England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS'S BENCH DIVISION
THE ADMINISRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2006

MR JUSTICE UNDERHILL:

1. The Claimant is a Police Constable with the West Yorkshire Police. She joined the police service in 1990 and is now aged 36. In 1999 she was exposed to CS spray in the course of a training exercise. She experienced a severe reaction which required her to be taken to hospital and the effects of which lasted for some three months. She was again exposed to CS spray in July 1999 while arresting a violent suspect and again in August 1999 and July 2000. On each occasion she suffered a severe reaction. On the last occasion there had been a particular problem because her colleagues had at first forborne to use the spray because of her known susceptibility, which had allowed the suspect to cause further injury before he could be restrained. As a result of those problems the decision was made that the Claimant could not be deployed on operational duties - the precise definition of "operational duties" has not been explained to me, but it essentially refers to "front-line" policing – so that she has been confined to duties of a broadly "office" character within the police station. That has been the position since July 2000 although she has also had periods of absence due to sickness or maternity leave.
2. It is the Claimant's case that in those circumstances she is "permanently disabled" within the meaning of the Police Pension Regulations 1997. The definition of permanent disablement appears in para A12 (2) of those Regulations in the following terms:

Disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force except that, in relation to a child or widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

If the Claimant is permanently disabled within the meaning of that definition, and if she retires, or is compulsorily retired, on account of that disability, she will be entitled to an ill-health award under para B3 of the Regulations. Under Part H of the Regulations any question as to an officer's entitlement to any award falls to be determined in the first instance by the police authority responsible for the force in which he or she serves (para H 1(1)); but in a case where that question involves the determination of whether the officer is permanently disabled, that question has to be referred for decision by a registered medical practitioner, who will decide both whether he or she is disabled and whether the disability is likely to be permanent (para H1(2)). That decision may be appealed to a "board of medical referees, appointed in accordance with arrangements approved by the Secretary of State" (para H2). As a result of those arrangements, there is a body generally known as the Police Medical Appeal Board ("the Board"), which constitutes the board of medical referees for the purpose of para H2. The services of the Board appear to be provided by, and administered under the aegis of, a private company called Capita Health Solutions Ltd.

3. The procedure provided by Part H of the Regulations has been followed in the Claimant's case. That has occurred notwithstanding that the Claimant has not retired and that the West Yorkshire Police Authority ("the Authority") has taken no steps to procure her retirement; but the parties have proceeded on the basis that the procedure is applicable in such a case. The doctor making the original decision concluded that the Claimant was not disabled from performing the ordinary duties of a member of the Police Force, but he did not give any reasons. The Claimant appealed to the Board, which gave a written decision on 3^rd May 2005. In summary, it concluded that the Claimant was permanently disabled from carrying out the ordinary duties of a member of the West Yorkshire Police, but it held that she was nevertheless not permanently disabled within the meaning of regulation A12 because she remained fit to perform such duties in another force which did not use CS gas. In making that distinction, it was following the decision of this court in R. (Sussex Police Authority) v Beck [2006] ICR 570 (note) ([2003] EWHC 1361 (Admin)). I shall have to consider that case in more detail below, but for present purposes it is sufficient to quote the following sentence from para 14 of the judgment of Keith J:

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.

The relevant passage from the decision of the Board is as follows:

The Board has concluded … that Mrs Corkindale is suffering from an extreme irritant reaction to exposure to CS incapacitant and as use of this is a requirement for operational officers within West Yorkshire Police and the Board are not persuaded that it would be possible for her to perform operational duties safely without potential exposure to CS incapacitant, then in relation to the ordinary duties of a Police Officer in West Yorkshire Police she is not able to fulfil those duties as a result of that extreme reaction to the irritant effects of CS Spray. The Board then have considered the issue of permanency of her condition and consider that Mrs Corkindale will always potentially be subject to a significant reaction when exposed to CS Spray and that there is nothing that can be done by way of treatment that will reduce the likelihood of this happening. She should therefore be considered to be permanently unfit for exposure to CS incapacitant. It is the Board's view however that this is the only limitation that need be placed upon here and that in all other respects she is entirely fit and healthy.

