PO-1407

PENSION SCHEMES ACT 1993, PART X DETERMINATION BY THE DEPUTY PENSIONS OMBUDSMAN Applica ! Sc"#$# R#%p& '# !(%) Mr C Brunning Police Pension Scheme (“!"# Sc"#$#”) West Yorkshire Police Authority

S*+,#c! Mr Brunning has complained that in pursuing his complaint a!out a re"ie# o$ his in%ury !ene$it the West Yorkshire Police Authority (“ -YPA”) #ill not& • • a#ard any compensation in respect o$ his distress and incon"enience or reim!urse him $or his legal $ees and other associated costs incurred'

T"# D#p*!. P# %i& % O$+*'%$a /% '#!#0$i a!i& a ' %"&0! 0#a%& % (he complaint should !e upheld in part against the WYPA !ecause the incorrect re"ie# o$ Mr Brunning)s in%ury !ene$it in *++, has caused him !oth $inancial and non-pecuniary in%ustice' Whilst some o$ the $ees and costs Mr Brunning is claiming $ollo#ing that re"ie# cannot !e regarded as a direct and ine"ita!le e.pense this aspect o$ his complaint can !e upheld to the e.tent that e.penses connected to the hearing o$ the Police Medical Appeal Board (“PMAB”) and $or his tra"elling e.penses to attend a medical e.amination and the PMAB)s hearing should !e re$unded'

-/-

PO-1407

DETAI1ED DETERMINATION S!a!*!&0. R#2*la!i& % /' (he Police (0n%ury Bene$it) 1egulations *++2 (“ !"# 3004 R#2*la!i& %”) and in particular paragraphs 3 and , o$ Schedule 2 (Medical Appeals) to those regulations pro"ides ”4 3 (*) (he !oard o$ medical re$erees shall appoint a time and place $or hearing the appeal at #hich it may inter"ie# or e.amine the appellant and $or any such $urther hearings as it may consider necessary and shall gi"e not less than t#o months) notice or such shorter period as the police authority and appellant may agree thereo$ to the appellant and police authority' 3 (3) (he police authority and the appellant shall not less than 35 days (including #eekends and pu!lic holidays) !e$ore the date appointed $or the hearing in$orm the !oard o$ medical re$erees #hether they intend to !e represented at the hearing' 4 , (/) Sa"e as pro"ided in this paragraph the e.penses o$ each party to the appeal shall !e !orne !y that party' 4 , (6) Where the !oard o$ medical re$erees decides in $a"our o$ the appellant the police authority shall re$und to the appellant any e.penses actually and reasona!ly incurred !y the appellant in respect o$ attending any such hearing as is mentioned in paragraph 3' *' At the time o$ Mr Brunning)s $irst re"ie# in Septem!er *++, (he 7mployment 78uality (Age) 1egulations *++2 9*++2 :o' /+3/; pro"ide “3 <iscrimination on grounds o$ age (/) =or the purposes o$ these 1egulations a person (>A>) discriminates against another person (>B>) i$ ? (a) on grounds o$ B@s age A treats B less $a"oura!ly than he treats or #ould treat other persons or 4 and A cannot sho# the treatment or as the case may !e pro"ision criterion or practice to !e a proportionate means o$ achie"ing a legitimate aim'

-*-

PO-1407

Ma!#0ial 5ac!% 3' Mr Brunning retired $rom West Yorkshire Police on , Aanuary /B,5' Cn a re"ie# o$ his in%ury !ene$it application in Ccto!er /B,5 he #as a#arded an in%ury pension #hen the degree o$ his earnings incapacity #as increased $rom *5D (!and /) to 5+D (!and *)' Cn the $orm dealing #ith this later re"ie# it #as #ritten “no $urther re-e.ams”' E' Mr Brunning re8uested a $urther medical re"ie# in /B,B !ut the outcome resulted in no changes' (herea$ter no $urther assessments #ere carried out until *++,' 5' 0n April *++, the WYPA #rote to Mr Brunning a!out amendments to the Scheme)s regulations and ad"ice $rom the Fome C$$ice' (hat ad"ice #as once a $ormer o$$icer reached the age o$ 25 and their State Pension Age then in the a!sence o$ a cogent reason they should !e placed in the lo#est !and o$ 0mpact upon 7arnings (“IUE”) A#ard' (his #as !ecause o$ an e.pectation that they #ould normally no longer !e earning a salary in the employment market' 2' WYPA told Mr Brunning that they had consulted #ith the :ational Association o$ 1etired Police C$$icers (“NARPO”) and the Police =ederation a!out these changes' (hey noted he #as aged 25 or a!o"e (he #as then aged 2B) and said they #ere gi"ing him *E months) notice (e$$ecti"e $rom 6 April *+/+) o$ the reduction in his 0G7 a#ard unless there #ere e.ceptional circumstances (cogent reasons) in his case' 6' 0n May *++, Mr Brunning re8uested a copy o$ his medical records $rom WYPA and in Aune he completed an 0G7 A#ard 8uestionnaire on the !asis there #ere e.ceptional circumstances H cogent reasons' 0n Auly *++, Mr Brunning signed a medical consent $orm though he says he later #ithdre# his permission #hen he #as told !y WYPA)s Cccupational Fealth (“ OH”) Gnit that they had no records $or him' Fo#e"er he says they had medical papers $or him $rom /B,E and /B,B at the *+// PMAB hearing' ,' Mr Brunning)s case #as re"ie#ed on 3+ Septem!er *++, !y WYPA)s medical ad"iser' <r Fynes o$ AIA 0CAS Well!eing opined that !ased on his paper assessment the contents #ould not constitute a cogent reason

