article
Ill health pensions – a defining moment
03 September 2008
Browne Jacobson examines the impact of a recent case on the
definition of permanent disablement for ill-health pensions in the
Fire Service and the scope of what the Board of Medical Referees
can consider on appeal.
New precedent
Ill-health retirement and pensions have always
been controversial subjects, particularly in high risk occupations
such as firefighting. In the recent case of The Queen (on the
application of Martin Marrion, Robert Burke & Andrew Scott) v
The Board of Medical Referees, we saw ill-health pensions become
the focus of a landmark appeal case, which has resulted in key
precedents being set.
The case was brought by three firefighters who
were unhappy with the level of pension they were receiving. It
considered issues surrounding ill-health retirement, permanent
disablement and qualifying injury within the Firemen’s Pension
Scheme (FPS). As a result of this case the definition of permanent
disablement has been narrowed and the Board of Medical Referees can
now reconsider all issues in relation to disablement, not just
those specifically appealed.
Board decision
The three claimants were members of the FPS.
They had been retired by their local fire authority (London Fire
and Emergency Planning Authority) from Fire Service roles on the
grounds of permanent disablement, and were receiving ill-health
pensions.
A fire authority can require firefighters to
retire on the ground that they are permanently disabled. When
deciding what, if any, award to make, the authority will be bound
by the written opinion of an independent qualified medical
practitioner (IQMP) chosen by them. If the person being retired is
dissatisfied with the IQMP’s report, they may appeal to the Board
of Medical Referees.
In this case, the claimants were unhappy with
the IQMP’s report and appealed to the Board, stating that specific
parts of their reports relating to the degree of their disablement,
were incorrect. They claimed this had resulted in an
unsatisfactory level of pension being awarded.
When an appeal is made to the Board, it
initially establishes whether there is permanent disability and
then a qualifying injury, before taking other steps to establish
the degree of disablement.
In this instance, the Board decided that the
claimants were not in fact permanently disabled, as their injuries
did not stop them from performing all of the duties in their
Rolemap. The Board reasoned that although the claimants were not
fit for frontline firefighting, they could still undertake
“non-operational duties” as they could continue to “inform and
educate their community” or “contribute to safety solutions to
minimise risk to their community” as described in their
Rolemap.
Although this was not the scope of the
claimants’ appeal, the Board decided that the claimants were not
permanently disabled; therefore, they did not need to further
consider the full scope of each appeal.
As a result of this decision the claimants
issued a set of claims to appeal the Board’s decision at the High
Court. They asked the court to decide:
a) whether the
Board had jurisdiction to reconsider whether they were permanently
disabled as this was not the scope of their appeal
b) the meaning of
“duty” in relation to permanent disablement
The case
The High Court decided that the scope of the
Board’s review should not be limited to the point the claimant
appealed on. The judge believed that “the appeal to the Board
constitutes a full appeal against the opinion of the IQMP” and “is
not limited by reference to the ground or grounds of appeal
submitted by an appellant”.
The issue of the true meaning of “duty” was
more difficult. The FPS rules state that disablement means
“incapacity, occasioned by infirmity of mind or body, for the
performance of duty…”. The claimants submitted that “a firefighter
who is not capable of performing one or more of the core functions
of a firefighter is disabled from performing the whole duty of a
firefighter”. The defendants suggested that permanent disablement
is incapacity for operational firefighting duties and all of the
other duties appropriate to the role.
The judge focussed on the definition of
“regular firefighter”. The firefighters’ statutory schemes are only
open to “regular firefighters” and the definition previously
included a requirement for a member to be involved in frontline
firefighting duties. Concerns were raised about those individuals
who did not fight fires but were integral to the Fire Service and
were unable to enter the pension scheme due to their role. The
definition was subsequently amended to include employees who “may
be required to perform other duties as appropriate to [their] role
as a firefighter (other than, or in addition to, engaging in
firefighting)”. This enabled employees not capable of performing
operational duties, to remain in the FPS. Therefore the Judge
accepted the defendant’s submission, that if a person was able to
fulfil only some of their duties, they were not permanently
incapacitated.
The outcome
As a result of this case the definition of
permanent disablement has been narrowed, and an FPS scheme member
will not be classed as permanently disabled if they can still
perform one or more of the tasks in their Rolemap. In addition,
members and fire authorities should be aware that if an appeal is
taken to the Board, the Board can reconsider all issues in relation
to the disablement, not just those specifically appealed.
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