England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 June 2003

Mr Justice Keith:

Introduction

1. This claim for judicial review raises a short but interesting point on the proper construction of one of the regulations governing the pension rights of police officers. It relates to the conclusions in a report about a former police officer on which his entitlement to the early payment of a deferred pension depended. The claimant is the police authority which commissioned the report, the defendant is the medical practitioner who prepared it, and the interested party is the police officer to whom the report related. The defendant does not contest the claim, but the police officer does. All references in this judgment to regulations are references to regulations in the Police Pensions Regulations 1987 (SI 257/1987) ("the Regulations").

The background facts

2. The interested party, Paul Hamlin, was born on 6 August 1953. He is now 49 years old. He was appointed a constable in the Sussex Police Force ("the Force") in 1975. On 10 October 2001 following a three day hearing before a Police Conduct Tribunal, Mr Hamlin was required to resign from the Force for fabricating or exaggerating symptoms of back pain and depression, and for taking extended and unwarranted sick leave, with a view to obtaining his medical retirement from the Force. He had not appeared at the hearing, having claimed that he was too unwell to do so, but he was legally represented. He refused to resign, and he was therefore dismissed from the Force. His appeal against the findings of the Tribunal was dismissed by the Chief Constable of Surrey, and subsequently by the Police Appeals Tribunal. The Tribunal described the evidence against Mr Hamlin as overwhelming.
3. On ceasing to be a police officer, Mr Hamlin became entitled under reg. B5(2) to a deferred pension. Reg. B5(2) provides:

"A regular policeman……who ceases or has ceased to be such…..shall, on so ceasing to be a regular policeman, …...be entitled to a deferred pension….."

Such a deferred pension would be payable to him at the age of 60, but sooner if he became permanently disabled. That was the effect of reg. B5(4)(a):

"…..no payment shall be made on account of [a deferred] pension…..in respect of the period before the regular policeman attains the age of 60 years or, if he sooner becomes permanently disabled, before he becomes so disabled….."

Despite the findings which had been made in the course of the disciplinary proceedings, Mr Hamlin applied for the early payment of his deferred pension under reg. B5 on the ground that he had become permanently disabled as a result of back pain and depression. He also sought an injury award under reg. B4. Such an award consists of a gratuity and an injury pension (reg. B4(2)). Mr Hamlin would have been entitled to such an award if he was "permanently disabled as a result of an injury received without his own default in the execution of his duty" (reg. B4(1)). As the police authority of the Force in which Mr Hamlin had last served, the claimant, the Sussex Police Authority ("the Authority"), was the body by whom his deferred pension and any injury award was payable (reg. L1(1)).

4. The procedure to be followed when a claim of permanent disablement is made is governed by reg. H1(2), which provides:

"Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions –

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement ….."

In view of the findings which had been made in the course of the disciplinary proceedings, the Authority declined to refer any of these questions to a medical practitioner. Mr Hamlin had a right of appeal to the Crown Court against that refusal (reg. H5(1)), and on 19 April 2002 the Crown Court at Lewes allowed Mr Hamlin's appeal, and ordered the Authority to refer to a duly qualified medical practitioner selected by it the two questions set out in regs. H1(2)(a) and H1(2)(b), i.e. whether Mr Hamlin was disabled, and whether the disablement was likely to be permanent. However, Mr Hamlin did not pursue his appeal relating to the two questions set out in regs. H1(2)(c) and H1(2)(d), i..e. whether the disablement was the result of an injury received in the execution of duty and the degree of that disablement, and the Authority was not ordered to refer those questions.

5. In the light of the ruling of the Crown Court, the Authority referred the questions set out in regs. H1(2)(a) and H1(2)(b) to the defendant, Dr Edwin Beck. He had considerable experience in the field of occupational health. Both the Authority and Mr Hamlin's solicitors wrote to Dr Beck explaining the medical and legal issues as they understood them to be, and both the Authority and Mr Hamlin's solicitors explained the factual background from their different perspectives. He was provided with extracts of the relevant regulations, a document recently published by the Police Negotiating Board entitled "Improving the Management of Ill-Health", a transcript of R v. Sussex Police Authority ex p Stewart [2000] ICR 1122, various medical reports which had previously been prepared on Mr Hamlin, and videotapes recorded during covert surveillance of Mr Hamlin when he was complaining of back pain.

