England and Wales High Court (Administrative Court) Decisions

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

		Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		25th October 2013

1. MR JUSTICE LEWIS: ((1) etc number paragraphs) This is a claim for judicial review of a decision of the Police Medical Appeal Board given on 25th November 2011.
2. The Board decided that the claimant, Mr Scardfield, was currently disabled from undertaking the ordinary duties of a police officer. However, the Board also decided that it was premature for them to conclude that Mr Scardfield's disablement was permanent because he had not received what they described as normal appropriate medical treatment for his condition. As they did not reach the view that Mr Scardfield was permanently disabled he was not able to gain early access to a police pension that he has accrued from a period of time spent working as a police officer.
3. By way of background: the claimant joined the Hampshire police force at the age of 22 in 1977. He left the police force in 1985 to pursue other employment. In June 2009 he underwent an operation, I believe to decompress the carpal tunnel in his right hand, as he had been found to have Bilateral Carpal Tunnel Syndrome. Unfortunately one of the unintended consequences of that operation was that he was left with a condition known as Complex Regional Pain Syndrome which I will refer to as "CRPS".
4. As the claimant had worked as a police officer for 8 years he was entitled to what is called "a deferred pension"; that is he would get a pension based on those 8 years of service when he reached what was the appropriate retirement age for somebody of his rank in the police forces and that would normally be at the age of 60. However, you can get early payment of a deferred pension in certain circumstances. These are described briefly in regulation B5 of The Police Pensions Regulation 1987. That provides as follows:

"B5. (1) This Regulation shall apply to a regular policeman who—

(a)is entitled to reckon at least 5 years' pensionable service, or

(b)though not so entitled, has service as a regular policeman which, disregarding breaks in service of not more than a month, is continuous and which, when aggregated with any period of other service or employment by reason of which he is entitled to reckon pensionable service, is at least 5 years."

Then B5(2) says this:

"(2) A regular policeman to whom this Regulation applies who ceases or has ceased to be such in circumstances—

(a)in which no transfer value is payable in respect of him, and

(b)which do not entitle him to any award under any of the preceding provisions of this Part,

shall, on so ceasing to be a regular policeman, be entitled to a deferred pension..."

Pausing there those are the provisions that say you can get a deferred pension based on years of service.

5. The key provision in this case is B5(4) which says:

"(4) A deferred pension under paragraph (2) or (3) shall be calculated in accordance with Part VI of Schedule B, subject however to Parts VII and VIII of that Schedule; but no payment shall be made on account of the pension—

(a) 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..."

Pausing there and translating that into ordinary language, a policeman will get a deferred pension under the rules in force at the material time at the age of 60 or, if he is permanently disabled he will get it when he becomes permanently disabled.

6. The question then is: what does "permanently disabled" mean? That is dealt with in regulation A12. A12(1) says:

"(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."

A further relevant regulation is A12(1)(a) which says:

"For the purpose of deciding if a person's disablement is likely to be permanent, that person shall be assumed to have received normal appropriate medical treatment for his disablement and in this paragraph 'appropriate medical treatment' shall not include medical treatment that it is reasonable in opinion of the Police Pension Authority for that person to refuse."

"Disablement" is defined as follows:

"'Disablement' means inability occasioned by infirmity of mind or body to perform the ordinary duties of a member of the Force."

Pausing there, the regulations ask, first, whether you are disabled in a sense that you are unable to perform the ordinary duties of a member of the Force, and then you have to consider whether that is likely to be permanent at the time when the question arises for decision. There are procedures in section H of the rules to deal with deciding that question when it arises. Whether somebody is permanently disabled is the subject, first, of a reference to a medical practitioner. There is then provision for an appeal to a Board of medical referees and it is the decision of that Board (the Police Medical Appeal Board) that is the subject matter of this judicial review claim.

