England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 November 2009

1. MRS JUSTICE COX: The claimant, Belinda Laws, is challenging the decision of the Police Medical Appeal Board, dated 17 March 2009, to reject her appeal against a decision of the Selected Medical Practitioner, that her degree of disablement for the purposes of her police injury pension should be reduced from 85 per cent to 25 per cent.
2. On 9 September 2009, on considering the matter on the papers, Nicol J ordered a "rolled up" hearing for the challenge to the Board's decision. He did so because, although he considered that the claimant's grounds raised arguable issues, there was insufficient information to enable a view to be taken on delay, which was then being raised by the Board. Further evidence relating to that issue has been served and, in the light of the explanations provided, the Board now take no point on the question of delay. I have therefore heard argument on the substantive application.
3. I should also record the fact that Nicol J refused permission to challenge separately the decision of the Selected Medical Practitioner, appointed by the second defendant, the Metropolitan Police Authority (MPA), because the effective decision is that of the Board. Clearly the MPA continue to have an interest in these proceedings and Mr Walsh was instructed to appear by the MPA to defend the decision of the Board and resist this challenge.

The facts

4. There is no dispute as to the relevant background. The claimant joined the Metropolitan Police Service in 1995, and worked as a uniformed police constable. To begin with, all went well and she was commended for her role in arresting robbery suspects in August 1997. Just 2-months later however, she was physically assaulted in the course of an incident in Trafalgar Square, when she was attempting to handcuff someone.
5. At the time, it seemed that her injuries, though painful, were not severe; the main injury being recorded as a sprain to her right shoulder. The medical evidence shows, however, that her injuries took an unexpected course. The main problem for this complainant was pain which prevented her from resuming her duties. The claimant was seen in March 1998 by Dr Reynolds, a consultant in rehabilitative medicine employed by the MPA, who described her as continuing to be greatly troubled by pain resulting from the injuries sustained in the Trafalgar Square incident.
6. She was at that time receiving physiotherapy, and in June 1998 she tried to return to work part time, on light and sedentary duties. This, however, aggravated her injuries and she had to stop work again the following month. She was noted at that time to be, "very disappointed ... fed up, and frustrated" with her injuries and her inability to return to work. Dr Reynolds considered that she was not making good progress and he was not optimistic that she would be able to return to full policing duty in the foreseeable future. He stated in July 1998 that, "the probability of full recovery is not good". Unsurprisingly, given this gloomy prognosis, the MPA took steps to consider whether the claimant should be required to retire from the service.
7. There was some concern as to the extent of her symptoms. In November 1998, Dr Reynolds was asked to confirm that her symptoms could all be attributed to the injury received on duty in October 1997. Dr Reynolds responded in the following terms:

"Her clinical condition is certainly quite severe, and the clinical signs and symptoms are indeed somewhat disproportionate in relation to the injury that she sustained. This is, however, not that unusual, and one sometimes sees very severe symptoms after quite minor incidents, such as a small whiplash injury. Some of her symptoms, however, probably amount to fair degree of emotional overlay, but it is incredibly difficult to separate this out from the underlying neuro-muscular skeletal problems."

He continued:

"In trying to answer your question simply, I think one can attribute her problems to the incident on 11 October as she did not suffer from any problems up until that time. There clearly was a cause and effect, and the fact that there are now so many diverse and odd symptoms does not necessarily mean these are imagined."

8. I note that Dr Reynolds's clinical notes refer to the claimant as being severely incapacitated. Further, 7-months later, in June 1999, when completing the form in connection with the claimant's request for an award from the Criminal Injuries Compensation Authority, he referred to the claimant as having suffered depression as a result of her injuries.
9. The assessment in November 1998 led Dr Reynolds, acting as the Selected Medical Practitioner (SMP) appointed by the MPA, to sign a certificate on 2 December 1998 for the purposes of regulation H1 of the Police Pensions Regulations 1987. This certified that the claimant was disabled from performing the ordinary duties of a member of the force and that her disability was likely to be permanent. The claimant was therefore retired from the force.
10. Dr Reynolds assessed the degree of disablement, that is the degree to which her earning capacity was effected as a result of the injury, as 60 per cent. The claimant appealed against this 60 per cent assessment to the Medical Referee and her appeal was heard on 18 November 1999 by Dr Meanley, Consultant Occupational Health Physician. He upheld the appeal and determined that the claimant's degree of disablement was 85 per cent. Describing the claimant's situation as a, "failed recuperative return to work", rather than, "a reluctance to return to work", Dr Meanley expressed surprise that specialist opinions had not been sought, for example, into the claimant's psychological state. He observed at paragraph 6 of his report:

"No enquiry seems to have been made into it, other than the observation that it is difficult to separate the physical from the psychological state. It seems to the Chair that the psychological disability arising from a physical injury is no less relevant in terms of the level of disability and cannot be dismissed".

