[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Marrion & Ors, R (on the application of) v Board of Medical Referees & Ors [2009] EWCA Civ 450 (06 April 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/450.html Cite as: [2009] EWCA Civ 450

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR MICHAEL SUPPERSTONE Q.C. sitting as a DEPUTY JUDGE OF THE HIGH COURT
LOWER COURT NOs: CO/4230/2007, CO/3221/2007, CO/3381/2007, CO/8987/2007

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/04/2009

Lord Justice Rix :

Introduction

1. This is an appeal concerning the Firefighters' Pension Scheme (the "Scheme"), as contained in schedule 2 to the Firemen's Pension Scheme Order 1992 as amended (the "amended 1992 Order"). An important amendment with which this judgment is, on one of its issues, concerned was introduced by the Firemen's Pension Scheme (Amendment) Order 2004 (the "2004 Order"). There were further amendments (although of only marginal relevance) in the Firefighters' Pension Scheme (Amendment) (England) Order 2005 (the "2005 Order").
2. The Scheme was originally brought into operation pursuant to powers granted to the Secretary of State for Local Government contained in section 26 of the Fire Services Act 1947 (the "1947 Act"). Notwithstanding the repeal of section 26 of the 1947 Act by the Fire and Rescue Services Act 2004 (the "2004 Act"), the Scheme continues in force pursuant to section 36 of the 2004 Act. The Secretary of State who continues to have responsibility for the Scheme is the Secretary of State for Communities and Local Government (the "Secretary of State").
3. With effect from 6 April 2006 the Firefighters' Pension Scheme (England) Order 2006 (the "2006 Order") established the New Firefighters' Pension Scheme. Nevertheless, by virtue of article 3 of the 2006 Order, the amended 1992 Order continues to have effect in relation to a person who, immediately before 6 April 2006, was a member of the Scheme or was in receipt of, or entitled to, a pension award under it.
4. Two issues have now arisen under the (old) Scheme which we are told are already affecting many firemen and are likely to affect many others in turn. I will refer to firemen and "he" and "him" purely for convenience, conscious that firefighters of both genders are concerned.
5. The two issues arise in the context of the cases of three firemen who are claimants in these proceedings, and are here appellants, namely Mr Martin Marrion, Mr Neil Burke and Mr Andrew Scott. Each of the appellants first obtained a medical opinion to the effect that he was permanently disabled, and then on appeal within the Scheme to a board of medical referees (the "Board"), was met by Board decisions that he was not permanently disabled. The Boards accepted that the appellants were permanently disabled to perform what might for the sake of convenience be described as the "operational" duties of an active firefighter, but decided that they were not permanently disabled for the purposes of the Scheme because they could perform non-operational duties. Thus a typical Board decision was in this form (issued in relation to Mr Marrion):

"5.5 The Board accepts that he would not be fit for operational firefighting because of his reduced hearing and because of his vulnerability to further hearing loss from noise exposure. However, even with his level of hearing loss, he would be fit for non-operational duties of his role as a regular fire-fighter. The expression "regular fire-fighter" is defined in the consolidated Firefighters' Pension Scheme 1992 Order as "…a whole or part time member of the Brigade other than a retained or volunteer member of the Brigade appointed on terms under which he is, or may be, required to engage in firefighting or, without a break in continuity of such an appointment, may be required to perform other duties as appropriate to his role as a fire-fighter (other than, or in addition to, engaging in firefighting) and whose appointment is not a temporary one." The duties of the role of fire-fighter are listed in the "Fire-fighter Role Map". He would be fit for FF1 "inform and educate your community to improve awareness of safety matters" and FF8 "contribute to safety solutions to minimise risk to your community."

5.6 Therefore, as the Appellant is medically fit to carry out some of the duties of his role as a fire-fighter instead of or in addition to firefighting, he cannot be deemed to be permanently disabled from the duties appropriate to his role according to the definition of a regular fire-fighter…"

6. The Boards in question came to their decisions that the three appellants were not permanently disabled, even though no non-operational work was in fact available for the firemen to do, as the Boards knew. The Boards' ultimate decisions were therefore theoretical, rather than a practical response to the nature of work available to the firemen. The consequence of these decisions was that the appellants had neither job nor pension. Even though they had been effectively dismissed on the ground of ill-health, they could not be regarded as formally retired on the ground of permanent disablement.
7. The two issues are said to be short points of construction but they have been argued with consummate intricacy. The first revolves around the single word "duty" in the phrase "disablement means incapacity…for the performance of duty" found in rule A10(2) of the Scheme. The appellants submit that "duty" refers only to the operational duties of an active firefighter, so that a fireman who is operationally disabled is entitled to be considered for ill-health and injury awards under the Scheme. The Secretary of State, as the respondent who has borne the burden of argument, however, submits that "duty" refers to all the duties of a regular firefighter as that term is now, since the amendment to the 1992 Order effected by the 2004 Order, to be found in the Scheme, so that it is only if a fireman is disabled from performing each and every such duty, operational and non-operational alike, that he can become entitled to an award under the Scheme. I shall call this issue the "duty" issue. (It has also been called the "construction" issue and was so described in the court and judgment below, but both issues are issues of construction.)
8. The second issue concerns the question whether, on an appeal from the medical opinion of an "independent qualified medical practitioner" (or "IQMP") to the Board, an appeal provided for by Part H and Schedule 9 of the Scheme and one which is only open to a fireman and not to a fire authority, the Board has jurisdiction to consider a medical issue which is different from that on which the fireman has appealed. Thus in these three cases the appellants did not appeal to the Board against the IQMP's finding of permanent disablement, but have appealed only against the IQMP's findings relating to injury (viz as to whether the fireman's injury amounted to a qualifying injury, that is to say an injury which would, in the event of permanent disablement, entitle the fireman to an "injury award" as well as to an "ill-health" award). The effect of the Board decisions in our three cases is that the Boards concerned never reached issues relating to an injury award because they decided that the three appellants had never become permanently disabled (in the sense discussed above) in the first place. Thus they addressed a medical issue which had never been expressly submitted to them by the fireman concerned. The Secretary of State submits that this does not matter because (a) the appeal is against the IQMP's "opinion" as a whole rather than against any specific medical issue within it; and (b) the medical issue of permanent disablement is prior to any issue as to a qualifying injury and the Board cannot be prevented from forming its own view as to permanent disablement. The appellants on the other hand point out that a fireman who wishes to appeal must set out "the grounds of the appeal" within 14 days of receiving the IQMP opinion (rule H2 and para 1(1) of Schedule 9) and that the Board is required to render its decision "on the relevant medical issues" (ibid para 6). This second issue has been called the "jurisdiction" issue.

The parties to the appeal

9. I have already introduced Messrs Marrion, Burke and Scott, the appellant firemen. The formal respondents are the three Boards who rendered decisions in their three cases. They have not been separately represented, but have been content to leave their representation to Ms Elisabeth Laing QC, who appears on behalf of the Secretary of State, who was joined as an interested party to the proceedings below and is the main respondent to the appeal.
10. Also joined as an interested party was the local fire authority in which the three appellants are enrolled, namely the London Fire and Emergency Planning Authority (the "Authority"). It is represented by Mr Richard Lissack QC. The Authority is the fire and rescue authority for Greater London pursuant to the provisions of the 2004 Act. It is the Authority which has to decide, in the light of the medical opinion of the IQMP, whether to retire a fireman on the ground of permanent disability. This is a discretion granted to the local fire authority by rule A15 of the Scheme. The Authority maintains a neutral stance to these appeals. However, Mr Lissack is anxious to press on the court the importance of guidance to the Authority (and other authorities) and IQMPs and Boards which is, if possible, capable of clear and practical application.

The essential structure of the Scheme

11. I shall set out below excerpts from the Scheme which are necessary to understand the arguments which have been placed before the court. For the present, I seek to give an overall view of the Scheme's essential structure, as a background to the two issues which the court has to resolve.
12. The Scheme applies to "regular firefighters" (rule A3), an expression which features throughout the Scheme. "Regular firefighter" is defined in Schedule 1's glossary of expressions. Before the amendments introduced by the 2004 Order, "regular firefighter" meant a permanent, whole-time, member of a brigade appointed on terms "under which he is or may be required to engage in fire-fighting". From 14 September 2004 it meant a member of a brigade appointed on terms "under which he is, or may be, required to engage in fire-fighting or…may be required to perform other duties as appropriate to his role as a firefighter (other than, or in addition to, engaging in firefighting").
13. The default position under the Scheme is that a deferred pension becomes payable from a fireman's 60^th birthday (rule B5). However, an "ill-health award" is payable to a regular firefighter who is required to retire under rule A15 (rule B3). Rule A15 is the rule under which a fire authority has a discretion to determine that a regular firefighter "ought to retire on the ground that he is permanently disabled". If a fireman is permanently disabled and has retired and his disability was occasioned by a "qualifying injury", then he is also entitled to an "injury award" (rule B4). On those hypotheses, such an award is a matter of right, not discretion. A qualifying injury is an injury received without the fireman's own default "in the execution of his duties as a regular firefighter" (rule A9). The amount of an injury award will depend on the "degree of disablement" (rule A10(3)).
14. However, a fire authority, before taking a decision to retire a fireman on the ground of permanent disability or on any other medical question relevant to the granting of any award, must first obtain the written opinion of an IQMP on such questions, viz whether a fireman is disabled, whether such disablement is likely to be permanent, whether such disablement has been occasioned by a qualifying injury and if so, the degree to which a fireman is disabled, etc (rule H1).
15. The opinion of the IQMP "shall be binding on the fire authority" (rule H1(2)). However, the fireman may appeal to a Board, provided he gives "written notice of his grounds of appeal" within 14 days of being supplied with the IQMP's written opinion. The fire authority is bound by "any decision on any issue" given by a Board on such an appeal (rule H2(3)).
16. Where a fireman under 60 is in receipt of an ill-health pension, a fire authority may consider whether he has become capable again "of performing the duties of a regular firefighter" (rule K1(1)). If the authority does so determine, then it may terminate the unsecured portion of the ill-health pension: however, if within one month of such termination, the fireman presents himself for service, then he shall be permitted to resume service and if he is not permitted the termination shall be deemed never to have taken effect (rule K1(4)).
17. This structure is set out in the following provisions of the Scheme:

"Interpretation

A2. (1) Part 1 of Schedule 1 to this Scheme contains a glossary of expressions…

Exclusive application to regular firefighters

A3. (1) Subject to paragraphs (3) and (4), this Scheme applies in relation to regular firefighters and their spouses and dependants…

Qualifying injury

A9. (1) Except in rule J4, references in this Scheme to a qualifying injury are references to an injury received by a person without his own default in the execution of his duties as a regular firefighter…

Disablement

A10. (1) References in this Scheme to a person's being permanently disabled are references to his being disabled at the time when the question arises for decision and to his disablement being at that time likely to be permanent…

(2) Subject to paragraph (3), disablement means incapacity, occasioned by infirmity of mind or body, for the performance of duty, except that in relation to a child it means incapacity, so occasioned, to earn a living.

(3) Where it is necessary to determine the degree of a person's disablement, it shall be determined by reference to the degree to which his earning capacity has been affected as a result of a qualifying injury; if, as a result of such an injury, he is receiving in-patient treatment at a hospital he shall be treated as totally disabled…

Compulsory retirement on grounds of disablement

A15. (1) Subject to paragraph (2), a regular firefighter may be required by the fire authority to retire on the date on which the authority determine that he ought to retire on the ground that he is permanently disabled.

(2) A retirement under this rule is void if, on an appeal against the medical opinion on which the fire authority acted in determining that he ought to retire the board of medical referees appointed under Part 1 of Schedule 9 decides that the appellant is not permanently disabled…

Ill-health award

B3. (1) This rule applies…to a regular firefighter who is required to retire under rule A15 (compulsory retirement on grounds of disablement).

(2) A person to whom this rule applies becomes entitled on retiring

(a) if he is entitled to reckon at least 2 years pensionable service or the infirmity was occasioned by a qualifying injury, to an ill-health pension calculated in accordance with Part III of Schedule 2, and

(b) in any other case, to an ill-health gratuity calculated in accordance with Part IV of Schedule 2.

Injury award

B4. (1) This rule applies to a regular firefighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury.