-3-

PO-1407

#hy Mr Brunning)s a#ard should not !e reduced to the lo#est !and ? though he noted there #as no generally accepted de$inition o$ the term Jcogent reason)' Mr Brunning)s a#ard #as reduced accordingly' B' 0n :o"em!er *++, Mr Brunning #rote to (he Police =ederation and :A1PC saying the money $or a legal challenge could !e !eyond his means and asked them $or assistance' =rom <ecem!er *++, Mr Brunning also started corresponding #ith WYPA and in =e!ruary *++B he re8uested all documentary records $rom the West Yorkshire Pension =und (“!"# 5* '”)' 9The Fund, part of the Local Government Pension Scheme and a completely different pension scheme to the (Police) Scheme, is operated by the pensions department of Bradford Metropolitan istrict !ouncil ("the Council#)$ %t that time, thou&h, they also separately administered the Scheme for '(P%;' /+' Mr Brunning says a !arrister $riend o$ his told him to proceed through all a"enues' Fe there$ore decided to take ad"ice and he initially consulted a $irm o$ solicitors 1ussell Aones K Walker in or around =e!ruaryHMarch *++B' (his appears to ha"e !een a $ree consultation !ut they #ere reluctant to put Mr Brunning to the e.pense o$ gi"ing ad"ice on the terms discussed' //' =ollo#ing reminder letters :A1PC told Mr Brunning in March *++B that unlike the Police =ederation they did not generally pro"ide indi"idual legal support to mem!ers in the #ay that the =ederation did' Mr Brunning says the Police =ederation ne"er replied' /*' 0n April *++B Mr Brunning approached another $irm o$ solicitors Chad#ick La#rence LLP and they #ere instructed to deal #ith his appeal' /3' Bet#een April and <ecem!er *++B Chad#ick La#rence LLP carried out #ork $or Mr Brunning $or #hich regular in"oices and receipt payments ha"e !een su!mitted' (his included $ollo#ing up a re8uest $or in$ormation $rom the =und' Mr Brunning made his appeal on E Aune *++B resulting in another medical re"ie# !y <r Fynes on *, Septem!er *++B !ut this #as unsuccess$ul' /E' Mr Brunning has supplied his ta. coding $rom FM 1e"enue and Customs $or *++BH/+ in #hich his State pension is stated to !e M5 ,E6 a year and

-E-

PO-1407

his P2+ $or *++BH/+ con$irming that his police retirement pension #as M/* ///'E3 a year' (he amount o$ in%ury pension paid in the *++BH/+ ta. year #as ME EB,'5, (as orally confirmed by Mouchel, )ho too* over the administration of the Scheme for uniformed police staff from the !ouncil from + %pril ,-+,)' As pensions are normally paid on the $irst day o$ the month the $igure o$ ME EB,'5, represents the pension payments made !et#een / May *++B and / April *+/+ and so di$$ers slightly $rom the annual rate o$ in%ury pension in $orce $rom 2 April *++B o$ ME 663'*E a year' (he $igure o$ ME EB,'5, also re$lects a reduced payment on / April *+/+ $or April *+/+' /5' Mr Brunning says he has no other sources o$ income' Fis total annual income $rom these three sources $or *++BH/+ #as there$ore M** E56' /2' (he pensions department o$ the Council sent a letter to WYPA on /B March *+/+ saying they had reassessed Mr Brunning)s in%ury pension and $rom 6 April *+/+ his in%ury pension #ould !e reduced $rom ME 663'33 a year to ME/2'6E a year' /6' A$ter a period o$ time during #hich Mr Brunning #as reco"ering $rom cancer Mr Brunning says he took up his appeal again' Cn E =e!ruary *+// he paid his general practitioner)s surgery $or a copy o$ his o#n medical records #hich he says he sent to WYPA on *, =e!ruary *+//' /,' Cn /B May *+// Mr Brunning met #ith the WYPA)s selected medical practitioner (“SMP”) (<r Senior o$ AIA 0CAS Well!eing) #ho completed her reports on *3 May and /E Auly *+//' (hough she said his right shoulder had deteriorated su!stantially since he #as $irst a#arded the 0G7 she assessed the degree to #hich his earnings capacity #as a$$ected as **'22D' /B' As part o$ his continuing appeal Mr Brunning re8uested on E August *+// (and $ormally on 2 Ccto!er *+//) a copy o$ his medical re$erral $ile $rom WYPA $or #hich he paid a $ee' A $e# days later he also asked AIA 0CAS $or in$ormation #hich they held and he paid a $ee to them as #ell' *+' Mr Brunning changed his solicitors !ecause he heard that Lake Aackson Solicitors had had some success in challenging the decisions in cases similar to his' 0n Ccto!er *+// Lake Aackson aided him #ith his appeal to

