Month: June 2015

contemporaneous

iodpa Regulation 37, selected medical practitioner
contemporaneous

“It is better to tell the truth and face the punishment, than to lie and face the consequences.”

― Anthony Liccione

Hard to spell, difficult to pronounce for some but still pleasing to the ear even though it is full of vowels , the word contemporaneous is drilled into you as a probationer.  The time during or immediately after an event has to be captured otherwise the memory is undermined.  Court cases have been lost to due the absence of strictly contemporaneous note taking.

Important advice to a police officer, and indispensable to a doctor. The health industry is rich in unstructured data which exists to record the well being, progress and medical interventions of patients. Unstructured data which consists largely of notes made by the clinician contemporaneously.

One of our well-placed sources in Avon and Somerset constabulary has informed us that there are murmurings that Johnson is not a happy bunny. (I don’t like to dignify him with the title of ‘doctor’ as I don’t think he deserves it.) Most of those injury pensioners reviewed by him back in November and December 2014, (and who still have not had a decision over 8 months later), have submitted subject access requests under the Data Protection Act for the handwritten notes they saw Johnson make during his face-to-face assessments with them during the course of a review. He was seen to make notes throughout each session, including when he was pouring over former officers’ medical records, familiarising himself with the contents of the file provided by HR and Occupational Health, and during the face to face interrogation and his summary closing the session.

During the review the Johnson invariably held a pen and had an A4 pad in front of him.  This jotting pad wasn’t for him to doodle or add up his fees whilst the person being reviewed was wilting under his less than desirable bedside manner. The jotting pad was there to record in writing what was being said together with the SMP’s thoughts, reactions, observations, etc.

After the review it seems to be common sense to say that the SMP is duty bound to summarise what was said, so that he can refer back to his notes when he writes the formal report.

But, according to Johnson he made no notes. He seems to have no record of the sessions other than his memory, which must be remarkable, given that some sessions lasted an hour and a half. If he wrote up the sessions later, then when did he do this? The longer after the session, the less they could be relied upon to be accurate.

He’s answered some of the subject access requests with a curt reply along the lines of, “I did not take any notes”.

This poorly conceived and ill-thought out response by Johnson shows either that he is lying or he is admitting to not making any contemporaneous records.  The former is bad enough – the data is not his to withhold –  but it is terrifying to contemplate the lack of professional integrity required to be deliberately deceptive so as to conceal what appears to be the fact that notes were written months after the event, only when it was not possible to maintain the lie that no notes were made.

Why would a doctor not make notes?  Let’s run with the face value that no notes were actually taken. According to this version of reality, Johnson read through the individuals’ occupational health files, and did not take notes. He then read through the letters and specialist reports sent by the former officers’ medical specialists, and did not take notes.  He then sat for an hour or more and conducted a face to face review with the former officers, and did not take notes.  He then collated his thoughts immediately after the review finished, and did not take notes.  Then in all the months from the review up to the present day, not once did Johnson put pen to paper and jot down anything concerning the individual?

Perhaps the organisations which oversee the fitness for doctors to practise medicine would like to hear about this lackadaisical approach to record keeping.

Our secret source, whose insider guidance is continuing the exposure of incompetence that was first revealed with Freedom of Information Act requests, has also shone a light on the content of the those few handwritten notes that Johnson has released.  Yes, that’s right!  Johnson, when backed into a corner and under pressure of contemplation of the very large fines the Information Commissioner’s Office can hand out, has suddenly discovered that he has written notes on some, and not others.  His consistency is rather lapse.  Could it be due to the fact he has written some things he does not want to disclose so he says no notes were taken?

Nah, can’t be that, can it?

Does Johnson not know that each and every review he conducted was recorded in high definition audio sampled at 256 Kbps?  Our very own ‘Deep Throat‘ has confirmed to us that the force knows this.  But given what Johnson has been writing it seems that this information has by-passed him.

For the benefit of the Police Pension Authority who has to defend the decision of Johnson – A SMP can not revisit the original diagnosis. So, if that is what he is doing – writing up notes some time after the sessions, in such a way as to try to justify his part in what were all unlawfully held reviews, then he is essentially and effectively revisiting his decision. He can’t be recorded as stating that he, ‘sees no change’ in an individual’s degree of disablement then make notes some time later which contradict that decision. If this goes to a PMAB or to judicial review, then he will look very silly indeed.

Also, the merits or otherwise of a previous diagnosis are out of bounds. The earlier decision on the duty injury and its causation is a final decision and cannot be revisited. There is no point in a SMP doing anything other than accept the earlier decision and he should not be going anywhere near thinking that the original decision was not one he would have come to.  This legal impediment doesn’t stop our flexible unfriendly medic.  He was quite willing to put in undated handwritten notes of one session that in his view the original diagnosis of  duty injury was wrong. You could not make this stuff up. Just how limp is Johnson’s grasp of the Regulations and associated case law?

A police officer’s pocket book entry kept in the same manner would be ridiculed in a court of law.  Johnson will similarly be demolished should this go to a police medical appeals board. The Board does not suffer fools gladly.

Perhaps, instead of spending time making up notes months after the event, Johnson ought to read the appeal court case of LAWS:

Metropolitan Police Authority
Appellant
– and –

Belinda Laws
Respondent
– and –

Police Medical Appeals Board

Regulation 37(1) then provides for periodic reviews at which the authority is to consider “whether the degree of the pensioner’s disablement has altered”. On the judge’s approach this does not allow the SMP or the Board to redetermine the merits of any earlier decision of either

repeated  by Simpson:

THE QUEEN on the application of SIMPSON

Claimant
– and –

(1) POLICE MEDICAL APPEAL BOARD

(2) SECRETARY OF STATE FOR THE
HOME DEPARTMENT

(3) NORTHUMBRIAN POLICE AUTHORITY

It is not open to the SMP/PMAB to reach a different decision in relation to the fact of disablement, whether the disablement is likely to be permanent or whether the disablement resulted from a duty injury

It’s your choice, Johnson. Salvage what is left of your professional reputation by telling the truth now, about how you have been taken for a ride and how, once you jumped on the gravy train that was promised to you – namely several hundred cut and dried reviews of compliant sheep-like former officers at several hundred pounds a pop – you could not jump off the train without breaking your reputation.

Or you can continue to lie and make things up as you go along, in which case circumstances will rapidly spiral beyond your control and the consequences will be very severe indeed.

 

Legal Services

iodpa HR, Legal Services
Legal Services

“During times of universal deceit, telling the truth becomes a revolutionary act.”

