QUEEN'S BENCH DIVISION
Leeds Combined Court
1 Oxford Row
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF SUSAN HAWORTH)
|- and -
|NORTHUMBRIA POLICE AUTHORITY
Mr Sam Green (instructed by Northumbria Police Authority) for the Defendant
Hearing dates: 11th October 2011
Crown Copyright ©
Mr Justice King:
"the decision of the (defendant) made on the 6th of December 2010 to refuse to refer the claimant's case back to the PMAB under regulation 32(2) of the 2006 Regulations in breach of her rights under Article1 Protocol 1 of the European convention on Human rights and/or because such decision was irrational and/or because the decision was so unreasonable that no reasonable public body directing itself properly could lawfully have reached such a decision."
Overview of the Issues
"The Police authority accepts that the Board's decision may well have been different had it been reached after the cases of Turner and Laws were determined. The Police Authority also accepts that the 2006 decision may have been susceptible to successful challenge had the Claimant sought permission to apply for judicial review of it at the time, although this would have depended on the approach taken to the statutory regime in the pre-Turner and Laws era".
"3) Northumbria Police authority manages 592 awards. these are broken down as follows. There are 197 awards in band 1 (0 -25%), 226 awards within band 2 (26-50%). 120 awards within band 3 (51-75%) and 49 awards within band 4 (76-100%);
4) Since 1988, 439 appeals have been notified to the Police Authority. Currently an SMP referral consumes about two days of SMP time, which costs the Authority approximately £2,000. The current cost of a medical appeal to the Medical Appeals board ("the Board") is £7,440 (more if more than one medical speciality is involved). The SMP will also attend a medical appeal (about £1,000). The costs of administering the appeal and attending are very variable; however, they will average out at about £1,000. Each SMP referral and appeal therefore costs the administering Authority approximately £11,500.
5) Those former officers in receipt of bands 3 and 4 awards seem, for understandable reasons of selfinterest, unlikely to challenge or to re-open these conclusions. It is the officers in receipt of bands 1 and 2 awards who would be most likely to seek to re-open matters.
6) The authority accepts that when a pensioner seeks a reconsideration either of the SMP's decision or the Board's decision, it has a discretion under Regulation 32(2) Police (Injury Benefit) Regulations 2006 to consent to the same. In determining how to exercise that discretion in the case of Susan Haworth, it has taken into account the fact that the decision she wishes to re-open hails back to 2006. The authority contends that it ought, in the exercise of its discretion, be permitted to take account of the need for fiscal stability, and, in doing so, to rely upon the statutory presumption that a Board's decision is final. The Authority further considers that it ought to be awarded a wide margin of appreciation in determining where the line should be drawn. Otherwise, how far back is it obliged to go in facilitating a pensioner's wish to reopen an old case?
7) However, if delay by a pensioner in seeking the Authority's consent to a reconsideration under Regulation 32(2) is not a permissible consideration, there is potential for up to 423 former officers to re-open their awards, with a potential cost to the Authority of up to £4,864,500.If only 10% of such officers seek to do so, that is still nearly £1/2 million."
'It is that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If after the act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late."
The Scheme under the 2006 Regulations
'Reference of medical questions
30 (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), (irrelevant for present purposes) 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 :
whether the person concerned is disabled;
whether the disablement is likely to be permanent;
except (irrelevant) ..
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."
"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 31and 32, be final"
while Regulation 31(3), referable to an appeal to board of medical referees, provides:
"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."
Review: Regulation 37
"Reassessment of injury pension
37(1) 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."
"In my judgment the learned judge below was right to construe the regulations as she did. Burton J's reasoning at paragraph 21 of Turner which encapsulates the same approach is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally of course they may not increase a pension by reference to a previous conclusion .the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was the driver of the pension that was then awarded."
Reconsideration: Regulation 32
"(1) A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct and the medical authority shall accordingly reconsider his, or as the case may be its decision and, if necessary issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final."
