England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2011

Lord Justice Moses:

1. This is an appeal, with the permission of Mummery LJ against the refusal of Langstaff J, to grant permission for judicial review in relation to this claimant's challenge to guidance promulgated by the Home Department originally in 2004 and then reconstituted in advice to selected medical practitioners.
2. The police authority acting through the selected medical practitioner reduced the disability pension which the appellant had received by way of an award under the Police Injury Benefit Regulations 2006 acting, as it appears, on guidance from the Home Office. The guidance reads, relevantly, under the heading "Review of Injury Pensions once Officers Reach Age 65":

"Once a former officer receiving an injury pension reaches the age of 65 they will have reached their State Pension Age irrespective of whether they are male or female.

The force then has the discretion, in the absence of a cogent reason otherwise, to advise the SMP to place the former officer in the lowest band of Degree of Disablement. At such a point the former officer would normally no longer be expected to be earning a salary in the employment market.

A review at age 65 will normally be the last unless there are exceptional circumstances which require there to be a further review."

3. There was then advice as promulgated in November 2008 to selected medical practitioners which is to similar effect and is contained in paragraphs 20 and 21. The advice to the particular selected medical practitioner who considered this appellant's case along with 78 others is contained in a letter from Northumbrian police to Dr Broome; we have no date but it is to be found at page 204 to 205 of our bundle and it was translated into a decision of Dr Broome dated 20 February 2009, recording his advice to the doctor that this appellant had reached state retirement age and accordingly no longer has any earnings capacity for the purposes of the police injury benefit regulations. Northumberland Police has also determined that there is no cogent reason why the pensioner should not therefore be considered to have a nought per cent loss of earnings capacity as a consequence of their injury and should be placed in the point 0 to 25 percentile degree of disablement banding.
4. The appellant appealed to the police medical appeal board, as he was entitled. That board eschewed reliance on the guidance, but on the basis of the facts of the appellant's case, so it is said, reduced his pension to the lowest band. The appellant challenged that decision of the appeal board by way of judicial review and Langstaff J granted permission, but he, like the judge considering the case on the papers, refused permission to this appellant to challenge the guidance and the effect given to the guidance by the board on the basis that it was academic and that any defect in the guidance had been cured by the appeal.
5. Permission was sought to appeal; Mummery LJ granted permission and, most unfortunately, we are here today not to decide on the lawfulness of the guidance but as to whether permission should be given to argue. I would grant permission. It is plainly arguable that the guidance is inconsistent with regulation 37 of the regulations read with regulation 7(5), but the Secretary of State does not wish us to consider the merits of that argument today, only arguability, and he is not to be blamed since Mummery LJ and indeed the Appeal Court office made it clear that the substantive merits of that argument were not to be debated today and therefore they have taken that stand. So, most unfortunately in my view, it being plainly arguable, the matter should go back to the Administrative Court so that these issues can be debated.
6. A number of grounds were advanced; I would give permission only to argue ground 1A, namely that guidance is inconsistent with the regulations, and 1B, that the guidance is wrong in that it mistakes earnings for earnings capacity, and ground 2, that the police authority acting through the selected medical practitioner was unlawful. I would not grant permission to those grounds which I regard as makeweights, namely allegations of breaches of Article 1 of the First Protocol of the Convention and a breach of the EU Council Directive 2078, but apart from that, and no doubt to sort out the directions, I would grant permission and allow the appeal so the matter can be argued.

Lord Justice Sullivan:

7. I too would grant permission on the grounds mentioned by my Lord.

Lord Justice Carnwath:

8. As would I. I only mention that Langstaff J took a different view partly on grounds of the lack of standing and delay. With respect to him, I think that he put too much weight on those issues in a case where the issue was not just one affecting this particular individual, for whom it could be said the appeal mechanism could provide an alternative route, but one affecting the application of this guidance generally. Where one has that situation, and where one has permission being given in any event for part of the case to go forward, it seems to me there is a strong case for allowing the wider issue to be brought forward as well, in the interests of clarifying a matter of general importance.
9. Mr Lock, for the applicant, was prepared to show us a long list of authorities dealing with that sort of point, and a no doubt a great deal of ink has been spent on that subject over the years. However, I suspect that the text books might provide a short pithy statement to the effect that where there is a point of general importance, which needs to be decided in the public interest, issues of individual standing and even delay may sometimes be allowed to take a back seat.

Order: Appeal allowed