David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP
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21 thoughts on “David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

  • 2018-07-21 at 8:35 pm

    You should not have been put through this, but well done to all concerned.

    • 2018-07-21 at 10:45 pm

      Thank you Bryan. You are very right but there are many hoops to jump through but it is satisfying to know you were right all along. Please do not let me put off any one contemplating this procedure.. Having said that I have not sleapt since the verdict with continued stress.I will get there with an occasional beer.and amlittle help from my prescribed sleepers.
      I cannot thank Steve Edwards,CEO at Wakeield NARPO and also obviously DAVID LOCK, QC for the excellent assistance and encouragement given.
      I cannot praise David Lock enough. If ever you need any legal help in any similar legal circumstances he is the man. KNOWS MORE OR LESS EVERYTHING INSIDE OUT. EVERYTHING. If I can assist anyone in anyway I will..
      Lloyd Kelly.

      • 2018-07-25 at 7:17 pm

        Lloyd – cannot find the decision on Bailii – need a copy asap for one recently retired pensioner who only got 3 out of 6 years backdated – can u oblige or give me a link???


        bob Watson
        Northumbria NARPO Sec.

      • 2018-07-25 at 10:39 pm

        Hi Bob
        The ruling was only made last Friday at Sheffield Crown Court son has probably not been published as yet but may I point you in the direction of Dean Hague, SYP Federation Rep. He may be able to get a copy from the solicitor or from Mr Lock. Good luck and sorry I can’t help any more but if you have any other questions I will try to assist.

  • 2018-07-21 at 4:46 pm

    Time for Chief Constables, Policing Boards and PCC’s or whatever other title they use to stand up and say the Government should not set them against those who have served and been injured but should be realistic in their budget provision to take account of their obligation to others who may yet be injured by the lack of funding over the past many years.

    These boards laud it over that they oversee the police without ever remembering that they have a duty to see policing is properly resourced

  • 2018-07-21 at 12:12 pm

    How many more JR’s need to be won to show that these Chief Constables, their legal advisers, and their HR minions simply do not understand the Police (Injury benefit) Regulations 2006? They are not even making any savings which is the real goal for them. I will say it once again, if it is NOT in the Regulations then don’t do it. The words Injury Benefit give you the clue as to what these regulations were brought in for, not for you to try and save yourselves some money. Here’s an idea, get rid of your Directors of Personnel, Assistant Chief Constables, Deputy Chief Constables, advisory solicitors, and heads of HR, then replace them with NARPO, IODPA, the federation, and let them administer the Injury Pensions. There is a huge saving there if that’s what drives you. Private companies don’t need deputy CEO, Assistant CEO, and they function lawfully. Try it, you never know you may like it!! Remember: If it’s not in the Regulations – Don’t do it – Simples.

  • 2018-07-21 at 11:18 am

    Fantastic news and well done to all involved, especially you Lloyd, many of us know, all too well, what an incredibly tough and worrying time it must have been for you.
    I’m glad it was also highlighted that the one of the reasons for this event happening was down to CC’s etc trying to save money, it’s not on, so get your act together, the ‘divide and conquer’ and the bullying days have long gone. we have a voice now, and all those you’ve shafted in the past, I hope it comes back to bite you on the backside, HARD !

  • 2018-07-21 at 9:56 am

    Why, oh why do some of these Chief Constables not see this coming? They consider themselves above the law and are driven solely by money. We all appreciate that your budgets are tighter than ever but put yourselves in the shoes of the Officers concerned, you were close to their position once, it could have been you! Have a little compassion, humility, understanding, show your human side, if you look under your elevated persona you’ll probably find it languishing somewhere low down and downtrodden.
    Congratulations Lloyd Kelly and thank you once again to David Lock QC, what a skilled, gentleman.

  • 2018-07-21 at 9:55 am

    Another victory for the downtrodden who are rising up and fighting the corrupt system. Well done Lloyd Kelly for persevering and David Lock for another win.
    I wonder how many Chief Constable will be refering officers who have been Ill health retired with on duty injuries. I beleive it won’t be long before a few CC will be up in front of Judges for failing to refer officers for IOD awards. This decision is massive and puts the onus on forces to do it right in the first place.
    I understand that Steve Edwards from NARPO was instrumental in advising Lloyd and that is great news as well as we all appear to be working towards a common goal and that is getting it right and adhering to the regulations.
    A big congratulations To Lloyd Kelly, David Lock and Steve Edwards the wheel is turning and for the good.