(2) A person to whom this rule applies is entitled –

(a) to a gratuity, and

(b) subject to paragraphs (3) and (4), to an injury pension,

both calculated in accordance with Part V of Schedule 2.

Deferred pension

B5…

(4) A deferred pension becomes payable

(a) from the 60^th birthday of the person entitled to it, or

(b) from any earlier date on which he becomes permanently disabled [for engaging in firefighting or performing any other duties appropriate to his former role as a firefighter].^[1]…

Child's special gratuity

…

D5…

(3) No allowance under this Part shall be paid in respect of a person who has attained the age of 17 unless -

(a) he is permanently disabled…

Pension contributions

G2. (1) A regular firefighter shall…pay pension contributions to the fire authority at the rate of 1p per week less than 11% of his pensionable pay…

Determination by fire authority

H1. (1) The question whether a person is entitled to any and if so what awards shall be determined in the first instance by the fire authority.

(2) Subject to paragraph (3), before deciding, for the purpose of determining that question or any other question arising under this Scheme –

(a) whether a person has been disabled,

(b) whether any disablement is likely to be permanent,

(c) whether any disablement has been occasioned by a qualifying injury,

(d) the degree to which a person is disabled,

(e) whether a person has become capable of performing the duties of a regular firefighter, or

(f) any other issue wholly or partly of a medical nature,

the fire authority shall obtain the written opinion of an independent qualified medical practitioner selected by them and the opinion of the independent qualified medical practitioner shall be binding on the fire authority…

(3) If by reason of the person's refusal or wilful or negligent failure to submit to medical examination by the practitioner selected by them the authority are unable to obtain the opinion mentioned in paragraph (2), they may –

(a) on such other medical evidence as they think fit, or

(b) without medical evidence,

give such decision on the issue as they may in their discretion choose to give.

Appeal against opinion on a medical issue

H2. (1) Where –

(a) an opinion of the kind mentioned in H1(2) has been obtained, and

(b) within 14 days of his being notified of the fire authority's decision on the issue the person concerned applies to them for a copy of the opinion,

the authority shall supply him with a copy, together with a statement informing the person concerned that, if he wishes to appeal against the opinion, he must give the authority written notice of his grounds of appeal, together with his name and address, within 14 days of the date on which he is so supplied.

(2) If the person concerned is dissatisfied with the opinion which has been supplied to him under paragraph (1), he may appeal against it by giving notice to the fire authority in accordance with paragraph 1 of Part 1 of Schedule 9.

(3) A fire authority shall be bound by any decision on any issue referred to in sub-paragraphs (a) to (f) of rule H1(2) duly given on an appeal under this rule.

(4) Further provisions as to appeals under this rule are contained in Part 1 of Schedule 9…

Cancellation of ill-health and injury pensions

K1. (1) As long as a person –

(a) is in receipt of an ill-health pension, and

(b) would not, if he had continued to serve as a regular firefighter instead of retiring with an ill-health pension, have become entitled to retire with an ordinary pension, and

(c) if he had continued so to serve, could not have been required to retire on account of age,

the fire authority may, if they wish to exercise the powers conferred by this rule, consider, at such intervals as they in their discretion think proper, whether he has become capable of performing the duties of a regular firefighter…

(3) If on any such consideration it is found that he has become capable of performing the duties of a regular firefighter, the authority may terminate the unsecured portion of his ill-health pension…

(4) If within one month after the termination…he presents himself for service in the brigade –

(a) the fire authority shall permit him to resume service forthwith in a rank not lower than the rank he held when he retired with his pension, and

(b) if they do not, the termination…shall be deemed never to have taken effect…

Reassessment of injury pension

K2. (1) Where a person is in receipt of an injury pension the fire authority shall, at such intervals as they think fit, consider whether the degree of his disablement has substantially altered; if they find that it has, the pension shall be reassessed accordingly…

SCHEDULE 1

INTERPRETATION
PART 1

GLOSSARY OF EXPRESSIONS…

"Regular firefighter" In relation to any time before 1^st March 1992, the expression means a regular fireman as defined in article 2 of the 1973 Scheme. In relation to any time after 29^th February 1992 but before 13^th September 2004, the expression means a whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting whose appointment is not a temporary one. [In relation to any time after 13^th September 2004 [and before 1^st October 2004]^[2], the expression means a whole-time or part-time member of a brigade, other than a retained or volunteer member of a brigade, appointed on terms under which he is, or may be, required to engage in fire-fighting or, without a break in continuity of such an appointment, may be required to perform other duties as appropriate to his role as a firefighter (other than, or in addition to, engaging in firefighting) and whose appointment is not a temporary one.]^[3] [In relation to any time on or after 1^st October 2004, the expression means a person who is employed (a) by a fire and rescue authority (whether whole-time or part-time), other than as a retained or volunteer firefighter, and (b) on terms under which he is, or may be, required to engage in fire-fighting, or, without a break in continuity of such employment, may be required to perform other duties appropriate to his role as a firefighter (whether instead of, or in addition to, engaging in fire-fighting) and whose employment is not temporary.]^[4]…

SCHEDULE 9

APPEALS

PART 1

APPEAL TO BOARD OF MEDICAL REFEREES

1. (1) Subject to sub-paragraph (2), written notice of appeal against an opinion of the kind mentioned in rule H1(2) stating –

(a) the grounds of the appeal, and

(b) the appellant's name and address,

must be given to the fire authority within 14 days of the date on which he is supplied by them with a copy of the opinion…

2. (1) On receiving a notice of appeal the fire authority shall supply the Secretary of State with 2 copies of the notice and 2 copies of the opinion.

(2) The Secretary of State shall refer an appeal to a board of medical referees ("the board") and shall supply them with a copy of the notice and a copy of the opinion.

2A. (1) The board shall consist of not less than three medical practitioners appointed by, or in accordance with arrangements made by, the Secretary of State.

(2) One member of the board shall be a specialist in a medical condition relevant to the appeal…

4. (1) subject to sub-paragraph (4), the board –

(a) shall interview and medically examine the appellant at least once, and

(b) may interview or medically examine him or cause him to be interviewed or medically examined on such further occasions as the board thinks necessary for the purpose of deciding the appeal…

6. The board shall supply the Secretary of State with a written report of its decision on the relevant medical issues…

8…

(3) Where the board –

(a) decides in favour of the appellant, and

(b) does not otherwise direct,

The fire authority shall refund to the appellant the amount specified in sub-paragraph (4)…

9. The amount is the total of –

(a) any personal expenses actually and reasonably incurred…"

The three appellants

18. A full history of the cases of the three appellants before the fire authority, the IQMPs and the Boards is contained in the judgment of Mr Michael Supperstone QC sitting as a deputy high court judge, at paras 9/47. In sum, the cases are as follows.

Mr Marrion

19. Mr Marrion was born on 23 November 1956. On 10 September 1979 he was appointed a fireman on terms under which he was required to engage in firefighting. With effect from 5 October 2005 he was assigned to the role of firefighter and his job description was the Firefighter Rolemap. (Further details of this new contractual provision are explained at paras 54 and 56 below). On 27 February 2004 the brigade medical adviser advised the Authority that he was suffering bilateral noise related hearing loss and was approaching the threshold at which he would have to be retired. The Authority informed him that it was not possible to redeploy him on comparable terms and conditions of employment in some other appropriate role. His case was therefore referred to an IQMP, Dr Glyn Evans, for consideration of ill-health retirement.
20. On 16 September 2005 Dr Evans issued an interim certificate confirming his opinion that Mr Marrion was permanently incapable of working as a firefighter on account of his hearing loss, but stating that he required further information to determine whether the hearing loss amounted to a qualifying injury, and if so, the degree to which such an injury contributed to the overall disablement. Mr Marrion did not appeal against that opinion of permanent disablement.
21. Thereupon the Authority exercised its rule A15 discretion to require Mr Marrion to retire on the ground of permanent disablement. On 12 October 2005 the Authority wrote to Mr Marrion, recognising his intention not to appeal and informing him of its decision that, following 12 weeks' notice, his last day of service would be on 4 January 2006. On his retirement Mr Marrion received an ill-health pension.
22. In the meantime on 30 November 2005 Dr Evans had produced a further certified opinion stating that the hearing loss was suffered, without Mr Marrion's own default, in the execution of his duties as a regular firefighter, thus amounting to a qualifying injury, and that the contribution of that injury to his disablement was 65%. Dr Evans also stated that, although Mr Marrion was disabled from engaging in firefighting, he was not disabled from performing the duties of a regular firefighter additional to engaging in firefighting and was capable of undertaking light manual work, outside activities and office based training and administrative work.
23. In the light of this further opinion, the Authority assessed Mr Marrion's degree of disablement, in accordance with the table at Part V of Schedule 2 of the Scheme, and Mr Marrion became entitled to an injury pension accordingly.
24. Mr Marrion appealed to a Board in respect of that part of Dr Evans' further opinion which apportioned only 65% of his disablement to the qualifying injury. Prior to his appeal hearing he received from the Board a document entitled "Guidance Notes to Appellants and Fire and Rescue Service Representatives" ("Guidance Notes to Appellants"). This document did not have statutory force, but reflected the practice on appeal to a Board based on the applicable provisions of the Scheme in Part H and Schedule 9. Under the heading of "Administrative Process Relevant to the Appeal" appeared the requirement of the Board for a letter from the Secretary of State "stating the Question to be addressed by the Board" (at para 3(ix)). Under the heading "The Hearing Process" the document noted that among the hearing's "key stages" was the reading out by the Chairman of "the Question to be addressed as provided by DCLG" (at para 5.3.3). The Guidance Notes continued (at para 5.3.11):

"The purpose of the medical examination is to obtain medical information to assist the Board in addressing the Appeal Question…"

25. The procedure of identifying the appeal question is also written into the contract between the Secretary of State's Department (the "DCLG") and BUPA Wellness for the provision of regional boards of medical referees: see para 6 "for firefighters the correspondence will confirm the question to be addressed and that the appellant and authority has been notified accordingly".
26. Mr Marrion's hearing before the Board took place on 9 February 2007, by which time he had been more than two years retired. The appeal question in his case, which the Board's report stated had been read out by the Chairman, was: "To calculate the degree of disablement arising from the incapacity described by the Independent Qualified Medical Practitioner as "hearing loss"." The Board included "a specialist in a medical condition relevant to the appeal" (see Schedule 9, para 2A(2)) in the person of Dr Palaniappan, a consultant neuro-otological physician. His opinion, recorded in the Board's report, was that with appropriate rehabilitation (he mentioned hearing aids, lip reading classes, communication strategies and hearing tactics) Mr Marrion could be employed in many occupations that do not involve much background noise. The Board did not address the appeal question at all, but rather concluded that, as Mr Marrion was medically fit to carry out some, non-operational, duties of a firefighter, therefore he could not be regarded as permanently disabled; and therefore the question of the degree of disablement did not arise.
27. The Board's decision was recorded in the following passages of its report:

"5.5 The Board accepts that he would not be fit for operational firefighting because of his reduced hearing and because of his vulnerability to further hearing loss from noise exposure. However, even with his level of hearing loss, he would be fit for the non-operational duties of his role as a regular fire-fighter…The duties of the role of fire-fighter are listed in the "Fire-Fighter Role Map". He would be fit for FF1 "inform and educate your community to improve awareness of safety matters" and FF8 "contribute to safety solutions to minimise risk to your community".

5.6 Therefore, as the Appellant is medically fit to carry out some of the duties of his role as a fire-fighter instead of or in addition to fire-fighting, he cannot be deemed to be permanently disabled from the duties appropriate to his role according to the definition of a regular fire-fighter. The Board felt that his hearing difficulty could be improved with appropriate measures, such as hearing aid, lip reading and assistive listening devices.

5.7 As he cannot be deemed to be permanently disabled from carrying out the duties appropriate to his role as a fire-fighter, there is no basis to consider a degree of disablement percentage…

7.1 The Board concluded that the Appellant is not permanently disabled from performing the duties appropriate to his role as a fire-fighter other than, or in addition to, engaging in fire-fighting.

