on ground 2 and refused permission on grounds 1 and 3.