Mr Justice KERR recently handed down a judgement in the case of BOSKOVIC v. Chief Constable of Staffordshire Police. The matter was heard in Manchester Administrative Court on the 31st October 2017.
The claimant, now 42, left the employment of Staffordshire Police in 2002 with an ill health pension by reason of permanent disablement consisting of psychiatric injuries. An application was made for an injury on duty award, which was refused by Staffordshire Police following a number of psychiatric reports. The claimant was so unwell that she withdrew her application before it reached PMAB. She left the UK, returning in 2006.
In 2015, after reading an article by IODPA, she submitted an application to Staffordshire Police to have her application reconsidered under Regulation 32(2). In Haworth v. Northumbria Police Authority, regulation 32(2) was described as follows,
96. I am persuaded that Mr Lock must be correct in his submission that regulation 32(2) should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.
97. In other words 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.
Staffordshire Police refused her request on the basis that her claim was “frivolous and vexatious”, and the matter eventually ended up in front of Mr Kerr.
Mr Kerr has refused the application on three grounds.
He had difficulty with the wording of regulation 32(2) which states the following, “The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him”. He believes that there must be an agreement by the PPA and that there is NO obligation to refer a matter back for reconsideration.
Secondly, he accepted that the length of time that had passed made it unlikely that the claimant would get a fair reconsideration, and that Staffordshire Police were within their rights to consider this when making a decision. This was despite the fact that the original medical reports were still on file, and even if the original psychiatrists were no longer available to reconsider the case, regulation 32(3) allows for another SMP to be appointed.
Lastly, whilst it was acknowledged that any subsequent costs i.e. payment of an injury pension award should the applicant be successful cannot be taken into account, Mr Kerr accepted that costs associated with the application and review process itself could be, particularly with regards to the cost to the public purse. Translated, this means that it is acceptable for Staffordshire Police to spend £50,000 of public money fighting this application in a Judicial Review in order to save the huge cost of £750 instructing an SMP for two hours. Of course there would be additional work for HR employees, whose salaries have to be paid anyway.
Mr Kerr gave leave for an appeal and we await “Round Two”.
The full judgement can be read here http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2018/14.html
This seems to me to be in the too difficult pile. The injured officer is only seeking to be considered for an IOD award , and the reporting in the local media has been very unfair to this officer. It paints a wrong picture that this ex officer is demanding an IOD award when in fact – she is asking to be considered for the start of the process. Demanding – can have two different meanings and guess which one the media will take to get a story. I have ever confidence that this matter will be over turned on appeal. It seems to me that staffs police are trying to close a ‘ loop hole’ and shut the door on claimants after a certain time period – something which the regulations never mention. Perhaps Staffordshire police feel that they are above the law and they can just re invent the injury regulations. I think not. you may have won this battle but the war isn’t over.
Having attended the hearing in Manchester and listening to the proceedings I must admit that I anticipated a different decision.
Mr Justice Kerr seemed to acknowledge that the regulations were unclear and as such I appreciate the decision he has made which may allow further clarity.
The best legal team in this arena is on the case. It’s unfortunate that this was the end result.
Round two hopefully to follow seeing as Justice KERR has given leave to appeal.
Good luck to all those involved.
This is a bizarre result considering he agrees with most points until his final decision. I have no doubt that this decision will be overturned on appeal as the evidence is there to rebuff the decision.
Don’t go counting your chickens just yet Staffs you may find some missing soon.
It is such a shame that the complainant’s state of mental health was not considered in any of this. She may have withdrawn an appeal way back when but I am sure each and every member of IODPA could understand that. The fact that Judge Kerr has allowed this case open to appeal speaks volumes! David Lock is a Barrister without comparison and I am sure he will manage to fix this matter.
Well they’ve won one skirmish, but they won’t win the war !
Win some lose some. It’s good to see IODPA reporting on the losses as well as the wins.
Mr Justice Kerr in the same case at 90 also stated,
90.Furthermore, the importance of securing a just pension entitlement is incontestable, as is the injustice arising from wrongly withheld or underpaid pensions for officers who render such important service at everyday risk to life and limb. That point supports the claimant’s policy-based interpretation and could be said to outweigh the defendant’s answer that procedural rules and deadlines do not offend justice even where they lead to loss of entitlement.
All this needs to be reconsidered again.