-5-

PO-1407

the PMAB' Some Pension Cm!udsman cases (i'e' *6B6BH* $rom *E August *++B and ,+++,H/ $rom 3+ Aune *+//) and certain case la# in"ol"ing other police authorities andHor the PMAB #ere cited as part o$ his grounds $or appeal' */' Mr Brunning says the WYPA made it clear that legal representation at the PMAB hearing #as not allo#ed' Conse8uently Lake Aackson re$erred him to Mr Watson o$ the :ational Police Ad"ocacy Ser"ice #ho represented him at his PMAB)s hearing $or #hich he had to pay a $ee' **' (he PMAB met on 6 <ecem!er *+// to consider Mr Brunning)s appeal including the rele"ant case la# and ga"e their decision on *+ <ecem!er *+//' (he assessment o$ the PMAB #as that “4 since the last re"ie# the degree to #hich Mr Brunning)s earning capacity has !een a$$ected !y the rele"ant in%ury has not altered su!stantially and his degree o$ disa!lement should remain in Band * and there$ore his appeal is upheld'” *3' Cn 6 =e!ruary *+/* Mr Brunning #rote to the WYPA noting that arrangements had !een made $or his pension to !e reinstated' Fo#e"er he said he #as unhappy that there #as (i) no interest on the pension payments #hich #ere #ithdra#n o"er the last ** months (i'e' $rom 6 April *+/+ on#ards) (ii) no compensation $or the manner in #hich his case had !een dealt #ith and (iii) no re$und o$ payments made on their insistence to o!tain in$ormation to support his appeal' *E' (he Fome C$$ice #rote to Chie$ C$$icers and Police Authority Chie$s on *3 =e!ruary *+/* a!out the Figh Court)s decision o$ */ =e!ruary regarding a %udicial re"ie# in the case o$ Simpson " Police Medical Appeal Board K Cthers 9*+/* 7WFC ,+, (Admin);' (he ne# ad"ice #as that Anne. C and the section entitled J1e"ie# o$ 0n%ury Pensions once C$$icers reach Age 25) and paragraph *+ o$ Section 5 entitled J<egree o$ disa!lement a$ter age 25) in the Nuidance on Medical Appeals must not !e relied upon in the conduct o$ such re"ie#s' *5' 0n response to a $urther letter $rom Mr Brunning dated *+ March *+/* WYPA said in their reply o$ /3 Aune *+/* that they #ere sorry to hear he had $ound the manner in #hich the statutory Jre"ie#) duties concerning his in%ury pension had !een applied had caused him distress' (hey

-2-

PO-1407

ackno#ledged the *++2 1egulations had !een the su!%ect o$ much litigation $ollo#ing go"ernmental interpretation and had caused di$$iculties $or !oth those applying the Scheme)s regulations as #ell as the !ene$iciaries o$ them' (hough they recognised there had !een $rustrating periods e.perienced as a result o$ this con$usion and uncertainty they said such circumstances $ell short o$ any actiona!le claim' Accordingly his re8uest $or compensation and repayment o$ costs incurred #as declined' (hey did ho#e"er agree to his claim to pay interest (and interest o$ M*+5'5E #as su!se8uently paid to him on 2 August *+/*)' *2' WYPA says ad"ice #as taken internally $rom legal ser"ices $ollo#ing Mr Brunning)s March *+/* letter and a suggested letter #as dra$ted' (hat dra$ted reply appears to ha"e $ormed the !asis o$ WYPA)s response o$ /3 Aune although changes to the letter ha"e !een made $rom the original dra$t and in particular in relation to the repayment o$ costs' Whilst the gist o$ the $inal issued letter is the same as the dra$t in that the re8uest $or repayment o$ costs incurred #as declined the dra$t ga"e a $urther rationale $or declining it (!y re$erence to the *++2 1egulations)' *6' Mr Brunning instigated a complaint under the Scheme)s internal dispute resolution procedure (“IDRP”) on /* Auly *+/*' Fe said he thought #hat had happened to his in%ury pension #as illegal and e"entually the courts had come to the same decision' *,' 0n a letter dated / Ccto!er *+/* to Mr Brunning WYPA said that Schedule 2 paragraph , o$ the *++2 1egulations stated that “each party shall !ear their o#n e.penses arising out o$ an appeal”' =urther an application under the 0<1P 1egulations can !e made a!out “any claimed action or omission !y the Police Authority or Secretary o$ State #ithin the scope o$ the Police Pension Scheme 4”' WYPA concluded that the “action or omission” (i'e' the re$usal to pay his legal e.penses) #as outside the scope o$ the Scheme' (he issue #hich #as #ithin the scope o$ the Scheme (i'e' his entitlement to in%ury pension) had !een resol"ed "ia the appeal and he had !een appropriately compensated !y the payment o$ arrears and interest' *B' Mr Brunning is seeking the reim!ursement o$ the undernoted payments'

