The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB [2017] EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.
The facts
Mr Fisher was a 52 year old former police officer having joined Cleveland Police in 1985, transferring to Northumbria Police in 1988. On 31 December 1992, he was attacked with a knife whilst on duty. This caused psychological but no significant physical injuries. He thereafter developed Post Traumatic Stress Disorder. Just over five years later on the 14 March 1998, Mr Fisher was bitten by a security guard dog on the right arm whilst at work. That caused both physical injury and some psychological injury.
On 7 September 1999, a medical practitioner concluded that Mr Fisher was disabled from performing the ordinary duties of a police officer by depression and soft tissue injury of the right forearm. On 29 September 1999, he decided that the disablement was permanent and was a result of an injury in the execution of duty. In consequence, Mr Fisher was compulsorily retired from the police service. Thereafter he applied for and was awarded a police injury pension.
Pursuant to regulation 37 of the Police (Injury Benefit) Regulations 2006, the chief constable was required to review the degree of a pensioned officer’s disablement at suitable intervals. Accordingly, a selected medical practitioner (“SMP”) was appointed and, on 27 February 2015, produced a report determining that the former officer’s injury pension should be reduced from Band 4 to Band 3.
The former officer appealed, under the 2006 Regulations, and the matter was referred to the PMAB. The PMAB adjourned to allow the parties to submit evidence of employment roles now suitable for the former officer and the Chief Constable submitted evidence of two roles which represented the officer’s injured earnings capacity and two roles (a Gatwick security guard and a Gloucestershire Council ASB officer) which represented his uninjured earnings capacity. The average salary of the uninjured roles was less than the average salary of the injured roles.
The PMAB concluded in a final written report dated 20 June 2016 that:
i. there had been a significant change in the degree of disablement since the original decision;
ii. the former officer was now capable of full-time administrative work;
iii. his injured and uninjured earning capacity were presently the same; and
iv. his degree of disablement was therefore 0% and the injury pension should be reduced to Band 1.
The appeal
The former officer challenged the decision on the basis that the PMAB had unlawfully applied the incorrect test under regulation 7 of the 2006 Regulations and that the chief constable’s subsequent decision to backdate the implementation of the reduction to the pension award from the date of the SMP’s original report was also unlawful.
In relation to the first question the court held that the PMAB’s task, when considering the loss of income that a former officer had suffered under the 2006 Regulations, was to assess what that former officer would have been capable of earning had he never suffered the injury.
Given that all those appearing before a PMAB do so in the context of having previously been a police officer and having received an injury on duty preventing them from continuing to work as an officer, a former officer’s previous police earnings ought to feature as a relevant consideration in the PMAB’s determination of their uninjured earning capacity.
In the present case, the PMAB had focussed solely on the officer’s injured earning capacity, what he was capable of doing now and whether that had changed (improved) since the original assessment. It had completely neglected to deal with the officer’s uninjured earning capacity other than effectively to adopt the earnings represented by the two jobs put forward by the Chief Constable. It had completely disregarded the former officer’s previous police earnings when considering his loss of income, without providing any explanation for doing so.
In those circumstances, the court held that its approach was flawed and its decision unlawful.
A second question which fell to be decided was the time at which any change in pension award should take effect. An appeal to a PMAB could result in a change to the injury pension award. Such a change would be based upon an argument (and evidence submitted in support) that circumstances justified such a change in award (i.e. that circumstances had changed). The appeal would therefore be conducted on the basis of current evidence (i.e. updated evidence) of the change and not the original evidence before the SMP.
The court held that it was therefore implicit in this scheme that the date on which any change to the pension award was to take effect was the date of the appeal decision (and not the date of the original report of the SMP, which in Fisher was 18 months earlier). Observing at [56] “It would be odd in the extreme if an appeal were to be decided on the basis of evidence of recent change in disability, yet the altered pension were to run from some earlier date.” Garnham J held that it was inherent in the scheme of the 2006 Regulations that the altered pension award should only take effect from the date it was recognised that altered circumstances justified a change.
As the Chief Constable had applied the change from the earlier date of the SMP’s decision it was unlawful and was quashed.
Commentary
The central point arising from this decision is that reviews are all about the individual. However, this has to be seen in a context where the individual will necessarily always have previously been a police officer. The consideration of his uninjured earnings capacity must therefore, absent any good reason to do so otherwise, start with the officer’s police earnings prior to injury.
It will not be permissible for Chief Constables to put forward hypothetical comparators, which bear no relation to the individual circumstances by, for example, referring merely to national wage averages. There must be consideration of the available evidence of what the uninjured officer’s earning capacity was in fact likely to be.
It is suggested that in deciding the appropriate uninjured comparator chief constables, SMPs and PMABs will wish to undertake a structured approach.
First, by considering the officer’s earnings prior to becoming injured. Second, by considering what course the officer’s career would have been likely to take had he not been injured and what effect that would consequently have had on his earnings. Would he have remained in the police service? Would he have remained at the same rank or would he have been promoted? Upon leaving the police force as an uninjured officer what other work would he have been capable of doing? Third, by considering other factors such as the potential for other injury or illness, loss of skills or gaining of new skills and any other factual circumstances relevant and specific to the particular officer, which would have affected his earnings capacity irrespective of the injury he received. What the officer is actually doing at the time of consideration may also inform this.
The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available.
What is crucial is that there must be sufficient reasons provided to justify a decision in relation to the level of a particular officer’s uninjured earning capacity.