7.2 There is therefore no basis to consider calculating degree of disablement."

Mr Burke

28. Mr Burke was born on 31 July 1960. He joined the London Fire Brigade on 17 August 1981 as a fireman on terms under which he was required to engage in fire-fighting. In October 2004 he was promoted to Sub-Officer, a post combining operational duties with managerial responsibility for firefighters and crew managers. Subsequently with effect from 5 October 2005 he was assigned to the role of Watch Manager "A" and his job description was the Watch Manager Rolemap.
29. He suffered several traumas to his right knee in the course of his fire service. On 20 September 2005 the Authority wrote to him, following an assessment carried out by a brigade medical adviser, to the effect that his knee function was such as to prevent him from carrying on his operational role. Redeployment was not currently a realistic option. It was therefore proposed to pass his case to an IQMP for consideration of ill-health retirement.
30. On 2 March 2006, the IQMP in his case, Dr William Freeland, certified his opinion that Mr Burke's degenerative knee condition rendered him permanently disabled from performing the duties of a regular firefighter, but that his condition had not been occasioned in the execution of his duties. Mr Burke appealed to a Board only against that last opinion relating to whether or not he had suffered a qualifying injury. On 16 March 2006 the Authority informed Mr Burke that it had exercised its rule A15 discretion to retire Mr Burke on the ground of permanent disablement, and that, at his request, his final day in service would be 31 March 2006.
31. Mr Burke's appeal to the Board was heard on 9 January 2007. The Board's report referred to the appeal question in his case as being: "whether the incapacity described by the Independent Medical Qualified Practitioner as 'degenerative changes in R knee, anterior cruciate deficiency' has been occasioned by a qualifying injury". In the course of the hearing Mr Burke was examined by the Board's specialist member, Mr JAD Vanhegan, a consultant orthopaedic surgeon. The Board's report agreed with the IQMP, Dr Freeland, that Mr Burke was permanently disabled for the purposes of operational duties, but disagreed with him as to whether the knee condition had occurred in the execution of Mr Burke's duties: in its opinion, it had. However, the Board's ultimate decision was, again, that because Mr Burke remained fit to perform non-operational duties, he could not be considered to be permanently disabled. It concluded in section 7:

"1. The Appellant is not fit to undertake operational fire-fighting duties, but he is not permanently disabled from performing other duties appropriate to his role.

2. Therefore there is no basis to consider whether the Appellant has suffered a Qualifying Injury."

Mr Scott

32. Mr Scott was born on 1 June 1962 and was appointed a fireman by the London Brigade on 5 October 1981. With effect from 5 October 2005 he was assigned to the role of firefighter and his job description was the Firefighter Rolemap. He suffered from problems to his knees, neck and back. On 16 June 2005 the Authority informed Mr Scott that in the view of its medical adviser he was not operationally fit. As redeployment on comparable terms and conditions was currently not an option and there were no other appropriate roles for him on his current terms and conditions, he was asked to agree to be considered for ill-health retirement. He agreed, and on 16 September 2005 the IQMP, Dr Freeland again, certified his opinion that he was permanently disabled but that there was no qualifying injury.
33. The Authority exercised its discretion under rule A15 to require Mr Scott to retire with effect from 30 December 2005 on the ground of permanent disability. Mr Scott did not appeal against Dr Freeland's opinion in that respect, but only so far as he had considered that there was no qualifying injury. His notice of appeal was confined to the issue as to whether his back condition was caused by service injuries. The appeal question was: "Whether the incapacity described on Form H1 by the Independent Qualified Medical Practitioner as 'Mechanical back pain and bilateral knee pain with associated degenerative change', has been occasioned by a qualifying injury".
34. The hearing before the Board took place on 5 December 2006. Mr Scott was examined by the specialist member, who was again Mr Vanhegan. The Board reported that the degenerative changes in Mr Scott's back were not related to his work and he "had not suffered a qualifying injury". Although those changes rendered him unfit for operational duties, he was not unfit for other duties appropriate to his role as a regular firefighter. "In the absence of permanent incapacity he cannot be considered to have suffered a qualifying injury". His appeal was therefore dismissed.

The consequences

35. In sum, all three Boards confirmed the respective IQMPs' opinions that the appellants were permanently disabled from performing operational duties but nevertheless dismissed their appeals on a ground on which the appellants had never appealed, namely whether they suffered permanent disablement, and by virtue of a matter which had never been in issue, namely whether they could perform some other non-operational duties. In the event, the Boards' decisions were premised on a legal issue, not by reason of any medical disagreement with the IQMPs' opinions. Moreover, the Boards came to their decisions despite, as is common ground, knowing from the relevant correspondence that the ability to perform non-operational duties was theoretical only, because the Authority had no such non-operational employment available for the appellants. On this basis, these were cases of "no job, no pension".
36. As for the issues which the appellants had put to their Boards: (a) in Mr Marrion's case, his issue of the degree of disablement due to his qualifying injury was never considered, because it became irrelevant in the absence of permanent disablement; (ii) in Mr Burke's case, his issue of whether he had suffered a qualifying injury was similarly never reached, even though the Board expressed disagreement with the IQMP as to whether his knee trouble had occurred in the execution of his service by finding that it had: thus Mr Burke succeeded at least in part on his appeal issue, but nevertheless failed in his appeal; and (iii) in Mr Scott's case, the Board incidentally decided that there was no qualifying injury in any event, while again concluding that the question did not really arise.
37. On 10 July 2007 the Authority suspended the appellants' pensions with immediate effect. In the meantime, the appellants had issued their first judicial review proceedings, referred to below as "Wave 1", designed to quash the Boards' decisions but also to obtain declaratory relief on the duty and jurisdiction issues before the court. In response to the suspension of their pensions and the Authority's decision not to restore them pending the resolution of the "Wave 1" claims, the appellants launched further proceedings seeking judicial review of the Authority's decisions to suspend their pensions. This second set of proceedings was referred to below as "Wave 2".
38. On 29 November 2007 the Secretary of State accepted that the decisions of each Board must be quashed on the grounds that they were taken in breach of the rules of natural justice. This was because it was recognised that the appellants had had no warning that their limited appeals, relating only to matters concerning qualifying injuries, might imperil the Authority's decisions, in the light of the IQMP opinions as to their permanent disablement, to retire them on the ground of permanent disablement.
39. The Secretary of State continued in her resistance to both sets of proceedings, and succeeded in both before the judge. The appellants' appeals in respect of the "Wave 2" proceedings, however, were compromised shortly before the hearing before us. We are therefore concerned only with the remaining "Wave 1" issues, which would inform any further Board hearings in the case of these appellants, and all pending and future cases under the Scheme.

The practical, jurisprudential and legislative contexts of the duty issue

40. Prior to the amendments to the Scheme introduced by the 2004 Order there were disquiet and litigation as to whether a combination of the definition of "regular firefighter" (then emphasising the role of operational firefighting as central), and of the structure of a fireman's contract of employment, had unfortunate consequences in that too many firemen were being lost to the service by reason of permanent disablement from operational duties.
41. One difficulty was the narrow pre-2004 definition of "regular firefighter" as a brigade member appointed on terms "under which he is or may be required to engage in fire-fighting". Another difficulty was that the old contracts of employment contained no "flexibility clause" allowing the fire authorities to retain firemen in different non-operational roles. The result was that a fireman who was permanently disabled from operational firefighting could not be retained or remain a member of the then Scheme and would need to be retired on grounds of ill-health.
42. This issue came to a head in litigation in the case of R v. West Yorkshire Fire and Civil Defence Authority ex p McCalman and Lockwood (CA, 30 June 2000, unreported) ("McCalman"). This court there concerned itself principally with two inter-related issues (see para 31). One was "(1) Does a regular firefighter have to be concerned directly with fighting fires?" The other was, "(3) Does the "performance of duty" in the definition of disablement in Rule A10(2) refer to all the firefighter's duty or to the principal or core duties of a firefighter?" The answers given by this court to those two questions were: (1) Yes, and (3) Only the principal or core duties. Both sides to the current appeal rely on the reasoning.
43. Two background points may be noted. First, Peter Gibson LJ referred to the high contribution level of 11% of salary. He said:

"10…The contribution rate is notably high. It can be contrasted with the 6% contribution rate which other employees of the fire authority, such as control staff and non-operational staff, pay to the Local Government Pension Scheme. It is not in dispute that the Scheme operates not only as a pension scheme but also as an insurance scheme. Its benefits are generous. The generosity of its benefits reflects both the significant monetary contributions made by the regular firefighters and the fact that they are engaged in a hazardous occupation in serving the public."

Secondly, he referred to the contractual position as follows (at paras 23/26). Standard terms and conditions incorporated the Scheme of Conditions of Service (known as the "Grey Book"). This distinguished between operational staff, control staff and non-operational staff. Only regular firefighters fell into the former. Moreover there was no flexibility clause which might have allowed the authority to change job descriptions. Mr Lockwood complained that he had been transferred to light duties comprising clerical, fire safety, training and equipment maintenance, but that he felt outcast and dissatisfied and "I cannot call myself a firefighter because I can no longer fight fires". But it was also recognised that the Grey Book provided that the responsibilities of a qualified firefighter went beyond the principal duties of fighting fires and attendance at emergencies (at para 32).

Against that background, Peter Gibson LJ answered issue (1) as follows:

33. To my mind it is clear beyond argument that the Scheme distinguishes between those who are, or may be, required to engage in fire-fighting and those who are not…The rationale for the high contributions and generous benefits under the Scheme is that the regular firefighters are exposed to hazards in the course of their duties (recognised in the definition of qualifying injury in Rule A9)…That the Scheme is limited to those who are concerned directly with fighting fires is consistent with the 1947 Act, the Discipline Regulations and the Appointment Regulations. It is also consistent with the contractual documents."

44. Peter Gibson LJ thus adopted the reasoning of Burton J at first instance (4 May 1999, unreported) who said (at page 24 of the transcript) that when firefighters ceased, because they were operationally disabled, to be regular firefighters, they "ceased to be members of the Scheme".
45. Turning to issue (3) ("Duty"), Peter Gibson LJ reasoned the matter as follows:

"40 … I cannot see how the Authority's construction of the meaning of "duty" in Rule A10(2) accords with the structure of the Scheme. It would be absurd if a firefighter who was so disabled as to be incapable of firefighting could not be treated as disabled merely because he was capable of performing some other duties which in themselves are not characteristic of a firefighter. As the table in Part V of Sch 2 shows, it is contemplated that a person may be permanently disabled for the purposes of the Scheme even though his disablement is measured as 25% or less, and it is highly improbable that those with a slight disablement would be incapable of performing some of the duties of a firefighter other than firefighting. Like the judge I regard Rule K1(3) as significant, as being the mirror image of Rules A10(2) and A15, and the reference in Rule K1(3) to the recipients of the ill-health award becoming capable of performing the duties of a regular firefighter must reflect what was intended in Rule A10(2) by "incapacity…for the performance of duty" which led to the ill-health award… The judge rightly explained why Rule A10(2) was worded as it was rather than referring to the performance of the duties of a firefighter. As he pointed out, Rule A10(2) is not a definition clause leading on only to Rules A15 and B3, but it defines disablement for the purposes of all other Rules, including Rule B4 and its mirror image K2 and the table in Part V of Sch 2. Further, incapacity for the performance of duty must mean something different from incapacity to earn a living, the expression found in the latter part of Rule A10(2) in relation to a child."

46. Thus Peter Gibson LJ determined the "duty" issue as a matter of construction essentially on the same basis as the first issue, at the same time looking more widely at provisions of the Scheme as a whole. He went on to refer not so much to principal or core duty, as to the "essential duty of firefighting" (at para 41), in this respect taking support from this court's decision in R v. Sussex Police Authority, ex parte Stewart [2000] ICR 1122. In Stewart this court held that a police constable who was disabled from performing the essential operational functions of his office was disabled "for the performance of his duty" (Rule A20 of the Police Pensions Regulations). Those Regulations also defined disablement as inability to perform "the ordinary duties" of a member of the force (Rule A12(1)).
47. In McCalman Hale LJ agreed, although it might seem that it was sufficient for her purposes that a regular firefighter's duty "included" firefighting, as it plainly did (at para 52). She appears to have taken a pragmatic view of the matter, on the basis that "it is obviously necessary that the brigade have power compulsorily to retire those appointed as fire-fighters who are no longer capable of fighting fires" (at para 54). She had taken the analogous view of the position in the police force in Stewart, where she had been a member of the court. She continued to express her approval of Simon Brown LJ's policy approach there, which she considered applied also to the case of firemen, where he had said (at 1132B):

"Secondly, I see no good reason why [the police constable's] construction should not be preferred as a matter of policy. I simply cannot accept [the police authority's] submission that, on this approach, police officers are in a position to exploit the regulations to their advantage. Regulation A20 manifestly vests in the police authority a discretion whether or not to enforce retirement on the grounds of disablement. A combination of the words "may" and "ought" in the Regulation make plain that it is they who can compulsorily retire the officer, not he who can compel them to do so. So far, therefore, from police officers being able to exploit the Regulations, the construction I favour would allow the police authority to retain any officer they wish to retain and at the same time enable them to ensure that they have as many fully fit officers as the force requires, for example in times of emergency."