7. As the claimant had CRPS, he was assessed to see if he was permanently disabled and to see if he was therefore entitled to earlier payment of his deferred pension. That matter went first to Dr Shand for his opinion. He is an occupational health physician. His opinion is dated 20th October 2011. He says, and the whole of the report should be read, he was originally asked to see Mr Scardfield in August 2010 in connection with his application for early payment of deferred benefits. Mr Scardfield had been a serving police officer for approximately 8 or 9 years, leaving service to pursue a different career. He then describes the surgery in relation to the right carpal tunnel. He then describes the consequences and he goes on to say that his symptoms have not improved significantly and, if anything, they were deteriorating. He had been assessed by the Pain Management Clinic locally and treated on several occasions. He said there had been no significant improvements following these injections. He had also been referred for a psychological assessment. He then refers to an assessment that was going to be carried out at Addenbrooke's Hospital, by an expert in the field. He refers to the working diagnosis of the time being CRPS. I should say that CRPS is sometimes also referred by another name "RSD" but nothing turns on the different names or acronyms that are used in this case.
8. Dr Shand's conclusion was as follows:

"In conclusion I believe the diagnosis to be that of a Chronic Regional Pain Syndrome, with significant psycho social components to the overall picture. Further specialist advice is being sought [the specialist at Addenbrooke's Hospital] and although treatment options had been recommended [Psychological Assessment Behaviour and Management] these had either been declined or not pursued further. On this basis I felt the appropriate decision at the time was that Mr Scardfield's condition could not be considered permanent due to the potential for further treatment options and the presence of perpetrating factors, ie the psycho social factors alluded to."

He then refers to a review of the decision that he carried out in January 2011. But essentially his decision remained the same.

9. Mr Scardfield appealed to the Board, as he was entitled to do. He put forward a great deal of evidence to that Board. He has referred to a number of documents which are also some of them at least in the bundle of documents that he has put to the court in this judicial review. He has taken me through a number of the documents and I had the opportunity beforehand to look at the other documents. One of the documents that he specifically referred to during the course of the case was the letter from Dr Shenker. Mr Scardfield relies heavily on the letter of Dr Nicolas Shenker, dated 1st June 2011. He is a consultant rheumatologist at Addenbrooke's Hospital in Cambridge. He says at the beginning of his report that he is writing the report based on his consultations with Mr Scardfield "the last of which was on 24th May" and the Addenbrooke's notes which cover the period June 2010 to the time when he wrote his report in June 2011. The diagnosis was Complex Regional Pain Syndrome, following carpal tunnel decompression in June 2009. He explained that the diagnosis is based on unremitting pain which he describes as burning, spreading beyond the site of surgery without an obvious alternative explanation and the presence of colour changes, temperature changes and swelling, all of which Dr Shenker says he has witnessed. Dr Shenker says that Mr Scardfield has reduced functioning and there is no alternative explanation for his symptoms.
10. Dr Shenker describes the previous treatments that Mr Scardfield had undertaken. These included several sessions of hand therapy (possibly more than 40) at the Milton Keynes General Hospital. He had been assessed by the the pain clinic at Milton Keynes Hospital and given a number of interventions which Dr Shenker assumed were nerve or beta blockers but they did not particularly improve his condition. He said Mr Scardfield has managed his pain with a number of analgesics including diclofenac, tramadol and paracetamol but following an overdose in 2010 he would prefer to avoid tablets. Mr Scardfield stated they have no impact on his pain. He has had an intravenous pamidronate infusion of 90 milligrams at Addenbrooke's Hospital which had no benefit. This experience was unfortunately distressing for Mr Scardfield and his pain worsened following this. Then there is a section of "Ongoing treatment options":

"I'm unclear as to whether Mr Scardfield has tried antineuropathic agents including gabapentin or pregabalin. Given that he does not comply well with tablets and has had previous overdoses I would not be keen to administer high doses of antineuropathic agents"

Dr Shenker also says:

"Other treatments are more experimental including ketamine coma"

Dr Shenker says he did not have access to the facilities to administer this.

11. Just pausing there, Mr Scardfield told me this morning that in fact he had offered to go to Germany to have the five day ketamine coma but it is in fact dangerous and at least one person, if not more, more has died in Germany having this coma and he told me that it had been banned in Germany. I assume for the moment that the question of ketamine coma is not appropriate and would not be something you would expect somebody in Mr Scardfield's condition to undergo.
12. Returning then to the report of Dr Shenker and the prognosis. He said:

"There is good evidence from international studies to suggest that the prognosis for patients who suffer from complex regional pain is poor once they have ongoing symptoms at 1 year following the onset symptoms. Patients maintain their same levels of pain and significant levels of disability. Significant numbers of patients do not return to work."