-6-

PO-1407

M 56'5+ (inclusi"e o$ OA() ? Payment to Chad#ick La#rence LLP to reim!urse them $or paying the =und $or a copy o$ their $ile including medical records' M E 5BE'*5 (inclusi"e o$ OA() ? =ees paid to Chad#ick La#rence LLP $or legal #ork' M/+'++ ? =ee paid in =e!ruary *+// to his NP surgery $or his medical records' M*5',+ ? Cost o$ three train $ares to Leeds at M,'2+ a trip' M/+'++ ? =ee paid in Ccto!er *+// to AIA 0CAS Well!eing' M/+'++ ? =ee paid in Ccto!er *+// to WYPA' M B++'++ (inclusi"e o$ OA() ? Lake Aackson Solicitors' M 35+'++ (inclusi"e o$ OA() ? Watson on 6 <ecem!er *+//' M 5 B56'55 PPPPPPPP 3+' Mr Brunning says i$ he had not !een su!%ect to this re"ie# #hich he !elie"ed #as illegal and #as pro"ed to !e soQ he #ould not ha"e had to seek legal ad"ice and incur the su!se8uent costs' Fe also says “0 ha"e $ound the stress on mysel$ 4 during this long and protracted $ight #ith the maladministration uncaring and on occasions threatening #ordage o$ correspondence all geared to $righten people $rom continuing their $ight”' 3/' WYPA says the legislation is "ery clear and unam!iguous as to #ho pays the costs o$ a medical appeal and that remains their position' (he general e$$ect o$ the legislation is to discourage the parties $rom instructing solicitors and a party opting to do so does so at their o#n risk' 0t should !e noted though that the pro"isions relating to the costs o$ a Jmedical appealJ are di$$erent to those relating to a Jre"ie# o$ in%ury !ene$it) although these relate to costs other than legal costs' (he !asic cost o$ M2 *++ $or a medical appeal !y the PMAB is usually !orne !y WYPA' 3*' With regard to paragraph , (6) o$ Schedule 2 to (he Police (0n%ury Bene$it) 1egulations *++2 WYPA says they pay reasona!le tra"elling e.penses $rom point o$ entry into the =orce area and only upon re8uest'
-,-

=ee paid to =ee paid Mr

PO-1407

33'

Mr Brunning no# 8uestions #hy at the outset o$ this process #as the position on costs not included and made clear' Fe tried to get help $rom the police unions legal aid ($or #hich he #as not eligi!le) and his MP !ut each police o$$icer #as on his o#n and i$ he had not sought legal ad"ice his pension #ould ha"e !een lost'

3E'

(hough <r Fynes) letter o$ *, Septem!er *++B stated he had no corro!orati"e medical e"idence to su!stantiate Mr Brunning)s account o$ his medical pro!lems Mr Brunning says <r Fynes did ha"e his NP records #hich he (and his #i$e) sa# #hen he #as physically e.amined' =urther Mr Brunning states in his letter o$ 6 =e!ruary *+/* to WYPA that this #as also con$irmed in a letter dated E March *++B $rom WYPA)s Fuman 1esources (“HR”) o$$icer in the Medical Appeals and 1e"ie#s (eam' 0n his letter to the Pensions Ad"isory Ser"ice o$ /B Ccto!er *+/* Mr Brunning also makes re$erence to a letter o$ Ccto!er *++B $rom <r Fynes in #hich he re$ers to ha"ing sight o$ his NP records'

35'

Mr Brunning says he tra"elled to Leeds on $our occasionsQ once to see his !arrister once to see <r Fynes once to see <r Senior and once to attend the PMAB hearing' Fe paid cash $or his train tickets and did not keep any receipts' Cn other occasions he tra"elled !y car #ith his #i$e #hich #as a cheaper option'

32'

As Mr Brunning)s in%ury pension had !een reinstated $rom the time it ceased #ith interest and #ithout rehearsing in detail #hat had gone !e$ore WPYA #ere asked during my o$$ice)s in"estigation i$ they #ould consider making an o$$er o$ compensation $or distress and incon"enience !ecause any non-pecuniary in%ustice #ould not !e a cost o$ proceeding #ith an appeal'

36'

WYPA accepts they $ollo#ed Fome C$$ice guidance #hen dealing #ith the re"ie# o$ in%ury !ene$it cases and that that guidance #as su!se8uently $ound to !e unla#$ul' 0t is contended WYPA acted in good $aith at all times and ha"e su!se8uently recti$ied the position in a proacti"e #ay' WYPA says that #ith the !ene$it o$ hindsight it pro!a!ly has to !e conceded there #as maladministrationQ ho#e"er e"ery e$$ort has !een made to recti$y the conse8uential in%ustice' Cnce the legal position #as crystalliRed WYPA #rote to those a$$ected e.plaining the position and recti$ied it' So
-B-