  • 2018-07-21 at 9:41 am

    This abuse will continue until a Chief or two are put in the box, CC’s its about time you stopped listening to the likes of WIRZ and his mislead disciples of the NAMF/NWEF and simply adhered to the regulations which even the likes of a CC should understand!

  • 2018-07-21 at 6:07 am

    Another fantastic result for retired and those still in. Putting the onus onto CC ensures that those unfortunate enough to be retired on the grounds of permanently disabled will be referred to the smp if there is a sniff that the injury may have occurred whilst on duty. Well done to all those involved and I wish ex Sgt KELLY the very best.

  • 2018-07-20 at 11:45 pm

    I would like to thank everyone for the kind comments but most of all I would very sincerely thank David Lock,QC. He was brilliant in court, I would highly recommend him to anyone regarding police pension issues. He is very friendly and completely ‘on the ball’ at all times. Thanks also to Dean Hague (Police Fed, SYP) and Andrew James of Slater Gordan Solicitors.
    It took two years to get to court (the ruling was today 20th July 1018). Hopefully I can now put this behind me.
    Hopefully this decision will assist many of my former colleagues nationwide.
    Good luck to anyone in a similar position.
    Lloyd Kelly.

    • 2018-07-20 at 11:49 pm

      Caught up in the moment but forgot to mention Steve Edwards, CEO of NARPO who initially advised me of my rights in 2016. A massive thanks to you Steve. I have already sent you a private email.
      Lloyd Kelly

  • 2018-07-20 at 11:03 pm

    Firstly. Huge congratulations to David Lock and very best wishes to Mr Kelly. Long over due and richly deserved. It seems it does not pay CCs and their misguided and unlawfully breifed minions to ever learn. Keep taking and following your unlawful pathway and you will keep paying out. Allow me to offer you are a suggestion. It could save you hundreds of thousands of pounds. IGNORE advice given you by your wonderful legal teams and simply follow Police Regulations Lawfully. The savings should get you at least two cinema tickets for the price of one for a year. SIMPLES.

  • 2018-07-20 at 10:44 pm

    Yet again, a Chief Constable, (was he really acting as a Police Pension Authority?), fails at Judicial Review.
    Every time it’s money, money, money! Not welfare for a former loyal colleague, just a constant desire to save cash.
    I’ve got news for those Chief Constable’s, the crime figures have gone to hell in a handcart. Violent crime is off the scale, so no matter what minor success you may obtain, it’s a drop in the ocean re what is really needed.
    The more you knuckle under in the hope of a QPM, or possibly a job at the College, or HMI, the more you betray your oath & your colleagues, who then look on you with contempt.

  • 2018-07-20 at 10:20 pm

    An excellent result which will ensure that future injured officers will be treated properly by their forces when retired on ill health. At last the rights of injured former officers is being upheld

  • 2018-07-20 at 10:11 pm

    I worked with Sgt Kelly for several years and it was a privilege to do so. He gave his heart and soul to SYP and was let down badly by senior officers when he became ill. I cannot think of a more inspirational Sgt I worked for in my career and to be treated the way he was by people who should know better was quite frankly a disgrace.
    I’m glad to say today’s HR staff are first class in particular Sally-Ann Bamford who helped me no end with my successful IOD application. So well done Lloyd for your perseverance and all the best for your future. And to those who should know better I always remember a saying from my first Inspector ‘rank is no guarantee of ability or common sense’. Wise words.

    • 2018-07-20 at 11:31 pm

      Thank you very much for your very kind words. It bought tears to my eyes. Thanks. Lloyd Kelly.

  • 2018-07-20 at 10:10 pm

    Yet again a Chief Constable has been showed to only be acting in an effort to save money and not in the best interests of his former officers who served and lost their careers through no fault of their own.
    The carefully considered words of the Judge in that the current Chief Constable was attempting to gain a windfall from his predecessors breach of its legal duty by failing to pay the back dated pension is indicative how those Chief Constable as PPA’s are currently carrying out Reg 37 reviews in an attempt to gain a windfall by unlawfully reducing the lawfully granted injury pensions of their IOD’s.
    Well Mr Morgan and those others engaged in this nefarious activity your time is running out. The courts are starting to close you down. How long before it’s you who are standing in the dock charged with malfeasance. Your time is up.

  • 2018-07-20 at 9:53 pm

    Outstanding result another force being held to account and an injured officer paid what he is entitled to, when are they going to learn and do things correctly in the first place and treat injured officer properly

  • 2018-07-20 at 9:45 pm

    Part b, regarding ‘common law duty’ is a keeper 😊👍🏻

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