Then under "Fitness for duty" Dr Shenker's opinion is this:

"Mr Scardfield is unable to perform any weight bearing or fine motor activity with his right hand and this is unlikely to change in the near future. He is in considerable discomfort when he moves his hand or clothing placed on his arm. It is unlikely that he is fit for active duty within the Police Service at present and I doubt his situation will change significantly. Should he have an amputation, there may well be issues of finding an appropriate prosthesis. From cohort studies performed many patients do suffer from post amputation stump pain, phantom limb pain or complication from wound healing. Some progress to have further amputation."

13. Moving onto the Police Appeal Board Report. They had Dr Shand's report, they had the documents that Mr Scardfield relied on, they had the report of Dr Shenker that I have just read out. The Board included one person who in the words of the relevant contract between the police and the Home Office is to be a consultant physician, with the medical expertise relevant to the particular medical conditions to be considered in the appeal. Usually there are three members of the Board - I believe in this case there were four. One member must be a consultant physician with the medical expertise relevant to the relevant medical condition.
14. Mr Scardfield criticises the use of Dr Stellar for that role and says that he is not an expert in CRPS and he showed me e-mails that he had exchanged with a person on behalf of the Board and that said that Dr Stellar saw his first patient with CRPS in 1978, while training in the Preston Pain Clinic. He had been treating patients with CRPS since he was appointed as consultant in anaesthesia and pain medicine in 1981. He had not kept records of the number of patients he has treated since he first saw a patient in 1978 and he was currently treating five patients with CRPS. Mr Scardfield says that simply is not good enough and that is not enough expertise and Dr Stellar is not an expert in the field of CRPS.
15. In my judgment, there is no basis for challenging the decision of the Board to include Dr Stellar as one of the members. He is a consultant physician. He does have medical expertise relevant to the particular medical condition, that is since 1978 he has been seeing patients with CRPS.
16. The report of the Police Medical Appeal Board is a long document and it really should be read in its entirety. The difficulty in cases of this kind is that one tends to focus on one part of the report and on one sentence but, in my judgment, the report should be read fairly, reasonably and as a whole. It sets out the basis for the appeal at the beginning, saying that Mr Scardfield is appealing against the decision of Dr Shand, who stated that Mr Scardfield was not permanently disabled from the carrying out ordinary duties of a police officer. It sets out Mr Scardfield's occupational history, the background to the case, the submissions on behalf of Mr Scardfield and the submissions on behalf of the police. It reviewed and clarified the medical issues. It noted the submissions of the police representatives. It included a note of the final comments of the appellant and it noted that Mr Scardfield said that he had tried everything to improve his condition, including asking for amputation of his hand whilst being awake to avoid phantom limb pain and that Mr Scardfield could not think what further intervention would help him and that Mr Scardfield had tried everything and referred to the waiting lists that existed at dedicated centres for dealing with the CRPS and that he was unlikely to be cured in two-and-a-half years.
17. Then there was then the summary of the reports of the consultant specialist, Dr Stellar, and that, as you will expect deals, firstly, with a number of medical matters, including psychiatric matters. It moves onto pain management and the conclusion of Dr Stellar is that:

"Mr Scardfield easily satisfies the IASP/pain society criteria for a diagnosis of CRPS Type 1. He has not had a trial of antineuropathic pain drugs such as amitriptyline, gabapentin and pregabalin, which may give him symptomatic relief. He may also benefit from psychotherapy and CBT [which I take to mean cognitive behaviour therapy]. I am concerned that he may find a surgeon to amputate his hand which could have disastrous consequences."