George Orwell― George Orwell


—

Today, let’s discuss the legal services department of Avon & Somerset Constabulary. It can only be guessed at why a Legal Services team now handles all enquiries about injury pensions, which include the police pension authority’s abuse of its power of discretion to review them, questions over interference in the SMP’s independent decision-making role, and many other matters of contention. But let us try to make sense of it.

A&S’s Daniel Johnson (Solicitor Advocate) and Shahzad Hamid who is a ‘caseworker’ have been busy sending what I can only call ‘one direction’ correspondence to those former officers caught up with this travesty. Its one direction because these two tell people they are involved, and say they are looking into matters but then clam up when asked when a response will be given. They then stop replying and retreat into silence. To reply would mean either lying, or telling the truth, and these legal eagles are too crafty to commit to either, for lying would inevitably bite the liar, and telling the truth would mean the force having to admit it is in the wrong.

Back in October 2014 several of the 16 being reviewed received this ominous email – yes email!, HR obviously had no uneasy feeling of doubt with disclosing personal email addresses to a 3rd party – from the two protagonists above:

From: #LegalAdvice

This matter has been passed to the Legal Services Directorate who are reviewing your correspondence.

We will respond to you once we have considered and reviewed the matter.

Regards

Legal Services

True to form and despite numerous requests for updates and questions on why legal services are involved there has been no response. Either they have given up ‘considering the matter’ or have considered it and have not been happy with the conclusion they’ve drawn.

It is as if A&S thought that by telling us that the heavies of legal services are now involved that we would be browbeaten into acquiescence. Why would a force feel it needed to try to bully former offices by telling them that enquiries are in the hands of their solicitors?

The 2012 stated case of Crudace can show A&S where bullying leads..

The judge gave a damning indictment of the bully-boy tactics of the force concerned:

It is, however right to bear in mind that the letter was sent by the solicitor of a public body to a disabled unrepresented former officer.


—

That force was Northumbria, and its solicitor threatened 45 elderly disabled former officers who’d had the temerity to seek an appeal on what later was proved to be unlawful decisions by the force’s SMP. He told them their appeals were hopeless, and if they went ahead the force would apply for costs when they lost.

There has been nothing heard from Shahzad and Dan for several months now. That is, until the latest HR ‘liaison’ meeting. Of course the word ‘liaison’ means something different to A&S than it does to normal folk. Instead of being a meeting to facilitate communication and discussion it is just another black hole into which all questions and queries disappear. The liaison meetings serve one purpose only – they are intended to enable Wood, Bulpitt and Jones to inform local NARPO and Police Federation representatives why the force hasn’t done anything to sort out the mess it has made, and why the delay is all the fault of the IODs.

The latest meeting in June 2015 concluded that:


Avon and Somerset Force HR reported that they now have one instance whereby they consider there is a ‘failure to engage’ with the process by one IOD pensioner, this is being looked at by their legal department.

http://www.asnarpo.org/iod.pdf

There is nothing in the Regulations concerning ‘failure to engage’. This is no more than a convenient invention by a force which knows it is in the wrong and seeks to displace the blame. There is regulation 33, but this concerns the wilful and negligent failure to attend a medical examination.  Even if such an event were to occur the only power provided by regulation 33 is that a decision can be made on the available medical evidence.  It is not a free pass to conduct a fresh review and is in no way  a gateway to sanction the infliction of a penalty that automatically reduces the award.

The Home Office stated this month that ‘reduction of awards without proper examination was declared unlawful’.

Before an injury pension can be revised, substantial alteration has to be proved – no evidence of improvement is in no way substantial alteration. The argument from ignorance raises it’s ugly head again.

But what if the person involved is too ill to attend an assessment, and who has sent medical reports from their specialist to the selected medical practitioner explaining that is the case, and who has been pleading with the HR department not to review just now? Any humane, responsible, intelligent, Regulations-savvy HR person would realise that not only should this person not be reviewed as the interval of time since the last decision on degree of disablement is not a suitable interval, but the blanket approach of reviewing a group of band fours is unlawful, and that in the 15 years since their last decision their health has deteriorated.

Is that pensioner ‘failing to engage’? I think it is seen by A&S rather as a case of too much engagement. They would prefer all disabled former officers were compliant sheep.  The police pension authority via it’s SMP proxy has available evidence to say in such a circumstance a review is not appropriate. Yet they fail to accept that, and instead of ending the misery they are visiting on the pensioner they want to leave matters endlessly hanging, and imply it is all the pensioner’s fault.

Of course, this is A&S HR I’m talking about, so if its threats and abuse you want, they are the people for the job, but otherwise, forget it.

Deep in their den of Legal Services, Dan and Shahzad have undoubtedly been tasked to frame their next course of action to fit their preferred perverted version of the facts.  The decision to ‘come down hard’ has been made.  They now have to invent the justification. And that is the bottom line why Legal Services have been engaged.  Good luck with that, boys.

Avon & Somerset finds itself in the review paradox.

If the reason to invoke a review is unlawful, as exemplified by A&S failing to make a decision to review on a case by case basis, then any revision of the award is unlawful. The Regulations tell us clearly, that only when a police pension authority is considering whether to revise an injury pension shall it refer the question of degree of disablement to a duly qualified medical practitioner. Well, the fact is you can’t revise an injury pension unless they believe that that pensioners level of disablement has altered. In plain language, understood by all except those in A&S who would prefer the Regulations were written differently, this means that there has to be some good reason for believing there has been an alteration in degree of disablement before they can tell a pensioner he has to see the SMP,

The paradox is that it is unlawful to make a revision to an award when there was no reason to invoke the revision in the first instance.

The corollary to the paradox is that is it unlawful to declare a ‘failure to engage’ when the Regulations are absent of such a term, and you can not ‘fail to engage’ in an invocation of something that should not have been brought into being.

Perhaps Dan and Shahzad need to brush up on their legal skills.

Nothing to do with us

iodpa HR, PCC
Nothing to do with us

“The ‘Somebody Else’s Problem’ field is much simpler and more effective, and what’s more can be run for over a hundred years on a single torch battery. This is because it relies on people’s natural disposition not to see anything they don’t want to, weren’t expecting, or can’t explain.”

― Douglas Adams, Life, the Universe and Everything

Our “friends” at Avon and Somerset HR have declared they have to review injury pensions because the Home Office (HO) told them to do it.  A well-placed and always reliable source within the force tells us that certain people who should know better have stated the Home Office has directed forces to re-start reviews.

