Malekout v Secretary of State for Health

(3) A notice given pursuant to paragraph (2) shall be in writing and shall be delivered to the Secretary of State within 6 months of the coming into force of these regulations or such longer period as the Secretary of State may allow.” As is apparent from the convoluted history of this matter, there has been confusion from time to time on the part both of the claimant and the defendant whether his claim is to be considered under the 1974 or the 1995 regulations. At one stage it was apparent that the defendant was calculating the claimant’s benefit by reference to the 1974 regulations but the claimant was saying that it should be pursuant to the 1995 regulations. Latterly, the claimant has argued that the 1974 regulations should be applied, whereas the defendant has taken the position that the regulations to be applied are the 1995 regulations. What is apparent is that at no stage has the claimant ever formally served notice on the defendant opting for any provision of the 1974 regulations to apply pursuant to regulation 23. It appears that at times the Secretary of State might have appeared to have been prepared to allow a longer period for such election by virtue of the fact that he was considering the matter pursuant to those earlier regulations. I have been taken through the 1974 and the 1995 regulations carefully by counsel and it is apparent to me that, save for one particular matter, the two regulations are, in substance, identical. The only matter where there is any difference is not one which impacts on the issues of principle between the parties. It only impinges at the most marginal level on the precise calculation which has to be made. In my judgment, this is a matter which may properly be regarded as de minimis. In any event it is perfectly clear that the claimant has not given any written notice to the defendant that this particular provision of the 1995 regulations should not apply so as to leave the position to be considered under the more favourable provision of the 1974 regulations. It therefore follows that, in my judgment, it is the 1995 regulations which apply and it is to those regulations that I now turn. The 1995 regulations Part II of the 1995 regulations provides for injury benefits. Regulation 3 identifies persons to whom the regulations apply. It is not in dispute, as a matter of fact, that the claimant was a practitioner and so falls within regulation 3(1)(b). As I have indicated, in 1993 the defendant indicated in a letter that it accepted that the claimant fell under “3(1)(d)(ii)” of the 1974 regulations. The format of the 1995 regulations is slightly different from that of the 1974 regulations. However, in each, regulation 3(1)(d) is identical and it identifies a person who “holds an appointment as a member of such body constituted under the National Health Service Act 1977 as the Secretary of State may approve.” It is perfectly clear that at no time did the claimant hold any such appointment as a member of any such body. In my judgment, therefore, the letter of 1993 simply contained a typographical error and should have read 3(1)(b)(ii). Unfortunately that typographical error was carried forward into the terms of the consent order made by Master McKenzie. That was part of a declaration made by consent and I am persuaded by Miss Laing that if it were thought to be in any way relevant that declaration could be regarded as void on the grounds of a fundamental common mistake. In any event that part of the declaration only applies to the 1974 regulations and I am not concerned with those regulations. What that declaration did do, in the alternative, was to identify the claimant as somebody who fell within the terms of regulation 3(2)(a) of the 1995 regulations. That paragraph applies to an injury which is sustained in the course of a person’s employment attributable to the duties of employment. “Employment” for the purposes of the regulations, encompasses the claimant’s position as a practitioner and so I am content that the Master McKenzie’s declaration, insofar as it is relevant to these proceedings, is accurate and is binding on the parties. Regulation 4 is entitled “Scale of Benefits”. It sets out in sub- paragraphs (2), (3), (4) and (5) a series of four discrete circumstances in which benefit will fall to be paid. Sub-paragraphs (2), (3) and (4) each require the person’s earning ability to be “permanently reduced by more than 10% by reason of injury or disease”. Regulation 4(5) is the exception to that requirement and does not require there to have been any permanent reduction in earning ability. Regulation 4(2) is the Regulation which applies to the claimant. That applies where a person to whom Regulation 3(1) applies (the claimant) ceases to be employed by reason of the injury or disease and no allowance or lump sum, other than an allowance under sub-paragraph (5) has been paid under the Regulations in consequence of the injury or disease. The sum payable under Regulation 4(2) shall be payable “from the date of cessation of employment”. Regulation 4(3) provides for a different set of circumstances. It applies where, before attaining age 60, a person to whom Regulation 3(1) applies ceases to be employed other than by reason of injury or disease and no allowance or lump sum other than under paragraph (5) has been paid. In those circumstances he may be paid, from the date on which he obtains the age of 60, or earlier if the Secretary of State allows, an annual allowance. Regulation 4(4) applies where a person to whom Regulation 3(1) applies suffers a reduction in emoluments in employment by reason of the injury or disease. In such a case there shall be payable, from the date of that reduction, an annual allowance. Regulation 4(5) provides that where a person to whom Regulation 3(1) applies is on leave of absence