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29/06/2000

R v. West Yorkshire Fire and Civil Defence Authority, ex parte McCalman & Lockwood

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Court of Appeal

The appellant fire authority lost its appeal against a judicial review declaration that the respondent fire-fighters qualified for an ill-health award under r.A10(1) Firemen's Pension Scheme Order 1992 because it was impossible to describe the duties of a fire station's support staff as fire-fighting within the meaning of the 1992 Order.

 
The appellant fire authority appealed against the decision of Burton J in an application for judicial review by the respondent fire-fighters, in which Burton J granted the respondents' declarations as to the meaning and effect of the Firemen's Pension Scheme Order 1992 ('the Scheme'). The facts of each respondent's fitness for duty being resolved during judicial review meant that the appeal turned on whether they should have been retired with a pension pursuant to the Scheme by reason of their permanent disablement. That the respondents' contracts did not include any flexibility clause as to the terms and conditions of their employment was beyond dispute. The appellant's primary submission was that a regular fire-fighter need not be concerned directly with putting out fires and that there was no core obligation that afire-fighter must be capable of putting out fires. The appellant's second submission was that "appointed" in the Scheme's definition of "regular fire-fighter" meant "who was appointed". The appellant's third submission was that neither respondent was disabled within the meaning of r.A10(2) of the Scheme because neither was incapable of performing duties and that there was no qualification on the meaning of "duties" in r.A10(2).
 
HELD: (1) The statutory provisions which were relevant to the Scheme were: ss.1, 19 and 26 Fire Services Act 1947. The 1947 Act was amended by the Fire Services Act 1959. The Scheme was not a funded pension scheme; no authority was required to contribute directly to it. However, individual fire-fighters paid on an opt-out basis and their contribution rate was notably high in comparison to that made by other employees of the appellant authority. Reference was also made to the provisions of the Scheme and the contract of employment between the parties, which expressly incorporated the Scheme. (2) The appellant's primary submission was a misuse of language; it was impossible to describe the non-operational functions which one of the respondents had been required to perform as fire-fighting.Fire-fighting meant fighting fires. Additionally the definition of "fire-fighter" in Sch.1 of the Scheme had to be construed in light of the Scheme's other provisions. (3) It was immaterial whether "appointed" meant "is appointed" or "was appointed". (4) The appellant's construction on "duty" neither accorded with the structure of the Scheme not with precedent (see R v Sussex Police Authority, ex parte Stewart (2000) Times, 13/4/2000. The respondents were disabled within the meaning of r.A10(2) of the Scheme. (5) It was irrelevant that the authority did not use the word "retire" when it gave fresh instructions to the respondents; it had required them to retire at a time when they were both permanently disabled from fire-fighting duties. In those circumstances the appeal could not succeed.

 

Appeal dismissed.
 
* The petition of the West Yorkshire Fire and Civil Defence Authority seeking leave to appeal to the House of Lords in the case of John Andrew Lockwood was presented and referred to an Appeal Committee on 6 November 2000 for consideration.
* On 28 February 2001 upon application by the West Yorkshire Fire and Civil Defence Authority it was ordered that the petition in the case of John Andrew Lockwood be withdrawn.
* The petition of the West Yorkshire Fire and Civil Defence Authority seeking leave to appeal to the House of Lords in the case of Stewart McCalman was presented and referred to an Appeal Committee on 6 November 2000 for consideration.
* On 28 February 2001 upon application by the West Yorkshire Fire and Civil Defence Authority it was ordered that the petition in the case of Stewart McCalman be withdrawn.

John Hand QC and Paul Rose by and for the appellant.

LTL 30/6/2000,[2001] OPLR 85

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