The reality is that after the PCC’s infamous letter, in which she tacitly declared that that former A&S officers with an Injury On Duty award were of no benefit to the people of Avon and Somerset, Carol Wood (the HR business manager) had a meeting with members of the HO Police Pension Team who effectively told her that case-law could not be superseded, that the pension regulations have to be followed and that the regulations do allow for a review, but only if a suitable interval has elapsed and with the belief  that the pensioners level of disability has altered. This all has to be considered on a case by case basis.

So what did A&S do? They chose 16 band fours all under 55 years of age. Let’s, for a moment, look at the figures and see whether the selection of the sixteen could have been on a case by case basis.

Of the 490 disabled former officers with an IOD award from A&S 347 are above 55 years of age, so 143 are under 55. For simplicity, just say the distribution between the 4 bands is uniform. Thus it could be said that 36 of those under 55 are band fours.

So the probability of  selecting a single band 4 who is under 55 is  7.35%
Therefore, the probability of randomly selecting 16 individuals who are each  on a band four and aged under 55 from the population of 490 is

0.00000000000000000177%

By way of contrast, the probability to win the national lottery is 1 / 14million or 0.000000071429 !

Enough of the maths – the figures indicate very clearly that it was deliberate decision and not a fluke that the younger band fours were chosen. The probability of randomly selecting 16 individuals of the same banding and age group is so slim as to be practically impossible.

It seems obvious they were selected solely because they stand to be paid a band four pension for longer than older pensioners. Therefore, HR have targeted them because they represent the best opportunity to save money.

The recent letter from the Home Office, below, tells us that the HO office have not directed any force to review.

t7416

It categorically declares that their position is:

  • reviews must be done on a case by case basis,
  • reviews at specific age points was declared unlawful,
  • Reviews must consider each case on its merits and take into account the circumstances of the individual.

The conclusion is clear: Avon & Somerset – and any force which targets a narrow selection – is acting contrary to the advice of the HO. And is breaking the law. The HO knows that such a targeted campaign is unlawful. The HO got a severe kicking in the High Court over its unlawful guidance in Annex C to HO circular 46/2004, which they allude to in the above letter. They are not willing to take any more flak so are saying in a roundabout way, that if the police pension authority cocks things up then its on them.

So A&S … it’s all on you. Don’t take injury pensioners for fools. Don’t pretend that the Home Office has told you to conduct reviews, or has encouraged you to hold reviews. It didn’t. You alone made the decision to hold reviews because you thought that disabled former officers would be a soft target for your money-saving ambitions. You deliberately picked on the most severely disabled, the most vulnerable and have treated them with contempt.

The PCC said they were of no worth to the citizens of Avon and Somerset, but you thought they were worth something, but only in terms of saving money by reducing their pensions.

Scoffield recommendations

iodpa caselaw, PSNI, Scoffield
Scoffield recommendations

“God   … [ Scoffield ] … has written His divine guidelines for your life right in the Bible  … [ Report to the Northern Ireland Police Board ] … ”
― Elizabeth George (misquoted)

******

redacted_version_of_scoffield_report

Recommendation 8:
In the course of development of this further guidance, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure.

******

Recommendation 10:
The guidance should also provide SMPs and IMRs1 with more detailed assistance, in as straightforward language as possible and drawing upon recent case-law, on how to avoid impermissibly revisiting matters finally determined in previous certificates and applying the concept of apportionment.

******

Recommendation 11:
There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR  (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.

******

Recommendation 14:
Those officers who were told in clear terms that they would not be subject to review, or words to that effect, should not be further reviewed in the absence of a request from them or some compelling reason why a review is considered appropriate (such a reason not to include merely their attainment of a particular age).

******

Recommendation 15:
SMPs and IMRs should not be precluded in future from designating a case as one for no further review but this should occur only very rarely and guidance should be formulated for them as to when this may be appropriate.

******

1 IMR = Independent Medical Referee PSNI equivalent to a Police Medical Appeals Board (PMAB)

Maybe Its finally sinking in

iodpa HR, PCC
Maybe Its finally sinking in

“Any fool can know. The point is to understand.”
― Albert Einstein

align

HR-Meeting-notes—27.03.15

“The question was raised that in some instances Police Regs over-ruled HR Policies, consideration should be given to align HR Policies to Police Regs”

The above was recorded in the minutes of the AVON AND SOMERSET POLICE AND CRIME COMMISSIONER HR PORTFOLIO UPDATE MEETING 27th March, 2015

ATTENDEES: Sue Mountstevens, Police and Crime Commissioner (SM) Mark Simmonds, CFO, OPCC (MOS) Julian Kern, CFO, OCC (JK) Catherine Dodsworth, Head of People Development (CD) Joanne Drewe, Executive Assistant to CFO & Director of Resources (JD)

Apparently their HR policies (in only ‘some’ instances!) are over-ruled by police regulations.   This is exactly the point IODPA has been trying to get them to understand for the past 12 months. Hurrah !

The delicious irony in mentioning that there is concern about the length of time taken to complete reviews is obviously lost on them as it’s now June still nothing has been done about it.  Obviously not too concerned then.  Boo !

Excuse the given that those in charge of the asylum have but a basic knowledge of the law and how to run a company but isn’t it pretty basic stuff that your HR Policies should align with your Employees’ Employment Regulations (in this case the Police Regulations / relevant case-law)?

Surely otherwise your HR Policies aren’t worth the paper they are written on?  The Human Resources department of a police force have polices that are contrary to the law?

Who’d a thought that would be a ‘thing’ ?

Tell them everything or say nothing

iodpa Freedom of Information, HR, selected medical practitioner
Tell them everything or say nothing

“He who does not understand your silence will probably not understand your words.”
― Elbert Hubbard

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.”
― George Eliot, Impressions of Theophrastus Such

A person undergoing a DWP assessment for benefits needs to provide evidence they are still entitled to that benefit. If they don’t do this then the DWP investigator has the power to remove said benefit.

An Injury on Duty award isn’t a benefit and can not be removed. If there is substantial change in the degree of disablement then the award can be revised, but it can never be stopped. There is no investigator or benefit claim. Nothing can be revoked or cancelled. When a review is held a police pension authority is to consider the sole question of, ‘is there any substantial alteration?’ Only If there is evidence which indicates there may be a substantial alteration then must the authority refer for decision the question of degree of disablement to a duly qualified medical practitioner.

On their fishing trip to elicit a response from IOD pensioners, Avon & Somerset tried to bluff that if they didn’t disclose any information requested, (such as how many cars you drive!) then they could stop the injury award (which they can’t) or prosecute you for providing misleading or inaccurate information (which would be something they might well regret trying).