from employment with reduced emoluments by reason of the injury or disease there shall be payable, during the period of such leave, an annual allowance. Thus, the benefits payable under Regulation 4(2) and (3) are payable only when the person ceases to be employed under Regulation 3(1). By contrast the benefits payable under 4(4) and (5) are only payable during the course of employment under Regulation 3(1). It is now common ground that the claimant’s claim is under Regulation 4(2) and is payable from 16 December 1990 being the date when he ceased to be employed pursuant to Regulation 3(1). In each of the four different circumstances identified in Regulation 4 the sum to be paid is calculated by reference to a percentage of his “average remuneration”. The term “average remuneration” is defined by Regulation 2(1). It provides as follows:- “Average remuneration means – (a) In relation to a person other than a practitioner, such amount as would be, or would have been, his final year’s pensionable pay, within the meaning of Regulation C1(6) of the Pension Scheme Regulations, as an officer to whom those Regulations apply…: or (b) In relation to a practitioner, the yearly average of such amount as would be or would have been his uprated earnings, within the meaning of paragraph 11(2) of Schedule 2 to the Pension Scheme Regulations, as a practitioner to whom those Regulations apply calculated as if he had retired – (i) in the case of a person eligible for an allowance under Regulation 4(3), on the date on which he ceased to be employed as a person to whom Regulation 3(1) applies; (ii) in the case of a person eligible for an allowance under Regulation 4 (4) or (5), on the date on which his emoluments were reduced; (iii) in the case of any other person, on the date on which by reason of the injury or disease his employment ceased… ” The two issues between the parties focus on each of the two elements in the definition of “average remuneration”. On the first issue the claimant says that he should be treated as if he falls within (a) rather than (b). If that were so then “average remuneration” means the final year’s pensionable pay within the meaning of Regulation C1(6) of the National Health Service Pension Scheme Regulations 1995. That paragraph provides as follows:- “In these Regulations, ‘’final year’s pensionable pay’’ means pensionable pay in respect of the member’s last year of pensionable employment, ending on the date the member ceases to be in such employment, or dies, which ever occurs first, except – (a) if pensionable pay was greater in either or both of the two consecutive years immediately preceding the last year, “the final year’s pensionable pay” means pensionable pay in respect of the year immediately preceding the last year or, if greater, pensionable pay in respect of the first of those two consecutive years;… ” putting that in layman’s terms “average remuneration” under that Regulation is the best of the last three years’ pensionable pay. As I have indicated above, it is common ground, as a matter of fact, that the claimant was a practitioner. It therefore follows that sub-paragraph (a) which relates to a person “other than a practitioner” does not apply to him. Accordingly, in respect of the first issue, in my judgment the average remuneration in respect of the claimant has to be calculated by reference to sub-paragraph (b) that is the uprated yearly average of the claimant’s remuneration from the date he commenced with the National Health Service. As Miss Laing pointed out in the course of argument (b) is by far the most sensible way of assessing the average remuneration of a practitioner who, as a self-employed person, may be expected to have variable amounts of remuneration throughout his career, probably earning the largest sums in the middle part of his career and tailing off towards the end. The provisions of sub-paragraph (a) are much more sensible in respect of a person who is an employee where the general rule will be that he will earn more with the passage of time subject only perhaps to the last year or so marking a decline in his earnings, so explaining the ability to select the best of the last 3 years of pensionable pay. The only conceivable basis for the claimant’s argument that (a) applies is the erroneous attribution, in 1993, by way of typographical error of his employment falling within a category other than that of a practitioner. In my judgment that has no foundation in fact and makes no sense and in any event is a characterisation by reference to the wrong regulations. The second issue focuses on the end date of the period by reference to which the calculation under (b) has to be undertaken. Regulation 2(1) defines the end date as being “as if he had retired” on the occasions identified in sub-regulations (i), (ii) and (iii). Sub-regulations (i) and (ii) apply, in each case, to a person who is “eligible” for an allowance under one or other of the sub-regulations to regulation 4. Thus, (i) refers to a person eligible to an allowance under regulation 4(3) and (ii) refers to a person eligible for an allowance under regulation 4(4) or (5). In the case of a person eligible for an allowance under regulation 4(3), the deemed date of retirement is the date on which he ceased to be employed. That is internally consistent because eligibility for an allowance under 4(3) only arises when the person ceases to be employed. By parity of reasoning, in the case of a person eligible under Regulation 4(4) or (5), the date of deemed retirement is the date on which his emoluments were reduced. Those provisions make sense because the allowances payable under 4(4) or (5) are each payable during employment by reason of a reduction in emoluments. The claimant says that the true construction of (ii) includes a person entitled under regulation 4(2) who at one stage was