48. May LJ agreed with both judgments.
49. Whether or not that policy ground continues to hold good at any rate in the case of the fire service, it would seem from the submissions which have been addressed to us that the matter is more complicated than as presented by Simon Brown and Hale LJJ. If it is a sufficient condition of permanent disablement for the purposes of rule A10 that a fireman is disabled from operational firefighting alone, then it is close to common ground before us that the Authority would have no room to refuse retirement on the ground of ill-health under its discretion within rule A15 where (a) there were in practice no other role duties to which the Authority could redeploy a fireman or (b) if there were, the fireman could legitimately decline on the ground that his contract did not allow for such role reassignment.
50. It was to attempt to address problems such as these that the 2004 Act and the 2004 Order recast the role of firemen and the definition of a "regular firefighter"; and the Grey Book was amended by way of corollary. The road to these changes was as follows. Shortly after McCalman HM Treasury published a Review of Ill Health Retirement in the Public Sector. Among its recommendations were that authorities administering pension schemes should remove restrictions on membership which were linked to the performance of specific duties and that employers should consider whether an employee is capable of performing alternative work when an application for ill-health retirement is made. About the same time HM Fire Service Inspectorate published "Fit for Duty? Seeking a healthier fire service" which looked at similar issues. Then, as a result of McCalman the DCLG (or its predecessors) began to consider whether the Scheme should be amended. It did so in consultation with the Pensions Sub-Committee (the "PSC") whose members included representatives from the Department, the Fire Brigades Union, the Local Government Association and others. A Fit for Duty Implementation Task Force was established. In the meantime a Treasury target to reduce ill-health retirements was set.
51. An October 2002 paper produced by DCLG proposed redefining "regular firefighter" on the ground that the current definition failed to recognise the range of roles which firemen might be required to perform in addition to operational firefighting. On 9 October 2002 a meeting of the PSC which had discussed the paper noted support for the recommendation for the revision of the definition of the role of the firefighter, "as firefighters are now expected to undertake a wider role within the community".
52. An Independent Review of the Fire Service was set up in 2002, which was chaired by Professor Sir George Bain (the "Bain Review"). Its conclusions were published in December 2002. The Bain Review identified the then scheme as part of a set of structures that reinforced inflexibilities and discouraged modernisation and reform. It recognised that the scheme was not designed to accommodate a diverse workforce or flexible working patterns and included incentives, such as the ill-health retirement benefits, which meant that firemen were taking retirement when they still had much to offer. It anticipated a new scheme (that has now come), but also recommended change to the existing scheme –

"9.10 Some of these changes could be accomplished within the existing pension scheme. For example, the Central Fire Brigade's Advisory Council has already agreed to broadening the definition of "regular" firefighter to cover roles wider than operational firefighting and to strengthen the provision of independent medical advice and the qualifications required in providing that advice. We recommend that action should be taken on the existing draft proposals within the next 6 months."

53. There followed a White Paper, entitled "Our Fire and Rescue Service". It too referred to the current pension scheme as being part of the structure which reinforced inflexibility in the fire service (para 8.17) and adopted the proposal to broaden the definition of "firefighter" to allow a wider range of firemen to remain in the pension scheme.
54. At about the same time, in June 2003, a pay and modernisation agreement between the Fire Brigades Union and the employers (the local authorities) introduced the concept of "Rolemaps". This was part of the move "from rank to role". The Rolemaps broadened the duties to be undertaken by all firefighters and provided a basis on which an amendment to the definition of "regular firefighter" could be made. The move from rank to role was formalised by the Fire Service Appointments and Promotions Regulations 2004. It meant that firefighters were no longer expected to be capable only of fighting fires but had a contractual obligation to perform wider duties.
55. The role of the fire and rescue authorities is now set out in the 2004 Act, well described by the judge at para 63 of his judgment:

"Part II of the 2004 Act is headed "Functions of the Fire and Rescue Authorities". Sections 6 to 9 appear under the heading "Core Functions". A fire and rescue authority is now under a duty to make provision for the purpose of promoting fire safety in its area (section 6); for the purpose of extinguishing fires in its area and protecting life and property in the event of fires in its area (section 7); for the purpose of rescuing people in the event of road traffic accidents and protecting people from serious harm in the event of such accidents (section 8); and for the purposes of responding to certain emergencies set out in the Fire and Rescue Services (Emergencies) (England) Order 2007 (section 9). The role of a fire and rescue authority is accordingly no longer confined merely to fighting fires, but also extends to other core functions."

Thus section 6 now requires authorities to make provision for community fire safety. This has given the authorities the opportunity and the responsibility to create jobs which can be suitable for those no longer able to fight fires.

56. At the same time the role of the firefighter was addressed and broadened in the 2004 Sixth Edition of the Grey Book and the nationally agreed rolemaps. These set out detailed provisions for the various elements of a firefighter's role map, eg Unit FF1 ("Inform and educate your community to improve awareness of safety matters"), Unit FF7 ("Support the development of colleagues in the workplace"), and Unit FF8 ("Contribute to fire safety solutions to minimise risks to your community"). As the Grey Book now stated at Section 3.6:

"Fire and rescue authorities can require any reasonable activity to be carried out by an individual employee within his or her role map."

57. The proposed change to the definition of "regular firefighter" was achieved by para 26(a) of the Schedule to the 2004 Order. An Explanatory Memorandum was laid before Parliament to explain the various changes. The section on "Policy Background" provided as follows:

"7.1 Changes to the Firemen's Pension Scheme (the "FPS") are needed to meet commitments made in the White Paper "Our Fire and Rescue Service" (Cm 5808) in relation to ill-health retirement. These changes are as follows:

• To broaden the definition of "firefighter" to allow a firefighter, who is no longer fit enough to engage in operational duties, to remain in the FPS rather than be retired with an ill-health pension. Such firefighters could be redeployed on a range of other duties, including community safety. The current definition is one of the causes of the high level of ill-health retirements amongst firefighters.

• To place an obligation on Fire and Rescue Authorities to use independent medical assessment before approving ill-health retirements."

At para 8.2 the Explanatory Memorandum continued, under the heading "Impact":

"The impact on the public sector is that it will increase the flexibility available to fire and rescue authorities to employ regular firefighters on part-time duties, and allow them to retain in service staff who, whilst not fit for operational duties, are capable of doing other appropriate work…"

58. There have followed over the years a series of changing guidance documents from the Department on the effect of the change in the definition of "regular firefighter". The Fire and Rescue Service Circular 30-2004 dated 1 September 2004 (the "2004 guidance") stated:

"Annex B

GUIDANCE ON IMPLEMENTING KEY CHANGES

(a) Amendment to the definition of "regular firefighter"…

Eligibility for full membership of the FPS is limited to regular firefighters only. The definition of "regular firefighter" includes a requirement to engage in firefighting. This remains a term of eligibility for joining the FPS. However, the definition has been amended to allow a firefighter who subsequently becomes permanently disabled for firefighting while remaining fit for other related duties to continue as a member of the FPS. This is on condition that there has been no break in service. Consequently, if a FRA are of the view that the retention of a firefighter would be of value to the service, redeployment to other duties, as appropriate to the role of a firefighter, should be considered and would be allowable under FPS rules. If the FRA cannot offer other employment, fitness to perform other duties would not be relevant and the person may be retired with an ill-health award."

59. This was the guidance in place at the time when the IQMPs in the present three cases were rendering their opinions and when the Authority concluded that it would require, in the absence of available redeployment, retirement on the ground of permanent disablement.
60. However, on 4 September 2006, fresh guidance emerged in the form of Firefighters' Pension Scheme Circular 11/2006 (the "2006 guidance"). Its title is "The Firefighters' Pension Scheme – guidance on the definition of "regular firefighter"". It said that the 2004 guidance had been revised. No reason was given other than that the following "more accurately reflects the provisions of the FPS":

"Eligibility for full membership of the FPS is limited to regular firefighters only. The definition of "regular firefighter" includes a requirement to engage in firefighting and to perform other duties as appropriate to his role as a firefighter (other than, or in addition to, engaging in firefighting). The test in assessing whether a regular firefighter ought to retire on the grounds that he is permanently disabled under Rule A15 is whether he is permanently disabled for firefighting and for performing other duties appropriate to the role."

61. This was the guidance in place at the time when the Boards considered the three appellants' appeals to those Boards. It has generally been considered that this guidance reversed the 2004 guidance. That is how the Boards, who plainly had this guidance in mind when they decided the appeals, obviously regarded the matter. They were entitled to think so, seeing that the 2006 guidance is entitled "guidance on the definition of "regular firefighter"". I am not so sure, however, that the author of this document, and thus the Boards themselves, did not misunderstand the matter: for the 2006 guidance is written in terms of an authority's discretion under A15 (which is expressly referred to and from which the phrase "ought to retire" derives) rather than the test for permanent disablement under rule A10 (which the Boards considered themselves entitled to apply). Thus, while the 2004 guidance looks to the test under rule A10, and suggests a doctrine of fitness relevant to the duty required, the 2006 guidance looks rather to the authority's discretion under rule A15 and leaves open what the test under rule A10 is. It would follow, however, that if the test for the purposes of rule A10 were that adopted by the Boards and advanced by the Secretary of State in the present proceedings, then, save in the rare case where a fireman were wholly disabled from all possible roles, the authority would never reach its discretion under rule A15 because the medical referees would nearly always find that there had been no permanent disablement. If, however, the test for the purposes of rule A10 were that advanced on behalf of the appellants here, then a finding of permanent disablement from performance of operational duties would still leave an authority with the discretion of deciding whether they wanted the fireman to remain performing some other role within his contract – for which however he might or might not be fit. So, would they be in a position to determine that discretion without knowing whether the fireman was fit or not for some other role they had in mind? And what should be the role of the IQMP (and on appeal the Board) in such a situation?
62. One answer to these questions is that provided by the guidance which was issued in 2007, specifically for IQMPs. This is the guidance contained in Firefighters' Pension Scheme Circular 8/2007, dated 5 September 2007, and entitled "Guidance for Independent Qualified Medical Practitioners (IQMPs)" (the "2007 guidance"). It is a detailed document. At para 3.16 it specifically addresses the issue which is before the court in the form of the "duty" issue. It says:

"3.16 A firefighter is permanently disabled if he/she is medically unfit to carry out all the duties expected of him/her as listed in the role map for his/her role (rank). Provided the member can carry out one of the duties of the role he/she cannot be permanently unfit."

63. That is the submission which was successfully presented to the judge below and which is repeated by Ms Laing on behalf of the Secretary of State in this court.
64. Nevertheless, continued concern about the correctness of this position and continued consideration of the difficulties addressed in the penultimate paragraph led the Department to revise its guidance yet again, in 2008. The remarkable thing is that this latest guidance was issued in the very months leading up to this appeal hearing, in the light of the decision of the judge and of the various submissions put forward on both sides in these proceedings. It is contained in the Firefighters' Pension Scheme Circular 08/2008 dated 24 October 2008 and is entitled "Commentary on Ill-health retirements" (the "2008 guidance"). It states (at para 1.1) that it supersedes the 2006 guidance. It records (at para 1.4) that a specialist group of national experts had been set up as an Ill-health Review Group to consider the operational effect of the current regulations, and continued:

"As a context for their work, the group had full regard to the statement made during the course of an adjournment debate on 22 January 2008 by the, then, Fire Minister, Parmjit Dhanda MP, when he said "It was never the Government's intention for an injured firefighter not to receive an appropriate award or to be left with no job or recompense. It is really important to have that on record so that the fire and rescue authorities are aware of that when they take these decisions"…

That may well have been the catalyst for this review.

