Month: February 2015

Regulation 37

iodpa caselaw, Regulation 37
Regulation 37

The ‘positive duty to review’ and the weapon to ‘protect the public purse’

There’s an introduction to regulation 37 here on the ‘The Regs – and what they mean to you’ page.

It’s quite difficult to explain what is meant by earning capacity and how this is the measure of the degree of disablement.  It’s even harder to convince people that the regs do not directly correlate ‘physical disability’ to its meaning of ‘degree of disablement’.

A problem is that reg37 is silent on the detail on how individual forces shall measure the loss of earning capacity.  It has quite simply stated the banding of slight, minor, major and severe is enough instruction, but just like mankind has a tendency to do, something simple has be turned into something complicated.  The complication is the ‘guidance’ that police forces use in an effort to justify their defiled view of what it is to ‘protect’ the  public purse.

The thing is that to be given an IOD award, a high bar has already been passed.  There are 4 levels of attainment to qualify:

(a)whether the person concerned is disabled;

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

(c)whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person’s disablement;

If a former officer has an IOD and ALL of the above wasn’t satisfied (retired off, wink, wink, nudge, nudge…) then that says more about the force that did it than the former officer it was done to.

In reality an injured serving officer lives a  hell once injured.  Treated like a malingerer, put on surveillance, reduced to half pay.  The full weight of bureaucracy is put against them and that injured person has to prove everything – permanence, whether the injury was on duty, whether it was in the execution of their duty and all the rest.  An award may be begrudgingly given.  More than likely a civil claim against the force is ongoing as well as the ‘injury in the execution of their duty’ was down to poor management, being single crewed, having defective equipment. Once gone the retired officer has to justify his or her level of loss of earning capacity when they apply for an award so another fight with the HR department starts.

Now retired, the former officer wants to live their life in peace often with a deep resentment of how they were treated.  But every 2 years a letter pops through their postbox calling them to attend a review of their degree of disablement as the police force claims they have to protect the public purse under regulation 37. The insinuation is that the award is something you have to prove for life.  Not much of an award is it?

It’s no wonder that those retired on the lowest tier, a band 1, who’s condition and earning capacity deteriorates rarely if ever ask for a review.  They haven’t the strength.  It can be said that that are more IOD retirees with a banding lower than is strictly appropriate than a banding higher. But that’s the nature of beast – the SMP gives a subjective figure using his qualified medical judgement. If and when circumstances dictate on review here has been substantial change, in other words an substantial improvement or a substantial deterioration, then a revision is permissible, down a band or up a band respectively.  Retrospective attempts at cost-saving redress by HR and Finance teams because they think in hindsight the original banding wasn’t the right one is unlawful as much as it is it impossible.  The award was given at the Zeitgeist of the original decision and if there is notable substantial alteration it is a SMP alone that performs the revision; not for HR departments to interfere and influence the SMP or to attempt to rewrite history.

Case-law deals with the finality of the banding: Laws Appeal 2010

The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners

Imagine a person with PTSD and severe mental illness.  A constant review program will lead the person to being sectioned under the mental health act.  Military veterans aren’t treated with this level of disrespect so why are retired former police officers?

When SMPs ATTACK !!

iodpa HR, selected medical practitioner
When SMPs ATTACK !!
collusion
noun
secret or illegal cooperation or conspiracy in order to deceive others.
“the armed forces were working in collusion with drug traffickers”
synonyms: conspiracy, connivance, complicity, intrigue, plotting, secret understanding, collaboration, scheming

“there has been collusion between the security forces and paramilitary groups”

The regulations state the police pension authority shall refer for decision on the degree of the person’s disablement to a duly qualified medical practitioner (a selected medical practitioner or SMP).

You’d have thought that the SMP should be independent and blind to the process and only interested in answering the sole question put to them – the only duty on such a review, is to decide whether since then there has been a substantial change.

Here, not only is he referring to former officers injured in the execution of their duty as experts in process, legislation and points of law, he wants to revisit causation:they know the score.  Just because the federation exists (and we know how helpful they’ve been) there is no excuse to be ‘direct’ and not treat disabled individuals with respect and dignity.

