In R (Boskovic) v Chief Constable of Staffordshire [2019] EWCA Civ 676, the Court of Appeal had to resolve apparently conflicting High Court decisions on two separate questions arising from the application of the Police (Injury Benefit) Regulations 2006. This blog post considers the implications for police pension authorities who are asked to agree to re-open a final decision, thereby avoiding the need for an appeal to the Police Medical Appeal Board, or a judicial review claim. 

“Agree, for the law is costly”. This quote, associated with Thomas Fuller, is often sound legal advice in a variety of circumstances. It could be said to apply to regulation 32(2) of the Police (Injury Benefit) Regulations 2006, which states:

“The police pension 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.”

The phrase “may, by agreement” plainly invites the exercise of a discretion, albeit of uncertain scope. No public law decision maker accorded such a discretion is entirely free to make any decision that he or she wants. A question therefore arises as to the permissible, and impermissible, considerations which a pension authority might take into account. How can the discretion to agree, or refuse to agree, be exercised reasonably?

There have been a number of judicial review claims in recent years regarding regulation 32(2) of the 2006 regulations. Some pensioners have asked their pension authority to consider re-opening final decisions taken in connection with their pension, to refer them back to selected medical practitioners for a fresh decision – and have then taken issue with a refusal by the pension authority to do so.

Two instances of this are R (Crudace) v Northumbria Police Authority [2012] EWHC 112 (Admin) and R (Haworth) v Northumbria Police Authority [2012] EWHC 1225 (Admin). In the latter case, King J quashed the decision of the pension authority to refuse to agree to refer a decision back for reconsideration. At paragraphs 97 to 98 his Lordship interpreted regulation 32(2), in the context of the 2006 regulations as a whole, as follows:

“97… I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case ….

98 It should in my judgment have been the starting point of any decision-making process by the defendant in deciding whether to give the requested consent in this case to have this purpose in mind and hence the starting point should have been to assess the strengths of the merits of the underlying case sought to be pursued on the reconsideration by the former officer and the long-term likely effect upon her if she were denied the opportunity to have those mistakes corrected.”

At paragraph 100, King J concluded:

“… in the absence of good reason to the contrary consent should be given [by the pension authority, to refer a case for a fresh decision] if the officer can demonstrate a reasonable case capable of being resolved on a reconsideration that the pension he is being paid is significantly incorrect by virtue of a decision not in accordance with the regulations.”

On one view this appears to put a gloss on the phrase in regulation 32(2), “The police pension authority and the claimant may, by agreement…” – in effect narrowing the basis on which a pension authority could refuse to agree. Perhaps so much so, that regulation 32(2) might become a more attractive avenue of challenge for pensioners than appeals to the Police Medical Appeal Board, which are subject to a time limit.

This dynamic was considered in detail at first instance in R (Boskovic) v Chief Constable of Staffordshire: first in the High Court [2018] EWHC 14 (Admin); [2018] ICR 1020, where Kerr J found in favour of the pension authority, who had refused to agree to refer a case back for a fresh decision. Subsequently the Court of Appeal (case reference [2019] EWCA Civ 676) dismissed an appeal by the Claimant, and accepted the arguments advanced in the Respondent’s notice.

Baker LJ (with whom Nicola Davies LJ agreed) held at paragraph 58 in Boskovic:

“Looking at the overall scheme of Part 4 of the 2006 Regulations, I respectfully disagree with the purposive interpretation of regulation 32(2) adopted by the judges at first instance in Crudace and Haworth. I agree with the concerns expressed by Kerr J at first instance in this case that the interpretation propounded in those cases strained the language of the regulation…”

The basis for the Court of Appeal decision is conveniently summarised in its final paragraph, quoted in full below. This provides new and authoritative guidance to pension authorities asked to agree to refer a case back for a fresh decision under regulation 32(2). According to Baker LJ:

“68 Drawing these threads together, I conclude that the appeal should be dismissed and the judge’s decision upheld on the bases set out his judgment and in the respondent’s notice, for the following reasons:

(1) Regulation 32(2) of the 2006 Regulations should be construed as a consensual and facilitative provision allowing reconsideration of questions affecting pension entitlement by agreement.

(2) In deciding whether or not to agree to a request for a reference under regulation 32(2), the police pension authority must act reasonably, taking into account only relevant considerations.

(3) The weight to be attached to the relevant considerations is a matter for the decision maker.

(4) The merits of the underlying claim are one factor, but in assessing the merits the authority is entitled to take into account the fact that the evidence is not clear-cut.

(5) In assessing the questions under regulation 30(2)(c) and (d), the SMP is bound by the answers of an earlier SMP who carried out an assessment of the questions under regulation H1(2)(a) and (b) of the 1987 Regulations, but not by any diagnosis underpinning those answers.

(6) A police authority is entitled to take into account any uncertainty about the diagnosis when deciding whether to agree to a reference under regulation 32(2) of the 2006 Regulations.

(7) Amongst the other factors which a police authority is entitled to take into account when deciding whether or not to agree to a reference under regulation 32(2) is any delay in pursuing the claim, together with the costs of any reference.

(8) Given the length of the delay in this case, and the uncertainty about the diagnosis, Kerr J was entitled, and indeed right, to conclude that it was open to the Chief Constable to conclude that a fair reconsideration of Ms Boskovic’s claim for an injury pension would not be possible.”

The Court of Appeal recognised that there may be range of rational reasons, procedural or substantive, for a pension authority to refuse to agree a request for a fresh decision under regulation 32(2). Of particular note is the specificity of the reference to costs in sub-para. 7 above: it refers to the costs of any new decision-making process, not the costs of the pension itself. Of course, if a claimant is entitled, as a matter of law, to a pension at a particular level under the 2006 regulations, they are entitled to that pension. The potential financial impact of the pension itself cannot properly be counted against the pensioner.

A further blog post will consider the implications of the Court of Appeal’s decision for medical decision makers under the regulations, in particular the extent to which their decisions may depart from those made by doctors involved at an earlier stage in the pensions process.

Jonathan Holl-Allen QC and Aaron Rathmell appeared for the Respondent in the Court of Appeal. The Claimant has applied for permission to appeal to the Supreme Court.