65. At para 1.9 there is this statement about the "Purpose of the current regulations":

"1.9 The onus is on a fire and rescue authority to make every effort, through reasonable adjustments, including reasonable re-designing of jobs within an authority – to enable and encourage firefighters to stay in work within the role if they can, rather than be retired early….But of course it will not always be possible for firefighters to stay in work. In considering the case for ill-health retirement the fire and rescue authority will need to consider the application of the criteria in the regulations in the light of the facts and circumstances of individual cases…The absence of a realistic prospect of suitable employment within the role at the end of this process is material to the decision on whether the criteria apply, and whether an award is made…"

66. The document continues at para 1.10 –

"…If there is a realistic prospect that a job within the role is likely to be available within that timescale [three months], the fire and rescue authority should defer reference to the IQMP in order to redeploy. When reference is made to the IQMP, the fire and rescue authority should set out in its report to the IQMP all the steps it has taken in its management of the case."

67. As for the test to be applied by an IQMP for the purposes of rule A10, the 2008 guidance specifically addressed this, in the process amending the 2007 guidance, as follows:

"Guidance for Independent Qualified Medical Practitioners (IQMP)

1.12 The Ill Health Review Group considered the wording of the relevant parts of the Guidance for IQMPs issued under cover of FPS Circular 8/2007, issued on 5 September 2007, and agreed that the second sentence of paragraph 3.16 should be deleted (i.e. the words "Provided the member can carry out one of the duties of the role he/she cannot be permanently unfit"). Other changes are also being made to reflect the fact that IQMPs may need to clarify issues with the fire and rescue authority before reaching a final decision, and will need to assess incapacity based on the member's job within the role, and any other jobs within the role which are actually available for him/her to take up. This ensures that this important element of individual facts and circumstances can inform the final decision by the fire and rescue authority."

68. Despite the deletion of the second sentence from para 3.16 of the 2007 guidance, the first sentence of that guidance ("A firefighter is permanently disabled if he/she is medically unfit to carry out all the duties expected of him/her as listed in the role map for his/her role (rank)") was formally left in place. Even so, para 1.12 of the 2008 guidance as a whole strongly suggests that in practice this first sentence has been modified from a purely theoretical test to a pragmatic test of the relevant possibilities of an individual case. Thus the latest guidance emerging from the Secretary of State's Department is in some disarray, but, in effect, its guidance has returned to the 2004 guidance and its theme, in the context of the definition of "regular firefighter", of what I would call the "relevant duty": "If the FRA cannot offer other employment, fitness to perform other duties would not be relevant and the person may be retired with an ill-health award".
69. In this connection I should mention that on 1 May 2008 the Scottish Government issued its own Scottish Fire and Rescue Service Circular 6/2008 dealing with "Advice on the assessment of Ill Health Retirement (IHR) in Scotland" (the "2008 Scottish guidance"). It is clear that in Scotland too the terms of the 2004 guidance were replaced with the 2006 guidance: but the 2008 Scottish guidance has now reinstated the terms of the 2004 guidance (see para 58 above).
70. This is important, because the meaning and effect of the Scheme, which operates in Scotland as well as England, should be the same wherever it applies.

The respondent's notice

71. These shifting analyses of what I agree is a difficult problem are reflected in the shifting cases made by the Secretary of State in these proceedings. The hearing before the judge took place on 6 and 7 March 2008. However, by the time of his judgment, upholding the Secretary of State's submissions, on 15 May 2008, the Department's Ill-health Review Group was under way. Minutes of its fourth meeting on 7 May 2008 already speak of draft 2008 guidance which will supersede the 2006 guidance. On 20 June 2008 Laws LJ gave the appellants permission to appeal ("Arguable and important"). In response the Secretary of State prepared a respondent's notice. It was filed on 1 August 2008. It may be said to have anticipated the 2008 guidance. It is an important document, signed by Ms Laing and her junior, Kieron Beal, and submitted with the authority and on the instructions of the Secretary of State. It has now been repudiated on fresh instructions and Ms Laing asks the court for permission to withdraw it.
72. It reads in relevant part as follows. It is a convenient and concise statement of one analysis before us:

"1. The Secretary of State…does not seek to uphold the learned judge's conclusion on what he referred to as "the construction issue" [ie the "duty" issue]…

7. The upshot is that a person will be a regular firefighter for the purposes of the [2004] definition on three bases. These are: if he is or may be required to undertake either one of three strands of obligation:

a. firefighting; or

b. other appropriate tasks, and no firefighting; or

c. firefighting, plus other appropriate tasks…

12. The effect of the interaction of these provisions [rules A10(2) and A15(1) is that if a person becomes permanently disabled for the performance of his duty, the fire authority have a discretion to require him to retire, if they determine that he ought to retire on those grounds…

14. There are three steps: determining

a. what the relevant duty is;

b. whether the firefighter is disabled from performing it; and

c. whether he ought to be required to retire.

15. First, the relevant duty is found by looking at the definition of "regular firefighter" [with its three strands]…

16. Second, the firefighter is only therefore disabled from performing his duty if he is disabled from fighting, and the fire authority do not require him to perform other appropriate duties minus firefighting (the third [sc the second] strand). For his "duty" at any time depends on which of the three strands…he can at that time be required under his contract of employment, and the fire authority in fact require him to perform.

17. The third question is how that discretion is to be exercised. If the firefighter is disabled from firefighting, and the fire authority have no alternative work to which they can re-deploy him under his contract of employment, the discretion is to be exercised by requiring him to retire. Any other exercise would be inconsistent with the manifest purpose of the scheme, which is to provide firefighters with an ill-health pension if, as a result of disability, there is no duty which they can be required to do. If, however, the fire authority are able to re-deploy the firefighter (that is, they have appropriate work other than firefighting for him to do, and it is work which he can be required under his contract of employment to do), then there is no case for exercising the discretion under rule A15(1)…

19. It follows that the Secretary of State accepts that, as a result, the decisions of each of the Boards…are inadequate, as no material was put before each Board on this topic, and the relevant Board did not investigate it. In each case the Board only decided that no appellant was permanently disabled, because each was medically able to carry out some of the duties of the role of firefighter instead of firefighting (ie, strand [two]). No criticism attaches either to the Board or to the Authority in this regard, as they were following the Secretary of State's guidance.

20. For the avoidance of doubt, the Secretary of State contends that the learned judge's conclusion on what he referred to as the "jurisdiction issue" should be upheld, for the reasons which he gave."

73. In other words, the Secretary of State there conceded the duty issue on the basis that "duty" meant relevant duty, or perhaps firefighting and any other relevant duty. I shall call that the "relevant duty" thesis or analysis. She did not however concede that that issue could not be revisited on a return to the Board (following the quashing of the original Board decisions on the ground of breach of natural justice), because the duty issue was still within the jurisdiction of the Boards. Nevertheless, if there was no other work for the three appellants (which the hearing before this court appears to me to have established), then there would be nothing for the Boards to decide on the issue of permanent disablement beyond the question of permanent disablement for the performance of firefighting, which is not in itself in dispute here, nor was it in dispute before the original Boards. In essence, even if there are some loose strands, this is the analysis of the 2004 and again the 2008 guidance.
74. The 2008 guidance, which the Secretary of State's respondent's notice anticipated, was issued on 24 October 2008. However, by 7 November 2008, the date of the Secretary of State's skeleton argument for the appeal, which was also signed by Ms Laing and Mr Beal, the respondent's notice had been jettisoned. All that is there said on that subject was as follows:

"4. The Secretary of State asks this Court to uphold the Judge's order for the reasons he gave in relation to both the Jurisdiction Issue and the Construction Issue. The Secretary of State does not advance the construction in the Respondent's Notice."

75. No reason was given for this change of mind. On enquiry made of Ms Laing at the hearing of this appeal, this court was not further informed, save that those were her instructions. Ms Laing was entitled, and perhaps obliged, to play her cards in that way: but the result was that this court was deprived of any assistance from her, and thus from the Secretary of State, as to what was wrong with the relevant duty thesis. It is formally before us, in the form of the respondent's notice. Even if permission is given to Ms Laing to withdraw that notice, its analysis is not easily forgotten, even if no party is formally advocating it. I would permit Ms Laing to withdraw her respondent's notice, but I do not feel obliged therefore to ignore its analysis, which was addressed both by Mr Antony White QC on behalf of the appellants and by Mr Lissack on behalf of the Authority.
76. The question remains as to what regard should be had to the Department's guidance which I have reviewed above. The judge, who of course did not have the 2008 guidance before him, had himself reviewed much of the material discussed above, including the 2004 guidance and the 2006 guidance. He correctly stated (at para 67) that they are not binding, and briefly commented that he did not give any weight to them, understandably in the light of their inconsistent direction. For a similar reason, I would give no positive weight to them: however, I do take account of them, and indeed of all the material reviewed above, because, whether or not strictly relevant to the questions of construction and therefore of law before the court, they do inform the court about the struggles of those who are well informed and highly experienced in these matters to make sense of the Scheme and of the amendments introduced in 2004 for the purposes which are well documented. Thus such material provides salutary lessons for a court which is asked not only to decide the lis between the parties to this appeal but also to do so in a way which will guide and assist those who have to work with and apply the Scheme's provisions.

The judge's solution on the "duty" issue

77. The judge set out the competing submissions of the parties as follows. On behalf of the appellants it was that "A firefighter who is not capable of performing one or more of the core functions of a firefighter [which include fighting fires] is disabled from performing the whole duty of a firefighter" (at para 54, emphasis added) and therefore meets the rule A10(2) test. On behalf of the Secretary of State the submission was that "a person is only permanently disabled if he is incapable of engaging in front line fire-fighting duties and all of the duties with which he could be tasked" (at para 55, emphasis added).
78. Having considered McCalman but remarked that it was the amended 2004 definition which now had to be considered, and having reviewed the history of that amendment, he moved swiftly to his conclusion:

"68. In my view the background to the 2004 Order makes clear that the purpose of the amendment to the Scheme included the provision of a broader definition of "regular fire-fighter" as a consequence of which persons capable of performing non-operational duties were entitled to remain in the Scheme. Accordingly I accept Mr Beal's submission as to the meaning of the word "duty" in Rule A10(2)."

