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Headnote |
Summary of decision
The applicant was injured in the course of his duties as a police officer. He was discharged on medical grounds aged 51 as a consequence of his injury, but would have been medically retired at 55 in any event. Under paragraph 31 of the Criminal Injuries Compensation Scheme 1996, the applicant was entitled to receive his award without deduction of the pension and benefits that he had already received or was expected to receive in respect of the period after his 55th birthday.
Facts
The claimant, V, was a police officer who was injured in the course of his duties as a result of a criminal injury within the meaning of the Criminal Injuries Compensation Scheme 1996 (“the 1996 Scheme”). On November 21, 1998 at the age of 51, he was medically discharged from the police as a result of his injury. The Criminal Injuries Compensation Appeals Panel (‘the Panel’) decided that V would have retired at the age of 55 in any event because of unrelated osteoarthritis in his knee. V’s loss of earnings up to the age of 55 was agreed in the sum of £ 40,015. It was also agreed arithmetically that the additional ill-health pension and other benefits that he was due to receive after the age of 55 over and above what he would have received in any event during that period could be capitalised in the sum of £ 33,761. The issue before the Panel was whether this sum could be properly deducted from the gross value of his claim up to the age of 55. It was agreed that paragraph 31 of the Scheme applied to the calculation of his net loss of earnings or earning capacity, but the meaning of the phrase “For a period of loss ending before or continuing to the time the claim is assessed" was disputed. V contended that the period of loss ended when he reached the age of 55, so that no benefits or pension received after that date could be taken into account. The Panel held that the "period of loss" under paragraph 31 did not end for V at 55 years old, but that "have become payable" and "has become payable" in paragraphs 31(d) and 31(e) respectively meant "have started to be paid during the period of loss" and that provided a benefit had so started it could be taken into account indefinitely. The Panel maintained that paragraph 31(d) must be read subject to paragraphs 45 and 47. The claimant applied for review of a decision of the Panel’s decision.
Held, allowing the application
(1) The "period of loss" under paragraph 31 ended on V’s 55th birthday as he suffered no loss of earnings or pension after that date as the pension he actually received was at least as good as the pension he would otherwise have received.
(2) Paragraph 32 was inapplicable as that paragraph only applied where, at the time of assessment, a claimant was considered to be likely to suffer "continuing loss of earnings or earning capacity", which V was not. In short, paragraph 31 referred to past loss and paragraph 32 to future loss.
(3) The phrase "which have become payable” in relation to certain benefits and other payments in paragraph 31(d) meant "which have been or should have been paid”, and the word "payable" was designed to cover a situation where an eligible person had not yet received a payment of pension or benefit due to them. The words did not mean “have started to be paid during the period of loss” as contended for by the Panel.
(4) It was clear from paragraph 45 that it permitted deductions only against the period of loss of earnings. This was therefore consistent with paragraph 31(d).
(5) Paragraph 47, which dealt with reductions to take account of occupational pensions accruing as a result of the injury, contained no indication either way of the period of time in respect of which it was to apply. It was however reasonably clear that it too was limited to the period for which loss of earnings was claimed. That was for two reasons: (1) there was no rational basis for applying different rules to state and occupational pensions in paragraphs 45 and 47 respectively and (2) the phrase "become payable" as used in paragraphs 31(d) and 31(e) was also used in paragraph 32 in relation to the future, and the latter section made reference to paragraphs 45 and 47.
(6) It followed that on a proper construction of paragraphs 31, 45 and 47 of the scheme, (with some additional illumination from paragraph 32, V was entitled to receive his award without deduction for pension and benefits that he had already received or was expected to receive in respect of the periods after his fifty-fifth birthday.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1996, paragraphs 22, 30, 31, 32, 45 & 47
Criminal Injuries Compensation Act 1995
Repesentation
Mr P. Jones for the Claimant
Mr J. Johnson for the Defendant
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