PO-1407

Mr Brunning #ould ha"e had his in%ury a#ard reinstated and !een repaid arrears and interest e"en i$ he had not instructed solicitors' 3,' Cn the su!%ect o$ distress and incon"enience WYPA #ould like to o$$er Mr Brunning the sum o$ M35+ as compensation $or the #ay the *++, re"ie# #as carried out' 3B' Mr Brunning paid a M/+ $ee prescri!ed !y the <ata Protection Act $or the pro"ision o$ a copy o$ the re$erral $ile sent to the SMP in May *+// and $or <r Senior)s $indings' (he re$erral $ile is usually pro"ided to the retired o$$icer !y the =orce)s Medical Appeals Section $ree o$ charge $ollo#ing the outcome o$ a re"ie#' 0t there$ore seems Mr Brunning #as re$erred to the <ata Protection Gnit !y mistake and this $ee charged in error' WYPA #ill arrange $or this $ee to !e re$unded to him' E+' WYPA says it is a matter $or the other organisations (e'g' his NP <r Senior and the Scheme)s administrator) #hat in$ormation they share #ith Mr Brunning and #hether any $ees are charged !y them under the <ata Protection Act' C& cl*%i& % E/' (he *++2 1egulations pro"ide that re"ie#s can !e conducted “at such inter"als as may !e suita!le” and WYPA #ere a!le to carry out a re"ie# in *++, e"en i$ they had not done so !e$ore' (hough a re"ie# is generally permissi!le such a re"ie# still needs to !e per$ormed appropriately and properly' E*' Whilst the Fome C$$ice is responsi!le as a #hole $or the Scheme)s regulations they deem each Police Authority to !e the Scheme Manager at a local le"el' 0 note WYPA)s comments a!out the guidance $rom the Fome C$$ice and the resultant con$usion H uncertainty' Be that as it may WYPA is still responsi!le $or ensuring their SMP interpreted the *++2 1egulations correctly #hen carrying out a re"ie#' E3' 0t might !e possi!le to argue that it is not necessarily maladministration $or a decision maker to take a #rong "ie# o$ the la# !ut i$ it is linked to some other act o$ maladministration ($or instance i$ the decision #as taken carelessly #ith lack o$ good $aith or #as the result o$ $la#ed or inade8uate procedures) then it may amount to maladministration'

-/+-

PO-1407

EE'

(his #as an error o$ la# al!eit that WYPA #as $ollo#ing Fome C$$ice guidance and #as acting in good $aith' Fo#e"er as has !een $ound !y my o$$ice in other cases ($or e.ample Ayres *6B6BH* and Sharp ,+++,H/) it is not appropriate to try and impose a meaning on the rele"ant 1egulations #hich they do not hold simply !ecause the Fome C$$ice (or the WYPA) think that logically they should' 1egulation 6 (5) pro"ides $or Mr Brunning)s degree o$ disa!lement to !e determined !y re$erence to the degree !y #hich his earnings capacity has !een a$$ected as a result o$ an in%ury' (here are no special pro"isions in the 1egulations relating to the degree o$ disa!lement at age 25' 0 do not $ind it appropriate that a re"ie# should start $rom the assumption that at state retirement age Mr Brunning)s earning capacity reduced to nothing or that it #as $or him to pro"e other#iseQ particularly as the 7mployment 78uality (Age) 1egulations *++2 #ere in $orce at the time o$ the $irst re"ie# on 3+ Septem!er *++,' A proportionate legitimate aim #ould ha"e to !e unconnected to any age discrimination !ut WYPA clearly reduced mem!ers) !ene$its on account o$ them gi"ing up #ork at age 25' So the WYPA either had no regard $or these age e8uality regulations or i$ they did they acted contrary to them' 7ither #ay the o"erall approach taken #as there$ore $la#ed and amounts to maladministration'

E5'

0n recent years case la# has clari$ied the 8uestion o$ #hat a SMP should !e looking at #hen any in%ury a#ard is re"ie#ed and WYPA no# accepts in hindsight that there #as maladministration in the #ay Mr Brunning)s a#ard #as re"ie#ed in *++,'

E2'

0t there$ore seems Mr Brunning has !een challenging a re"ie# carried out in an inappropriate #ay o"er a period o$ 3 years and , months and although 0 note that he had a !reak o$ one year #hilst he #as dealing #ith a serious illness it is unlikely the #orry completely disappeared o"er this period'

E6'

7ssentially this complaint relates to the remnants o$ in%ustice stemming $rom Mr Brunning)s pre"ious complaint a!out the #ay his re"ie# #as carried out in *++, and the reduction in his in%ury pension' (hough the issue o$ his in%ury pension has !een remedied !y the WYPA !e$ore coming to my o$$ice Mr Brunning considers there are other in%ustices

-//-

PO-1407

#hich ha"e not !een resol"ed' So the issue $or me is #hat in%ustice resulted $rom the #ay that re"ie# #as conducted #hich remains to !e remedied' !osts . /0penses E,' Mr Brunning is seeking his costs to !e reim!ursed to him and his claim is set out in paragraph *B a!o"e' 0 o!ser"e he also paid WYPA a $ee $or a Su!%ect Access 1e8uest in May *++, prior to the re"ie# !eing carried out' 1egulation 3 o$ (he <ata Protection (Su!%ect Access) (=ees and Miscellaneous Pro"isions) 1egulations *+++ 9S'0' *+++ H /B/; does allo# such a $ee' But in any e"ent Mr Brunning is not claiming this $ee #hich #ould appear to pre-date the re"ie# and any maladministration' EB' WYPA has argued that the *++2 1egulations pro"ide that “each side must !ear its o#n costs”' But that statement taken $rom paragraph ,(/) o$ Schedule 2 appears to ha"e !een a!!re"iated and does not encompass the *++2 1egulations in $ull' 7"en i$ that statement #ere completely true 0 do not necessarily consider that that automatically precludes a person $rom !eing a!le to claim costs i$ they are a direct and ine"ita!le conse8uence o$ maladministration' Clearly such a pro"ision in the *++2 1egulations is appropriate $or appeals #here there has !een no $ailure in due process' But #here an appeal !y the PMAB is upheld paragraph , (6) o$ Schedule 2 o$ the *++2 1egulations o!liges WYPA to make a re$und limited to the e.penses actually and reasona!ly incurred “in respect o$ attending any such hearing as is mentioned in paragraph 3”' 5+' 7.penses ha"e not !een de$ined #ithin the *++2 1egulations' (hat naturally leads to the 8uestion as to #hat constitutes Je.penses)' 0n my "ie# such e.penses could normally entail tra"el and su!sistence costs' Since paragraph 3 (3) allo#s an appellant to !e represented and the regulations pro"ide $or e.penses that are reasona!ly incurred in attending the hearing 0 also consider any reasona!le e.pense associated #ith !eing represented at such a hearing can !e included' But 0 do not consider that such e.penses e.tend to co"ering any legal $ees under the *++2 1egulations'