11. His opinion was as follows:

"It is agreed that there was a neck injury arising from an incident in the performance of her duty by PC Belinda Eaton in October 1997. Although it appeared no more than a wrenched shoulder at the time, and a minor thumb injury, she subsequently developed left shoulder, upper back, and left arm pain. This gradually deteriorated, becoming more extensive, to include her neck and right arm. She also developed severe headaches and by February 1998 her symptoms included low back pain with left leg sciatica pain. Her own doctor observed signs of reduced prick sensation and power in her left leg ... Two referrals to the police convalescence establishment failed to produce benefit and a pain clinic referral produced no tangible benefit. An attempt at a recuperative return to work on light work had proved a failure, although there is little evidence in the police medical record that much notice was taken of the significance of this, other than a reference to her unwillingness to return to work ... She continued to report disabling symptoms after this failed trial of sedentary work, and with no sign of improvement in her presumed neuropathic pain, the decision was taken to medically retire her. She had apparently been unable to perform at two levels of sedentary work, namely at a display terminal and a telephone enquiry point. This information was provided by her and not challenged by Dr Reynolds. If she was unable to cope at this level, it is difficult to see what other work she might have been able to do, whether at a skilled or unskilled job. Thus, at that time, she had, on the balance of probabilities, to be considered virtually unemployable. That situation is not altered by her psychiatric state at the time. If she was psychiatrically or psychologically unable to cope with the consequences of her injury, she must still have been considered disabled. There is no evidence that these issues were considered in depth at the time by the Authority, and now none convincing that her inability to cope, owed anything to her life event difficulties at that time. I therefore feel that the appropriate disability banding should be Very Severe Disability, and that the level of disability due to continuing neuropathic pain should be considered in excess of 85 per cent. Her appeal, therefore, is successful."

12. It is clear from the opinion of the Medical Referee, that he determined both that her psychiatric symptoms flowed directly from her physical injuries, and that all her injuries resulted from the injury she had sustained on duty in October 1997.
13. The claimant's pension was reviewed in 2002, when her degree of disablement was assessed not to have altered substantially, and her injury pension was maintained at 85 per cent. Before the next review, the claimant applied to study for a law degree at University College, Northampton in 2004. She was accepted on the course as a part time, disabled student. Her needs were assessed and she was able to benefit from various adjustments made to accommodate her needs and from extensive support to help her to study for some 14 or 15 hours per week.
14. She had completed the first year of this degree course when she had the next pension review in 2005. This review was conducted by Dr Porritt, who was by now the SMP. Once again, the claimant's degree of disablement was assessed as not having altered substantially and her injury pension was maintained at 85 per cent.
15. Subsequently, the claimant successfully completed her studies and graduated in 2008 with a law degree. Before the next pension review in 2008, which has led to this application for judicial review, the Police (Injury Benefit) Regulations 2006 were passed. The provisions with which we are concerned in this case are essentially unchanged from those which applied in 1987, and the effect of the transitional provisions is that injury pension awards made under the 1987 regulations are be treated as if they had been made under the 2006 regulations.
16. The claimant was next reviewed, again by Dr Porritt as SMP, in 2008. On this occasion, Dr Porritt noted that there were now co-existing conditions of lower back pain, irritable bowel syndrome, and fibromyalgia, or chronic fatigue syndrome. She also noted that the claimant had completed a law degree on a part time basis and she concluded that the claimant was now capable of working 75 per cent of normal hours, that is 30 hours per week. Three comparative jobs were put forward by the MPA which, on a reduced hours basis, led Dr Porritt to assess the claimant's degree of disablement at 25 per cent.
17. Before the Board on the appeal, Dr Porritt was questioned as to her previous assessment in 2005, when she had assessed the claimant's degree of disablement as still at 85 per cent. In their report, the Board described her evidence as follows:

"She reported that this was early in her career with the Metropolitan Police Service. At that time she had been advised that if the clinical disablement had remained unchanged there was no need for her to alter the degree of disablement. Since that time, however, there has been a significant change in the overall review process of all ill-health retirements and degree of disablement assessments. In the review process, a much more robust approach is taken, and in each and every case a job comparison study is undertaken".

