Evans & Anor v South Wales Police, Court of Appeal - Civil Division, October 02, 2018, [2018] EWCA Civ 2107

Resolution Date:October 02, 2018
Issuing Organization:Civil Division
Actores:Evans & Anor v South Wales Police
 
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Neutral Citation Number: [2018] EWCA Civ 2107

Case No: A2/2017/3288

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

MR JUSTICE HADDON-CAVE

[2017] EWHC 2835 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/10/2018

Before:

LORD JUSTICE HENDERSON

LORD JUSTICE COULSON

and

LADY ARDEN OF HESWELL

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Between:

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Mr David Lock QC (instructed by Cartwright King Solicitors) for the Appellants

Mr Jason Beer QC (instructed by South Wales & Gwent Police Joint Legal Services) for the Respondent

Hearing date: 27 June 2018

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Lord Justice Henderson:

Introduction

  1. This appeal involves a short question of construction of the Police (Injury Benefit) Regulations 2006, S.I. 2006 No.932 (``the 2006 Regulations''), which provide (among other things) for the making of an injury award to a person who ceases to be a member of a police force and is permanently disabled as a result of an injury received through no fault of his own in the execution of his duty (defined in regulation 11(1) of the 2006 Regulations as the ``relevant injury''). Such an injury award has two components, calculated in accordance with detailed provisions set out in schedule 3 to the 2006 Regulations. The first component is a lump sum gratuity, calculated as a specified percentage of the person's average pensionable pay. The second component, with which this case is primarily concerned, is an injury pension, paid weekly, which takes the form of a ``minimum income guarantee'' expressed as a specified percentage of the person's average pensionable pay.

  2. An injury award payable under the 2006 Regulations is separate from any pension or pension-related benefits to which the person in question (whom I will call the ``police officer'') may be or become entitled under the police occupational pension scheme, which was governed at the material times by the Police Pensions Act 1976 and the Police Pensions Regulations 1987 (``the 1987 Pensions Regulations''). Nevertheless, the police officer's pensionable pay and average pensionable pay are calculated for the purposes of an injury award under the 2006 Regulations in the same way as if it were an award payable under the 1987 Pensions Regulations: see regulations 4(1) and (2) of the 2006 Regulations. Furthermore, the amount of an injury pension, where the relevant injury was received during a period of service as a regular police officer, must be reduced by three-quarters of any other pension calculated by reference to Schedule B to the 1987 Pensions Regulations. Credit must thus be given, for example, for 75% of any ordinary pension or accelerated ill-health pension to which the police officer may be entitled under the occupational scheme.

  3. Similarly, an injury award payable under the 2006 Regulations is separate from any social security benefits to which the police officer may be entitled, but in the case of certain ``additional benefits'', described in paragraph 7 of schedule 3, they must be deducted, in full, from the weekly payment of injury pension made to the police officer. The additional benefits which have to be deducted in this way are, for the most part, ones which relate directly to the relevant injury. In short, they comprise: (a) any industrial injuries benefit under section 94 of the Social Security Contributions and Benefits Act 1992 (``SSCBA 1992'') in respect of the relevant injury; (b) any reduced earnings allowance under section 94 of that Act in respect of the relevant injury; (c) any incapacity benefit under section 30A of that Act; and (d) any severe disablement allowance under sections 68 and 69 thereof.

  4. The precise way in which these additional benefits are to be taken into account is provided for by sub-paragraphs 7(1) and (2) of schedule 3, as follows:

    ``7(1) The amount of the injury pension in respect of any week, calculated as aforesaid, shall be reduced on account of any such additional benefit as is mentioned in sub-paragraph (3) to which the person concerned is entitled in respect of the same week and, subject to sub-paragraph (2), the said reduction shall be of an amount equal to that of the additional benefit or, in the case of benefit mentioned in sub-paragraph (3)(a) or (b), of so much thereof as is there mentioned.

    (2) Where the provisions governing scales of additional benefits have changed after the person concerned ceased to be a member of a police force, the amount of the reduction in respect of any week on account of a particular benefit shall not exceed the amount which would have been the amount thereof in respect of that week had those provisions not changed...''