Here’s the nasty little threat they sent to vulnerable disabled former officers, all  of whom have to bear the burden of very severe disablement.

liable

This supposed threat of prosecution was queried with a FOI request:

https://www.whatdotheyknow.com/request/injury_on_duty_pensions_2#incoming-620913

The force provided a classic example of corporate blather in response.

“The statement has been on the questionnaire relating to injury awards since 2003 (arising from a meeting of the Attendance Management Group held on 9 October 2002). The statement reflects the details included in the questionnaires provided by Essex and Sussex Police at that time and agreed with the Federation in January 2003.

The statement is intended to clarify that there are possible consequences should a former officer either omit information which is relevant to the consideration of the injury award and/or purposely provides misleading information which could possibly be fraudulent.

If the statement is not signed, it does not halt the review process, but if the details were found be fraudulent due consideration would be given to the next appropriate steps. It may be helpful to note that this statement has never needed to be actioned to date.”

This sinister, and wholly unfounded threat came from a police force,  for crying out loud !!

Threatening injured former officers with an invented prosecution?

Why would any IOD pensioner think themselves obliged to cooperate with a HR Department that thinks it can treat people like this?

What do the Regulations say about not engaging with a review?

The Police (Injury Benefit) Regulations 2006 Regulation 33

  1. If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

The interpretation of this is that if you deliberately don’t turn up for an assessment by the SMP then the force is allowed to make a decision based on such evidence and medical advice that they think is necessary.

That’s it. No reduction or suspension of injury award.

If you decide to attend for assessment by the SMP, but also decide to refuse to agree to full disclosure of medical records, back to birth, confining agreement to release of only records made since the last decision on degree of disablement, then you have complied, albeit with conditions.

The SMP and the force might not think you have been as cooperative as they wish.

In either circumstance – complete refusal to engage in what we know is a mockery of what should be a lawful process, or limited, conditional cooperation – then the force might, if they are daft enough, try to use regulation 33.

Their first problem though would be to satisfy the stringent test of ‘wilfully or negligently’. This is a high hurdle to jump and a hard condition to prove. How could any IOD pensioner be said to be wilfully or negligently refusing to engage with a process which he or she has very good reason to believe is unlawful? That is more than enough of a rational reason for refusal.

Their second problem would be trying to make a determination on such evidence and medical advice as they could obtain. The force seems to have lost or destroyed a lot of files and even if they have a full set most of them will contain information which has not been added to for many years. What evidence could there be of any alteration in degree of disablement?

The force can only use factual information – your notes when you retired for instance – to prove that there is a case for substantial alteration. They can’t pull a fresh assessment out of thin air as this inevitably revisits causation and apportionment and is forbidden. The High Court says so.

If there is no evidence of a substantial alteration in your degree of disablement then the status quo continues, no alteration means no revision of injury pension.

Instead of politely enquiring with pensioners whether their medical condition resultant from the duty injury had improved or worsened substantially over the intervening years since the last time degree of disablement was decided, the force thought it best to ask sneaky, irrelevant questions in the hope that it might provide cover for what was a predetermined decision to conduct a full review involving referral to a duly qualified medical practitioner.

When debating any issue, there is an implicit burden of proof on the person asserting a claim. An argument from ignorance occurs when either a proposition is assumed to be true because it has not yet been proved false (no evidence of change so the condition must have improved) or a proposition is assumed to be false because it has not yet been proved true.

This has the effect of shifting the burden of proof to the person criticizing the proposition, but is not valid reasoning.

You don’t have to tell HR or the SMP what car you drive, how you spend your day, what you submitted on your last HMRC return. The evidence required to determine alteration in degree of disablement is medical. If a SMP wants to know whether you are able to drive despite your disability, then he should ask you straightforwardly and not rely on information obtained under threat by the HR Department.

HR or the SMP have no power to try to get you to tell them your life story. What you did before the time of the last final decision is not relevant to the task in hand, which is only to look for any alteration in degree of disablement. What if the SMP takes an innocent comment out of context? You then find yourself fighting a nightmarishly complex, bizarre, and illogical game of trying to prove there is no alteration to your medical condition, whereas the burden of proof of any change is the responsibility of the SMP.

Just imagine, if you will, what might happen if you get notification that you will be reviewed. You might feel impelled to ask HR, why me? why now? What makes you think my condition has improved or worsened? Instead of an honest answer, namely that they intend to review everybody so as to try to see if they can save some money, you get the usual glib response from HR, claiming they have a right or a duty to review, blah, blah, blah. They are determined to review you and justifying their reason does not concern them. Giving a reason is not something we do. Don’t ask again or we will treat you as being vexatious, you cheeky bastard.  So you comply: you sign consent for partial disclosure of medical records. You might decide to refuse to answer their loaded questions on the questionnaire, for after all, you didn’t fill in a questionnaire when you were retired so how can they compare the here and now to the past with a new set of answers?

You then get a date to see a SMP. You turn up, wish the good doctor a pleasant hello and sit twiddling your thumbs. You answer whatever query of medical fact the doctor wishes to talk about but only concerning your medical records relating to duty injury and decline to answer anything you think is not relevant.

A review is not the Spanish Inquisition and an SMP is not supposed to behave like Tomas de Torqemada. It is not for you to prove you continue to qualify for the amount of injury pension you receive: it is for the force to determine whether or not there has been any alteration in your degree of disablement. It needs a substantial alteration before an injury pension can be revised.

It my well be that some of you think that full, unquestioning, cooperation is just fine – that you know you are not any better and you trust the SMP and HR and those that pull their strings to stick to the Regulations and case law and that everything will be just fine and dandy.

Sorry to say, that has not been the experience of most of the IOD pensioners who so far have been assessed by a SMP.  With the notable exception of those who saw Dr Jo Judge they all report abrasive and intrusive interviews, delving into areas which have nothing to do with determining whether there was any alteration. Most have not had a decision months after the event, and the SMP is trying to blame them for the delay.

So, it is up to you. Go along with a process which has about as much in common with a lawful review as does a rotten cabbage to a slice of apple pie, or give partial, conditional cooperation, or do you downright refuse to have anything to do with people who prefer to offer threats rather than ask honest questions, and who are happy to put you in front of a doctor who seems to know little about the Regulations and whose bedside manner would do justice to the little old ladies who used to knit as the guillotine did its grisly work.

What can they do if you refuse to cooperate? Downband you because they haven’t got any evidence that there is any substantial change and they feel you’ve been less then helpful? Not according to regulation 33 they can’t.