18. The next section of the report is "Case discussion". This identifies the two relevant questions namely whether the person concerned is disabled and whether the disablement is likely to be permanent. There is a discussion of case law and guidance and then there is the detailed case discussion. It begins by saying the Board has carefully considered all the evidence put to it in the form of written submissions, the verbal submissions on the day of the hearing together with its own examination of the appellant. They noted it was agreed between the parties that Mr Scardfield is currently disabled from undertaking the ordinary duties of a police officer. The Board agreed with that position. There is no doubt that everyone accepts that Mr Scardfield is currently disabled from doing the tasks of a police officer.
19. The report then goes on to say the essential issue for the Board was whether the appellant's current disablement will permanently prevent him from carrying out the ordinary duties of a member of the Force. It says the Board considers that for the purposes of this assessment "permanent" is given the ordinary definition. They accepted the view that it did not mean until the compulsory retirement age for a police officer. Just pausing there, one of the principal issues in this judicial review is: is the Board correct in saying that "permanent" meant effectively for life rather than for the period up to compulsory retirement?
20. However, the Board then went on to deal with a second and separate issue. Its attention had been drawn to the issue of regulation 12 which I referred to earlier in the judgment that the appellant shall be assumed to receive normal appropriate medical treatment for his disablement. Therein lies the significant issue says the report. They noted that Mr Scardfield contends that he has had all the treatment for his condition. The selected medical practitioner, Dr Stellar, on the other hand, took a very different position. The Board said careful examination of the evidence highlights that Mr Scardfield has had some treatment for his condition but the NICE guidelines treatment alogarithim clearly shows Mr Scardfield had barely scratched the surface of the treatments available. I will come to the question of the NICE guidelines later in this judgment.
21. But continuing with the text of the report, it says this:

"It is perhaps most unfortunate for Mr Scardfield that despite the time spent researching his condition, he appears to have rejected treatments such as psychological intervention and pharmaceutical medication because he believes it will not work. The Board considers that he can of course refuse treatment particularly if the treatment contains inherent dangers or have unproven values such as in experimental. However it seems detrimental not to try the normal treatments available for this condition."

22. The Board then turns to Dr Shenker's letter. They interpret Dr Shenker's letter differently from the way that Mr Scardfield today interpreted it. The Board says this:

"Dr Shenker's letters to the Police Authority clearly confirm that whilst the appellant has been offered treatment, it has been rejected, not because it is experimental but he believes it will not work. The Board said the appellant appears very contradictory in his evidence that he would be prepared to try anything to alleviate his symptoms and that he has tried everything but the evidence strongly suggests otherwise."

They then deal with another point, the question of the effect of litigation on Mr Scardfield's conditions but they do not rely on that. Then they say this and these are the critical parts of the report:

"However the much stronger evidence is that without normal treatment there can be no hope of his condition improving, thereby allowing the appellant to even contemplate a return to operational duties. The Board fully recognises the issue is not whether the medical condition is permanent but whether the appellant is permanently disabled from carrying out the normal duties of a police officer. However, clearly in the absence of effective normal treatment for his condition the issue of the fitness for duties is somewhat academic. The Board therefore unanimously agrees with the selected medical practitioner in this case that it is premature to argue that Mr Scardfield's disablement is permanent and that he has not received normal appropriate medical treatment for his condition. The determination of the Board therefore rejected the appeal."