The relevant definitions in the Regulations

6. Before turning to Dr Beck's report itself, it is necessary to look at some of the definitions in the Regulations. The word "disablement" is defined in reg. A12(2) as follows:

"…..disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be….."

The words "permanently disabled" are defined in reg. A12(1):

"A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent."

It should be noted that the document published by the Police Negotiating Board stated that "'permanent disablement' should be interpreted as meaning that the officer will not be able to work again as a police officer before the compulsory retirement age for the officer concerned, on the assumption that normal medical treatment for the officer's condition is applied in the meantime." It should also be noted that in the Stewart case, the Court of Appeal held that the "ordinary duties" of a police officer include operational duties, and therefore an officer who was able to perform administrative duties but unable to perform operational duties was disabled for the purposes of the Regulations.

Dr Beck's report

7. Dr Beck examined Mr Hamlin on 15 October 2002. He prepared a report dated 24 October 2002. In the body of that report, he wrote:

"There is no doubt that at present he is suffering from anxiety-linked depression. In my view he is also exhibiting the hallmarks of a significant affective personality disorder in the form of an obsessive compulsive neurosis. This is a not unusual concomitant of depressive illnesses. He has become completely obsessed by his perceived maltreatment by the Sussex Police….."

He added a little later on:

"The break-up of his marriage and his wife's subsequent vindictive behaviour have significantly added to the stress suffered by Mr Hamlin over the past year or so."

But so far as Mr Hamlin's physical symptoms were concerned, Dr Beck wrote:

"Physical examination of Mr Hamlin was unremarkable.…..In my opinion his spinal movement is commensurate with the expected degree of spinal degeneration for a man of his age."

Dr Beck's conclusions are set out in para. 8 of his report, which are worth repeating in full:

"Opinion. In my opinion Mr Hamlin is still suffering from the anxiety-linked depression which started in 1998 following an injury at work and has not responded to treatment. This makes him currently unfit for work. The cause of his condition is primarily linked to his complete and deep-seated lack of confidence in the way he has subsequently been dealt with by the Sussex Police. The stress caused to him by this has been exacerbated by the acrimonious and painful breakdown of his marriage and the vindictive behaviour by his ex-wife in her attempts to discredit him.

The question whether Mr Hamlin's unfitness is permanent is problematic. As pointed out in his report, Dr Lipsedge drew attention to the fact that apart from some short-term psychotherapy Mr Hamlin has received only one class of medication for his depressive disorder. Despite increases in the dosage, this has singularly failed to control the symptoms adequately. While there are considerable difficulties in doing so, it is my opinion that Mr Hamlin has not had adequate treatment for his condition and it is past the time to 'bite the bullet' and change his medication. In my view, his condition will persist while he remains in conflict with the Force as his antipathy is now so deep-seated and consuming. If he could completely remove himself from this situation, close the door on it and start anew, his mental condition and the associated psychosomatic symptoms he suffers as a result should be eminently amenable to treatment. It seems most unlikely that he will be able to disassociate himself from his past experiences."

8. Following that report, Dr Beck completed a printed form to be used by medical practitioners whose decisions are sought under reg. H1. The form is headed "Certificate of Permanent Disablement". It tracks the language of the Regulations, and Dr Beck completed it as follows:
.

1. He/she is/is not suffering from Anxiety-linked depression with associated somatic back symptoms and affective personality disorder.

2. He/she is/is not disabled from performing the ordinary duties of a member of the police force.

3. The disablement is/is not likely to be permanent. Subject to conditions identified in my SMP's report. I recommend therefore that the police authority should consider in …2…months'/years' time whether the disablement has ceased. I do not recommend that the police authority should consider at any time whether the disablement has ceased.

4. The above condition is/is not the result of any injury received in the execution of duty as a member of the police force (see notes (a) and (b) below).

5. Currently The degree to which the officer's earning capacity has been affected is …50… per cent (see note (c) below).

I recommend that the police authority should consider in …2…months'/years' time whether the degree of disablement has altered.