-/*-

PO-1407

5/'

:ot#ithstanding the a!o"e i$ as happened here the *++, re"ie# #as not done properly then 0 do not see #hy Mr Brunning could not recoup any %usti$ia!le costs that he may ha"e incurred as a result o$ ha"ing to correct any in%ustice' 0 do not accept WYPA)s argument that it #as unnecessary $or him to take action as the pension #ould ha"e !een re$unded any#ay' Mr Brunning $aced a signi$icant reduction to his income and #ould ha"e !een una#are o$ #hat the $inal outcome #as to !e' Fe #as #holly entitled to appeal'

5*'

A distinction does ho#e"er need to !e made !et#een making an a#ard $or any reasona!le losses arising as a result o$ WYPA)s maladministration and #hat the Scheme)s regulations say a!out each side !earing their o#n e.penses or !eing a!le to reco"er certain e.penses' 0n "ie# o$ this 0 think Mr Brunning)s costs can !e !roken do#n into three partsQ his legal $ees his e.penses o$ attending the PMAB hearing and his other costs'

53'

Paragraph ,(6) o$ Schedule 2 makes pro"ision that the police authority must re$und to the appellant (in this case Mr Brunning) any e.penses actually and reasona!ly incurred !y him in respect o$ attending any such hearing o$ the PMAB'

5E'

Since Mr Brunning)s appeal #as upheld !y the PMAB then 0 see no reason #hy his claim $or actual and reasona!ly incurred e.penses should not !e reim!ursed' 0 there$ore make a suita!le a#ard $or these !elo#'

55'

:o e.planation has !een gi"en as to #hy paragraph ,(6) o$ Schedule 2 o$ the *++2 1egulations #as not discussed in WYPA)s letter o$ /3 Aune *+/* !ut the position on e.penses in relation to PMAB hearings #as #rongly 8uoted to Mr Brunning despite the WYPA ha"ing taken internal legal ad"ice'

52'

So 0 $ind that the WYPA did not $ully disclose the correct position and this in$ormationHad"ice must ha"e caused Mr Brunning $urther distress and incon"enience'

56'

Some o$ Mr Brunning)s costs #ere incurred !e$ore the PMAB)s hearing and as there is secondary legislation concerning e.penses concerned #ith the PMAB appeal itsel$ it seems appropriate to look at these other Jpre PMAB e.penses) separately' 0n la# Mr Brunning has a duty to mitigate

-/3-

PO-1407

any loss(es) and so 0 also need to consider #hether the costs he has identi$ied #ere incurred reasona!ly or o$ necessity' 5,' A$ter recei"ing little assistance $rom his union and corresponding #ith the WYPA Mr Brunning chose to take legal ad"ice ahead o$ any other alternati"es (such as consulting (PAS) and these costs $orm a signi$icant part o$ his o"erall e.penses' (he purpose o$ an appeal process and Cm!udsman ser"ice is to a"oid litigation costs' <espite the $act that this matter #as not necessarily straight$or#ard assistance #as a"aila!le $rom (PAS $ree o$ charge' 0 o!ser"e that Mr Brunning did e"entually approached (PAS in mid-Ccto!er *+/* $ollo#ing WYPA dealing #ith his Auly *+/* 0<1P application on / Ccto!er *+/* !ut had not done so !e$orehand' 5B' Ni"en that the ser"ices o$ (PAS are $ree and once a matter is re$erred to my o$$ice all aspects o$ the complaint can !e considered using in8uisitorial and in"estigati"e po#ers this o$$ice)s starting position is that it is only in e.ceptional circumstances ($or e.ample as e.treme ill health or other disa!ility on the part o$ the complainant) that 0 a#ard compensation in respect o$ legal costs' 0 o!ser"e that other police o$$icers ha"e success$ully !rought similar complaints to my o$$ice #ithout incurring such legal costs and so in some respects it #as not necessarily ine"ita!le that Mr Brunning)s legal $ees directly arose $rom the maladministration alone !ut $rom his choice o$ appealing against such maladministration' 2+' Fa"ing said that though each case needs to !e considered on its o#n merits' 2/' 1e$erence has !een made to the Simpson case #here some legal costs #ere a#arded al!eit at court' Nenerally the starting position o$ the Courts is that a success$ul party may ask $or their costs and %udges ha"e a lot o$ discretion o"er a#ards' 2*' =urther in the Court case o$ Simpson " PMAB (and others) the de$endants) solicitor accepted that they had to pay costs #hereas that is not the position here' :e"ertheless 0 also note that costs #ere only partly a#arded in that court case' 0n the Simpson case costs on an indemnity !asis (assessed as circa M5*k) #ere re8uested !ut Mr Austice