Pensioners accept that a police pension authority can hold reviews. But when reviews are not held lawfully, and when pensioners are not treated with dignity and respect, and are threatened and treated with contempt, then we need to remind ourselves that an injury pension is a right, enshrined in legislation, agreed by successive Governments, and is compensation for injury received on duty. It is not a State benefit, which we have to prove our continuing right to receive. It is part of the quid pro quo of police work. We readily put ourselves in harm’s way, and we held up our part of the bargain to the extreme extent of being damaged in body or mind, only to see some weasel with an eye on the balance sheet pressure ignorant and untrained HR types, and venal SMPs into abusing us, and the Regulations. Meanwhile, Nero fiddles as Rome burns.

The simple truth is that the drafters of the Regulations intended that reviews should only be held rarely – ‘at such interval as may be suitable’, is what they wrote. The status quo should be that no review is contemplated. When circumstances change, then a review might be appropriate. What we see in Avon and Somerset is a mind-set which thinks that a sizeable number of IOD pensioners are somehow not entitled to their pension, and that leads to the belief in certain quarters that no regard whatever need by given to the suitability or appropriateness of arranging a review in each individual instance, and no concern need be given to the health-damaging effects of putting vulnerable disabled people through the meat grinder of an unlawful process

How the rot set in

iodpa caselaw
How the rot set in

“To keep any great nation up to a high standard of civilization there must be enough superior characters to hold the balance of power, but the very moment the balance of power gets into the hands of second-rate men and women, a decline of that nation is inevitable.”
― Christian D. Larson

Police Injury Pensions: Maladministration or Criminality?

A Call for an Independent Enquiry.

This paper is intended primarily for former UK police officers and their families, serving officers and perhaps also any HR managers with responsibility for administration of police injury pensions who might have a conscience.

It is a call for an independent enquiry into the causes and consequences of the recent unlawful administration of police injury pensions, which started in 2004, eased to (nearly) a halt in 2010, and is now showing signs of having evolved, like a super-bug and is again threatening injury pensions.

It asks if the maladministration became criminal, with offences committed against Section 4 of the Fraud Act – fraud by abuse of position. It is motivated by a desire to see justice done and the guilty named and shamed so that disabled former officers and their families can finally draw a line under the issue.

There is no statutory definition of maladministration, but it is described by the Local Government Ombudsman as including but not confined to:

delay

incorrect action or failure to take any action

failure to follow procedures or the law

failure to provide information

inadequate record-keeping

failure to investigate

failure to reply

misleading or inaccurate statements

inadequate liaison

inadequate consultation

broken promises

There are numerous ‘watchdog’ organisations that provide a conduit for complaints of maladministration and a means of resolution and redress, usually when other attempts have failed. The Pensions Ombudsman has dealt with numerous complaints from former officers and it it worth noting that it is not necessary for consequential injustice to be alleged.

There is no fixed definition of injustice but it can consist of:

financial loss or unnecessary expense;

hurt feelings, distress, worry, or inconvenience;

loss of right or amenity; and

time and trouble in pursuing a justified complaint.

Thus, injustice may well have been present in all the cases where former officers in receipt of an injury pension were caused inconvenience, distress, worry or even suffered hurt feelings due to maladministration. I am sure we would all agree pensioners have had to take considerable time and trouble in pursuing their forces and police authorities over the maladministration of injury pensions and many have suffered adverse financial consequences.

To date, it seems clear that most IOD pensioners would have no difficulty agreeing that there has been widespread maladministration and injustice. However, it may well be that we should now consider if the actions and, just as importantly, the inaction of forces, police authorities and certain individuals went beyond maladministration and stepped over a line into criminal behaviour.

There is plentiful information available online about the background to the recent difficulties surrounding police injury pensions, so it is not the intention here to go too much over old ground, but rather to propose a course of action that will help the healing process and help ensure future good administration of injury pensions.

It is also time that those who were responsible for visiting such widespread distress were made to face the consequences of their appalling behaviour. It seems to be a modern attitude which pervades the police service that nobody is ever to blame and nobody need ever take responsibility for failings. An apology is seen as a sign of weakness which may have adverse effects on one’s career. The truth is, it takes strength of character to apologise.

Over the last few years we have witnessed, or been subjected to, maladministration resulting in dramatic and damaging reduction in the amount of injury pension paid. Disabled former officers, and their nearest and dearest have been dragged into an intensely stressful nightmare and have been forced to make strenuous efforts to protect their rights, and have incurred expense in so doing. Family relationships have been strained and quality of life diminished.

It has been a long, slow and painful process, but decisions in the High Court and determinations by the Pensions Ombudsman have finally had the effect of forcing pension administrators to refund money unlawfully taken, and to restore pensions to their proper former level. However, there is no way of knowing for sure that every disabled former officer has had matters put right.

It should be noted that in no instance did any force nor any police authority voluntarily take steps to put matters right. However, the saga is not yet over and the priority now must be to ensure that pensions are never again subject to similar maladministration.

Whilst this fiasco ran its lengthy course some of our colleagues have died whilst waiting for a resolution. Confidence in Chief Officers, HR managers, police authorities and SMPs has been shattered. There needs to be a healing process, bringing with it a restoration of confidence. Injury pensioners need to know they will be treated with dignity and respect and any future review of their pension will be conducted with scrupulous attention to the requirements of the Regulations. Serving officers, who at any time might be propelled suddenly into the ranks of retired, disabled, and on a pension, need to know that they too will be protected by the lawful administration of the Regulations.

Anyone reading this who is aware of the wide-ranging attack on the pensions granted to police officers injured in the line of duty must surely have thought, ‘But how could this happen?’ A good question, and one to which we have some part of the answer, but not yet the full picture. For that we need a comprehensive independent investigation.

It seemed, looking back over the last few years that a sort of collective madness had seized those in charge of the administration of police injury pensions. Some 17 forces, together with their police authorities, made a choice to abandon common sense and the Regulations and to follow guidance issued by the Home Office: guidance which said It was a good idea to reduce all injury pensions to the lowest possible level when pensioners reached the age of 65. The guidance also proposed the use of a device (ASHE) at normal force retirement age that would reduce pensions at that point. We know that the Home Office guidance, issued in August 2004 in the form an Annex C to HO circular 46/2004 was the trigger. The target was to reduce pension payments made to disabled former officers. So, who are those who fired the gun?