The Board has considered carefully the Police Authority's argument that the Beck case should be considered relevant in terms of the issue of Mrs Corkindale's disablement and accepts that whilst she may be unable to perform the ordinary duties of a police officer in West Yorkshire Police, were she to work in a Force which did not use CS incapacitant and which therefore would ensure that she was not exposed to it, then there is no reason why she could not safely and effectively undertake the normal duties of a Police Officer. It is on this basis therefore that the Board have concluded that in accordance with the ruling in the Beck case she cannot be considered to be disabled.

(As regards the latter paragraph, I shall have to come back in due course to the question of the evidence that was before the Board as to the use of CS spray in other forces; but it is common ground that there were some forces in which it is not used.)

4. I should perhaps spell out, although it is not directly in issue in this application, the legal basis of the Board's finding that the Claimant was permanently disabled from performing the ordinary duties of a police officer in her particular force, i.e. the West Yorkshire Police. In R. v Sussex Police Authority (ex p. Stewart) [2000] ICR 1122 the Court of Appeal held that an officer was disabled for the purpose of reg. A12 if he or she was disabled from performing any of the essential functions which a police officer might be called on to perform, including the prevention of the commission of crime. Thus a police officer who had seriously injured her ankle and was unable to perform operational duties was held to be disabled notwithstanding that her Authority was willing and able to employ her on duties which were non-operational but otherwise perfectly "ordinary". The Court accepted the submission of counsel for the Applicant, which Simon Brown LJ set out at page 1130 D-F of his judgment as follows:

Turning then to the words in regulation A12(2) "the ordinary duties of a … member of the force," Mr. Millar submits that the word "the" must mean all the duties, not merely some of them; that "ordinary" means customary, usual or normal; that the word "a" denotes the typical (male or female) holder of the office of constable; and that a constable's duties are those described in Halsbury's Laws of England , 4th ed. reissue, vol. 36(1), p. 329, para. 524 his or her "first duty" being "always to prevent the commission of a crime." A constable cannot perform his or her ordinary duties, submits Mr. Millar, unless he or she can at least run, walk reasonable distances (i.e., patrol), stand for reasonable periods, and exercise reasonable physical force appropriate to his or her size and sex in exercising powers of arrest, restraint and retention in custody.

Applying that approach to the present case, the Board's conclusion was that since officers on front-line duties in the West Yorkshire Police ordinarily carry, and not infrequently have to use, CS spray the Claimant's hypersensitivity to it means that she is unable to perform those duties.

5. By these proceedings the Claimant seeks judicial review of the decision of the Board and a declaration that she is permanently disabled within the meaning of regulation A12. The Board is the primary Defendant but the Authority has been joined as an Interested Party. Permission was given by Collins J at an oral hearing at which neither the Board nor the Authority were represented. The Authority has from the start indicated that it does not wish to contest the proceedings. The Board initially lodged an Acknowledgement of Service, and in that and in subsequent correspondence from Capita it indicated an intention to defend. But by letter dated 24^th October 2006 Capita said:

The Acknowledgement of Service, dated 10 August 2005, was completed in error. Please be advised that the Defendant does not contest the claim and does not intend to appear at the substantive hearing …. .

In the result there has been no appearance from either the Board or the Authority. The Claimant has been represented before me by Mr Martin Westgate of counsel.

6. Mr Westgate's submissions on behalf of the Claimant were essentially twofold. First, and foremost, he submitted that Beck was wrongly decided and that the Board's conclusion that the Claimant was permanently disabled from service with the West Yorkshire Police necessarily meant that she was permanently disabled within the meaning of regulation A12. Alternatively, he submitted that even if Beck was correctly decided, there were in fact only a few forces in which CS spray was not routinely used, and that that fact that did not preclude a decision that she was unable "to perform the ordinary duties of a member of the force". He had a third submission, based on procedural unfairness; but that was very much a fallback and in the event I have not found it necessary to consider it. I take his two primary submissions in turn.