eligible for a temporary allowance under 4(5). In my judgment that cannot be correct. The words of (ii) apply in the case of a person “eligible” for an allowance under regulation 4(5). A person who is eligible for an allowance under 4(2) cannot also be “eligible” for an allowance under 4(5). The former requires a person to have ceased employment, the latter applies only during that person’s employment. In my judgment, therefore, a person who is eligible under 4(2) falls within the category of “any other person” as described in (iii). In that case that person’s deemed date of retirement is the date on which, by reason of the injury or disease, his employment ceased. This means, in the case of the claimant, that the end date for the calculation of the yearly average of uprated earnings is 16 December 1990 and not 22 January 1987. The claimant points out, as is the case, that where, as here, a person has been on leave of absence for a number of years and in receipt of temporary benefit pursuant to 4(5) throughout, then, if he retires from employment by reason of that injury, his permanent benefit will be significantly less than his temporary allowance had been. That is because, during the period of his leave of absence, it is highly likely that his remuneration will have substantially declined by comparison with what it was at the date which his emoluments reduced. This, he says, creates an anomaly which cannot have been intended by the legislation and, indeed, the terms of correspondence from the defendant and from a junior minister, who became involved in correspondence at an early stage, indicate that it must be an anomaly. Those indications are that the intention is that a person should move seamlessly from a temporary allowance to a permanent injury benefit when, arising from the same injury or disease, he is first on leave of absence and subsequently retires from the service. Miss Laing for the defendant acknowledges that, in this particular case, the provisions do have the effect for the claimant which he has pointed out. She says that this anomaly, if such it be, is extremely rare. The regulations apply both to employees and to practitioners. Employees make up all bar 0.05% of those who are have claimed under the regulations. As a matter of common sense the vast majority of those who fall within the regulations, whether employees or practitioners, will find that they retire at a time when the rules, combined with entitlements to sick pay, do not give rise to any significant discrepancy between average remuneration for the purposes of Regulation 4(5) and 4(2). In any event, the fact is that the regulations do provide for average remuneration to be calculated by reference to different dates, dependingt on whether the allowance requires the cessation of employment or merely the commencement of reduction in emoluments. It is obvious that these will not result in identical calculations in all cases and in some cases, perhaps rare, the discrepancy will be significant. In my judgment the proper construction of the Regulations is clear. The claimant’s claim under 4(2) falls to be calculated by reference to the combined provisions of regulation 2(1)(b) and (iii). It therefore follows, in my judgment, that the claimant’s arguments fail and the defendant’s calculation of his allowance set out in the decision letter of 16 September 2004 is a lawful determination. The marginal difference between 1974 and 1995 Regulations As I have indicated above there is a difference between the 1974 and the 1995 regulations. As we have seen in relation to a practitioner, “average remuneration” is the yearly average of uprated earnings within the meaning of paragraph 11(2) of Schedule 2 to the Pension Scheme Regulations. That paragraph refers to a determination by the Secretary of State each year after consultation of the amount by which the earnings of a particular year are to be uprated. In the calculation carried out by the defendant the sums received by the claimant during the period of his leave of absence have been calculated by reference to the uprating percentage for the years in which the sums were received. Under the 1974 regulations the “average remuneration” in respect of a practitioner was to be carried out in accordance with regulation 13(5) of the National Health Service (Superannuation) Regulations 1980 which, in turn, refer to regulation 71(2) of those regulations. Regulation 71(2)(b) provides that sums received during a year in which no services were rendered shall be regarded as remuneration in the last year in which any services were rendered. This would have the effect, in the claimant’s case, that sums received during the last three years of his employment would be attributed, not to the years in which they were received, but to the last year in which he actually rendered any service. This would have the effect of increasing the sum deemed to have been received during that last year and, because it was deemed to have been received during an earlier year, the uprating fraction [“dynamising factor”] will be marginally higher. The sums involved in the claimant’s case during those three years were miniscule and the enhancement in the level of uprate in that last year as opposed to the preceding years is also minimal. Nonetheless, it is the case that had the 1974 regulations been applied, the claimant would have been marginally better off than is the case given that the 1995 regulations have been applied. As I have indicated above the amounts involved are so small that they can properly be described as de minimis but, in any event, for the reasons I have already given, the 1995 regulations are the proper regulations to have been applied and they have been applied correctly. Conclusion Therefore in conclusion the claimant’s application for judicial review fails. Friday, 10th December 2004