    It can be seen, therefore, that the basic rule is for deduction of an amount equal to the full amount of the additional benefit on a weekly basis, but this rule is subject to the proviso in sub-paragraph (2) which applies ``[w]here the provisions governing scales of additional benefits have changed after the person concerned ceased to be a member of a police force''. In those circumstances, the amount of the weekly reduction in the amount of the injury pension is not to exceed the amount which would have applied if those provisions had not changed. It is the construction of this proviso, and its application to the circumstances of the two appellants, with which this case is concerned.

  5. The first appellant, Mr Evans, served as a police officer with the South Wales Police Force for 29 years. He was injured in the course of his duties, and was required by the Chief Constable to retire on 25 June 1999 as a result of his injuries. The second appellant, Mr Ashcroft, also served as a police officer in the same Force for 26 years. He too was injured in the course of his duties, and was required to retire on 6 June 1999 as a result of his injuries. In addition to their police pensions, each appellant applied for, and was awarded, a police injury pension under the predecessor provisions to the 2006 Regulations, which were then contained, in materially the same terms, in the 1987 Pensions Regulations.

  6. As Haddon-Cave J explained in the judgment under appeal ( [2017] EWHC 2835 (QB) ) at [8], the level of police injury pension paid depends upon the degree of injury and the impact which it has on the police officer's earnings capacity. He annexed to his judgment the ``banding'' Table which is now set out in paragraph 3 of schedule 7 to the 2006 Regulations, and was previously contained in the 1987 Pensions Regulations. The Table distinguishes between four degrees of disability, which calibrate the amount of gratuity and pension paid depending on the police officer's length of service, the highest levels of award being paid to those who, like Mr Evans and Mr Ashcroft, had accrued 25 or more years' service. The bands were as follows:

    (1) Band 1: 25% or less (slight disablement);

    (2) Band 2: more than 25% but not more than 50% (minor disablement);

    (3) Band 3: more than 50% but not more than 75% (major disablement); and

    (4) Band 4: more than 75% (very severe disablement).

  7. The Police Authority determined that Mr Evans had a 40% degree of disablement, which therefore fell within Band 2 and in view of his length of service entitled him to a minimum income guarantee equal to 70% of his average pensionable pay. The Authority determined that Mr Ashcroft had an 80% degree of disablement, and therefore fell within Band 4, entitling him to a minimum income guarantee at the maximum level of 85% of his average pensionable pay.

  8. As a result of the same injuries, each appellant also became entitled to ``additional'' social security benefits for which credit would have to be given under what is now paragraph 7(1) of schedule 3 to the 2006 Regulations. They both became entitled to receive incapacity benefit. Mr Ashcroft also became entitled to industrial injuries benefit under section 94 of SSCBA 1992, consisting of a disablement pension under section 103 paid weekly. This disablement pension is referred to in the judgment below, and in the parties' statements of case, as ``Industrial Injuries Disablement Benefit'' or ``IIDB''. In 2013, Mr Ashcroft ceased to receive incapacity benefit and became entitled instead to employment and support allowance (``ESA'').

  9. As the judge went on to say at [12] to [13], and as I will need to explain in a little more detail later in this judgment, both the injury pensions received by the appellants, and their deductible social security benefits (i.e. incapacity benefit and IIDB), have been increased annually since 1999 in line with inflation. Subject to a complication concerning the tax year 2009/10, to which I will also have to return, the rates of annual increase applicable to the police pensions and the relevant social security benefits have in fact been the same, because of a statutory mechanism which links them. Common sense would therefore suggest that the weekly deductions to be made from the police pensions payable to Mr Evans and Mr Ashcroft should have increased year by year, reflecting the increased amount of the pensions which they were entitled to receive on the one hand, and the increased amount of the relevant additional benefits to be deducted under paragraph 7(1) on the other hand. But that is not the result for which the appellants now contend. Their case is that the deductions to be made from their weekly payments of injury pension are, in effect, frozen at the levels which applied when they retired in 1999, because the annual uprating of the relevant additional benefits in line with inflation amounts to a change in the provisions governing the scales of those benefits within the meaning of paragraph 7(2), and thus triggers the operation of the proviso contained in that sub-paragraph.

  10. The respondent Chief Constable is the police pension authority for the purposes of the...

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