They are everyone who either actively took up the HO guidance or stood idly by, neglected their professional duty and allowed what has been dubbed the great pension robbery to take place. They are those who issued the guidance, and those who gave it tacit or specific approval. The people with prime responsibility must be Chief Constables, who are expected to prevent and detect crime and who held delegated responsibility from the now defunct police authorities for the lawful administration of injury pensions. Also responsible are senior HR managers, who would be expected to advise the Chief Constable and, as qualified professionals, understand the requirements of the Regulations.

Now Police Pension Authorities (in most forces, the Chief Constable) have taken over statutory responsibility for decisions over whether and when reviews might take place. We have to wonder if that was a sensible move, as it means the very individual whose budget stands to benefit should injury pensions be reduced by calculated manipulations of the Regulations is empowered to make decisions which make difficult demands on his impartiality.

The SMP, who acts in an independent statutory quasi-judicial role is expected to understand the Regulations and not to take instructions on what decisions he should come to. Yet there is worrying evidence that some SMPs have been and remain all too ready to be ‘guided’ or ‘advised’ by HR managers, and others, who should have no part in his independent decision-making role.

Depending on the local situation, other people may also have played a part in the historic maladministration, especially where they would be expected to ensure correct procedures or warn of deficiencies in process. And here I sadly have to include dormant Federation reps and local branches of NARPO where ignorance of the Regulations was never allowed to interfere with coach trips and golf tournaments.

If any one of these people had hacked into your bank account and set up a standing order to divert thousands of pounds a year into their own accounts, they would, quite rightly, face being arrested and charged and could expect severe penalties. Yet, not one person seems to have been disciplined, admonished, or given even a mild ticking off. Nobody has lost their job, though one or two have ‘retired’ or moved on elsewhere.

We have no indication that pension administrators have been given extra training, or that better systems of supervision and oversight have been put in place. There seems to be no change in the fundamental deficiencies that allowed the maladministration to run unchecked for so long. There seems to be little or no change in attitude, with pensioners still seen as an expensive drain on resources rather than as honoured former colleagues.

We are led to believe that it was all just a simple, understandable and forgiveable slight error of administrative process. We are asked to believe that people were doing what they thought was the right thing at the time.

Hogwash!

To me, and I suspect, to many other injury pensioners, this does not seem like justice. Yes, we have had our pensions restored, and yes, some forces have apologised, but until the guilty are brought to justice and required to account for their behaviour there can be no hope of reconciliation and no removal of the nagging concern that it could all happen again.

You see, I think it entirely possible that what we were forced to undergo was not plain vanilla maladministration. That alone would be bad enough, but I believe there may also have been criminality. Injury pensioners, and their representatives, should be looking at the evidence and making firm demands for an independent enquiry under the supervision of the Police Complaints Commission and Crown Prosecution Service.

A constant theme running throughout the difficulties has been suspicion by the pensioners, and denials by the administrators, that a desire to save money lay at the heart of things. We have, however, seen documents where calculations were made, working out how much money might be saved, or spent, in conducting reviews of injury pensions. To its credit, National NARPO made public its opinion that the desire to save money was the driving force behind the HO guidance being implemented.

Indeed, the potential savings must have looked very inviting to the bean counters who whisper in the ears of Chief Constables. Perhaps sufficiently inviting to cause some people to decide to break the law. How tempting must it have been to read in guidance from the Home Office that ‘Authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’ How easy to then persuade Chief Officers that the guidance must be right.

When I was very small, my mother told me, ‘If someone told you it was fine to stick your hand in a bucket of boiling water, would you believe them?’ This was a lesson not learned by many HR managers. Did they bother to read the Regulations to see whether this revolutionary advice had any support from the legislation?

On the 18th May 2004, a date which should go down in infamy, a date which was but a few short weeks before the unlawful HO circular 46/2004 was issued, Mr Giffard, then Chief Constable of Staffordshire, writing on behalf of the Association of Chief Police Officers told the Home Office,

‘We continue to think that at that stage [age 65 years] anybody in receipt of an injury award should be automatically dropped to the lowest band, or possibly even completely dropped . . .’

How could such a senior officer, representing all the members of ACPO, make a statement that essentially was a call to others to break the law?

It could be argued that from the moment HO circular 46/2004 was published, back in August 2004, alarm bells should have sounded. It was so obviously proposing actions that nobody had previously taken that it must have caused honest folk to doubt the lawfulness of following its advice  We have proof that this is what must have happened in the majority of forces, for only 17 or so out of the 43 forces in England and Wales implemented the guidance. Those forces which rejected the guidance did so, we would like to think, for good reason. Yet other forces did not take this majority rejection of the Home Office guidance as an indication that they ought to consider why.

From that date it was soon made obvious that many misgivings were being aired not least from NARPO and the Federation at national level, but also from individuals. Again, an honest person would have revisited the issue in the light of those misgivings. Nevertheless, some 17 forces set about implementing the guidance and began a ‘more robust’ approach to reviews, with some forces setting out to review all injury pensioners, and others targeting those aged 65 and over as the best, fastest, way of reducing pension payments.

It began to look like the Home Office’s cunning plan to reduce the ‘burden’ of injury pension payments had stalled. Instead of a sweeping victory and home in time for Christmas Mr Gilbert’s little piece of paper was seen by some as worthless and by others as a licence to print money.

On Wednesday the 4th November 2009 the Rt. Hon. Sir Alan Beith, MP for Berwick upon Tweed

Mr Prime Minister, is the government aware that several police authorities, including Northumbria, are using Home Office guidance as a basis for cutting the  pensions of police officers who have been forced to retire early when they have been seriously injured on duty, and on the principle that we should stand by those who have risked their lives and face serious injury protecting us, whether in the armed forces or in the police, will you take a personal interest in this and investigate this?

The Prime Minister replied:

I shall obviously look at this matter. When policemen or women retire they receive the pension. I see no reason why their pension entitlement should be broken, if it is indeed an entitlement, and I shall look at what he says.

Reviews nevertheless continued. By now, an alert and honest Chief Constable, HR manager, CEO or Chair of a Police Authority, any ethical SMP or honest force solicitor, would have perhaps decided that a close look at the Regulations vis a vis the HO guidance would be in order. Perhaps they might have also felt that a quick bit of research into any relevant case law and a phone call to the Pensions Ombudsman might be a sensible move to make if maladministration were to be avoided.

If anyone had bothered to do so, they would have found the Administrative Court case of Crocker. If nothing so far had shaken their confidence in the rightness of the HO guidance, this case should have rattled it into fragments. It was heard in the High Court in December 2003: that is eight months before the Home Office guidance was issued. The case is a complex one, but two passages would leap out to any professional, such as a Chief Constable, or a member of a police authority with law degree, an alert SMP or an honest force solicitor:

The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers. I consider that what has to be disregarded is every factor which has affected the loss of earning capacity other than the duty injury.