The duty issue: discussion and conclusion

79. It has taken some time to set out the material relied on as relevant to the issues before the court. It is now possible the more speedily to consider the submissions relating to them, beginning with the duty issue.
80. On behalf of the appellants, Mr White submits, in the extreme form of his submission, to be found for instance in the appellants' skeleton argument, that "duty" in rule A10(2) ("disablement means incapacity…for the performance of duty") means either "the whole duty" or "any part of the duty" of a regular firefighter, in the sense that if a fireman is unable to perform any part of that duty and is thus disabled from performing the whole of that duty, he is disabled for the purposes of the rule. However, in the course of the hearing, it became clear that there is also a modified (and perhaps primary) form of this submission, which is that "duty" means the core duty of a regular firefighter, which is said to remain, for the reasons given in McCalman, that of operational firefighting. Thus it is pointed out that, even in the McCalman era, a fireman's job involved duties other than that of firefighting, as reflected in the then version of the Grey Book (which then, however, lacked, as it no longer does, a "flexibility clause"). Above all, reliance is placed on various incompatibilities in the Scheme and anomalies which would arise under it, if the alternative submission of the Secretary of State were adopted. Chief among those factors was the "no job, no pension" scenario. But it is also observed that if a regular firefighter could not be regarded as disabled for the purposes of rule A10(2) unless he was incapable not only of operational firefighting but also of each and every aspect of a regular firefighter's duties, then there would be no room for the possibility of only a partial degree of disablement which is built into the concept of a qualifying injury. As for the 2004 amendment of the definition of "regular firefighter", that is explained on the basis, for which there is support in the material leading up to the 2004 Order, that the primary purpose of that amendment was to ensure that a fireman who had ceased to be operationally fit could nevertheless remain a member of the Scheme.
81. On behalf of the Secretary of State, on the other hand, Ms Laing submits that "duty" means every part of a regular firefighter's duties, so that a fireman can only be assessed as permanently disabled for the purposes of rule A10(2) if he is unfit for each and every aspect of such duty, ie if he is unfit not only for operational firefighting but also for all the other duties appropriate to the role of a regular firefighter. That was the submission accepted by the judge. As for McCalman, she submits that its reasoning loses all force in the light of the amended definition of a regular firefighter. It is no longer possible to speak of only operational firefighting as a core duty, and that is reflected not only in the definition of a regular firefighter but also in the contractual relationship reflected in the Grey Book. As for "no job, no pension", she takes that squarely on the chin and simply asserts that that can happen under other pension schemes affecting local government and other public employees. As for incompatibilities and anomalies, she submits that either they are explicable in other terms, or they are exceptional cases which cannot be allowed to deflect one from the correct answer to the point of construction in issue. As for the purpose of the 2004 amendment, she submits that the problems of membership of the Scheme and of permanent disablement of a firefighter from operational firefighting are all part and parcel of the same fundamental issue: and that as a consequence the definitions of "regular firefighter" and of permanent disablement under rule A10(2) march in step.
82. It is clear, in my judgment, that part of the strength and weakness of each submission is the corresponding weakness and strength of the other side of the argument. For instance, Mr White's submission draws strength from Ms Laing's inability to overcome the "no job, no pension" syndrome. Not only is that unattractive in itself (whatever may be the position under different schemes, as to which we have no material in front of us), and ill accords with the exceptional 11% of salary contributed by firemen to their Scheme, itself commented on by this court in McCalman, but it runs directly in the face of all the reasoning regarding the purpose of the 2004 amendment reviewed above. The purpose of that amendment was to introduce a fair flexibility, not an unfair inflexibility. It was to make it possible to keep firemen in the Scheme and in employment even though they were operationally unfit. On the other hand, Ms Laing's submission draws strength from Mr White's inability to explain why the meaning of "duty" should remain unaffected in McCalman terms by the amendment of the definition of "regular firefighter". Indeed, the point of the extreme version of Mr White's argument, unattractive as that is, especially against the background of the purpose of the amendment, may be that it provides an illustration of the effect of the amendment. Now, on this theory, a fireman may be considered for ill-health retirement not only if he is operationally unfit but equally if he is unfit for some other duty. The difficulty, of course, of that explanation is that it widens the opportunities for the unnecessary loss of firemen to ill-health, whereas the purpose of the amendment was to curtail that loss. (It may also be unrealistic to suppose a fireman to be unfit in non-operational firefighting terms without also being unfit operationally.)
83. I understand, if I may say so, the judge's choice in favour of the Secretary of State's position because it appears that in front of him the appellants strongly promoted the extreme form of their argument (also found, as I have observed, in the appellants' skeleton to this court). It seems to me that in its extreme form the appellants' argument has nothing to commend it. Why should a worker be regarded as permanently disabled and in danger of being involuntarily retired on the ground of ill-health just because there is some aspect of his work which he is disabled from doing? This is particularly so where (a) the historical jurisprudential background is found in McCalman; (b) the change to the definition of "regular firefighter" is intended to preserve the jobs of disabled firemen, not to make it easier for them to be retired; (c) the amended definition does that by emphasising that the job of a regular firefighter contains much that is outside firefighting itself, and indeed might exist in the absence of operational firefighting; and (d) the new definition brought in by the 2004 Order coincides with an amendment to the Disability Discrimination Act 1995 whereby firemen for the first time were brought within the provisions of that Act so that their employers are required to make reasonable adjustments to enable them to retain their place in work.
84. If, however, the appellants' submission is taken to be what I have described as their primary argument in this court, namely to make unfitness for operational firefighting the lynchpin of permanent disablement, then I would have a preference for that over the Secretary of State's position.
85. This is essentially for three reasons. One is that the Secretary of State's case remains deeply unattractive in that it leads to its "no job, no pension" consequence where there is operational unfitness but no other redeployment available. This is both unfair and surprising in terms of an amendment which was designed to introduce flexibility and to save both firemen and their employers from the necessity of ill-health retirement where there was still a job of work to be done. It is all the less attractive in light of the exceptional 11% contribution paid by the firemen. Whatever may be the position in other schemes, as to which I am agnostic, there is simply nothing about the background to the present Scheme, which includes McCalman, to explain an intention to adopt such a construction. On the contrary, the background to the 2004 Order suggests the desire to achieve a new flexibility, where there is an alternative job appropriately available for the fireman who is unfit for operational duty. Therefore a purposive construction militates against the Secretary of State's case. So does the rational imperative that it is unlikely that an unreasonable construction should have been intended, unless indeed the language of the provision leaves no other viable alternative.
86. The second reason is that there is nothing about the language of either rule A10(2) or the amended definition of "regular firefighter" to make the Secretary of State's construction necessary. The word is simply "duty" in the phrase "for the performance of duty". What duty? Clearly, the definition of "regular firefighter" has relevance (as does a regular firefighter's contractual duty), but that definition does not throw a dazzling light on the question. Rule A10(2) does not simply say: "for the performance of duty of a regular firefighter". In any event such a phrase is an odd one: one might rather expect something like "for the performance of the ordinary duties of a regular firefighter". Moreover, even if one reads in the whole definition of "regular firefighter" in connection with the word "duty", one would still find it difficult to say, simply as a matter of semantics or textual logic, whether what was in question was (i) the whole duty; (ii) every part of the duty; or (iii) the characteristic duty. This is, to my mind, illustrated by the definition of "regular firefighter" itself, with its alternatives expressed by the words "or" and its possibilities expressed by the words "may be". To a lesser extent, that was already true under the old definition. Therefore, the problem of construction becomes an exercise in rational and pragmatic assessment of the effect of the language, in the Scheme's overall context, rather than a straightforward determination of meaning. One can see that approach being adopted by this court in McCalman itself, for instance in what Hale LJ there said (with which May LJ agreed) on the question of the promptings of policy, agreeing with Simon Brown LJ's approach in Stewart.
87. The third reason is that, as between the two theses presently under consideration, only the appellants' construction can lead to a sensible result which at least in some sense reflects the purpose of the amendment. Thus if a fireman suffers from a disability to perform his operational firefighting role, he passes through the rule A10 gateway whereby he can be considered for ill-health retirement, but he is still subject to the authority's rule A15 discretion. Thus, it would still be open to an authority to say: This fireman is operationally disabled, but he can still do a job of work which is appropriate to his role as a regular firefighter, and which is available to him, and therefore in our discretion we do not think that "he ought to retire on the ground that he is permanently disabled".
88. Finally, lending support to these three reasons there remains the undoubted fact, in the light of the Department's various guidance documents over the years and of the respondent's notice, that the construction advanced on behalf of the Secretary of State has been exposed as built on shifting sands. The problems revealed by the guidance's tergiversations have not been solved by the Secretary of State's submissions to the court.
89. However, the matter is not limited to the two opposing constructions which I have just been considering. There remains the third construction, at one time promoted in the respondent's notice, which focuses on the "duty" which is relevant to the individual case. I have called it the "relevant duty" thesis. Even though it is now espoused by neither party, I do not think that the court can ignore it. The court's duty is to find the right construction for a public document reflected in a scheme which emerges in the form of parliamentary orders and which concerns participants well beyond the parties in these proceedings. While the court will undoubtedly wish to be cautious in considering a thesis which has the support of neither side to the argument, it is also entitled to bear in mind that the relevant duty thesis has been carefully articulated in a formal document filed with the court, and reflects thinking which, as the 2008 guidance and its background in the Ill-health Review Group demonstrate, has been the product of much work. It is also consistent with the 2004 guidance which remains the modern guidance of the Scottish Government. Moreover, Ms Laing has been unable to assist the court as to any reasons for the Secretary of State's change of mind, and, as will appear below, the parties to this appeal have made certain submissions as to the theoretical and practical consequences of the choice between the appellants' construction and the relevant duty thesis.
90. Under this thesis, the question for the IQMP is whether the fireman under consideration is fit for the duty which is required of him. Normally that will be operational firefighting, but it need not be. In the typical case, where an operational firefighter is thought to be unfit for his duty of operational firefighting, the question will be whether he is permanently disabled for the performance of that duty. If the IQMP (and, if necessary, the Board on appeal) find that the fireman in question is unfit for operational firefighting, then an additional question may be whether he is also unfit for any other duty appropriate to his role, within the definition of "regular firefighter", which an authority is able to assign to him. But if it is clear that no such other duty is available, as in the case of the three appellants before the court, then that question ceases to be relevant, and the fact that the fireman might be fit for such other duty if it were to be available does not prevent him being assessed as permanently disabled by the medical referees.
91. Moreover, an untypical case (at any rate given the fact that the 2004 Order is less than five years old) but one that might become more typical over the years and is in any event an entirely realistic case, could be one where a fireman, who has become operationally disabled but continued in service to perform the role of a regular firefighter but in the non-operational sphere, subsequently becomes unfit to carry out even these duties. It is possible that if the original change from operational to non-operational duties had occurred without dispute, there would have been no need for any reference to an IQMP. Alternatively, the case might have gone through that process, and I will assume that it has. In the light of the further deterioration of the fireman's health, he needs to be assessed again. On this occasion, the question may be not whether he is operationally unfit, for that has already been established on the basis of an IQMP's opinion and has never been subsequently doubted, but solely whether he is also unfit for the non-operational work which he has been performing for some years. No other work is available or in question. So in such a case, the "relevant duty" for which the question of permanent disablement is being considered does not even involve the issue of permanent disablement for operational duty.
92. That, I take it, is the relevant duty thesis. What is wrong with it? Ms Laing is unable to contribute to that debate, beyond promoting her construction that "duty" is a reference to every aspect of the theoretical duties of every regular firefighter and has nothing to do with the case of the individual fireman under consideration. I have rejected that construction. Mr Lissack, who it will be recalled represents the Authority, takes a neutral stance to the debate on construction, but has made helpful submissions on the importance of the practicality of any solution. "Clear, consistent and practical guidance" is what he says the fire and rescue authorities (and the firemen) need.
93. In this regard, Mr Lissack reviewed the three choices of construction before the court and made the following points about their consequences. (1) As for the appellants' construction, one difficulty is that the only issue raised by "duty" for the purposes of rule A10(2) is that of operational fitness. Therefore, the ultimate question of ill-health retirement depended on the authority's rule A15(1) discretion. Assuming an IQMP finding of permanent disablement for operational duty, the issue for the authority will depend on whether there is any other appropriate job for the fireman concerned. If the authority considers there is, the further question may arise as to whether the fireman is fit for that. That question might be referred to an independent medical referee, but if so that would necessarily have to be "outside the Scheme", because ex hypothesi the rule A10(2) question is limited to operational disability. It would follow that there could be no appeal to a Board. The whole process would have to work informally. (2) As for the Secretary of State's construction, that could give rise to a "no job, no pension" situation, and that was a material consideration (as I have already found). (3) As for the relevant duty construction, that avoided the difficulty identified under (1), but at the cost of a potential problem where the redeployment situation changed at different times, for instance between the opinion of the IQMP and the time when an authority had to exercise its rule A15(1) discretion.
94. Mr White also addressed the court about the implications of the relevant duty construction. He adopted Mr Lissack's concern about the difficulties that could arise where the redeployment situation changed over time. Moreover, with respect to the appellants' construction, he submitted that Mr Lissack's concern that an issue of fitness for redeployment would have to arise outside the Scheme was overcome by the consideration that such an issue could be put before an IQMP as a rule H1(2)(f) issue: viz, "any other issue wholly or partly of a medical nature". Therefore, the protection intended by the Scheme by means of an independent medical assessment subject to an appeal to the Board could be achieved.
95. In my judgment, the relevant duty thesis is the preferable construction, and the practical considerations are either neutral as between that and the appellants' construction, or, if anything, in favour of the former. For reasons already given, the expression "for the performance of duty" is highly suitable for the consideration of the relevant duty, and the considerations which led this court in McCalman to prefer a construction based on the core or essential duty of operational firefighting no longer hold sway. This is in part because of the amended definition of "regular firefighter" which has broadened the fireman's core duties; in part because the fireman's contract has accordingly been expanded at the same time to embrace the role map approach of the modern Grey Book including its flexibility clause; and in part because, once the contrast is no longer between the appellants' construction on the one hand and on the other hand the "each and every part of the duty" construction put forward by the West Yorkshire authority in that case or by the Secretary of State in this case, the arguments which told in favour of the former and against the latter disintegrate.
96. I give examples of that disintegration. (i) The significance of the 11% contribution fades. If a fireman can retain his job and salary, performing work which is appropriate to his role, despite being operationally disabled, and need only be forced into ill-health retirement if such redeployment is unavailable, then he obtains the essence of what he pays for. It is true that no injury pension can be payable as long as he is not permanently disabled, but he retains all the other benefits of the Scheme, as well as the possibility of obtaining both an ill-health pension and an injury pension if the position changes and he becomes permanently disabled on some later occasion. (ii) If there is no need for a fireman to show that he is totally unfit, then the significance of the fact that permanent disablement is consistent with something less than total disability evaporates; as does the distinction between the concept of permanent disablement in the case of an adult fireman and of a child of 17. (iii) Similarly, the significance of the so-called "mirror image" of rule K1 disintegrates: an ill-health pension can only be lost under that rule if there is a job for him ("the fire authority shall permit him to resume service forthwith"), and if there is no job appropriate to his role for him to go to, the question of termination of his pension does not arise. However, the job does not have to be in operational fire-fighting.
97. As for practical consequences, it seems to me that it is of the first importance that the question of disablement for the relevant duty should be part of the medical refereeing process, including appeal, which is an integral part of retirement on the ground of ill-health. As rule H1(2) lays down, an authority cannot take its decision regarding whether a person has been disabled etc ("or any other issue wholly or partly of a medical nature") until it has first obtained the opinion of an IQMP on such issues. Such an opinion is binding on the authority, but may be appealed to a Board by the fireman. The Board's decision on any such issue referred to it on appeal is similarly binding on the authority (rule H2(3)). Therefore, the Scheme contemplates that an independent medical opinion, subject to review on appeal, is vital to the fairness of the decision which ultimately lies in the authority's hands. In my judgment, the relevant duty construction is well designed to give effect to those requirements. The question (which may well involve more than one issue) will always be whether a fireman is permanently disabled for any relevant duty. The language of rule H1(2)(b) and (c), which speaks of "any disablement" (emphasis added), is well suited to the relevant duty question. It may be that the appellants' construction can also accommodate that need, if Mr White's reliance on rule H1(2)(f)'s "any other issue" supplies the means. However, linguistically, "any other issue" in the context of a rule which has already spoken of "whether a person has been disabled", is not well designed to address an integral part of the issue of disablement.
98. Be that as it may, Mr White's purported solution merely seeks to bring the appellants' construction within the Scheme's requirements for due process. If it succeeds, it merely matches the relevant duty construction, but is not superior to it, in that regard. If, on the other hand, Mr Lissack's concern about the problem of changing circumstances is a valid one, then it seems to me that the problem applies at least equally to the appellants' construction.
99. However, if anything, it seems to me that any danger inherent in Mr Lissack's concern about the problem of changing circumstances is likely to be still greater in the context of the appellants' construction. This is because it is the intended essence of that construction that permanent disablement for operational duty is the "Rubicon". Once that has been crossed, in the IQMP's opinion, the rest is a matter for an authority's discretion under rule A15. If an authority wishes to retire a fireman on that basis, on the ground that he "ought to retire", it can do so. On the relevant duty construction, however, the discretion would not yet arise if, at that time, redeployment was envisaged and open to the fireman, until the question whether he was disabled in that regard had first been considered by an IQMP.
100. In these circumstances, the following considerations would seem to apply. On the appellants' construction, an authority might force a fireman into ill-health retirement, or alternatively be complaisant with a fireman who wanted to receive ill-health retirement, once it had an opinion that he was permanently disabled from operational duty, even though there might be a non-operational job which he could do. The relevant duty construction, on the other hand, would require or at least encourage the authority to be proactive in considering whether there was an alternative appropriate job to which the fireman could be redeployed and to put before the IQMP any issue as to whether the fireman was fit for such redeployment. On either construction, the position might of course change pending the IQMP's opinion (and any appeal to the Board). If redeployment which was once available ceased meanwhile to be available, then the authority would in any event have the medical opinion regarding operational disablement on which to act. If, on the other hand, redeployment which was once unavailable had become feasible, then again, on either construction, an issue might arise as to the fireman's fitness.
101. In this regard, Rule A10(1) says that the question of disablement is to be judged "at the time when the question arises for decision". Rule A15(2) contemplates that the decision will be taken by the authority, in the light of what is called the IQMP's "opinion", between the rendering of that opinion and any appeal to the Board: see rules A15(2) and H2(1). We have not heard submissions on the ramifications of these provisions, and therefore I am diffident about expressing a view. However, the matter deserves at least an attempt at evaluation in the light of the conflicting constructions before the court. I would therefore suggest that the question of permanent disablement always has to be asked as at the time when the question arises for decision. That will be when the IQMP has to assess the matter for the purpose of rendering his "opinion" on the issues before him; when the authority has to take its decision, when it will be bound by the IQMP's opinion, so far as any issue is thereby resolved by that, but not, I would suppose otherwise; and, on any relevant appeal, when the Board makes its decision (if that decision is within its jurisdiction, see the jurisdiction issue below). There is always a possibility for change as at those times, even in a fireman's operational fitness; and the further question of fitness for alternative deployments cannot be made to disappear, which complicates the matter further.
102. If therefore the question of disablement for redeployment is considered at the outset, then the authority will be supplied as necessary with the IQMP's opinion. In such circumstances, the opinion will need to distinguish between the issue of permanent disability for operational duty and for any other non-operational duty proposed. It may be noted that even in the absence of any proposed redeployment that was what the IQMP Dr Evans had done in his second certified opinion of 30 November 2005 (see para 22 above), and what each of the three Boards had done in their decisions relating to the appeals of the three appellants. If, however, the question of redeployment is left over for some subsequent time, possibly because only then does redeployment become feasible, then it seems to me that on either construction the question would arise whether a fresh issue would need be put to an IQMP before the authority could decide that the fireman "ought to retire on the ground that he is permanently disabled". That is because, even on the basis of the appellants' construction, that permanent disablement is limited to the meaning of permanent disablement for operational duty, it might well be said that the authority would not be in a position to decide that the fireman "ought to retire" (in the light of available redeployment) without having an opinion from an IQMP. On the relevant duty construction, that argument becomes admittedly much stronger.
103. Let me consider the position on the appellants' construction somewhat further. It might be contended that the authority's A15 discretion is untrammelled once there is an IQMP opinion that a fireman is permanently disabled from operational duty, because the rule H1(2)(a) and (b) issues ("whether a person has been disabled" and "whether any disablement is likely to be permanent") had already been determined, so as to bind the authority, by the IQMP's opinion. But does the conclusion follow from the reason advanced? If it were to do so, it would seem to me to fly in the face of one of the essential purposes of the change in the definition of "regular firefighter": to allow a fireman to remain a member of the Scheme and to remain employed by the authority performing non-operational duties, despite his permanent disablement for operational firefighting. Moreover, the result determined by the authority in its discretion, whichever way it went, would be achieved without the authority being informed on the question of the fireman's ability to perform non-operational duties. That again appears to me to be inconsistent with at least the spirit and purpose of the IQMP procedure, the importance of which is emphasised by the possibility of an appeal to a Board.
104. Moreover, on the hypothesis being considered, further questions would arise. One might be the very matter suggested by Mr White as a solution to the kind of problem presently being canvassed. Thus he has suggested that issue (f) in rule H1(2) ("any other issue wholly or partly of a medical nature") would be relevant to such a situation. If so, then, under rule H1(2), an authority could not properly decide either to retire on ill-health grounds a fireman who, although permanently disabled from operational duty, might be able to perform in a non-operational role available to him, or to refuse ill-health retirement to such a fireman on the ground that he could perform in such a redeployed role without knowing whether that was medically accurate.
105. On the relevant duty construction, however, these problems would not arise. The rule H1(2) issues of (a) disablement and (b) permanency of any disablement would always need answering, if there was a real proposal for non-operational redeployment, provided at any rate that question had to be faced at any time before ill-health retirement. Admittedly further questions might arise if a proposal of non-operational redeployment were to occur for the first time after a Board decision, or even at some later stage, for instance for the purposes of a periodic review under Part K. I can foresee an argument that it would not be within the spirit of the Scheme that if ill-health retirement has once occurred on the basis that the sole issue is that of permanent disablement from operational duty, then it would be too late at some later date to start up the issue of ill-health retirement on the new basis, never raised before, that there was now a non-operational job to which the (by now ex-) fireman could be redeployed. By that time the fireman might have gone off to make a new life for himself. Moreover, it might be said that the existence of Part K and of the corresponding issue (e) of rule H1(2) is not for the purpose of allowing an authority to change its mind about what it can offer an operationally disabled fireman, but rather to provide a guard against malingerers, or at any rate an opportunity to consider a change in the condition of a (retired) fireman but not a change in the thinking or management of the authority. No such submission, however, has had to be considered in this case.
106. In sum, I do not agree that the relevant duty construction leads to difficulties and impracticalities to which the appellants' construction is not prey. On the contrary, if anything, the appellants' construction, in the new world of the "regular firefighter", raises more questions than answers. That said, I do not pretend that issues might not arise down the line in the working out of the relevant duty construction. That is quite likely to happen where a complex scheme is amended in some important regard. At present, however, I see no reason to think that any such problems could not be accommodated. Above all, the relevant duty construction is better attuned to the practical issues raised by the question of permanent disablement from an employment which may vary between the need for great physical fitness for operational duty on the one hand and other competences and duties on the other.
107. I would therefore decide the duty issue on the basis that the correct construction of rule A10(2) is that the question of permanent disablement depends on the duty within his contract for the performance of which the fireman is being considered. If he is only being considered for the duty of an operational firefighter, then the issues of disablement and permanency have to be answered on that basis; and if he is also being considered for non-operational duties, then those issues will have to be answered on that additional basis too. It is of course possible for different answers to be given accordingly.
108. It follows that in the case of the present three appellants, where the Authority had already made it clear that no alternative redeployment was possible, the IQMPs concerned were entitled to confine themselves to the issues of permanent disablement for the purposes of operational firefighting alone. In the case of Mr Marrion, the IQMP, Dr Evans, in his second certified opinion went further in giving the opinion that, although Mr Marrion was permanently disabled from operational firefighting, he was not so disabled from undertaking light manual work, outside activities and office-based training and administrative work. However, that did not detract from his relevant opinion of operational disablement. In the circumstances, irrespective of the jurisdiction issue, the three appellants are entitled to retain their ill-health and (in the case of Mr Marrion) injury pensions. This is because, even if the Boards were acting within their jurisdiction, they confirmed the IQMPs' opinions that the three appellants were permanently disabled from operational firefighting.
109. It also follows that the three Boards were wrong to have overturned the IQMPs' opinions that the three appellants were not permanently disabled and were on that ground not entitled to an injury pension. That was a legal error which went beyond the breach of natural justice. For either reason, the three appellants are still entitled to have their appeals heard by a fresh Board with respect to their claims to an injury pension in addition to their ill-health pension.

