R (on the application of Chief Constable of South Yorkshire Police) v Kelly – 26th October 2022

In this case, the interested party, K, was a serving police officer who had developed post-traumatic stress disorder. In 2005, a duly qualified medical practitioner decided that K was disabled and that that was likely to be permanent. K was required to retire.In 2016, K made a claim for an injury pension. Another duly qualified medical practitioner determined that his disablement was the result of an injury received in the execution of his duty and subsequently assessed his degree of disablement.In 2017, K was awarded an injury pension backdated to the date of his claim in 2016. He appealed to the defendant Crown Court, under reg 34 of the Police (Injury Benefit) Regulations 2006,  against the refusal of the police pension authority to admit a claim to receive a larger award than that granted, namely, an amount that represented an injury pension backdated to the date on which he was originally required to retire. The Crown Court gave judgment in K’s favour and the claimant Chief Constable sought judicial review.

Issues and decisions

(1) Whether the obligation to pay an injury pension only arose when a claim for an injury pension was made.The difficulty with the Chief Constable’s construction of the Regulations was that it involved reading into the Regulations a number of propositions that were not found in them. Most obviously it involved reading in the date at which the legal entitlement to payment of an award arose and correlatively when the obligation to pay arose. It also arguably placed a burden on the officer to make a claim which was not otherwise found in the Regulations (see [44] of the judgment).The Regulations were deficient in the manner in which they dealt with the type of scenario that had arisen and had not been drafted with that scenario in mind. Accordingly, the Crown Court’s decision would be upheld (see [60] of the judgment).R (on the application of McGinley) v Schilling; R (on the application of Metropolitan Police Authority) v Beck  (2005) considered; Laws v Metropolitan Police Authority (2010) considered; R (on the application of Fisher) v Chief Constable of Northumbria and another  (2017) considered; McLoughlin v Chief Constable of West Yorkshire  (2019) considered.(2) Whether the Crown Court had lacked jurisdiction.There were two respects or limbs on which an aggrieved person might appeal to the Crown Court under reg 34 of the Regulations. The first limb was where he was aggrieved by the refusal of the police pension authority to admit a claim to receive an award as of right. The second limb was that where the officer was aggrieved at the refusal to admit a claim to receive a larger award than that granted (see [62] of the judgment).There was undoubted attraction in the Chief Constable’s argument that the ‘larger award than that granted’ had to refer to the amount of the injury pension calculated in accordance with Sch 3 to the Regulations (on an annual basis). Despite the attraction of the argument, it was wrong and the appellate jurisdiction of the Crown Court was broader. If the second limb had been intended to be limited to the calculation of the annual injury pension (or any other pension), it could easily have said so. Instead it used the expression ‘a larger award’. That itself was sufficiently wide to encompass the total amount of the award – that was both the calculated amount in accordance with Sch 3 and the period over which that amount was payable. Further, the regulation expressly gave the Crown Court power to make such order as appeared to it to be just. That implied a broad jurisdiction and not one limited to matters of calculation (see [63], [64] of the judgment).

Accordingly, the Crown Court had had jurisdiction over the appeal and the appeal on the backdating issue had been rightly decided (see [71] of the judgment).

R (on the application of Carter and another) v Chelmsford Crown Court (2019) applied.

(3) Whether there was power under the Regulations to award interest and whether there was another legal or equitable basis for an award of interest.

K had not been further entitled to interest. The Regulations themselves made no provision for the payment of interest. The present was a matter of statutory interpretation where reliance on a general equitable power (and one which, in most cases, was irrelevant because of statutory provisions) did not assist. It followed that the Crown Court had no power to include interest in its larger award

The full decision can be found using the following link

https://www.bailii.org/ew/cases/EWHC/Admin/2020/210.html

This was subsequently appealed on the grounds that the Crown Court could award interest-

R (on the application of the Chief Constable of South Yorkshire Police) v Kelly and another [2021] All ER (D) 82 (Nov)

The Court of Appeal, Civil Division, dismissed the appellant’s appeal in a dispute concerning the respondent’s entitlement to a back-dated injury pension regarding the jurisdiction of the Crown Court and retrospective entitlement but allowed the respondent’s cross-appeal against the decision of the Crown Court that it had no power to award interest. The court held, among other things, that (i) if the second limb of Reg 34 of the Police (Injury Benefit) Regulations 2006/932 (PIBR) had been intended to be limited to the calculation of annual injury pension, the word ‘annual’ could easily have been included; (ii) the true purpose of PIBR Reg 43(1) had been to provide, consistently with PIBR Reg 11(1), that once entitlement was established, the pension would prima facie be payable for life from the date of retirement; and (iii) the Crown Court had power to include interest in the award and it was just to do so within PIBR Reg 34.

The judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1699.html