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?