It isn’t very good to discover that the SMP has been in contact with the force all throughout the process and has actually advised the HR department of the force how the former officers should be treated. It is also unnerving to find out that the same SMP has been working for the force before they have been actually contracted to perform their function.  SMP started in May but the force said he didn’t start his duties until late July !  https://www.whatdotheyknow.com/request/contractual_terms_of_reference_f#outgoing-409280

Q2. Please tell me the date he commenced his duties.

Dr Johnson commenced his duties on 24^th July 2014.

Why does the SMP think that refusal for full disclosure of medical records since birth is a manipulation of the process:  GP reports arent good enough.

When the sole question is substantial change since the last review then surely seeking to revisit causation and apportionment prejudices the decision making process

When the same SMP declares that the former officers ‘know the score’ and can seek legal assistance if they don’t like it – you know that this SMP isn’t actually independent and has an agenda.

Why all the hullabaloo about IOD reviews?

iodpa caselaw, Finance, HR, NAMF
Why all the hullabaloo about IOD reviews?

Injury on Duty Awards used to come out of central government funds but that changed in the early ‘noughties and the awards became payable out of the individual force’s budget.  But the Home Office threw a sop to the forces – now obligated to pay for their decisions they made to retire former officers.  Their redress was new Home Office Guidance – Home Office Circular (HOC) 46/2004

The problem is that although the Regulations are unchanged, many Police Authorities ( probably slightly less than half of the authorities in England and Wales) changed their policy following the issue of the guidance in HOC 46/2004 and introduced reviews triggered when the retired officer reaches the ages of 60 and 65. Although this guidance and policies based on it have been declared unlawful and withdrawn, forces are still attempting to find ways to reduce IOD bands in order to make budget savings. Existing injury pensions which may or may not have been subject to review previously were now reviewed under the new guidance which, in some forces was pursued aggressively.

HOC 46/2004 was unlawful and challenged – not directly at first – there was a blow-back and the new aggressive stance by Police Pension Authorities was used on other former officers, of all ages, in receipt of IOD awards.  Turner V PMAB and Laws V PMAB were case-law decided as a direct result of 46/2004 even though neither of the appellants were 65 years old.  This circular corrupted the administration of ALL IOD awards and the whole thing came down to ways the police pension authority can save money.  Lets not forget who had to challenge the unlawful guidance – incapacitated and disabled former police officers.

Turner and Laws were successful on points of law.  After that the guidance itself contained within HOC 46/2004 was challenged both by  judicial review (Crudace, Simpson etc)  and by the pension ombudsman (Ayers, Sharp etc) and the guidance was declared unlawful in 2013 in the consent order Slater V PMAB and officially withdrawn.

But the Rubicon had been crossed and the police pension authorities had tasted blood.  In the days of austerity how better for a high-flying Chief Finance Officer (CFO) to mark their career by making instant savings into their budget. If they can save ££££ then their CV and LinkedIn would be flowered up and then a new role with  an inflated 6 figure salary plus bonus will be within their grasp.  Like a plague of locusts, using the budget reduction as evidence, the CFOs think they can move onto a new force to decimate and corrupt the administration of IOD awards there as well.

Did the Home Office and police pension authorities accept they were wrong?  No.  The guidance was withdrawn and the Home Office and those forces that pursued 46/2004 maliciously had their fingers burnt.  Out of the ashes the National Attendance Management Forum (NAMF) was born.  A coven of HR and finance managers who meetup at Tally Ho! Conference Centre Birmingham. The cynically minded might view this organisation as an attempt to further undermine the regulations with an attempt to keep  keeping the sphere of influence separate so the Home Office doesn’t get the blame.

There will be further posts all about NAMF.

PEAM and Bad Maths

iodpa HR, PEAM, selected medical practitioner
PEAM and Bad Maths

PEAM (Police Earnings Assessment Matrix)

“The Police Earnings Assessment Matrix (PEAM) was independently developed by Grantwood Consulting to enable the force to arrive at fair, reasonable and defensible assessments of the earnings potential of Police Officers. PEAM’s underlying principle is that there are a number of generic job levels in the police, public sector and the wider job market. The job levels enable:  The size of jobs to be assessed, particularly jobs in different functions or disciplines.  Base salary levels for a number of different market sectors or geographies. The job levels allow police officer positions to be compared with jobs of comparable size or weight in the public sector, private sector or police support staff populations. PEAM therefore combines best practice from both outside and within the police sector. It has also been tested to ensure compliance with equal opportunities requirements.”

