South Yorkshire

Lloyd Kelly – The Court Of Appeal Confirms That Injury Pensions Should Be Back Dated With Interest

IODPA Admin newsflash, police injury award, Police Pension Authority, Uncategorized
Lloyd Kelly – The Court Of Appeal Confirms That Injury Pensions Should Be Back Dated With Interest

The Court of Appeal today handed down judgment in the case of Chief Constable of South Yorkshire Police, R (On the Application Of) v Kelly & Anor [2021] EWCA Civ 1699 (19 November 2021)

 

On the 5th June 2005, Mr Kelly was required to retire as a serving police officer due to permanent disablement from South Yorkshire Police. Whilst Mr Kelly was granted an ill-health pension, the force did not consider whether he was entitled to an injury pension under The Police (Injury Benefit) Regulations 2006 due to the injury being caused on duty. They also did not inform him that he may make an application.

On the 25th July 2017, Mr Kelly became aware of injury pensions, and made an application, which was subsequently granted. South Yorkshire Police however only agreed to apply the pension from the date of the application rather from the date of retirement, a difference of 12 years worth of back pension.

The matter was heard twice, in the Crown Court, where Mr Kelly was successful. South Yorkshire appealed the matter to the Court of Appeal, who today handed down judgment in favour of Mr Kelly. The judgment agreed that Mr Kelly should be paid from the date of retirement and is also entitled to interest on his money.

Injury Pensions Should Be Paid From The Date Of Retirement And Not Application

IODPA Admin newsflash, regulation 32
Injury Pensions Should Be Paid From The Date Of Retirement And Not Application

Lloyd Kelly case establishes an injured police pensioner’s right to a police injury pension from the date of retirement, even if the pension is awarded in subsequent years.

In a decision which will have significance for other injured former police officers, the High Court has confirmed that an injured former police officer should be paid a police injury pension from the date of his or her retirement, even if the officer is only awarded the injury pension many years later.  Thus, all injured former police officers who qualify for an injury pension are entitled to “back pay” going back to the date of their retirement.

The issue arose in R (Chief Constable Of South Yorkshire Police) v The Crown Court At Sheffield & Anor [2020] EWHC 210 (Admin) where Mrs Justice Jefford accepted the former officer’s legal arguments that Regulation 43 of the Police (Injury Benefit) Regulations 2006 meant that an injured former police officer is entitled to a pension in each year after the date of his or her retirement, even if the award is only made a number of years later.

The High Court Judge also confirmed that a former officer can challenge any such non-payment by a simple application to the Crown Court instead of having to follow complex procedures under the Civil Procedure Rules.  The Judge also decided that the 2006 Regulations has no provision for the payment of interest and so no interest was payable on overdue awards.

Mr Kelly had retired in 2005 with serious PTSD arising out of his police duties, but was not advised at the time by the Force that he could be entitled to an injury pension.  He only found he was being short-changed on his pension rights in 2016.  He applied for an injury award and was found eligible for a substantial additional pension.  However the Chief Constable refused to make payments of this pension from the date of his retirement in 2005.

Mr Kelly, supported by the Police Federation, appealed to the Crown Court to secure his “back pay” and won in 2018.  The Chief Constable challenged the decision of the Crown Court in the High Court but, in a judgment handed down on 6 February 2020, the Chief Constable’s challenge on the backdating issue failed.

The Chief Constable was refused permission to appeal to the Court of Appeal.  He could still try to appeal by asking the Court of Appeal for permission but, absent such an appeal, the law now appears to be clear on these points.

UPDATE: We understand that South Yorkshire Police are now appealing this decision.

**

David Lock QC represented Mr Kelly before the Crown Court and in the High Court, instructed by Slater and Gordon.

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

IODPA Admin caselaw, newsflash, Police Pension Authority, smp
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.