Reading that, and noting that the whole underpinning for the HO guidance was the assumption that every injury pensioner would experience a total loss of earning capacity merely because he or she had reached the age of 65, any honest person would have wondered how the HO could have issued such guidance. Reviews nevertheless continued. Nobody though fit to act to suspend reviews until the situation was clarified. Inaction is itself capable of causing maladministration. When a person or a body has a statutory duty to safeguard the financial rights of others, then inaction becomes criminal.

Research into Annex C of HO circular 46/2004 showed that its author had been ‘economical with the truth.’ It was claimed in the guidance that a ‘recent survey’ had shown that there was ‘diverse‘ practice when former officers reached normal force retirement age. It stated a ‘recent survey‘ had found that, ‘Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached – others continued to pay benefits at the same rate until the death of the Officer concerned.’

This was a complete lie. There had been no survey. The Home Office was eventually brought to admit this, and to reveal that nothing more than one or more non-minuted discussions had taken place at meetings of the National Attendance management Forum.

The facts differed diametrically from the Home Office version of the situation. From 1987 to 2003 not a single injury pension was ever reduced as a result of the former officer attaining either normal force retirement age or state retirement age of 65, contrary to the claims of the Home Office.

The research findings were therefore compelling. They caught the Home Office out in a lie, and acting in an underhand and manipulative manner, and should have caused anyone in a position of responsibility for the administration of injury pensions to consider whether or not the guidance could be relied upon and whether the advice it offered was lawful or not.

The research was presented to the Home Office, which made no comment and made no move to attempt to challenge any of the findings of the research. Nor did the Home Office move to amend or withdraw the guidance: a stance it maintained until the relevant parts of the guidance were declared unlawful by the High Court in 2012.

The research was also presented to numerous Chief Constables, police authorities and others. It was posted on the Internet for public consumption. Not a single voice raised any challenge to the research findings. And not a single force or police authority made any move to revisit their approach to reviews of injury pensions. Unlawful reviews continued.

One Chief Constable, now thankfully retired, was reported as writing that the Home Office guidance was ‘mandatory‘. She must have known that not to be the case. Her explanation, when asked why then were so many forces not actioning the guidance, was that they were breaking the law!

Readers of this blog, and those who take an interest in police injury pension maladministration will be familiar with the High Court cases that began to question the legality of the way some forces were administering police injury pensions – all of which found in favour of the pensioners.

The first of these were Pollard, in February 2009 followed by Turner, in July 2009. In August 2009, the Pensions Ombudsman made a determination in the case of Ayre, that, ‘. . .the Guidance cannot override the relevant Regulations.’

He also made it clear that at age 65 any assessment of degree of disablement could not assume there had been a total loss of earning capacity. Unlawful reviews nevertheless continued.

On the 11th September 2009 the then Minister of State for Security, Counter-Terrorism, Crime and Policing, David Hanson, announced at the annual conference of NARPO that he had ordered a review of the guidance. The promised revision never materialised and unlawful reviews continued.

A Police Medical Appeal Board, one of many that had resulted from implementation of the HO guidance, was convened in January 2010. This was a seminal hearing, chaired by Dr David Wallington, one time Director of Occupational Health for the Metropolitan Police. He concluded:

‘The Board, in recognising the Police Authority’s case in respect of the Home Office Guidance and the Guidance to Police Medical Appeal Boards, nevertheless consider that they have no alternative but to observe the Police Benefit Regulations [sic] where there is no mention of such an argument as cogency, or indeed no specific mention of degree of disablement after age 65. There is no mention in the Regulations that a review of degree of disablement at any time requires an alternative methodology.’

The Police Medical Appeal Boards were effectively giving due notice to all concerned that they recognised the Home Office guidance was flawed. Unlawful reviews nevertheless continued.

On the 12th of November 2009 former Metropolitan Police officer Belinda Laws won her case in the High Court. It clearly signalled that forces had better clean up the way they handled injury pensions.

Towards the end of 2009 several forces unilaterally suspended reviews.

Thus, after five years and numerous lost opportunities to take corrective action, finally some forces realised they ought to act. Too little, too late. The suspension of reviews was not accompanied with a restitution of unlawfully reduced pensions, nor an apology, nor a review of procedures.

On the 10th of March 2010 the Home Office wrote to all forces advising that reviews be suspended, as yet another court case was pending.

At this point one would have anticipated that all forces who had been caught up in the enthusiasm for implementation of the HO guidance would have realised the time had come for them to commence a complete rethink. Instead, they remained as though transfixed, apparently waiting for some direction from the Home Office. There was no reason to wait for any further guidance or advice from that source as everything necessary to bring about a return to a lawful administration of police injury pensions was readily available in the form of the Regulations, recent case law and Pension Ombudsman determinations. Reviews ceased, but disabled officers and their families, continued to suffer uncertainty and anxiety. Those pensioners whose payments had been reduced did not have them reinstated.

On the 13th October 2010 the Metropolitan Police Authority appealed against the Belinda Laws decision, and lost.

Nothing much happened throughout 2011.Forces and police authorities remained largely inactive on injury pension issues but there was then a rash of forces making provision for pensions to be repaid and restored to previous levels.

The case of Crudace was decided in January 2012. His Honour Judge Behrens released a judgement quashing the decision of the Northumbria police to reduce Mr Crudace’s pension when the former Inspector reached the age of 65. He decided the Home Office guidance was unlawful because it was inconsistent with the statutory scheme under which the pensions were paid. Judge Behrens also confirmed former police officers who have had their pensions reduced in this way were entitled to apply to the police authority for the decisions to be reversed and for their pensions to be restored.

This was shortly followed by the case of Simpson in February 2012, which also declared that parts of the HO guidance was unlawful.

The situation now is confusing for some injury pensioners. Most have had their pensions restored to previous levels but none, save in one force, have witnessed any movement by their Chief Constable to consider how injury pensions will be administered in future. This is not good enough, for it does not inspire confidence that further attacks on pension payments won’t be made. Indeed, in Avon and Somerset an ill-thought out attack has begun.

Mr Gilbert has graciously retired, but in a Kafkaesque twist, the force solicitor and the SMP for Northumbria, who were actively responsible for the unlawful ‘reviews’ and consequent reduction of the injury pensions of some 60 disabled former officers which featured in the case of Crudace, now are reinvented and appear as the experts responsible for a training event for some SMPs at the College of Policing.