18. On 1 October 2008, the claimant appealed against this assessment to the Board, which had replaced the Medical Referee under the 2006 regulations. On 6 October, the claimant consulted Dr Howard, consultant neurologist, who prepared a report, dated 7 October 2008, for the purposes of the claimant's appeal. Referring both to the history and to her current condition, he stated, so far as is relevant, as follows:

"Over the last 9 years she has continued to suffer similar symptoms. Her back has been progressively worse, particularly in the low back ... I note there is a past history of fibromyalgia and colitis related to Diclofenac ... This lady is clearly in considerable pain in relation to her cervical and lumbar spine. I understand imaging has shown evidence of a lumbosacral prolapsed intravertable disc, although I do not have any access to the investigations that have been undertaken. Examination confirms that she is in a lot of pain, but there are no signs to suggest nerve root or spinal cord compression. In the absence of signs, it is difficult to be certain about the extent of cervical or lumbar spine disc or degenerative changes. It is more likely that the majority of her pain at present has a soft tissue basis, but I would certainly recommend that investigation, including imaging of the cervical and lumbosacral spine, and EMG studies should be undertaken.

You have asked me specifically to comment on the degree of disablement. I am afraid that this is a very difficult issue on which to be definite. It is clear that her functional capacity is limited by pain at present. This pain seems to originate both from cervical and lumbar spine degenerative changes, and from soft tissue disease. It seems to be the pain that is limiting her ability to work at present, and it is clear that this pain is causing very considerable disability for ex-Constable Laws."

19. In my judgment, Dr Howard essentially confirmed the findings of the Medical Referee in 1999. The claimant's pain had persisted over the last nine years; was genuine; was causing her very considerable disability; was limiting her ability to work; and was closely related to the soft tissue injury she sustained on duty in October 1997.
20. The Board, comprising two consultant occupational health physicians and a consultant orthopaedic surgeon, met and heard the appeal on 4 March 2009. Dr Howard's opinion was included in the material they had before them.
21. Before considering their report, it will be helpful to refer to the relevant statutory framework. When the claimant retired, the relevant rules were contained in the 1987 regulations, but in view of the transitional provisions to which I have referred, I need refer only to the 2006 regulations. As Mr Lock, appearing for this claimant, observes, the scheme established by the regulations recognises the risks that are faced by officers who are injured in the course of their duties, and who are unable, as a result, to continue to serve in the police force.
22. The relevant provisions in this case are as follows:

"11(1)- this regulation applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received, without his own default, in the execution of his duty (in Schedule 3 referred to as the "relevant injury").

11(2)- a person to whom this regulation applies shall be entitled to a gratuity, and, in addition, to an injury pension, in both cases calculated in accordance with Schedule 3 ...".

23. The claimant ceased to be a member of the Metropolitan Police Force in 1999 and was permanently disabled as a result of the injury she received in October 1997 (referred to as the duty injury). She was therefore entitled to a gratuity and to an injury pension. An injury is defined in Schedule 1 as including, "any injury or disease, whether of body or of mind".
24. Regulation 7, dealing with disablement, provides, so far as is relevant, as follows:

"(1) subject to paragraph 2 [not relevant to this case] 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 ...

(5) where it is necessary to determine the degree of a person's disablement, it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force."

A decision as to disablement and its permanence is, thus, a decision to be taken at the time of the decision as to entitlement under regulation 11.

25. The relevant expertise in relation to such decisions is medical. Regulation 30 provides:

"(1) subject to the provisions of this Part, the question whether a person is entitled to any, and if so what awards under these Regulations, shall be determined in the first instance by the police authority.

(2) subject to paragraph (3) 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, except that in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under part H of the 1987 Regulations shall be binding for the purposes of these Regulations; 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; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

...

(6) the decision of the Selected Medical Practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31 and 32, be final."