1. MR JUSTICE WILKIE: For the reasons set out in the judgment handed down today, the claimant's application for judicial review fails.

2. MR HAMER: My Lord, we have agreed a form of order.

3. MR JUSTICE WILKIE: Yes.

4. MR HAMER: We are happy with that. I do not know if it has come into your Lordship's hands yet.

5. MR JUSTICE WILKIE: (Handed) Thank you.

6. MR HAMER: The only issue being permission to appeal which obviously is in dispute.

7. MR JUSTICE WILKIE: Yes. Right.

8. MR HAMER: Can I just mention a couple of things? It does not affect your Lordship's judgment, but I think it a matter of courtesy and just sensible to mention it.

9. MR JUSTICE WILKIE: Yes, sure.

10. MR HAMER: My learned friend had a case of Brennan v Bolt Burdon . Your Lordship did not cite it in your Lordship's judgment, but, as the way of the world, the Court of Appeal reversed the learned judge and the decision appeared in Friday's Law Report after we finished last week. So there it is, I mention it, but I do not think my learned friend is going to invite you to change the judgment.

11. MR JUSTICE WILKIE: No.

12. MR HAMER: You did not mention Bolt Burdon . If you had mentioned it it might have been prudent. The only other matter I just mention, again I do not invite your Lordship to change your judgment, but as a matter of courtesy I should mention it, and that is that Dr Malekout tells me that it was on advice of his former solicitors that he did not accept any of the offers of payment.

13. MR JUSTICE WILKIE: Right.

14. MR HAMER: Be that as it may, I mention it.

15. MR JUSTICE WILKIE: Yes, on the record, thank you very much.

16. MR HAMER: On the record. The other matter is, he says, and again I have not considered it, he says that there was an affirmation by the NHS doctor in 96, shortly after the 95 Regulations came into effect, which he says would be sufficient "notice" under Regulation 23. I am not going to invite your Lordship to go through that issue again. It does not matter because your Lordship has found against me on the critical issue.

17. MR JUSTICE WILKIE: Exactly.

18. MR HAMER: So the rest of it is --

19. MR JUSTICE WILKIE: It was de minimis anyway.

20. MR HAMER: Well, I would not say de minimis , I would say subsidiary.

21. MR JUSTICE WILKIE: Yes.

22. MR HAMER: That is the position, so I --

23. MR JUSTICE WILKIE: I am sorry, such difference as there was disadvantageous between 95 and 74 was very much on the margins.

24. MR HAMER: I take your Lordship's point on that, yes. The main thing is that the two regulations were the same insofar as the critical date is concerned.

25. MR JUSTICE WILKIE: Correct, yes.

26. MR HAMER: I lost on that. Having lost on that the rest of it, in a sense, is arithmetic , de minimis or otherwise.

27. MR JUSTICE WILKIE: Yes.

28. MR HAMER: If I cannot get home on 87 then the calculations are small.

29. MR JUSTICE WILKIE: Yes.

30. MR HAMER: So I mention that. What I invite your Lordship to do is to make the order in the terms that my learned friend and I have agreed, subject to your Lordship's view on it. May I just invite your Lordship to grant me permission to appeal? I say that for this reason. This is not just a formal application to your Lordship, it is a quite serious one and I invite it for this reason: at the heart of this case it is the meaning of the words "average renumeration".

31. MR JUSTICE WILKIE: Yes.

32. MR HAMER: And the heart of this case is whether it is 87 or 90. That is a matter of pure construction of those regulations. It is plainly, as your Lordship courteously said, arguable for the purposes of getting permission to apply for judicial review.

33. MR JUSTICE WILKIE: Yes.

34. MR HAMER: I appreciate your Lordship has said you have come to a firm view of the construction, of course that is what your Lordship would come to, and any judge would come to, but I do say it is pure law. In relation to a matter of law it is a matter in which, in my submission, your Lordship should seriously consider granting permission to appeal in the same way as the learned judge in the other Malekout case, which was only an insurance policy. That was a pure issue of construction, the meaning of the word "condition" in a medical context in the policy, and he did in fact grant me permission to appeal. So it is --

35. MR JUSTICE WILKIE: I think successfully.

36. MR HAMER: Well, I was successful in the event. Yes, I was successful, but that in no sense detracted from the learned judge's judgment.

37. MR JUSTICE WILKIE: No, no.

38. MR HAMER: It is pure law on this issue of construction. It is a short point. It is a big point because, leaving aside the de minimis point, the figures are big. So I would ask your Lordship that.