The time line above is only a brief outline of the major events. Locally, former officers will know of other events that all chart the progress of the maladministration, highlighting intervals where needs to be weighed against Section 4 of the Fraud Act, where any person who occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person

‘. . . may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.’

Pensioners will no doubt have, or can obtain, letters, emails and records of conversations, minutes of meetings and other documents that provide the fine detail of evidence of inaction. Did people in positions of responsibility omit to voice concerns, or respond to your concerns? Did they fail to act, when action was called for? Pensioners might care to consider if there is evidence of dishonesty and fit their local evidence into the wider picture.

The questions to be asked are, ‘Why did my force or police authority not act sooner to suspend reviews and restore pensions?’ and ‘Why did nobody in a position of responsibility not question the lawfulness of what was going on? A further question, to be asked with the combined voices of all the injury pensioners and their families is, ‘How did this happen?’

These questions deserve answers, and I believe they should be sought by an independent investigation by a body supervised by the Independent Police Complaints Commission and the Crown Prosecution Service.

Pensioners might therefore see it as their duty to ask locally for such an enquiry. We were all sworn officers once and could not stand idly by whilst a crime was being committed, nor fail to take action if a crime was complained of.

Two such requests have been made, in Cambridgeshire and in West Yorkshire. Both have fallen on deaf ears. What Chief Constable willingly would agree to expose his or her force to such scrutiny, knowing that there are so many skeletons hidden in so many closets? One Chief Constable was so bold as to claim that a barrister’s advice was that nobody responsible for police injury pensions was in any position to be held liable for section 4 fraud.

It is readily anticipated that a local enquiry would have to very quickly extend to investigating the role of the Home Office, the National Attendance Management Forum, the SMPs and the limited companies providing SMP services, and also the Association of Chief Police Officers. The purpose of the enquiry would be to determine to what extent, if any, maladministration spilled over into criminality. If widespread calls for enquiries are made, then perhaps the need for a national enquiry would become obvious and irresistible. Only when pensioners can be assured that the stables have been cleaned and that no-one remains who is still secretly wishing to find future ways of subverting the Regulations and visiting misery on disabled former officers and their families can we begin to feel confident in those who administer our pensions

.Write, if you feel it the proper thing to do, to your Chief Constable, with a copy to your Police and Crime Commissioner. Ask for an independent enquiry. Briefly explain that you have concerns there may have been criminal offences committed. Quote Section 4 of the Fraud Act. Explain that implementing the HO guidance when it was so obvious to you and many others that it was unlawful, failing to engage in consultation before implementing the HO guidance, failure to act to suspend reviews when there was so much controversy, failing to respond to the decisions in the High Court and by the Pensions Ombudsman, are all failures to act which all seem to indicate fraud by abuse of position. You don’t need to provide all the evidence, for all that is needed is to raise the concern that there may have been offences. Uncovering the evidence would the job of the enquiry.

Under too many carpets there is the dust of misdeeds. In too many seats of power sit too many straw Chief Officers. Second-raters to a man and woman, who are pale shadows, more politician than police officer and who prefer past misdeeds to remain buried in fear that, revealed, they might bury them.

In the here and now

iodpa caselaw, Regulation 37, selected medical practitioner
In the here and now

“It’s being here now that’s important. There’s no past and there’s no future. Time is a very misleading thing. All there is ever, is the now. We can gain experience from the past, but we can’t relive it; and we can hope for the future, but we don’t know if there is one.”
― George Harrison

Imagine, if you will, that you are a 37 year old male police constable with 15 years service.  You weigh 75 kilos and have 32″ waist.  You have just run to work at a brisk 6 minute mile pace, performed a 14 hour shift and run home (or if you prefer cycling, you cycled the detour of 15 miles in a spritely average of 20 mph).  You are basically immortal.  Then you have an on duty injury, and after 18 months and numerous surgical interventions you are retired with an IOD award.

What relevance would your medical notes be at the time you were 37 and able to run the 5 miles to work in 35 minutes (or cycle 15 in 45 minutes) to  start that early turn?  How would looking to that past allow for an impression on your capacity to earn on the day you were retired?

Following this train of thought, how can your fitness or lack of it 3 months or 3 years ago be an indication of your present degree of disablement?  It can’t be.

Speculation into the future is forbidden when an IOD is awarded, and this speculation similarly is not allowed at a review.  The degree of disablement in relation to earning capacity shall be determined at the time of the decision and not make any reference to potential future earning capacity (South Wales Police Force vs Anton and Crocker)

The starting point is Regulation A12(3) [of the Police Pensions Regulations 1987]. It requires an assessment of how earning capacity “has been affected”, not of how it is likely to be affected. (1)

It goes without saying that a lot of people will have reports from the SMP saying, rather hackneyed, ‘might be capable of work in the future’ or at review, the vapid ‘has worked in the past’.  These opinions are unwarranted and contrary to the above case-law.  It is how you are now, not how you were before the review started, or 12 months ago, or in 12 months time.

This is important as the above melds  two things: (1), the argument that a great number of SMP decisions are unlawful if the above comments have been used to lower a band, with (2), the reason FOR a review.  If earning capacity in the ‘here and now’ is zero then the award should be 100% and if in the ‘here and now’ the former officer is still unable to work there is no legitimation to review.  At a review, past medical records do not speak of the ‘here and now’ – arguably very recent records do, but historical records do not.     The positive duty to review is a figment of the Police Pension Authorities’ imagination.  The duty not to refuse a review if circumstances change does exist and if in the ‘here and now’ there is substantial change then the award can be revised.

The regulations are not there for any force to regularly spend over a year punishing a former officer by dragging them through a protracted review.

Interestingly, how can a force make a decision 8 months after that person saw the SMP?  Surely after such a time of procrastination any decision can be appealed with an automatic appeal of  ‘change of medical condition’.  Life has moved on, health has ‘moved on’ but the SMP report looks in the past.  The person can not be reviewed again as an immediate review consecutive to the last is not a suitable interval.  The ‘here and now’ is important.

A review is time sensitive and should be finalised within a month of the assessment (if required) with the SMP.  Otherwise time makes a non-finalised review obsolescent.  It can not be any other way – if the detailed examination of the elements were conducted 6 or 8 months ago then the ‘here and now’ has ‘been and gone’.  The “[…]  assessment of how earning capacity [ ] has been affected”  is twisted into “will be affected” and this distortion does not conform to the regulations and is explicitly denied by case-law, so therefore is unlawful.

Any  decision made based on superannuated assumptions can and shall be appealed on basis of time without any need to question the content of the decision.

(1)