26. Regulation 31 provides for appeal to the Police Medical Appeal Board. Regulation 31(3) provides that:

"The decision of the Board of Medical Referees shall, if it disagrees with any part of the report of the Selected Medical Practitioner, be expressed in the form of a report of its decision on any of the questions referred to the Selected Medical Practitioner on which it disagrees with the latter's decision, and the decision of the Board of Medical Referees shall, subject to the provisions of regulation 32, be final".

Regulation 32, providing for further reference to medical authority, does not arise in this case.

27. The power, indeed the duty, to conduct reassessments of injury pensions is contained in regulation 37(1) which provides as follows:

"Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered; and if after such consideration the police authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly".

28. It is clear from these provisions that each determination of the SMP, or on appeal by the Board, is to be treated as being final. Thus, where an injury pension has been reassessed under regulation 37 and a decision has been made by the SMP concerning the degree of the recipient's disablement at that date, that decision is final for all purposes, subject to the continuing duty, periodically, to reassess the pension under regulation 37.
29. Whilst the MPA clearly had a duty under regulation 37 to carry out from time to time further reviews of this claimant's injury pension, they could only revise her pension if the SMP on referral, or the Board on appeal, concluded that the claimant's degree of disablement, as defined by regulation 7(5), had substantially altered since the last review.
30. In my judgment, the following questions therefore had to be determined by the SMP and the Board in this case:

1.) had the claimant's degree of disablement, as a result of the duty injury, altered since the last review of her injury pension in 2005? By regulation 7(5), this question was to be determined by reference to the degree to which the claimant's earning capacity had been affected as a result of the duty injury.

2.) if so, had it substantially altered?

3.) if so, what revision, if any, should be made to the claimant's injury pension as a result of this substantial alteration?

The Board's decision

31. The Board referred, on page 8 of their report, to regulation 7(5), but they did not refer at all to the statutory requirements contained in regulations 30 or 37. Nor did they refer expressly to the need for them to determine whether the claimant's degree of disablement, as a result of the duty injury, had substantially altered since the last review in 2005. At the start of their detailed case discussion, on page 9 of the report, they directed themselves as follows:

"The task for the Board in this case is to assess the current impact upon earnings of the index event of 11/10/1997, and then determine the Degree of Disablement as defined in the regulations".

32. Having given themselves that direction, they then proceeded to act in accordance with it. They referred to the fact that the claimant had not been in gainful employment since her ill health retirement in 1999; to the fact that she had obtained a law degree in 2008; to the original incident report of 11 October 1997; and to what they regarded as inconsistencies between the contemporaneous record of the incident and of the injuries received, and the claimant's account of them in evidence before the Board. They found that:

"The level of reported functioning is inconsistent with the injury. There is evidence of marked illness behaviour with widespread body pain and symptoms unrelated to the incident and not supported by clinical findings. The report from a consultant neurologist (October 2008), and that of the SMP, are consistent with the Board's finding of no organic pathology. The Board note the co-existence of unrelated psycho-physical symptoms in the form of the suggested diagnoses of chronic fatigue syndrome/fibromyalgia/IBS. The presence of these features requires a bio-psycho-social rehabilitation plan be put in place to enable her to return to work."

33. They referred to the claimant's current level of functioning, and stated that, from a competency point of view, the claimant "has a degree" and therefore that, "arguably she is capable of undertaking the roles put forward by the Police Authority". Taking her level of functioning "in the round", they considered that she was, "capable of at least the 30 hours suggested by the SMP".

They continued as follows:

"From questioning the Appellant it is clear that there has been a significant improvement since 1998, and it is manifestly clear that the argument that her condition has not improved is not sustainable ... The Board considers a substantial argument has been put forward for the Appellant's functional capability for work and that she has the appropriate competencies ... Taken in the round, the Board conclude that the Appellant is capable of working 30 hours per week and has the competencies to carry out the roles put forward ... With further intervention on the basis of the bio-psycho-social model of rehabilitation, there is no reason why the Appellant could not in the future be capable of returning to full time work. Nevertheless, the Degree of Disablement as a result of the injury on duty of 11/10/1997 is Band 1, as indicated in the Police Authority's submission".