39. The second reason is this: your Lordship effectively has recognised that we have here an anomaly in the sense that I use the word "anomaly", my learned friend recognised that, and your Lordship said it would be a rare case because you have 0.5 per cent and so on. It is a lacuna or anomaly, or whatever word you like to call it, and that is why we have had to come to the court. There is this lacuna in the regulations, and in fairness to all parties the construction has been in my favour, so to speak, on this issue for three or four years, and then against me, resiled from their construction in the last couple of years, on the big issue of 87 or 90, and that construction the Department recognised for 3½ years.

40. MR JUSTICE WILKIE: Are you simply asking for permission to appeal on the question whether the date is 1987 or 1990, or are you also asking for permission to appeal in respect of the other issue?

41. MR HAMER: I have drafted -- I can hand it up to your Lordship -- if your Lordship would bear to read it.

42. MR JUSTICE WILKIE: No, just tell me if both the issues --

43. MR HAMER: Both issues --

44. MR JUSTICE WILKIE: -- are canvassed.

45. MR HAMER: Yes, both issues, although it is fair to say that out of six paragraphs four of them are on the main point, but it is all on construction. As before, it is the two issues before us, it is all on construction. Therefore, in those circumstances it is law, and there is this situation, and I would invite your Lordship to grant me permission. One thing I would invite your Lordship to do, and I think there is no opposition on this, and that is, in any event, could you kindly give me a 7 day extension. The period is 14 days now from today which would mean any notice of appeal or application for permission to appeal must be in by Christmas Eve. My learned friend has very kindly said she is happy to extend that to 31st December which is 7 days. I assume Christian Khan will be working a few days in that week.

46. MR JUSTICE WILKIE: Yes, yes, thank you. Do you have any observations?

47. MISS LAING: My Lord, I resist my learned friend's application for permission to appeal. In my submission this is a question where if permission is to be granted it should be granted by the Court of Appeal. There are really two reasons for that. Firstly, your Lordship has reached a very clear view on the question of construction in this case, and, secondly, this case, although I accept one which is important to the claimant himself, is one which is very unlikely to recur in the sense that it is an almost unique case on its facts. For those reasons it would be my submission that if leave to appeal is to be granted it should be granted by the Court of Appeal itself.

48. Finally, if your Lordship is against me on that and leave to appeal were to be granted, I would submit it should be restricted to the issue of construction which your Lordship mentioned a moment ago.

49. MR JUSTICE WILKIE: The 1987 and 1990 and not the other point?

50. MISS LAING: Yes, my Lord, how one would characterise the other point.

51. MR JUSTICE WILKIE: Yes.

52. MISS LAING: Can I just, while I am on my feet, mention one point in relation to the draft order?

53. MR JUSTICE WILKIE: Yes, yes.

54. MISS LAING: The question of costs: I have not mentioned specifically in the draft the costs of the application before Munby J on 18th October. My understanding is that it is not necessary to mention those costs expressly, but they were reserved to the judge who heard the substantive application. So I thought I ought to mention them to your Lordship.

55. MR JUSTICE WILKIE: He was dealing with two judicial review applications, was he not?

56. MISS LAING: He was --

57. MR JUSTICE WILKIE: Putting to bed the fourth and --

58. MISS LAING: But my recollection is that he specifically said that the costs of that application should be reserved to whoever dealt with the substantive application.

59. MR JUSTICE WILKIE: You mean that application, that judicial review application, or --

60. MISS LAING: No, the costs of the application on that day.

61. MR JUSTICE WILKIE: On that day, yes. Well, I think they would be rolled up with these.

62. MISS LAING: Yes, that would be my understanding, but I thought I ought to mention that.

63. MR JUSTICE WILKIE: Mr Hamer?

64. MR HAMER: I agree with that, they get rolled up.

65. MR JUSTICE WILKIE: Perhaps that can be added to paragraph 3 for the avoidance of any doubt.

66. MR HAMER: Including the costs of --

67. MR JUSTICE WILKIE: What was the date of that?

68. MISS LAING: 18th October.

69. MR JUSTICE WILKIE: Yes, thank you. Well, for the reasons advanced by Miss Laing it seems to me that, notwithstanding the fact that this is a matter of construction, it is a matter where Mr Hamer should seek his permission to appeal from the Court of Appeal, but I will extend time for applying for permission by 7 days.

70. MR HAMER: I am grateful, my Lord. If we could say to 31st December 2004 to be on the safe side.

71. MR JUSTICE WILKIE: Extend time to apply for permission to Court of Appeal until 31/12/04.

72. Thank you both.