-/E-

PO-1407

Supperstone did not a#ard costs on a $ull indemnity !asis' 0nstead an interim a#ard o$ M*+k #as made against the Fome C$$ice in respect o$ unupli$ted costs o$ around M3+k and a direction $or an assessment to !e carried out i$ the !alance o$ un-upli$ted costs could not !e agreed' So only some o$ Mr Simpson)s legal costs #ere recouped' 23' Mr Brunning did not sustain any $inancial loss until 6 April *+/+ #hen his in%ury pension #as reduced ? though it could !e said that he had sustained non-$inancial in%ustice prior to that date in the kno#ledge that he kne# his in%ury pension #as going to !e reduced' (here is possi!ly an argument that his costs incurred in trying to stop the pension reduction prior to him !eing a!le to come to this o$$ice should !e considered' Fo#e"er Mr Brunning)s appeal !ased on ad"ice $rom Chad#ick La#rence LLP #as unsuccess$ul Chad#ick La#rence handled matters prior to Mr Brunning !ecoming ill and there #ere alternati"e a"enues such as (PAS that he could ha"e tried $irst' 2E' =urther it seems to me that the num!er o$ grounds (//) that Chad#ick La#rence tried to argue #as #ider than those argued !y Lake Aackson and such a scatter-gun approach #here numerous alternati"e arguments are put $or#ard is likely to raise the o"erall le"el o$ $ees' 0 am also mind$ul o$ the $act that Mr Brunning has changed his solicitors and so there is likely to !e some duplication o$ $ees #hile his solicitors got to grips #ith the same issues' So it is di$$icult to %usti$y re$unding !oth sets o$ legal costs' 25' Mr Brunning has stated he met his !arrister and some o$ the e.penses sho#n $or Chad#ick La#rence also include his !arrister)s $ees' Ni"en Mr Simpson)s costs #ere not $ully indemni$ied there!y meaning his consultations #ith his !arristers #ere not recouped 0 do not see #hy Mr Brunning should !e treated any di$$erently' 22' :e"ertheless Mr Brunning $aced a complicated set o$ arguments and a signi$icant reduction in his income (!eing around *+D) #hilst su$$ering $rom cancer' Fe clearly $elt the need to protect his position' So o"erall #hilst he could ha"e come to (PAS and my o$$ice 0 conclude he acted reasona!ly in instructing Lake Aackson Solicitors as his income loss #as so immediate and signi$icant they #ere appointed a$ter his diagnosis o$ a

-/5-

PO-1407

serious illness and they #ere success$ul in challenging the initial decision o$ *++,' 26' All in all 0 ha"e decided to a#ard Mr Brunning part o$ his legal costs i'e' those incurred #ith Lake Aackson LLP' 2,' (he other e.penses !eing claimed relate to data protection $ees #hich Mr Brunning paid to a "ariety o$ organisations and his tra"el costs' C$ those !eing claimed WYPA accepts that the one $ee Mr Brunning paid to them $or his medical re$erral $ile in Ccto!er *+// should not ha"e !een charged and are #illing to re$und this to him' 0 #ill there$ore $ormaliRe that !y including it in the legally !inding directions !elo#' 2B' (urning to the other payments 0 consider that some o$ these could ha"e !een a"oided #hile others may not ha"e !een necessary' 6+' (he Council)s pension department is run as an autonomous unit #ithin the Council and the cost o$ it is deducted $rom the =und' So some ser"ices pro"ided to mem!ers o$ the Scheme are incurred !y the =und (i'e' mem!ers o$ that $und)' A $ee o$ M56'5+ #as there$ore paid to the =und in April *++B $or Council)s pensions department to pro"ide a copy o$ Mr Brunning)s $ile held !y them under the Scheme' 6/' 0 can accept that o!taining a copy o$ Mr Brunning)s pension $ile $rom the Council H the =und in relation to his mem!ership o$ the Scheme may ha"e pro"ided some historical !ackground in$ormation a!out Mr Brunning)s in%ury pension' :e"ertheless there is no e"idence that the Council H the =und #ere in"ol"ed #ith the re"ie# in *++, and so it is di$$icult to conclude that it #as essential to o!tain that in$ormation $rom the =und #hen appealing against the *++, re"ie# itsel$' 6*' As $or the $ee paid to o!tain his NP records Mr Brunning originally ga"e his consent in Auly *++, to the WYPA $or them to o!tain his medical records !ut he says he later #ithdre# his permission' When the SMP had these medical records is not entirely clear' <r Fynes conducted a paper re"ie# on 3+ Septem!er *++, and may ha"e o!tained NP medical records !e$ore Mr Brunning rescinded his consent' (hough <r Fynes) letter o$ *, Septem!er *++B suggests he did not ha"e these records at this later date Mr Brunning says he did !ecause he (and his #i$e) sa# them at his