"(2) the police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him or as the case may be it, for reconsideration ,and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision, and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final."
Home Office Guidance
"Internal review of a medical decision
23. Both the decision of the SMP, if no appeal has been heard, and the decision of the appeal board may be referred back to the medical authority which took it by agreement between the officer and the police authority. Such a procedure will normally be followed where there is a reasonable prospect that further consideration of the issues will resolve the matter without the need for an appeal hearing in the case of an SMP's decision or need for Judicial Review in the case of an appeal board's decision."
"(4) in this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police authority, the police authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal."
History since the PMAB decision of 2006
The request for the reference back under regulation 32(2): the letter of the 29th October 2010
'It is against the background of the decisions of the SMP and the PMAB
that Mrs Haworth is seeking a reconsideration under Regulation 32(2)
of the Police (Injury Benefit) Regulations 2006.
The detailed reasons for seeking this review (sic) are set out below,
however in essence the decisions of both the SMP and the PMAB were
not made in accordance with the relevant regulations , as it is clear that
the SMP ..revisited causation as to the original final decision made at
the time of Mrs Haworth's ill heath retirement in May 1995, and the,
PMAB .then proceeded to apply an apportionment, again to a final
decision made in May 1995.
Both of these decisions are therefore unlawful, and not made in accordance with the Injury Benefit Regulations.
Having referred to the material Home Office Guidance on the application of regulation 32(2), the letter continued (any emphasis in italics is the emphasis of this court):
"Close reading of the decision of the PMAB does not offer any support to the proposition that the PMAB asked themselves whether there was a substantial alteration to the Claimant's degree of disablement. On the contrary the PMAB appear to have focused on the issue of causation and the introduction of apportionment. The words 'substantial alteration' do not appear in any part of the decision.
It is the Appellant's case that the PMAB wrongly revisited causation as to the original injury and then applied a degree of apportionment, irrespective of the fact that apportionment had never been considered prior to the PMAB of 21 June 2006.
We would suggest that it is now common ground that the PMAB were wrong to revisit causation in what has already been determined by the Force's SMP in this case, when he determined the Appellant should be retired due to, permanent disablement and when he assessed the degree of disablement at band 3 in May 1995.
It therefore appears that the NPA determined the case on a basis that was plainly flawed in that it is clear that the PMAB did not address the issue as to whether the claimant's degree of disablement had substantially altered.
The Appellant's request for the PMAB to reconsider the final decision contained in their report is primarily, but not exclusively, founded on the clarification given in the judgment of TURNER .. and the Pension Ombudsman's determination in the case of AYRE and Humberside, in that the PMAB had failed to determine there had been a substantial medical change in the disablement caused by the injury sustained in the execution of duty since the last assessment, wrongly revisited causation and wrongly applied apportionment.
Clearly the recent Court of appeal case of Laws v MPC confirms the position further, in that those cases of Turner and Pollard are confirmed as the correct method in carrying out an IOD review.
It is not right that the Northumbria Police Authority rely upon a final unlawful decision of the SMP and or PMAB to refuse this request that the earlier unlawful decisions may subject to this reasonable 32(2) request.'
The defendant's refusal to agree to a reconsideration: the letter of 6th December 2010
"It is not uncommon for case law to clarify matters relating to the Police (Injury Benefit) regulations 2006 and therefore how Forces apply these Regulations. It would be fair to say that the outcome of a determination by a (SMP) or a ..(PMAB) would often be different depending upon whether it is before or after a particular case rules on a particular point. This process has also been the case and is likely to continue.
Northumbria Police Authority has delegated its powers in relation to granting and reviewing injury awards to the Chief Constable in line with law and guidance at the time of the review.
The determination from such a review is "final". Regulation 32(2) does provide the Chief Constable with discretion to re-refer a matter to a medical authority which has issued a final decision the PMAB in this case.