23. Just pausing there, it is clear the Board accepted that Mr Scardfield is currently disabled, in the sense he cannot perform the ordinary duties of an office of a constable. They have to consider their interpretation of Dr Shenker's evidence and in particular Dr Stellar's evidence and all the material and arguments made by Mr Scardfield and by the police on the other side. In my judgment, it is clear that the basis of their report and their decision is the very last sentence before the determination, that the Board unanimously agreed with Dr Stellar that it was premature to argue that Mr Scardfield's disablement was permanent, as he had not received normal appropriate medical treatment for his condition.
24. Against that rather long background I then turn to this claim for judicial review. Mr Scardfield is challenging the lawfulness of the decision of the Police Medical Appeal Board. It is important to remember this is a claim for judicial review. This court is concerned with the lawfulness of the decision of the Board; that is the court is concerned to see if there is any material error of law, apparent in the decision of the Board, whether there is any evidence there was not a fair decision-making process, or whether there is really no evidential basis at all for the decision that the they have reached so that they simply could not have reached the conclusions that they did.
25. But it is not for this court to consider the underlying merits of the medical dispute, that is it is not for this court to decide whether it accepts Dr Stellar's views or whether it accepts the views expressed in other medical reports. The decision on the medical issues is ultimately a matter for the Board, so long as the process is lawful. That is for two reasons. Firstly, under the regulations, the task of determining whether somebody is permanently disabled is given to the Board, not this court. Secondly, courts such as this court are not experts and do not have expertise in medical matters.
26. I turn now to the arguments that have been raised about the lawfulness of the decision in this case. The first question is whether or not the Board properly interpreted the meaning of "permanent". In my judgment Mr Scardfield is correct on this matter. The Board did not, in my judgment, interpret the word "permanently" in the phrase "permanently disabled" correctly. The question of the meaning of "permanently disabled" must be understood in the context of the regulations as a whole. You start with the question of what is disablement and that means inability to perform the ordinary duties of a member of the Force. So you are looking at what are the ordinary duties for the member of the Police Force and you are asking whether somebody can perform those or whether they are unable to perform them for a medical reason. When you are dealing with early payment of deferred pension, you are looking at whether they are permanently disabled; that is whether they are permanently unable to perform the ordinary duties of a member of the Force. Read in context, in my judgment, that means whether during the period of service, that is up until the date when they would normally retire, they would be able to carry out the ordinary duties of the member of the Force. If they would not be able to carry out the duties of a member of the Force for the period up to retirement, they are permanently disabled within the meaning of the regulation. But I do not think that "permanent" there means for life; it means until the date of retirement. That view, in my judgment, is reinforced by the context. What you are talking about here is a former police officer who would normally get a pension at the age of 60 in this case but because of medical disability, that date is brought forward. It does not seem to me to be logical to say: can this person carry out the ordinary duties of a member of the Force when he is 70 or 80? Or: would he not be able to carry out the duties of the Force when he is 70 or 80 because of disability? That would be illogical. In my judgment, when the regulations talk about "permanent disability" they are looking at the period up to retirement when the police officer or former police officer will be expected to carry out the ordinary duties of an officer and are asking whether for that period they are unable to perform the duties of a police officer.
27. Mr Thomas drew my attention to guidance. He confirmed that he had researched the case law and there is nothing on the meaning of permanent in this context and obviously the meaning of "permanent" will differ, depending on the context. He very properly drew my attention to existing guidance, so I could take that into account. He drew my attention to two sets of guidance, one which says the following: "arguably the words speak for itself - that is the word "permanent means for the rest of one's life". In my judgment, that guidance is wrong. Permanent does not mean for the rest of one's life in the context here. In my judgment, the Board did make a mistake in law when it said that it considered that for the purposes of this assessment permanence is given the ordinary dictionary definition and they were wrong when they accepted the view that it is not just until a compulsory retirement age.
28. However, although, in my judgment, they made an error of law, I am persuaded by the arguments of Mr Thomas, for the Hampshire Police Authority, that ultimately that error was not material to the decision that they reached. They did not reach the decision on the basis that whilst Mr Scardfield might be disabled until he was 60 he might recover at some stage after that. They considered, as is clear from the last page of their report, that the question of whether the appellant is permanently disabled was somewhat academic, as they put it, because they were proceeding on the basis of the second significant issue that they had identified, namely whether or not in their judgment there was other normal appropriate medical treatment that could have been used by Mr Scardfield. In my judgment, Mr Thomas is correct to say that whilst there may have been an error of law it was not material to the decision that they took.