-/2-

PO-1407

e.amination' Also Mr Brunning has re$erred in correspondence to a letter $rom WYPA dated E March *++B as #ell as a report $rom <r Fynes dated Ccto!er *++B to su!stantiate this !ut those pieces o$ e"idence do not appear to ha"e !een su!mitted in the !undle o$ papers to me' (his matter is though not !eing disputed and there is no reason to dou!t #hat Mr Brunning says' 63' :onetheless instead o$ paying his local NP surgery in =e!ruary *+// to o!tain his medical records and then sending a copy to WYPA Mr Brunning could ha"e simply gi"en his consent again to WYPA to o!tain this in$ormation (or $or them to o!tain up-to-date in$ormation i$ they held a copy up to *++,)' WYPA #ould then ha"e paid the NP)s $ee though under (he Access to Medical 1eports Act /B,, (“!"# 1966 Ac!”) Mr Brunning had the right to see #ithin */ days any report prior to it !eing sent to the WYPA' Alternati"ely i$ WYPA already had his medical records up to *++, #hich Mr Brunning contends they did and Mr Brunning #anted to see them then he could ha"e o!tained a copy o$ these NP records #hen he made his re8uest to WYPA on E August *+// (#hich #as $ormaliRed on 2 Ccto!er *+//)' Similarly his re8uest to AIA 0CAS at Ccto!er *+// seems a duplication o$ a re8uest to WYPA $or his medical $ile' 0 note Mr Brunning #as concerned to get this in$ormation prior to his appeal to the PMAB and that in$ormation had to !e presented to the PMAB at least 35 days !e$ore the hearing' 0 o!ser"e he has !een critical o$ WYPA responding to his re8uest and their procedure taking up to E+ days to process' But the onus #as really on Mr Brunning to gather his e"idence !e$ore launching his appeal in August *+// rather than instigating his appeal and medical re8uest together and then hoping e"idence could !e gathered ahead o$ any deadline $or the appeal' 6E' As his !arrister)s $ees are not !eing a#arded 0 consider it #ould !e inconsistent to a#ard his train tra"el costs to "isit his !arrister' 65' Although there are no receipts $or his train $ares he clearly did attend an e.amination #ith <r Senior and the PMAB)s hearing' Cn the !alance o$ pro!a!ility 0 accept that he did incur these e.tra costs and 0 am minded that these are %usti$ia!le'

-/6-

PO-1407

62'

Whilst some o$ his costs #ere a"oida!le and are not directly attri!uta!le to the maladministration this aspect o$ his complaint is upheld to the e.tent that part o$ his legal $ees e.penses connected to the PMAB)s hearing tra"el e.penses to attend a medical e.amination and the data protection $ee incorrectly paid to WYPA should !e re$unded !ack to him' istress . 1nconvenience

66'

0t is accepted #ith hindsight that there #as maladministration and 0 ha"e no dou!t this caused Mr Brunning non-pecuniary in%ustice in the $orm o$ distress and incon"enience at ha"ing to appeal against that decision'

6,'

Whilst WYPA has no# o$$ered M35+ in compensation $or such in%ustice that o$$er #as only made a$ter my o$$ice)s in"ol"ement and so this aspect o$ Mr Brunning)s complaint is upheld' Whilst ackno#ledging that this o$$er is M5+ more than the other settlements a#arded in the cases o$ Messrs Ayre and Sharp Mr Brunning considers that this o$$er is on the lo# side “a$ter years o$ #orry”' A#ards $or non-pecuniary in%ustice are su!%ecti"e and tend to !e modest' Fo#e"er each case needs to !e considered in isolation' Mr Brunning had /, months o$ distress pending the reduction in his in%ury !ene$its though his appeals #ere handled !y solicitors and $rom that perspecti"e he has there$ore !een put to less incon"enience than i$ he had dealt #ith the appeal himsel$'

6B'

Cn the other hand the reduction in his in%ury pension $rom ME 663'33 to ME/2'62 a year caused a reduction in his o"erall income o$ a!out one-$i$th' (hat is a meaning$ul reduction #hich impacted on his standard o$ li"ing $or nearly t#o years and no dou!t caused much incon"enience' Fe #as also seriously ill during that time #hile this matter #as ongoing' (o my mind the sum o$ M35+ is not enough in these circumstances' 0n setting the amount o$ compensation $or non-pecuniary in%ustice 0 ha"e had regard to the distress o$ $inding out that his in%ury pension #as !eing reduced the incon"enience o$ ha"ing less income $or nearly t#o years and the $urther distress and incon"enience resulting $rom ha"ing not !eing told a!out paragraph ,(6) o$ Schedule 2' Di0#c!i& %

,+'

Within */ days o$ the date o$ this determination West Yorkshire Police Authority shall pay Mr Brunning&
-/,-

PO-1407

• •

MB++'++ to reim!urse him $or part o$ his legal $eesQ M/,'2+ to reim!urse him $or the M/+ data protection $ee charged !y WYPA #hich they accept they should not ha"e !een le"ied and M,'2+ to reim!urse him $or his train $are to !e medically e.amined !y <r SeniorQ

M35,'2+ $or the e.penses incurred in attending the PMAB)s hearing (tra"el costs o$ M,'2+ plus M35+ to !e represented at the hearing)Q

M65+ in compensation $or the distress and incon"enience caused !y the maladministration o$ the *++, re"ie#'

7a # I08i # <eputy Pensions Cm!udsman /6 April *+/E

-/B-