In a ruling 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:
(a) 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,
(b) the common law duty the Chief Constable owes to police officers,
(c) the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
(d) 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.
Mr Kelly was represented by David Lock QC, of Landmark Chambers, instructed by Andrew James of Slater and Gordon Lawyers. The Chief Constable may permission to appeal this decision.