29. I therefore turn to the second way in which Mr Scardfield puts his case. In a very clear and very eloquent submission this morning he has set out his reasons why he submits that the decision of this Police Board is simply unsustainable. Mr Scardfield is absolutely adamant that his condition is incurable. He is absolutely adamant that there is no treatment available that will assist him in the sense that would enable him to do the ordinary duties of a police officer. He is absolutely adamant that the documents that he has produced and the letter from Dr Shenker that I have read out earlier this afternoon proves all of that.
30. In my judgment that is wrong. In my judgment the Board had two different competing arguments before them. They had the arguments and they had the evidence put forward on behalf of Mr Scardfield. But they also had the evidence and the views of Dr Stellar. They also had the letter from Dr Shenker which on one reading and indeed on my reading supports Dr Stellar's view that they were some treatments that might be available. Dr Shenker, for example, refers to the fact that he was unclear as to whether Mr Scardfield had tried drugs such as gabapentin or pregabalin and indeed Dr Stellar refers to those two drugs as well.
31. In my judgment, this was not in fact a situation where all the evidence was one way and there was nothing that the Board could look at it to reach a different conclusion. This, in my judgment, was a situation where there was evidence on one side and evidence on the other side. It was for the Board to make its judgment as to which evidence they accepted and which they did not accept. Unfortunately for Mr Scardfield they accepted the views of Dr Stellar rather than the views that he was putting forward in his submissions. It is not for this court to decide whether that is right or wrong. This court does not adjudicate and does not have the expertise to decide whether Dr Stellar's views are better than some of the other views to which I have had my attention drawn. But once there are two sets of reputable medical views available it really is then a matter for the Police Medical Appeal Board to determine which of those two cases to accept. In my judgment it is simply not possible to say that there was no basis for the decision of the Police Medical Board.
32. Those deal with the two principal challenges that the claimant brought. He has referred to a number matters in his challenge and in his notice to apply to rely on further grounds. I deal very briefly with one matter that he refers to in his original grounds and I will deal very briefly with the application to put forward additional grounds. Mr Scardfield is concerned that the report refers to NICE guidelines and refers to the NICE guidelines treatment algorithim showing that Mr Scardfield has barely scratched the surface of the treatments available. He has shown me emails confirming that there are no NICE guidelines specifically dealing with the treatment of CRPS.
33. However, there are two points to note about that. Firstly, in fairness to this document, it does not say the NICE guidelines on CRPS; it is clearly referring to broader guidelines and in the correspondence that Mr Scardfield took me to it appears that somebody from the personnel service that staff the Police Medical Appeal Board suggested the reference is to the neuropathic guidelines. Mr Scardfield says if that is the case there are five reasons why those should not be used.
34. The second point though is that, in my judgment, the reference to NICE guidelines is not the basis of the conclusions to which the Board came. I am persuaded by the arguments of Mr Thomas that the key reasoning is as follows. The conclusion of Dr Stellar was that Mr Scardfield had CRPS Type 1, but there were some drugs, such as the ones that I referred to which are available and some other types of treatment. That conclusion was not based on any reference to the NICE guidelines and then when you reach what I regard as the critical paragraph of the report, it says the Board unanimously agreed with the views of Dr Stellar (the ones I have just read out) and it seems to me, that is the true basis, not the reference to any NICE guidelines for the judgment the Board reached. I do not regard the reference to the NICE guidelines, even if I were to be persuaded that I could form a view about the suitability about the neuropathic guidelines, as being material to the decision of the Board.
35. I turn briefly to the seven points in the application notice that Mr Scardfield seeks permission to include in his grounds of challenge. I deal very briefly with each of those in turn. The first is a claim that the arrangements for dealing with his appeal involved a breach of Article 1 of the first protocol to the European Convention on Human Rights and Article 14. Essentially what Mr Scardfield is saying is that in a benefits case, you can go on appeal at no cost but there are different arrangements in relation to this type of appeal.
36. In my judgment, that ground is not arguable. There is no relevant comparison between the arrangements in relation to benefits and the arrangements in deferred pensions for police officers. They are simply two different systems dealing with two different things. There is no discrimination based on any personal status. It is simply different regimes for different situations. I therefore refuse permission to Mr Scardfield to argue point 1.
37. Point 2 concerns a different matter. He was concerned that the interested party was going to try to argue that he was time barred from bringing this claim. It is indeed a feature of the arguments put forward on behalf of Hampshire Police Authority that they did want to argue before this court that Mr Scardfield's claim was time barred. I refuse permission to the Hampshire Police Authority to argue that point. In my judgment, once Hickinbottom J granted permission for judicial review, the time arguments were not arguments that the Hampshire Police Authority could reasonably use against the claimant. Point 2 simply does not arise in the application notice because I have not permitted the Hampshire Police Authority to advance arguments based on any alleged delay.