Why is this bad maths.  Well its contrary to regulations for a start.  The regulations are quite simple and split the degree of disablement of earning capacity into 4 bands: slight, minor, major and severe:

Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
(1)       (2) (3) (4) (5) (6)
25% or less (slight disablement)         12.5% 15% 30% 45% 60%
More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
More than 75% (very severe disablement)          50% 85% 85% 85% 85%

What the PEAM manages to do is turn a % given by a medically qualified selected practitioner  into another lesser % used by HR for the award.  For example, 75% (major and band 3) once put into the Police Earnings Assessment Matrix can be magically distorted into a minor band 1.  Basically PEAM is a device that is used to reduced an IOD banding into its lowest factor.  This fallacy was spotted in a Senior Counsel review of Injury on Duty Awards commissioned by the Northern Ireland Policing Board where Mr David Schofield QC stated in section 1.35

“I also recommend that, in the course of such a further review of Northern Ireland specific policy guidance in this area, 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”.

chapters_1_and_14_of_the_scoffield_report__website_version_

In other words the injured former officer should be placed in band 1,2 3 or 4 based on a judgement ‘in the round’.  The regulations do not allow for inclusion of any manipulation by use of an invented earning matrix therefore this PEAM device has no de jure.

So the use of PEAM (or any convoluted matrix) is unlawful.  PEAM and other methods involving wage comparison resulting in a figure which purports to reflect future loss of earnings. An injury pension is paid as compensation for loss of the capacity to work, and the Regulations are blind as to how much or how little an individual might be earning, or be capable of earning.

The SMP (selected medical practitioner) is not permitted to look to the future when deciding degree of disablement. He must make his decision on the medical evidence at the time he makes that decision. The wording of the Regulations is,

‘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 an injury received without his own default in the execution of his duty as a member of a police force.’

Note, ‘has been’ not ‘will be’.

Note also, ‘capacity’ not ‘earnings’.

The SMP must make a decision in the here and now, and should relevant circumstances alter substantially in future, then the Regulations allow for a police pension authority to review the degree of disablement and revise the amount of pension paid.

Finance Managers gone Rogue part 1

iodpa Chief Constable, Finance, HR, PCC
Finance Managers gone Rogue part 1

The delegated Administrator for Police pensions according to Avon & Somerset’s Joint Scheme of Governance is named as the HR Director.  The HR Director resigned suddenly in May 2014.  In mid-May 2014 the Chief Constable was suspended by Commissioner Mountstevens following allegations of ‘inappropriate behaviour towards female officers and staff’.  In this organisational maelstrom, the Finance Director took on the extra duties of the HR Director in a grandly sounding re-badged dual role now called the Director of Resources.

But the authority of delegation ( the Chief Constable is the Police Pensions Authority but he is able to delegate the administration to a named other) wasn’t signed until September 2014 and with a clumsy attempt to back-date it by 3 months.  So who was steering the ship and allowed the reviews to start?  …

Letter from John Long to Julian Kern

It wasn’t on the say so of the PCC’s finance officer was it?  Nah, that’ll be just plain wrong … reviews of IOD awards should surely be solely a medical question under suitable intervals relevant to the individual.  Not because the force is broke, penniless, without means, on the’ bones of yer arse’, etc etc.

HR gone rogue Part 1

iodpa Finance, HR, Meeting
HR gone rogue Part 1

Serve as a police officer and you are treated as number, as a ‘human resource’ not as a person.  If you are retired on an IOD award then you become an ex-number that still costs them … and the HR departments will try to collect the pound of flesh as to balance the books of their Director of Resources. Like Portia said to Shylock – you can’t take what you aren’t lawfully allowed to take. Poor metaphor, sorry – can I qualify it by claiming the blood Shylock isn’t allowed to draw is the same as the case-law and police regulations they aren’t allowed to contravene? No? .. I’ll get my coat.

Rhetorical question, but why are IOD awards administered by HR departments ?

When HR has the same director as the Head of Finance then chaos shall reign …  To misquote Jessy J – “It’s all about the money, money, money”

31/01/2013 JOINT FINANCE MEETING

“Pension and retirement costs are significantly overspent due to the large
number of medical retirements; 26 cases to date with a possible further 27
cases identified by the Human Resources department. This overspend will be
funded through Reserves and the number budgeted for within the 13/14
budget remains at 12 cases”.