1. Is Beck Correctly Decided?

7. I find it convenient first to consider the position without directly addressing Beck. The key words which I have to construe are "inability …. to perform the ordinary duties of a member of the force [my emphasis]".
8. In the great majority of cases it will make no difference whether the words "the force" are construed as referring to a particular police force or to the police service as a whole, since in the great majority of cases there will be no distinction between the duties of members of different forces or the way in which they are carried out. However, that will not invariably be so. There will be exceptional cases where the different ways in which the ordinary duties of police officers of different forces are carried out means that an infirmity may prevent an officer from carrying out those duties in one force when he would not be prevented from doing so in another. The facts of the present case – as found by the Board – are one illustration of such an exceptional case, but it is possible, with a little ingenuity, to construct other examples in which, e.g., different types of equipment in use, or geographical or environmental differences between police areas, may produce a similar result.
9. In such a case it seems to me more natural to read the words "the force" as to referring to the particular force in which the officer is serving. As Mr Westgate emphasised, England and Wales do not have a national police force but a number of local police forces. He referred me to ss. 2 and 3 of the Police Act 1996, which provide for the maintenance of a police force, under a Police Authority, for "every police area"; and to the definition of "police force" in s. 101 of the Act as a "force maintained by a Police Authority". The existence of a number of individual forces rather than a single force is not a mere technicality. It is a well-recognised constitutional fact, arising as a matter of history but maintained as a matter of deliberate policy: Mr Westgate referred me to the report of Royal Commission on the Police 1962 (Cmd. 1728), which preceded the enactment of the Police Act 1964 (which is the predecessor of the 1996 Act and is in the material respects identical). Against that background, a statutory reference to a "police force" is in my judgment most naturally read as a reference to a particular police force.
10. That general conclusion is reinforced by consideration of the detailed provisions of the Regulations. Mr. Westgate made the following specific points:

(1) S. 11 (3) of the Police Pensions Act 1976, which is the statute under which the Regulations are made, provides that:

In this Act, except in so far as the context otherwise requires, "police force" means any police force within the meaning of the Police Act …".

It is of course a rule that terms used in a statutory instrument have the same meaning as in their parent statute, unless the contrary intention appears: see s. 11 of the Interpretation Act 1978.

(2) The Regulations incorporate, as Appendix A, a "glossary of expressions". As originally enacted, this included the provision that ""police force" means a home police force or an overseas corps [my emphasis]". "Home police force" was defined as "any police force within the meaning of the Police Act 1964 or the Police (Scotland) Act 1967". That definition was revoked by the Police Pensions (Amendment) (No. 3) Regulations 2003 (SI 2003/2716) (see Schedule, para. 6) in order to permit the Director Generals and police members of the National Criminal Intelligence Service and National Crime Squad to become members of the Police Pension Scheme, and the definitions in the 1996 Act were amended accordingly; but Mr. Westgate submits that it remains permissible to have regard to the original definition as an aid to construction.

(3) Mr. Westgate points out that where the Regulations wish to refer to service in a force other than a particular force they use the language of "service". He points, for example, to the provisions of Part F of the Regulations, and to reg. I5, which refers to "service … as a regular policeman".

11. None of those provisions is conclusive. A definition of "police force" does not, as such, define the phrase "a member of the force"; and in any event those definitions apply only to the extent that the context does not otherwise require. Nevertheless they seem to me strongly to reinforce my provisional conclusion at para. 9 above that when the Regulations use the term "force" – whether with the definite or the indefinite article - they are referring to a particular local force and not to the police service generally.
12. Such a conclusion also seems to me to be right as a matter of policy. In a case where a police officer is genuinely disabled from serving in the particular force to which he or she belongs, it does not seem fair that he or she should be disentitled to a pension because they may be fit to serve in another force, which may be in an entirely different part of the country and be quite different in character from the force which they chose to join.
13. I turn to consider the judgment of Keith J. in Beck. I have already set out the conclusion of para. 14 (see para. 3 above). The reasoning leading to that conclusion is as follows:

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 regulation 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, regulations A11(1), A12(3) and B4(1).

There are essentially three elements to that reasoning, which I take in turn.