The jurisdiction issue: discussion and conclusion

110. In the circumstances the jurisdiction issue is not decisive for the purposes of the appellants' remedies. Nevertheless, it has been fully argued and is important to future cases and I intend what follows to be part of the ratio of my judgment.
111. Within an intricate argument Mr White's core submission on behalf of the appellants is that although the product of an IQMP's assessment is what the Scheme rules call an "opinion", nevertheless, the essence of that assessment is to be found in the rule H1(2) "issues" and that an appeal by a fireman is against a defined issue (or issues) and not against the opinion in general. Thus, if a fireman wants to appeal against the opinion, he must give written notice of his "grounds of appeal". In practice, that has led to the definition of an "appeal question" which is given prominence before the Board (see the guidance cited at para 24 above). That is the issue on which the Board is authorised and required to give its decision. Moreover only a fireman can appeal against the IQMP's opinion, which subject to that appeal is otherwise binding on the authority. It follows that the Board has no jurisdiction to revisit an issue which has not been appealed and thus is binding on the authority. In the present three cases, the appellants only appealed issues relating to an injury award, and did not appeal at all the issues of permanent disablement. Therefore, in revisiting the issues of permanent disablement, the Boards were acting outside their jurisdiction.
112. Ms Laing's response on behalf of the Secretary of State is equally intricate, but the essence of it is that the rules speak of an appeal against the "opinion" of an IQMP, not against issues (see rule H2(1) and (2): "if he wishes to appeal against the opinion"; "If…dissatisfied with the opinion…he may appeal against it"). The "appeal question" is merely a matter of guidance and practice, and is not based on the language of the Scheme rules. Therefore, if a fireman appeals against an IQMP's opinion, however narrowly he grounds his complaint, he is putting the whole of that opinion within the jurisdiction of the Board. That is in any event a matter of necessity and good sense, because the Board, which is composed of three medical referees and at least one specialist in the relevant medical condition, is required to interview and medically examine the appellant at least once (Schedule 9, para 2A): if therefore the Board concludes that the appellant is not disabled at all, or at any rate not permanently disabled, how can it be prevented from acting and deciding on its expert medical opinion? Therefore, the Boards in question were within their jurisdiction in concluding that none of the appellants was permanently disabled.
113. The judge accepted the similar submissions made before him on behalf of the Secretary of State. He said:

"50. In my view the jurisdiction conferred on the Board by Rule H2 is not limited by reference to the ground or grounds of appeal submitted by an appellant. By Rule H2(2) the appeal is against the "opinion" of the IQMP; it is not an appeal against one of the issues referred to in sub-paragraphs (a) to (f) of Rule H1(2). The fact that paragraph 1 Part 1 of Schedule 9 requires the submission of a written notice of appeal against an opinion stating the grounds of the appeal and that there exists the practice of formulating the Question for the Board by reference to the grounds of appeal does not curtail the jurisdiction of the Board. In the absence of any rules limiting the scope or nature of the appeal, the appeal to the Board constitutes a full appeal against the opinion of the IQMP.

