McGinley, R (on the application of) v Schilling

Factual and Procedural Background

These are two joined appeals arising from a decision of McCombe J in the Administrative Court dated 28th June 2004, where permission to appeal was initially refused but later granted by Auld LJ. The respondents in these appeals are retired police officers who were retired on grounds of permanent disablement due to injuries sustained in the execution of their duties. The dispute concerns the proper construction of Regulation H2 of the Police Pensions Regulations 1987, specifically whether a medical referee determining an appeal is confined to reviewing the selected medical practitioner's certificate as of its date or may consider up-to-date evidence at the time of the referee's decision.

Two illustrative cases were discussed: one appellant challenged a certificate fixing her disablement at 35%, with the medical referee upholding the original certificate based on the date it was made; another appellant’s medical referee increased the degree of disablement from 45% to 55%, apparently considering evidence at the time of his decision. The police authority appealed against a judicial decision that the medical referee's determination should be made at the date of his decision, not the earlier date of the selected medical practitioner's certificate.

Legal Issues Presented

1. Whether a medical referee deciding an appeal under Regulation H2 is limited to assessing the validity of the selected medical practitioner's certificate at the date it was made and on the evidence available at that time.
2. Or whether the medical referee may determine the appeal based on evidence and circumstances current at the date of the referee's decision, effectively conducting a rehearing.

Arguments of the Parties

Appellant Police Authority's Arguments

• The medical referee’s role under Regulation H2(3) is to decide if he disagrees with the selected medical practitioner’s certificate, implying the same question and date should apply.
• Regulations A12(1) and A20 are not determinative of the date for the medical referee’s decision.
• Regulation K2 provides for periodic reassessment of disablement, suggesting appeals under Regulation H2 should not duplicate reassessments but focus on whether the selected medical practitioner was wrong at the time of their decision.
• Sub-paragraph (d) of Regulation H1(2), concerning degree of disablement, should be treated differently, with appeals limited to the original date.
• Backdating an increased pension to the date of retirement could be unfair if the disablement did not exist at that date.
• Concerns were raised about potential abuse of the appeal system through delay, causing injustice and uncertainty for the police authority regarding pension funding.

Respondent Police Officers' Arguments

• The medical referee’s decision should be made as of the date of the referee’s examination, considering all relevant evidence at that time.
• Regulations and prior case law indicate that the medical referee conducts a rehearing rather than a limited review.
• Regulation H2(2) and Schedule H permit the medical referee to consider fresh evidence and hold further examinations.
• The appeal is from the police authority’s decision, not an independent decision, supporting a full reconsideration.
• Limiting the referee to the date of the selected medical practitioner’s certificate would produce anomalous and unfair results, including undercompensation if conditions deteriorate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed construction of the relevant Police Pensions Regulations, focusing on the temporal aspect of the medical referee's decision. It noted that Regulation A12(1) defines permanent disablement as being assessed at the time when the question arises for decision, implying the medical referee’s decision date is relevant.

Regulation H2(2) and (3) were interpreted as enabling the medical referee to reconsider the selected medical practitioner’s certificate, not merely to confirm or reject it based on the original evidence. The present tense used in the regulations suggested the medical referee’s decision should be made as at the time of the referee’s examination.

The court emphasized the provisions in Schedule H allowing the medical referee to conduct further interviews and examinations, supporting the notion that fresh evidence can be considered. It rejected the appellant’s literalist interpretation of the word "disagrees," noting that disagreement can arise from new evidence or changed circumstances.

The court also addressed concerns about potential delay and abuse of the system, finding that the short appeal period and the police authority’s ability to expedite the appointment of medical referees mitigated these risks.

Prior authoritative decisions by Sullivan J, Rafferty J, and Keith J were cited and followed, all supporting that the medical referee’s decision is a rehearing considering up-to-date evidence, including on the degree of disablement.

The court acknowledged that while periodic reassessments under Regulation K2 and pension payment from the date of retirement under Regulation L3 have some bearing, they do not override the clear import of the appeal provisions in Regulation H2.

Holding and Implications

The court DISMISSED the appeals, upholding McCombe J’s decision that the medical referee’s determination under Regulation H2 is to be made as at the date of the referee’s decision and may be based on fresh and up-to-date evidence rather than being confined to the date and evidence of the selected medical practitioner’s certificate.

The direct effect is that appeals by retired police officers concerning injury pensions will be reheard by medical referees considering current evidence, potentially allowing adjustments to pension awards based on changed circumstances. No new precedent beyond affirming the interpretation of the Police Pensions Regulations was established. The appellant police authority was ordered to pay the respondents’ costs, and permission to appeal to the House of Lords was refused.