(The printed part of the certificate is in normal typeface, the parts completed by Dr Beck are in italics, and the parts deleted by him are also shown).

9. The Authority noted that Dr Beck had not limited his report or the certificate to the questions referred to him, but that he had also purported to answer the questions set out in regs. H1(2)(c) and H1(2)(d). But on the question of whether Mr Hamlin's disablement was permanent, the Authority pointed out to Dr Beck that there was "no room for qualification" as appeared on the certificate. And since his report had said that the medication which Mr Hamlin had been prescribed up to then had not helped, Dr Beck was asked whether with appropriate treatment Mr Hamlin could have recovered sufficiently "to perform some police role within the next five to six years", i.e. before the age of 55 at which he could normally have expected to retire. Dr Beck's reply contained the following passage:

"In my judgement, his initial problems did not warrant medical retirement. By December 2001 his anxiety-linked depression was well established and it was almost exactly a year since he had failed to gain medical retirement. Also during that time he had taken up a number of other matters of contention with Sussex Police. In January 2001 he was seen by Dr Lipsedge, a psychiatrist with considerable experience of police work, who agreed that he suffered from a depressive illness but considered that it was not permanent. Mr Hamlin did not therefore meet the requirements for medical retirement at that time. Much has happened since then. Not least is that he has had almost two years in which his resentment has festered in his mind and about which he has become obsessive. His present sense of injustice and loss of faith in the Force is such that he would not consider further service under any circumstances. It is virtually certain that his attitude will never change and therefore his depressive illness is likely to continue for the foreseeable future. This established 'mind-set' of his is, I believe, related to his personality and not to his psychiatric illness. Nevertheless in his present mental state he is unfit for employment, certainly in any capacity in the Force and elsewhere. With more effective treatment of his depressive illness his attitude should soften but it is improbable that it will disappear. Thus in due course he should become fit for employment, but not in the Force."

I shall be referring to that letter later, but if Dr Beck's comment about Mr Hamlin not being prepared to "consider further service under any circumstances" suggests that Dr Beck thought that Mr Hamlin might be able to become a police officer again if he wanted to, that ignores the circumstances in which his police service came to an end.