51. The rules as presently formulated provide no basis for an argument that the Board is obliged to disregard the findings that they make or conclusions they reach as a result of interviewing and medically examining an appellant…"

114. In my judgment, however, it is the submissions of Mr White which are to be preferred. I would seek to put the matter as follows.
115. (1) It is true that the appeal is against the "opinion" of an IQMP, but it is also plain that the opinion of which the rules speak is an opinion on an "issue". The opinion is needed as a condition precedent for the decision of an authority on one of the issues set out in rule H1(2): "before deciding…(a) whether a person has been disabled…or (f) any other issue wholly or partly of a medical nature, the fire authority shall obtain the written opinion" of an IQMP. That is what rule H1(2) says, and it is emphasised by rule H1(3) which contemplates the situation where the fireman will not submit to medical examination by the IQMP. In that case the authority may proceed without the "opinion mentioned in paragraph (2)" and give "such decision on the issue as they may in their discretion choose to give". The matter is again emphasised by the heading to rule H2, which reads – "Appeal against opinion on a medical issue". That is the point in a nutshell, even if, unfortunately, the language of the rules themselves does not expressly use that phrase. However, the language of the rules themselves is to precisely that effect. Rule H2(1)(b) speaks of the authority's "decision on the issue", and provides that where "an opinion of the kind mentioned in rule H1(2) has been obtained" (ie an opinion on an issue or issues there set out) a fireman may, within 14 days of being notified by the authority of its "decision on the issue" apply to it for a copy of the IQMP's opinion. The fireman must be told that if he wishes to "appeal against the opinion" he must give the authority "written notice of his grounds of appeal…within 14 days of the date on which he is so supplied." That requirement, of which notice must be given to the fireman, is itself imposed on the fireman by rule H2(2) and para 1 of Schedule 9. Therefore grounds of appeal within a strictly limited period (which there is no power to extend) are vital. What is the purpose of these grounds of appeal? In my judgment to put before the board an issue within rule H1(2). The appeal question is a reflection of this. It is in itself mere practice and guidance outside the rules. But it is a practice which accurately reflects the rules, issued and applied by those most familiar with and interested in them.
116. (2) The appeal can be instigated only by the fireman. The authority has no right to appeal against the IQMP's opinion. On the contrary, it is bound by it ("shall be binding on the fire authority", rule H1(2)). The rules do not say that, if the fireman appeals to the Board, the opinion ceases to bind the authority, to be replaced by whatever decision the Board renders. Plainly, the IQMP's opinion continues to bind the authority subject to being overridden by any decision by the Board on one of the issues referred to in rule H1(2). Thus rule H2(3) states: "A fire authority shall be bound by any decision on any issue referred to in sub-paragraphs (a) to (f) of rule H1(2) duly given on an appeal under this rule." Moreover para 6 of Schedule 9 refers to the Board's "written report of its decision on the relevant medical issues". Thus, what is given by an IQMP? An opinion on an H1(2) issue or issues. What is decided by a fire authority? The authority decides the same issue or issues, being bound by the IQMP's opinion. What may be appealed? Any one or more of the same issues. What is decided on appeal? The issue or issues appealed.
117. (3) If on the contrary, any ground of appeal by a fireman were to put all possible issues before the Board, there would be little point in limiting the right of appeal to the fireman, or in demanding notice of his grounds. There would simply be a general review by the Board. The rules would make that clear, and would also make clear that, if there were an appeal, the opinion of the IQMP would cease to bind in total. And it would be necessary for notice to be given to the fireman that some issue which he did not challenge was nevertheless able to be reviewed. As it is, everyone involved in the process was so far ignorant of what is said on behalf of the Secretary of State to be the true construction of these rules that the Boards' decisions have had to be voided on the ground of lack of natural justice.
118. (4) It is said that the medical examination on appeal shows that every issue is open for re-investigation: but it does not follow. As happens regularly in the courts, what is in issue depends on the grounds of appeal. The appeal court takes what is not challenged as given, as data. There is no reason why the same should not apply to the Scheme's appeal to a Board. This is emphasised in the context of the Board's powers of interview and examination by para 4(1)(b) of Schedule 9 which says that further interview and examination are possible "on such further occasions as the board thinks necessary for the purpose of deciding the appeal" (emphasis added). Thus the power of interview and examination (and it is obligatory to interview and examine at least once, see para 4(1)(a)) is provided for the purpose of the appeal: but that is defined by the appellant's grounds. It would remain open to a Board to say that there was no qualifying injury in appeals which, like those of the three appellants, were limited to an issue relating to an injury award.
119. (5) It is granted that there is some artificiality in a Board, which may take the view that the appellant fireman is suffering no disability whatsoever, nevertheless being unable to impose its assessment to that effect on the authority. However, it needs to be recalled that the fire authority will already have taken its decision in the light of the IQMP opinion, as rule H2(1) makes clear. It is only following notification of the authority's decision that a fireman can apply for a copy of the IQMP's opinion. Thus, if the IQMP's opinion and the authority's decision in the light of that opinion which is binding on it, are reversed by a valid Board decision to the effect that there is no permanent disablement, then an ill-health retirement under rule A15 becomes void (see rule A15(2)). It is only fair and understandable that, where such avoidance overtakes a retirement which has already taken place, the means by which that is done should be carefully signposted by due process within the rules. Thus, where a question arises under Part K, it will be necessary, before an authority could decide that a retired fireman "has become capable of performing the duties of a regular firefighter", for that issue to be put to an IQMP to consider under rule H1(2)(e), with a right of appeal to a Board if the IQMP's opinion on that issue goes against the retired fireman. If, therefore, a Board could depart from an opinion of permanent disablement before a Board on a fireman's appeal from an IQMP opinion obtained before ill-health retirement, one would expect similar clarity about the relevance of any challenge to the issue "whether a person has been disabled" in circumstances where the fireman will probably already have been retired on an ill-health pension before a Board has rendered its decision. It will be recalled that Mr Marrion had been retired for more than two years before he came before his Board (see para 26 above).
120. I would add, however, that it has not been argued on behalf of the Secretary of State that, even if a Board's jurisdiction is limited by the fireman's grounds of appeal, nevertheless, where a ground of appeal is on the matter of a qualifying injury, such an appeal necessarily and implicitly also puts into issue the underlying question of any disablement. The submission has rather been that any appeal automatically puts everything in issue because the appeal is against the "opinion" and therefore, it is said, every part of it. If that further submission had been made, it would not have assisted the Secretary of State in the present case, because the three Boards all came to their own conclusions that the appellants had each been permanently disabled from the performance of operational firefighting. Nevertheless, I can see that in theory it might be arguable that the appeal question in Mr Marrion's case, "To calculate the degree of disablement arising from the incapacity described" by the IQMP, would entitle the Board to say: there is no disablement at all. However, I would take the view that such an appeal does not permit a Board to render a decision that there is no disablement at all. There is even less room for that argument in the cases of Mr Burke and Mr Scott, where the appeal question was "whether the incapacity described…has been occasioned by a qualifying injury", because the Board can always answer that question "No". However, if I were wrong in those views, it would, in my opinion, be necessary to make clear to any potential appellant to a Board what the ramifications of any such limited appeal were.

Result

121. In sum, these appeals in my judgment should be allowed. The consequence for the three appellants is that, whether on the ground of the duty issue or on the ground of the jurisdiction issue, or on both grounds, they are entitled to say that the medical issues of whether they have become permanently disabled from operational firefighting have been resolved finally in their favour. That was the opinion of the IQMPs in their cases, and those opinions were and remain binding on the Authority. There was no relevant appeal from those opinions. The Authority's decisions, to require each of them to retire on the ground of permanent disablement, therefore stand. There never was any issue as to whether they were permanently disabled from non-operational duties. The question never arose, because the Authority made it clear that there was no possibility of redeployment.
122. The three appellants retain their limited appeals on the subject of qualifying injury. For the reasons I have given, those appeals do not trespass on the area of permanent disablement. Whatever might be the ultimate answer to the issue canvassed in para 120 above, I would rule that it is now too late for these appellants to be affected by it. The Secretary of State has taken her stand on the matters debated in this appeal.
123. I would seek to sum up the matters discussed in this judgment as follows:

(i) The correct construction of A10(2) is the relevant duty construction. The question for the IQMP and, if raised on appeal, for the Board, is whether the fireman is (permanently) subject to incapacity for the performance of his operational firefighting duty and any other duties within the definition of "regular firefighter" and within his contract which it is proposed that he perform, but not any additional duties. If therefore no redeployment away from operational firefighting is available, then the question stops with (permanent) incapacity for the performance of operational firefighting. That is part of the ratio of my judgment.

(ii) The correct construction of Part H and Schedule 9 is that an appeal is from the opinion of the IQMP on an issue within rule H1(2). It is not within the jurisdiction of the Board to give a binding decision which trespasses on issues which are not subject to a fireman's appeal. That is part of the ratio of my judgment. What follows is guidance.

(iii) I would suggest that if no question beyond that of operational firefighting is raised for the IQMP, so that an authority's A15(1) decision is taken on that basis, that authority cannot refuse ill-health retirement on the ground that non-operational redeployment is now available without putting the matter back to an IQMP for a further opinion. It follows that there is good sense in the guidance given in paras 1.9/10 of the 2008 guidance, developed with the assistance of the Ill-health Review Group. I would prefer to think that the new opinion would arise on issues under rule H1(2)(a) and (b), rather than (f).

(iv) Even if an issue of permanent disablement is before a Board, it cannot review that issue save by reference to the relevant duties in terms of which it was presented to the IQMP from whose opinion the appeal to the Board proceeds, whether they are limited to operational duties or extend beyond that.

(iv) Once an authority has taken an A15(1) decision on the basis of permanent disablement for operational duty in the absence of any proposal on its part for redeployment to non-operational duties, it is too late for that decision to be avoided by a Board's decision that the ex-fireman concerned is fit for non-operational duties.

(v) Similarly, a fireman who has retired on ill-health grounds on the basis of permanent disablement for operational firefighting duty is not at risk under Part K on the basis that a non-operational job has now become available.

(vi) It remains for argument whether an issue of disablement is necessarily implicit in a limited appeal to a Board on an issue relating only to a qualifying injury. I am inclined to think that it is not, at any rate in the absence of a clear direction otherwise.

Lord Justice Dyson :

124. I agree.

Lord Justice Wilson :

125. I also agree.

Note 1    Inserted by the 2005 Order    [Back]

Note 2   Inserted by the 2005 Order    [Back]

Note 3   The provision of the 2004 Order    [Back]

Note 4   The additional provision of the 2005 Order    [Back]