14. First, Keith J. expresses a view about the natural reading of the language. Unfortunately, this is a matter which strikes me differently. For the reasons which I have tried to give above, it seems to me more natural to read the phrase "member of the force" as referring to the force in which the officer is serving.
15. Secondly, Keith J. observes that "the Regulations should be regarded as contemplating that the ordinary duties of a police officer are unlikely to differ from force to force". As appears from para. 8 above, I agree with him that respects in which the ordinary duties of a police officer vary from force to force will be exceptional; and it may well be that the draftsman did not indeed contemplate the exceptional case where an infirmity might prevent an officer from carrying out those duties in one force where it would not do so in another. But I regard that as neutral on the question of construction. The question is whether reg. A12 on its true construction refers to membership of a particular force or the police service as a whole, whether or not the draftsman appreciated that that would make a difference in practice.
16. Thirdly, Keith J. draws attention to the instances where the Regulations refer to "a police force", rather than "the force" and suggests that that is the phrase which is deliberately, and exclusively, used where the intention is to refer to membership of a particular force. The examples which he gives where the indefinite article is used do indeed clearly mean "a particular police force"; but I see no particular sign that the phrase "the force" is used in para. A12 (2) in contradistinction to that, i.e. so as to mean the police service generally. It seems to me that the use of the definite article is explicable simply as the right use of language given the grammar of the sub-paragraph as a whole. If the draftsman meant "that particular force", to have used the indefinite article would have been positively misleading, since "[unable] … to perform the ordinary duties of a member of a force" would have had the opposite meaning. He could have said "member of the force in question"; but that would have been clumsy. Mr. Westgate drew my attention to other cases in the Regulations where the definite article is used in circumstances where it plainly refers to a particular force – see A19 (compulsory retirement from "the force" in the interests of efficiency) and K1 (requirement that an officer who has retired on ill-health grounds but has recovered should re-join "the force").
17. I have been reluctant to reach a different conclusion from Keith J. on what is essentially a matter of construction of a kind on which, notoriously, views can legitimately differ, particularly in circumstances where he had the benefit of adversarial argument and I have not. However, it does not seem that he was referred to the full range of arguments and provisions on which Mr. Westgate has relied before me (the circumstances in Beck were very unusual) and, having reached a clear view on the matter, I must respectfully differ from him.

2. "Ordinary duties"

18. In view of the conclusion expressed above, I need not strictly deal with Mr. Westgate's alternative submission, but I do so in case I am wrong. On that basis, the question for the Board was whether an inability to work in circumstances where CS spray might be deployed constituted an inability to perform the "ordinary duties" of an officer in the police service generally. The "Beck point" was only taken at the oral hearing before the Board, and there was accordingly no evidence before it as to the proportion of forces which use an incapacitant other than CS spray (save for the admitted fact there were at least some that did so). However, the Claimant attached to the Claim Form a break-down which she has since obtained which shows that at the material date 37 out of 43 forces used CS spray, while the remaining six used an alternative incapacitant called PAVA (with one or two of the 37 indicating an intention to move to the use of PAVA in the near future). Since neither the Authority nor the Board have sought to challenge that information, Mr. Westgate submits that I can take it into account as an objectively verifiable "established fact" within the principles in E v. Home Secretary [2004] QB 1044. I accept that submission. The result is that I can and should conclude that in the great majority of forces, as in West Yorkshire, CS spray is routinely employed. In those circumstances it seems to me that working in circumstances where CS spray is liable to be used plainly forms part of the ordinary duties of an officer in the police service. It follows that the decision of the Board was wrong.

Conclusion

19. For the reasons given I quash the decision of the Board dated 3^rd May 2005 and declare that the Claimant is permanently disabled within the meaning of reg. A12 of the Police Pensions Regulations 1987.
20. In order to save unnecessary costs, I propose to hand down this judgment without requiring the attendance of the Claimant and to direct that the Board pay her costs of the application, to be assessed on the standard basis unless agreed, unless within 28 days they lodge (and serve on the Claimant) written submissions seeking some different order. If such submissions are lodged the Claimant should lodge written submissions in response within 14 days. I will then decide the question on paper unless I conclude that a hearing is necessary.