The challenge to Dr Beck's certificate

10. Mr Anthony Hudson for Mr Hamlin did not dispute that Dr Beck should not have completed that part of the certificate which related to the questions set out in regs. H1(2)(c) and H1(2)(d). It is therefore not disputed that paras. 4 and 5 of the certificate should be quashed. For its part, the Authority does not assert that there are any grounds for challenging Dr Beck's conclusion in para. 2 of the certificate that Mr Hamlin was at the date of the certificate disabled from performing the ordinary duties of a member of the police force as a result of the condition referred to in para. 1 of the certificate from which he was suffering. The critical issue relates to para. 3 of the certificate.
11. It is not difficult to see where the Authority is coming from. Mr Hamlin was dismissed from the Force in effect for lying about his symptoms in order dishonestly to obtain the pension benefits which accrue to officers who retire on medical grounds. The evidence against him was said to be overwhelming. In those circumstances, it is entirely understandable for the Authority to see as particularly galling Mr Hamlin's current use of the Regulations in order to obtain the early payment of a deferred pension. The Authority could be forgiven for being surprised if Mr Hamlin were to be entitled to the early payment of his pension on the basis of a psychiatric condition which was itself the product of his antipathy towards the Force, when that antipathy was itself unreasonable and irrational because it arose from Mr Hamlin's unreasonable unwillingness to admit to himself his original deception, and from his irrational obsession that he had been treated unjustly because of his inability to acknowledge that the Authority had seen through him. But there is nothing in those provisions of the Regulations to which my attention has been drawn which limits an officer's entitlement to the early payment of a deferred pension to meritorious cases, or which excludes an officer's entitlement where the condition from which he suffers has been brought about by failings of his own or misconduct on his part. It is therefore necessary to approach the case in as level-headed a way as possible, and not to be sidetracked into deciding the case on the basis of its intrinsic "merits".
12. The Authority's case is deceptively simple. An officer is disabled if he is unable to perform the ordinary duties of a police officer. If an officer is "unfit for work" (to use Dr Beck's phrase) because of his inability to work within a particular police force, rather than because of an inability to perform particular duties which are part of the ordinary duties of a police officer, such an officer is not disabled. Provided that he would be able to perform the ordinary duties of a police officer if he worked in another police force, his inability to work within a particular police force would not render him disabled within the meaning of the Regulations. And if an officer is "unfit for work" because of his inability to work within the police service at all, not even that inability would render him disabled within the meaning of the Regulations, provided that he would be able to perform duties which were equivalent to the ordinary duties of a police officer in another position outside the police service altogether. It is said that this approach does not depart from the functional test provided for by reg. A12(2), while catering at the same time for the unusual case of the officer who, for one reason or another, is no longer able to work for a particular police force or within the police service at all.
13. I cannot go along with this argument in its entirety. The language of reg. A12(2) – "the ordinary duties of a male or female member of the force" – focuses on the duties of a police officer, not on the duties of persons in comparable occupations, however similar those duties may be. It may be, for example, that an employee of a security company has administrative and operational duties which are similar to the duties of a police officer, and which require similar skills to those required of a police officer. But it is quite impossible to construe the words of reg. A12(2) as extending to the ordinary duties of such employees. If that had been what the Secretary of State had intended when he promulgated the Regulations, the words which would have been used would have been something like "duties of a kind ordinarily performed by a male or female member of the force". It follows that if an officer's infirmity of body or mind renders him unable to work within the police service at all, he is disabled within the meaning of the Regulations.
14. But different considerations apply to a police officer whose infirmity merely renders him unable to continue to work for a particular police force, but would not prevent him from working for another police force. The language of reg. A12(2) – "the ordinary duties of a …..member of the force" – focuses on the police service as a whole, not on a particular police force in which the officer is serving (if he is still a serving officer) or in which the officer last served (if he has ceased to be a serving officer). Not only is that a more natural reading of the language, but it reflects the fact that the Regulations should be regarded as contemplating that the ordinary duties of a police officer are unlikely to differ from force to force. Moreover, where the Regulations refer to a particular police force, rather than to police service as a whole, they speak of "a police force" rather than "the force": see, for example, regs. A11(1), A12(3) and B4(1). It follows that if an officer's infirmity of mind or body renders him unable to work for a particular police force, he will not be disabled within the meaning of the Regulations if he is able to perform the ordinary duties of a police officer in another police force.
15. When Dr Beck described Mr Hamlin as "unfit for work", he was saying that Mr Hamlin was then unfit for any work. After all, what Dr Beck said in his subsequent letter was "…..in his present mental state he is unfit for employment, certainly in any capacity in the Force and elsewhere". The Authority does not suggest that Dr Beck thought otherwise, which was why Miss Debra Powell for the Authority accepted that Dr Beck's view was that Mr Hamlin was currently disabled. But in certifying that Mr Hamlin's disablement was likely to be permanent, it is unclear whether Dr Beck was saying that Mr Hamlin was unlikely to be able to work as a police officer at all in the future or simply unable to work for the Authority. In defence of Dr Beck, that important distinction was never put to him by the Authority, though to be fair to the Authority, it had never thought it appropriate for a medical practitioner to be engaged at all. It was only doing what the Crown Court had ordered it to do.
16. Having said that, it rather looks as if Dr Beck was saying that Mr Hamlin would be unlikely to be able to work for the Authority in the future, rather than as a police officer at all. I say that because Dr Beck referred to Mr Hamlin's obsession about his "perceived maltreatment by the Sussex Police", and because of Dr Beck's numerous references to Mr Hamlin's disenchantment with, or antipathy towards, "the Force" (which in their context appear to refer to the Authority in particular, rather than to the police service in general). But it is not possible to be sure, and for that reason the very least which the Authority is entitled to is a clarification by Dr Beck of what he meant. If Dr Beck was then to say that he meant the former, his approach on what constitutes "disablement" would not thereafter be open to challenge. But if either he was to say that he had meant the latter or that he was unable to clarify what he had meant, it would be necessary for his certificate to be quashed, and for the questions set out in regs. H1(2)(a) and H1(2)(b) to be reconsidered.
17. But there is another problem with Dr Beck's approach to the question whether Mr Hamlin's disablement was likely to be permanent, and that relates to the fact that he qualified his certificate. He should not have done that. Either Mr Hamlin's disablement was likely to be permanent, or it was not. It would be no good, for example, to say that the answer depended on whether Mr Hamlin was going to be able to put the past behind him. The likelihood or unlikelihood of his being able to do so was simply one of the factors to be taken into account when deciding whether the disablement was likely to be permanent.
18. It follows that the fact that Dr Beck qualified his certificate makes it unclear whether he was purporting to certify that Mr Hamlin's disablement was likely to be permanent. Dr Beck was saying that the anxiety-linked depression from which Mr Hamlin was suffering (and which causes psychosomatic back pain and affects his behaviour) is likely to be permanent if he remains in conflict with "the Force", but that the condition would be treatable once that conflict was no longer part of Mr Hamlin's life. The critical question therefore was whether, if Mr Hamlin had no connection with "the Force" in the future, he would be able to put his past behind him. Dr Beck seems to suggest that it was improbable that he would be able to. But if that was so, there would have been no need for him to qualify his certificate, since his opinion would have been that it was likely that Mr Hamlin's disablement would be permanent.
19. There are two final points which I should make. First, in the course of argument, I pointed out that Dr Beck had completed that part of para. 3 of the certificate which related to when the Authority should consider whether Mr Hamlin's disablement has ceased. At the time, I thought that that might suggest that Dr Beck thought that Mr Hamlin's disablement was unlikely to be permanent. I do not think that now. Reg. K1 enables a police authority to allow an officer who has been receiving early payment of a deferred pension because he is permanently disabled (see reg. K1(7)) to rejoin the police force. Thus, that part of para. 3 of the certificate which Dr Beck completed was intended to be completed by medical practitioners whose opinion was that the officer was likely to be permanently disabled but whose disability might nevertheless cease. The only criticism of Dr Beck is that he did not cross out the last sentence in para. 3 of the certificate, which was clearly an alternative to the previous sentence.
20. Secondly, I have commented on two areas where Dr Beck's report lacked clarity – namely (i) whether Mr Hamlin was unable to work as a police officer at all in the future, or simply for the Authority, and (ii) whether the qualification of the certificate was intended to mean that Mr Hamlin's disablement was unlikely to be permanent. But it is also unclear whether Dr Beck considered "unfitness" for work (which was the term he used) by reference to Mr Hamlin's ability to perform the ordinary duties of a police officer. It may be that he equated unfitness for work with an inability to perform the ordinary duties of a police officer, but it would have been better if that had been spelt out.

