•  a decision by the Police Medical Appeal Board that his injury award should be reduced to Band 1, and
  • the decision of the Chief Constable that this reduction should be backdated to the date of a medical report on Mr Fisher’s health

Mr Fisher had been retired from the police force in 1999 as a result of an injury sustained in the course of his duties. As a result he received an injury pension at Band 4, which was reduced to Band 3 in 2015 as a result of a review which found there had been an improvement in Mr Fisher’s health. Mr Fisher appealed this decision to the Police Medical Appeal Board.  In its report, the Board found that Mr Fisher was capable of full time administrative work and, as his injured and uninjured earning capacity was the same, he should be awarded a Band 1 injury pension.

The Chief Constable then informed Mr Fisher that the effect of this reduction would be from the date of the doctor’s report in 2015, rather than the date of the decision of the Board, and a deduction would be made per month from his pension to make up for the over payment that had occurred.

Judicial review

Mr Fisher made an application for a judicial review of these decisions.  He argued that the Board had erred in taking into account what he could have earned in an administrative role, rather than looking at his uninjured earning capacity in respect of his potential police earnings.  The judge found for Mr Fisher and noted that the task of the Board is to assess what a pensioner would have been capable of earning had he not suffered the injury in question.  To this end, the previous police earnings of the individual must feature in the Board’s analysis and in this case they had not.

In regards to the Chief Constable’s decision, the judge found that if appeals are to be based on current evidence, the date of any change should be the date when it is recognised that altered circumstances justify a change in pension and should not be backdated.

The matter was remitted to the Board to consider the issue again and the Chief Constable’s decision was quashed.

What to take away

This decision is relevant to both police and fire service employers in respect of their injury benefit schemes.  Whilst in this case the Board had been wrong not to take into account the uninjured earning capacity of Mr Fisher, the judge did acknowledge that there will be circumstances where police earnings do not fairly represent the pensioner’s current earnings capacity; for example when other injuries have been sustained since retirement or if the individual has acquired new skills or lost skills.  The point to take from this decision is that the individual’s earning capacity will be fact specific and may change over time.

For more information please contact Alessandra GettinsAlison Richards, or Andrew Rowland.