“I am the law and you’d better believe it!” – Judge Dredd: 2000 AD prog 40.
We haven’t discussed for a while the landmark decision in the appeal of Metropolitan Police Authority (Appellant) – and – Belinda Laws (Respondent)- and – Police Medical Appeals (Additional Party).
A timely revisit of the basic principles has been provided to us by the Lake Jackson legal team involved in both the first judicial review and the appeal.
It’s important to remember that this opinion relates to the duty of the SMP, when the decision to revise the injury award has been passed to the medical authority – in other words the police pension authority has already considered, that there has been an alteration (“shall” so are referring the question of degree of disablement to the SMP: Regulation 30(2)(d)).
Police Authority v Laws is the leading authority on the correct application of injury award reviews under Regulation 37 of the 2006 Police (Injury Benefit) Regulations 2006. The leading judgement was given by Lord Justice Laws.
In the course of his judgement Laws LJ approved the decision of Burton J in MPA –v- Turner.
The correct interpretation of Laws is that the Regulation 37 duty of the SMP (or logically the PMAB on appeal) is primarily a comparative exercise.
The SMP must consider the pensioner’s current degree of disablement [Regulation 30(2)(d)] at the date of grant or last review and then compare it with the pensioner’s current degree of disablement.
A revision of the pension, upwards or downwards, is only permissible where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.
This may be occasioned by some substantial improvement or substantial deterioration in his/her medical condition or because of external factors such as the availability of a job or jobs which were not available previously but which are now available to the pensioner either because of the advances in medicine; e.g. a very ergonomically friendly chair which allows those with chronic back complaints to sit and work at a desk for longer periods and/or changes in the employment market [‘The law degree point in Laws’] such as for example the greater availability of jobs in the private sector for officers with Counter-Terrorism training and experience.
The right question for the SMP is not “what jobs can this person do today” because that would be a re-assessment of the degree of disablement and not a review.
Further the SMP is forbidden from calculating any quantification on the present degree of disablement unless the SMP has first concluded that there is a substantial alteration in the former officer’s degree of disablement even though HR used to instruct an SMP and often send them a list of suitable jobs before the examination had even taken place.
‘Degree of disablement’ is defined under Regulation 7(5) as loss of earning capacity. Thus any earnings (or salary) in itself cannot be used to calculate a new degree of disablement and then be used to compare against the previous assessment to prove substantial alteration.
This is consistent with the purpose of the statutory scheme as outlined by Cox J at first instance in Laws. The scheme recognises that police officers undertake an inherently dangerous job and the purpose of the scheme is to compensate officers for the loss of their careers and any loss of earning capacity going forward past compulsory retirement age and beyond.
Thus the earnings comparator is usually police pay whilst the ex officer is still within CRA. Afterwards the comparator becomes more subjective but the equation is usually the earning capacity of an injured officer as against that of an uninjured officer.
Another heresy is that an ex officer has no earning capacity at state retirement age. It is in any event inconsistent with state retirement being gradually increased to age of 70.