34. As a result, the Board rejected the claimant's appeal.
35. In his first and main ground of challenge to the Board's decision, Mr Lock, on behalf of the claimant, submits that they misdirected themselves as to the task they had to perform and that they, therefore, asked themselves the wrong question. This led to them conducting, in error, an entirely fresh assessment of the claimant's degree of disablement and its causes, rather than directing their minds, as required by the regulations, to whether her degree of disablement had substantially altered since the last review in 2005.
36. Mr Walsh submits that the Board did not reopen or re-investigate any of the regulation 30 questions, which would be impermissible, and that they did not ask themselves the wrong question. The Board was obliged to make its own assessment of the claimant's condition in order to be able to assess whether there had been a substantial change. This, he submits, is what they did.
37. The position before the alleged change was that the claimant's earning capacity was held to be reduced by 85 per cent as a result of her injury. The position after the alleged change is the position at the time of the Board's assessment, and the Board must assess this on examining the claimant and her records, which is what they then did. No error of law is disclosed in their report.
38. I have considered Mr Walsh's submissions carefully but, having regard to the Board's reasoned decision, I reject them.
39. Dr Porritt's decision, on the 2005 review, was final. In 2008, the task required of her, and of the Board on appeal, was that set out in regulation 37. The focus under that regulation is the degree to which, if at all, the pensioner's degree of disablement has altered since the last review. In this case, that was in 2005. Making due allowance for the fact that this is the decision of a body of medical practitioners, not lawyers, the Board, in my judgment, failed to carry out the essential, comparative exercise that is required of them under the legislation. Instead, they approached the appeal by concentrating on an investigation into the claimant's current degree of disablement and, as they expressed it, the current impact upon earnings of the original incident in October 1997.
40. I agree with Mr Walsh that, in considering this first ground of challenge, it is necessary to read the decision of the Board as a whole and not rely solely on their description at the start of the task required of them. He fairly acknowledged, in his submissions, that the decision could have been more happily expressed, but he took me to a number of passages in the report and invited me to find that, reading it as a whole, the Board were in fact finding that the claimant's degree of disablement had substantially altered since the last review, and that they were not making an entirely fresh assessment or undermining what had gone before.
41. I cannot accept this submission. Having identified their task at the outset in the way that they did, there is nothing in the detailed case discussion which follows to indicate that they were focussing on, or even addressing, the extent to which the claimant's degree of disablement, as defined, had altered since 2005. Where points of comparison do appear, they are in relation to what are said to be inconsistencies between the contemporaneous record of the 1997 injury and the claimant's current account of it before them, or in relation to what the Board describe as the significant improvement in her condition since 1998.
42. Further, there are references to the claimant displaying "marked illness behaviour", and to pain and symptoms said to be unrelated to the 1997 incident, which, in my view, cannot be explained as the result of an enquiry into whether the claimant's degree of disablement had substantially altered since the review in 2005, when her degree of disablement remained at 85 per cent. Reading their decision as a whole, the Board appear to me to have been influenced, wrongly, by the "more robust approach" to degree of disablement reviews alluded to by Dr Porritt in her evidence to them. Undertaking a job comparison study in each and every case, and then looking back to revise an earlier assessment of the degree of disablement, is not the correct approach to the task required of SMPs or, on appeal, the Board under these statutory provisions. This has been made clear by the recent decision of Burton J in the case of R (on the application of Turner) v the Police Medical Appeal Board [2009] EWHC Admin 1867, in particular paragraphs 21 to 23, to which I was referred and with which I respectfully agree.
43. For these reasons, I am satisfied that the Board's decision was arrived at in error, because they failed to address and to determine the questions required by the regulations. This first ground of challenge therefore succeeds.
44. It is unnecessary, in the circumstances, for me to go on to consider all of Mr Lock's other grounds, some of which, Mr Walsh pointed out, had not been raised expressly in the claim form. I shall, however, deal with two of them as follows. Firstly, it follows from what I have said already in relation to the first ground, that Mr Lock's second ground also has merit, namely, that the Board failed to consider itself bound by the findings of the Medical Referee and the subsequent reviews. The questions whether the claimant's psychological injuries were genuine and were caused by, or at any rate substantially contributed to, by the duty injury, had already been determined in the claimant's favour by the Medical Referee in 1999. Mr Walsh accepts this and accepts, further, that these issues could not be re-opened. His submission was that the Board had not, in fact, re-opened them, but the passages to which I have referred above do not support this submission. On the contrary, it is clear to me that the Board sought to revisit and reconsider the nature and extent of the original injury; formed a view on causation without regard to the decision of the Medical Referee; and referred to other possible causes of the claimant's pain which were not supported by the medical evidence. The reference, for example, to fibromyalgia comes from Dr Howard's report, although he mentioned it as part of the claimant's past history not part of her current condition. Further, there is no reference to irritable bowel syndrome in his report.
45. As Burton J pointed out in Turner (paragraph 21), regulations 30 and 37 have an entirely different role:

"Regulation 30 may well raise questions of great difficulty, such as here in relation to causation. Those are not only questions which arise in medical situations, pension situations, and in all kinds of similar tribunals, but of course in the ordinary courts also where a condition such as, for example, asbestosis may have arisen in any number of different ways and during any number of different employments. It is important from the point of view of disputes such as pension entitlement that a decision, once made, should be final if at all possible, and that is what is provided by these regulations".

46. Another recent decision, of Silber J, in R (Pollard) v West Yorkshire Police Authority and the Police Medical Appeal Board [2009] EWCA Admin 88, makes essentially the same points at paragraphs 39 and 40.
47. I deal, finally, with the fifth ground of challenge. Mr Lock submits that the Board erred in taking into account any improvement in the claimant's employability as a result of her successfully completing her law degree. Mr Walsh submits that they were fully entitled to take into account the claimant's increased earning capacity as a result of her obtaining a law degree in 2008. Nicol J considered that this raised an arguable issue, and since it raises an issue of statutory construction and I heard argument upon it, I shall deal with it hopefully for the assistance of parties.
48. Firstly, it it clear from their decision that the Board, like Dr Porritt before them, did have regard to the claimant's law degree in deciding to reject her appeal. They refer to it both at the start of the case discussion and again in concluding, on page 9, that:

"From a competency point of view she has a degree and therefore, arguably, she is capable of undertaking the roles put forward by the MPA in terms of the administrative tasks required. Taking her level of functioning in the round, the Board considers she is capable of at least the 30 hours suggested by the SMP".