38. The third point is that the claimant believes that the reference by Hickinbottom J when he granted permission to a view of the Force Medical Officer about what "permanent" means, ie it meant 10 years and it did not mean 10 years meant the claimant could challenge the Hampshire Constabulary's decision. In my judgment, the key issue here is the Police Medical Appeal Board. It is their decision that is of legal significance not the views of the police authority. In any event, as I have said, I consider the definition of "permanent" that was adopted was the wrong definition. I therefore do not consider that point 3 is relevant or necessary for this case and I refuse permission to rely on point 3 of the additional grounds.
39. At point 4 there is a concern about certain of the documents that were included by the interested party in the bundle. Those documents are the original order of McDuff J who had provided for the interested party to be served, the original acknowledgement of services of the interested parties and the defendants, the order of His Honour Judge Mark Rodgers who had initially refused the claimant permission to apply for judicial review on the grounds of delay and then the notice of renewal challenging that refusal. Firstly, the interested party acted entirely properly in putting those documents in the bundle. The way that judicial review works is the court needs to have the claim form, the defendant's answer, the evidence put in by both sides and the order that had been made in the case because any judge approaching the case would want to know how the case unfolded. There is absolutely nothing improper in the interested party putting those documents in. Indeed, I would have been disappointed had they not done so because I would not have been able to work out what was happening in the case. Although I understand why Mr Scardfield makes the point he makes in point 4, it is actually not a good point. The interested party was just trying to preempt what I would want rather than trying to put forward any improper arguments.
40. Point 5: the claimant wants to argue that there is age discrimination, in that if you have different rules for people at the start of their service, who do not have to show they are disabled for life and people in his age group who at the time the Board was saying had to show that they were disabled for life. That point does not arise in my judgment because I have ruled that the definition of "permanent" that they have adopted is simply wrong and permanence is decided by whether a person is able to do his police duties up until the date of compulsory retirement. I refuse to allow point 5 to be raised.
41. Point 6 is the point I have already mentioned briefly. Mr Scardfield argued that Dr Stellar was not an appropriate member of the Panel because he was not an expert in the relevant medical condition. What is required is that he be a consultant physician with the medical expertise relevant to the particular medical condition and, as I have already indicated in my judgment, the Board are entitled to treat Dr Stellar as such a person. Therefore I regard point 6 of the applicant's notice as unarguable and I refuse permission to allow those grounds to be argued.
42. Point 7 is the claimant requests me to consider whether there has been a criminal offence of fraud by false representations by certain documents being put forward to the Board. This is the Administrative Court, it is not the criminal court. It is not the role for this court to consider allegations of criminal offences. I decline to allow Mr Scardfield the opportunity to raise point 7 in his application notice.
43. In summary, therefore, I find that the Board has erred in law in its interpretation of the words "permanently disabled". However, I do not consider that that error was a material error because I do not consider that that error was the basis upon which it reached the conclusion that it did. In my judgment, the Board reached the conclusion that it did having considered the evidence from suitable persons such as Dr Stellar and having weighed that against the other evidence that Mr Scardfield put forward. In my judgment, that was essentially a judgment for the expert Panel, the Police Medical Appeal Board and, in my judgment, they were entitled to reach the conclusion that they did on the material before them. I therefore dismiss this claim for judicial review.
44. MR JUSTICE LEWIS: Are there any further applications by either you, Mr Scardfield, or you, Mr Thomas, on behalf of the Police Authority?
45. MR THOMAS: My Lord I have no further instructions.
46. MR JUSTICE LEWIS: Thank you very much. Mr Scardfield? I know it is a lot to take in.
47. THE CLAIMANT: It's my fault your Lordship, I have memory problems and I left out what was most important in the interested party bundle.
48. MR JUSTICE LEWIS: We have already had the argument and I have given my judgment, so we do not now go over it and make further arguments. I have made my ruling and I have given my reasons.
49. THE CLAIMANT: That is what I am saying. It is my fault because if I had put it in it says in there, the balance --
50. MR JUSTICE LEWIS: I am not going to hear any further arguments on the merits of this case Mr Scardfield. We had a very full hearing this morning. I tried to make sure that both you and Mr Thomas had every opportunity to put forward arguments. I have now given my judgment, and I am therefore not going to entertain any further argument on the merits of this claim as I have dismissed the claim already.
51. The order will be: the claim is dismissed and that the application to adduce further grounds of challenge be dismissed. If there are no further applications for any further orders from this court this hearing is concluded. Thank you both very much for your patience.