Unfortunately, the Chief Constable is not minded to agree to a re-referral. The principal reasons for this are as follows:
"1. The decision Mrs Haworth now takes issue with was taken in June 2006. If Mrs Haworth had not wanted the consequences of a decision to apply, she had open to her avenues properly to challenge the decision. Mrs Haworth was also represented by her staff association, which also had access to legal advice to support this decision. By not challenging the decision at that time, Mrs Haworth accepted the findings of the PMAB.
2. It is important that final decisions, once taken, remain just that. The review (and appeal) process takes time and costs considerable sums of public money to administer.
The Chief Constable, as a reasonable public authority, is entitled to rely on the outcomes of these processes which were pursued in good faith and which, in your client's case, involved the intervention of two independent third parties.
For the avoidance of doubt, the only circumstances when the Chief Constable will consider a referral to a "medical authority" in the case of your client is if new evidence, post dating the final decision of 2006, exists, which indicates that the degree of disablement found by the PMAB in relation to Mrs Haworth should be altered. Evidence in relation to issues of causation would be inadmissible on any such review."
- there is an overall reliance upon the characteristic of the decision in question as being a 'final ' decision which ought to remain so.
The final paragraph: a fetter on the exercise of discretion under regulation 32(2)?
The grounds of challenge
1. Failing to give effect to the purpose of the discretionary power.
2. Breach of the claimant's A1P1 rights because of the lack of a fair or balanced approach;
3. The financial arguments advanced by the Police Authority are disingenuous and/or manifestly illogical;
4. The final reason for refusal was illogical and misunderstands the statutory scheme;
5. The Police Authority failed to follow the statutory guidance about how to exercise its discretion under Regulation 32(2)
6. Breach of the duty under the Disability Discrimination Act 1995.
The Claim under the Convention
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or otherwise."
"the legislative scheme expressly allows for decisions to be reconsidered, and the failure of the NPA to allow this to happen imposes an excessive burden on Mrs Haworth because it deprives her of her lawful entitlement for the remainder of her life."
"In the present case the NPA had regard to finality and the wish of the Chief Constable to rely on the outcome of the review process, but gave no credence to Mrs Haworth's Article 1, Protocol 1 rights."
The Court's conclusions
"Whilst it is true that the regulations do contain references to finality, each of those references is expressly made subject to the power in regulation 32(2). It has to be borne in mind that the Regulations are concerned with the provision of pension for former officers who were disabled in the course of duty through no fault of their own. In such a case it may well be thought that the need for accuracy is at least as important as the need for finality. Suppose case law establishes that an interpretation of the Regulation by either the SMP or the PMAB has been wrong, I do not see why regulation 32(2) cannot be used to enable the SMP or (as the case may be) the PMAB to reconsider the decision in the light of the correct interpretation of the law."
The Relevance of Delay
Considerations of Costs
Costs of the Process
Costs of any anticipated revision of pension
The Decision of 6th December 2010 made in this case
1) for reasons I have already identified, the fact the claimant had not sought to challenge the decision by way of judicial review is in itself irrelevant to the exercise of the power under regulation 32(2) which does not depend upon such a challenge having been made. There was moreover no evidential basis for any contention that by reason of the absence of any challenge by judicial review the claimant had to be taken in some way to have accepted the decision and thereby estopped herself from seeking a reconsideration;
2) reliance upon the 'finality' of the 2006 decision could not justify not exercising the power under regulation 32(2) whose very exercise depends upon the decision being a final one. Such reliance deprives regulation 32(2) of its proper effect (see again Judge Behrens in Crudace at paragraph 95(2))
3) the reference to the costs of the review and any appeal process could not, absent any consideration of the merits of the claimant's underlying case, justify a refusal of consent to a reconsideration ex hypothesi any reconsideration will be in respect of a decision already made through such a process and itself will always incur process costs.
The claim under the Convention
The Claim under the Discrimination Act 1995