49. In my judgment, they erred in taking this change in the claimant's skill set into account in order to determine that there were now jobs available to her which were not available to her previously. A change in the claimant's skill set because of her law degree is not, in my judgment, a change in the claimant's earning capacity "as a result of" the duty injury, as required by the regulations. The combination of regulation 7(5) and regulation 30(1)(d) requires that the assessment of any alteration in the degree of disablement is limited to those factors which are the result of the duty injury. The assessment process looks for the loss caused by the duty injury and nothing else. It should therefore discount the effect of any other factors (see the decision of Ouseley J in R (South Wales Police Authority) ex parte Anton and Crocker [2003] EWHC Admin 3115, in particular at paragraph 52.
50. In this case, any change to the claimant's earning capacity, as a result of her own commendable industry in overcoming her disabilities and obtaining a law degree, is, in my view, wholly unrelated to the duty injury and does not fall within regulation 7(5). It cannot therefore be used to support a finding of substantial alteration within the meaning of regulation 37, or to assess the types of jobs that the claimant could perform. In my judgment, the Board erred in taking this factor into account in carrying out the task required of them by these regulations.
51. In any event the conclusion that the claimant, as a part time disabled student with an extensive level of support, studying for some 15 hours a week only and with considerable flexibility, would, as a result, be capable of working in an employed capacity on the open labour market for 30 hours per week, even if reasonable adjustments were made to accommodate her, is, in my judgment, an irrational conclusion on the evidence, and is therefore unsustainable. For these reasons, I would quash the Board's decision on grounds two and five in addition.
52. The claimant's challenge therefore succeeds, and I shall be grateful for submissions from the parties on the appropriate form of relief.
53. MR LOCK: I am very grateful to your Ladyship for the judgment. Can I pass forward a draft order form which I have raised with my learned friend and I do not think is likely to be substantially in issue.
54. MRS JUSTICE COX: Thank you.
55. MR LOCK: If I can take your Ladyship through it. I invite your Ladyship to start from the logical consequence of the position, which is that no lawful decision was ever made, either by the SMP or indeed by the PMAB, to reduce the claimant's pension. Therefore, as a matter of principle, she remains entitled to an 85 per cent pension, unless and until a lawful decision is made to review it and reduce it.
56. MRS JUSTICE COX: Yes.
57. MR LOCK: I therefore invite your Ladyship to make the declaration on the first page. I think, as far as the orders are concerned, I invite your Ladyship technically to grant permission, because of course Nicol J did not.
58. MRS JUSTICE COX: Yes.
59. MR LOCK: I then invite your Ladyship to quash the decisions, both of the SMP and the Board. As far as three and four are concerned, it is purely a mechanism to ensure that there is a prompt resolution of the back pay issue, and if there is a dispute, we invite your Ladyship to order that it be referred to the County Court for adjudication.
60. MRS JUSTICE COX: I see, yes.
61. MR LOCK: My Lady, I ask for my costs to be assessed on a standard basis. My Lady, I have a schedule, it is a touch short of £14,000. Your Ladyship will appreciate we have had to make the running in this case, it has not been entirely straightforward, and I invite your Ladyship to order an interim payment on costs with the hope that those who instruct me and those who instruct my learned friend can resolve any difference in the quantification without having to trouble the costs judge.
62. MRS JUSTICE COX: Thank you, Mr Lock. Mr Walsh?
63. MR WALSH: My Lady, I certainly cannot argue with the declaration. That must be absolutely right. I cannot argue with paragraph 1. There is a technical difficulty, perhaps, with paragraph 2, which is of course that there is no permission to deal with Dr Porritt's decision. Although I accept, of course, the common sense of the suggestion that if the Board got it wrong for the reasons your Ladyship decided, then so too must Dr Porritt have got it wrong. The question is, how far back is it necessary for us to go? It may be necessary to do no more than quash the decision of the Board and then put Porritt's decision to a new Board.
64. MRS JUSTICE COX: I see.
65. MR WALSH: That will save having to go right back to square one and commence a fresh review. The consequences are probably going to be the same, it is just one may be quicker than the other.
66. MRS JUSTICE COX: What would be the position meanwhile? The decision of Dr Porritt would stand, so it is in suspension, as it were, the claimant's entitlement you mean.
67. MR WALSH: Yes.
68. MRS JUSTICE COX: I am not sure that will be attractive to Mr Lock, but I hear what you say.
69. MR WALSH: It may not. It is a question of technicality, whether in fact your Ladyship can overturn --
70. MRS JUSTICE COX: Yes, I see your point.
71. MR WALSH: -- when there is specifically no permission to do that.
72. MRS JUSTICE COX: No permission to challenge it.
73. MR LOCK: My Lady, one route round this, which may be consequent on your Ladyship's judgment, if your Ladyship would accept an oral application from us to renew our application to quash the SMP's decision. Because the wording of Nicol J's decision is that the substantive decision --
74. MRS JUSTICE COX: Yes, he did not decide it on the basis there was no arguable merit, he decided that the effective decision was that of the Board.
75. MR LOCK: That is right. I perfectly agree with my learned friend, but if your Ladyship is troubled by that, I would make an oral application to renew about my application for permission in respect of the SMP, because essentially our position is there has never been a lawful decision.
76. MRS JUSTICE COX: I understand that, and Mr Walsh sensibly accepts what the pragmatic effect of my judgment is, but I do think he has a valid point as to whether I can actually make the order in paragraph 2 if you have not had permission to challenge the SMP's decision.
77. MR LOCK: My Lady, if he is right, may I make the application to renew out of time; invite your Ladyship to grant both the permission to extend time to renew, and also the substantive permission. That then puts the matter in court, so to speak, and it then logically follows from your Ladyship's judgment that your Ladyship therefore has jurisdiction and can therefore strike down the order of the SMP as well, and restore the position to what it ought to be.
78. MRS JUSTICE COX: Yes. All right. Did you want to take instructions Mr Walsh?
79. MR WALSH: If I could, just for one moment, your Ladyship. I do apologise your Ladyship.
80. MRS JUSTICE COX: That is quite all right.
81. MR WALSH: It does seem a way out of the matter.
82. MRS JUSTICE COX: Well, that was what was going through my mind.
83. MR WALSH: The only problem is the technicality of it rather than the principle of it.
84. MRS JUSTICE COX: It is. I think I will add here a paragraph to the order just to make clear that following further discussion this was resolved as a way of dealing with it, which I can easily do when I get the transcript back.
85. So, if there is no objection, that seems to me to be a sensible way of dealing with this matter, that I, out of time, grant permission to review the SMP's decision, having regard to the terms of the judgment, and review it. The order would have to be amended to reflect that.
86. MR LOCK: Of course. I will amend the order and submit a draft to your Ladyship.
87. MRS JUSTICE COX: Thank you.