Conclusion

21. For all these reasons, Dr Beck's certificate cannot stand. It would be wholly inappropriate for the Authority to be denied any relief on the basis that it had failed to spell out to Dr Beck the test which he should apply. Mr Hamlin would then be the beneficiary of an unjustified windfall. And it would not be appropriate simply for Dr Beck to be required to clarify his views. It may be difficult for him now to do that, and in any event he may be unconsciously influenced by his previous certificate and he might be tempted to clarify his views in such a way which would not result in there being a change to his certificate. In the circumstances, the safest course for me to take is to quash the certificate as a whole, leaving it to the Authority to refer to another duly qualified medical practitioner the two questions set out in regs. H1(2)(a) and H1(2)(b) as required by the Crown Court. It is appropriate for the whole of the certificate to be quashed because the new medical practitioner will have to make his own diagnosis of the condition from which Mr Hamlin is suffering, so as to form a view as to whether he is disabled, and whether his disablement is likely to be permanent.
22. In order to spare the parties the expense of attending court when this judgment is handed down, I leave it to the parties to see whether the costs of the claim can be agreed. In case they cannot be agreed, I give the parties liberty to apply for the issue of costs to be decided by me. The same applies to Mr Hamlin if he wishes to apply for permission to appeal. Any such application for costs or permission to appeal should be filed within 14 days of the handing down of this judgment, and I will consider such applications without a hearing on the basis of any written representations which the parties wish to make.