08/07/2013 Email from HR Director  FOI 1102 email

Edit note: (Why have case-law when you can try to ask the Home Secretary to revoke it !  And they subsequently denied that there is a ‘HR v2’ – the version that needed ‘damping down’)

24/07/2013 JOINT FINANCE MEETING

“The PCC’s attention was also drawn to the Injury on Duty Payment which is a recurring payment for someone who is medically retired but was injured whilst on duty (this includes the commuting journey). This is payable every year until death and currently accounts for £5.6m of the central pay budget (half). The Head of Retained Finance has raised this issue with Winsor following the Winsor Review, which did not pick this issue up, and the Constabulary suggests that consideration should be given to this ceasing at national retirement age. The PCC will write to Winsor to raise this issue again. […]

  1. Finance should consider managing medical retirements through a reserve rather than budgeting for it.
  1. The PCC will write to Winsor regarding the issue of the Injury on Duty Payment being payable until death”.

29/11/2013 HR/OPCC Meeting

“The College of Policing will be hosting an IOD training event on 31 January for SMP’s. A meeting of the National Attendance Forum will look at the agenda for the training day. MS asked if David Bulpitt looked at who is tier 1/2 etc. CW advised that the pension’s team is looking at this”.

14/02/2014 JOINT FINANCE MEETING

“Central pay overspend will be allocated to departments where possible in future reports. Medical retirements was discussed and the potential need to accrue this spend at the end of the financial year dependent on advice from

  1. The PCC sought clarification on the advice given to retiring officers on thelength of time they have to be retired before they can return to a staff role –this is dependent on how different the staff role is to that of the Officer rolethey were in”.

29/05/2014

16 letters are sent to youngest band4s (highest disablement) informing them they are subject to a Regulation 37 review.

What have the Romans (Federation ) ever done for us?

iodpa Federation
What have the Romans (Federation ) ever done for us?

What have the Federation ever done for us?

Made matters worse.  How dare we rock the establishment.  How dare we challenge the unlawful administration of Injury on Duty Awards !  Just know your place, show your under-belly and engage !  (If they ‘do you over’ you can always appeal they said).

We have asked the Federation to take the force to task, for them to make it clear that any review of a injury on duty award is under the discretion of the force, pertinent to the circumstances of the individual and the exercise to be undertaken, and the reviewing body’s duty and only duty on such a review, is to decide whether since then there has been a substantial change.

What a surprise it was when it was discovered that the local branch who should be there to help are the ones that put together the guidance that the force is using to justify their review programme.

You can imagine the shock to hear that the local Federation welfare officer told the force that to have no earning capacity due to the degree of disability, the person has to be in a wheelchair.  What about those with mental illness Mr ‘local Federation welfare officer’ or those with PTSD ?  Do they have to be in a wheelchair to be unemployable ?

FOI 1231 Magic being helpful

FOI 1231 Magic at work

FOI 1231 Magics masterpiece

Mr Magic, the review is not a repeat of the earning capacity part of the process.  That has been decided when the award was first ‘awarded’ on the original decision and is final.  A review is consideration of substantial change since the last final decision – not a fresh assessment.

A&S want to cut IOD awards

iodpa Finance, PCC
A&S want to cut IOD awards

217450070-Avon-and-Somerset-PCC-Wants-To-Cut-Police-Injury-Pensions

So that is what IODPA has to deal with … it all comes down to money.  The PCC seems to have forgotten that IOD awards are granted under very rigid statutory requirements and are governed by comprehensive regulations and case-law.  There is the possibility that the PCC didn’t actually author the letter – perhaps it was signed by her but actually written by the Chief Finance Officer for the Police & Crime Commissioner (Salary – £70,929 – http://www.avonandsomerset-pcc.gov.uk/Document-Library/2014/Job-Description-CFO.pdf)

The PCC, ever the u-turntable politician, had a climb down:

I truly value the bravery and dedication of officers who place themselves in harm’s way

I would like to apologise if the tone and content of a letter I wrote to the former Policing Minister Damian Green MP in 2013 regarding injury on duty payments has caused any offence or distress to officers within Avon and Somerset and indeed any officer in the country who has been injured in the line of duty.

But then a few weeks on from the faux ‘I’m sorry’, her Chief Finance Officer reverses the apology by deciding that they meant it after all:

FOI 1231 one year on