Simpson, R (on the application of) v Police Medical Appeal Board & Ors

Factual and Procedural Background

The claimant, born in 1935, served as a police constable for 29 years until retiring due to ill health in 1988, having suffered from a service-related injury. He was granted a police injury pension under the applicable regulations. His degree of disability was assessed at 30%, placing him in Band 2 of the injury pension scale. Upon reaching age 65, the police authority conducted a review of his injury pension, guided by Home Office Guidance 46/2004 ("the Guidance"), which recommended placing officers over 65 in the lowest band of degree of disablement absent a cogent reason otherwise. A Selected Medical Practitioner (SMP) reviewed the claimant's case and recommended reducing his pension to Band 1, which the police authority accepted. The claimant appealed to the Police Medical Appeal Board (PMAB), which upheld the reduction. The claimant then commenced judicial review proceedings challenging the lawfulness of the Guidance provisions concerning reviews of injury pensions once officers reach age 65. The decisions of the police authority and PMAB were quashed by consent, restoring the claimant's pension to its former level. The judicial review focused on whether the Guidance and related provisions were unlawful and inconsistent with the Police (Injury Benefits) Regulations 2006 ("the Regulations").

Legal Issues Presented

1. Whether the Guidance concerning the review of injury pensions once officers reach age 65 and paragraph 20 of the Guidance on Medical Appeals are inconsistent with the Police (Injury Benefits) Regulations 2006 and therefore unlawful.
2. Whether the Guidance incorrectly equates earnings with earning capacity in assessing degree of disablement under the Regulations.

Arguments of the Parties

Appellant's Arguments

• The Guidance's recommendation to place former officers aged 65 or over in the lowest band absent a cogent reason is inconsistent with Regulation 7(5) of the Regulations, which requires an individualised assessment of earning capacity regardless of age.
• There is no presumption in the Regulations that reaching age 65 equates to no or reduced earning capacity.
• The Guidance improperly conflates actual earnings with earning capacity, whereas the correct test under the Regulations is the latter.
• The Guidance fails the Inconsistency Test, the Padfield test (requiring guidance to promote statutory policy), and the Presumption Test (prohibiting imposition of presumptions or burdens not found in the statutory scheme).
• The "cogent reason" test reverses the burden of proof by requiring the former officer to prove continued earning capacity, contrary to the Regulations which presume pension stability absent substantial alteration.
• The SMP and PMAB must assess whether there has been a substantial alteration in the degree of disablement since the last review, not conduct a fresh assessment of earning capacity from scratch.

Respondent's Arguments

• The Regulations are silent on how to assess earning capacity, so the Home Office Guidance provides a reasonable framework to promote consistency in decision-making.
• It is practical and consistent with the purpose of the Injury Pension Scheme to assume compulsory retirement age marks a change in earning capacity assessment, with national average earnings used as a benchmark absent cogent reason otherwise.
• The Guidance's "cogent reason" test allows rebuttal of assumptions and does not impose a presumption inconsistent with the Regulations.
• The assessment of earning capacity must reflect practical realities, including that persons over 65 are generally retired and not in gainful employment.
• The SMP and PMAB cannot revisit previous decisions on disablement or causation but must consider whether the degree of disablement has altered, which requires some review of earning capacity.
• The Guidance’s assumptions provide a practical, rebuttable framework consistent with the statutory scheme and promote good administration.
• The claimant’s appeal to the PMAB provided an alternative remedy which addressed the alleged defects in the Guidance’s application.
• The Home Office has suspended the Guidance pending review and revised draft guidance emphasizes individual assessment and transparency.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework established by the Police Pension Act 1976 and the Police (Injury Benefits) Regulations 2006, focusing on the requirements for reviewing injury pensions under Regulation 37. The court emphasised that the Regulations require the police authority to consider whether there has been a substantial alteration in the degree of disablement since the last review, not to conduct a fresh assessment of earning capacity or disablement. The Guidance’s working assumption that once a former officer reaches age 65 their earning capacity can be assessed as nil absent a cogent reason to the contrary was found to have no basis in the Regulations. The court agreed with the appellant’s submissions and relevant case law (Turner, Laws, Crocker) that the Guidance imposes an unlawful presumption and reverses the burden of proof by requiring former officers to demonstrate continued earning capacity rather than requiring the authority to prove a substantial alteration. The court rejected the respondent’s argument that the Guidance provides a practical framework, holding that it detracts from the neutral decision-making process mandated by the Regulations and imposes an unjustified high bar for former officers. The court found the Guidance inconsistent with the statutory scheme and unlawful. The court also considered the administrative context and the suspension of the Guidance, concluding that the claim was not academic and that relief was appropriate. The court declined to deny relief on grounds of good administration, alternative remedies, or lack of sufficient interest.

Holding and Implications

The court declared that the section of the Home Office Guidance headed "Review of Injury Pensions Once Officers Reach Age 65" and paragraph 20 of the Guidance on Medical Appeals are inconsistent with the Police (Injury Benefits) Regulations 2006 and unlawful. The court held that there is no statutory basis for adopting a different approach to injury pension reviews at age 65 compared to younger former officers. The implication is that injury pension reviews must assess whether there has been a substantial alteration in the degree of disablement without applying presumptions based on age or requiring a "cogent reason" to rebut such presumptions. No new precedent beyond the application of established principles in Turner, Laws, and Crocker was set. The direct effect is that the Guidance provisions challenged are invalid and cannot be applied in injury pension reviews for officers aged 65 or over.