Month: March 2015

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. 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. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any 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 the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

The decision … or lack of one

iodpa selected medical practitioner, smp
The decision … or lack of one

When a police pension authority turns its mind to police injury pension reviews, there are some decisions to be made.

It’s a bit like eating a plate of chips. Shall I have mayonnaise with them, or just salt and vinegar? Sounds like an either/or type of decision, doesn’t it. But what if you can’t decide? Then the status quo continues – the chips get eaten just the same, but with no dressing. No decision is really a decision to leave things as they are.

So, what should happen when a police pension authority (PPA) thinks about holding a review of an injury pension? First off, a decision needs to be made as to whether a review is appropriate in each individual case. The PPA has a wide power of discretion over when or whether to hold a review. According to the Police (Injury Benefit) Regulations 2006 a PPA (regulation 37-(1) the PPA,

‘ . . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . . ‘

The Regulations give no instructions on what might constitute a suitable interval. That is left to the PPA to decide, because each case is different. Where legislation confers a power of discretion, it must be exercised. Some ‘mind’ must be applied to the matter. The PPA is obliged, indeed required. to conduct a decision-making process for each individual, designed to determine whether a suitable interval has passed since the time of the last final decision.

Of course, I am assuming here that a review would only be contemplated for the reason of ensuring the intention and scope of the Regulations were upheld. Which, with the review provision, is to help ensure the correct level of injury pension continues to be paid. In Avon and Somerset Police Headquarters they don’t think that way. Oh no. They look at the bill for injury pensions and see the review process as offering a way to reduce pension payments. They look for ways of manipulating the process so as to achieve that aim.

Once that approach has been adopted, it is all downhill from there. None of the decisions taken along the route thereafter are lawful.

Let’s back up a little. Regulation 37-(1) commands the PPA to consider whether the degree of the pensioner’s disablement has altered. In my dictionary, ‘consider’ means, ‘To spend time thinking about a possibility or making a decision.’ So, let’s imagine ourselves in the shoes of a professional HR manager to whom has been delegated the task of considering whether a former officer’s degree of disablement has altered.

What information do we have to go on? We can’t look at any occupational health file, as that contains personal medical information which we have no authority to access. Even if we could, it would not help as we have no medical qualifications and thus can’t form any opinion or decision based on medical information. There is the former officer’s personnel file, which contains little which might help, other than date of injury, date of retirement, date of grant of injury award – all of which relate to events many years ago. Nothing which might tell us the state of the individual’s disability now.

So, here comes the first mayonnaise or salt and vinegar moment. Shall we

  1. a) send a sneaky, intrusive and threatening questionnaire to pensioners selected on the grounds that they are on band four and under the age of 50, so being the most likely candidates for a reduction in pension payment, or
  2. b) send a polite letter to all injury pensioners asking them to indicate whether they, if asked to do so, could provide a report from their GP saying their disablement was any better, worse, or much the same?It’s a no-brainer. As a HR professional the nasty, sneaky, stupid approach is always by far the best option.

However, at least the HR professional has done what the Regulations require. The question has been considered. No matter that it has been done in the most ham-fisted, insulting and idiotic way possible, breaking a good few laws on data protection, human rights and fraud along the way. No matter that the responses from pensioners could never contain the slightest piece of information which could be used to determine the possibility or otherwise of there being a substantial alteration in degree of disablement.

Thus, on we go – we have considered so now we can arrange the appointments for the pensioners to be assessed by the SMP, which is what we intended all along.

That is why the process devised by Avon and Somerset Constabulary is fundamentally wrong. It is a fishing expedition. Their non-independent SMP, Dr Philip Johnson, has been involved in the process from the start and has declared the intention to ‘forensically examine’ the medical history from the birth of former officers. Why so? The reason is clear – he and the PPA are looking to unlawfully revisit earlier final lawful decisions and to try to overturn them. You can just hear Johnson, can’t you – ‘Oh look, this man had a graze on his knee when he was six. That, in my very professional opinion caused a degenerative weakness which has exacerbated his injury. So let’s say that accounts for 50% of his disability. Cut his pension by half.’

Avon & Somerset has got things back to front. They have approached the review process in bad faith and with the wrong reason. Their objective is to revise the degree of disablement downwards so the tactic is to have the SMP forensically examine the medical history and interrogate the disabled former officer and thus revisit decisions they are not permitted to revisit. They have revealed their warped intentions so very clearly that it is a wonder the SMP does not wear a stripped pullover and carry a bag marked ‘swag’.

The first 16 disabled former officers selected for review are all on the highest banding and under the age of 50. They represent, in the delusional minds of A&S, the best opportunity for making savings. Moreover, being crafty, they have worked out that they are eliminating any risk of having to increase any pensions, as from band four the only way is down.

The HR manager of Avon & Somerset Police, one Christine Jones, explains that the reviews of the selected sixteen is a two-stage process. She says that first there would be a ‘consideration’ and then and only then might there be a need to see a SMP. This is what she wrote to a former officer about how she sees the review process:

Our interpretation (which has been agreed with the Federation) is that this is a two stage process – the review firstly determines whether there has been a substantial alteration in the level of your incapacity and, if this is the case, a review is then carried out as to the level (or banding) of the injury award.

Christine’s words are just fluff (or misdirection, depending on your level of cynicism). They do not reflect the real situation, which is that she first tried to elicit information from pensioners which she thought would give her an idea of their financial situation and life-style. She asked for permission for medical records and tax records to be seen by goodness knows whom in the occupational health department, and by the SMP. She even wanted to know how many vehicles pensioners drive. From this mish-mash of totally irrelevant data the SMP was expected to rubber stamp the pre-made decision to interview, examine and assess each of the 16. It was smoke and mirrors. A false consideration.

Her own words describe the real process. The SMP is to examine the pensioners to determine whether there has been a substantial alteration in ‘incapacity’. Have a look in the Regulations – the word incapacity is not mentioned.  It might sound like disablement or disability but that is not what is assessed at review. The only task of the SMP is to answer the question of whether there has been a substantial alteration in degree of disablement.

Degree of disablement is the extent to which an individual’s ability to work and thus earn has been affected by duty injury. How many cars he might drive is neither here nor there. Nor is his or her income. The focus should be on disability, and whether it has altered.

Once the SMP has decided that question, the review is complete. But Christine thinks there is a second stage – where a ‘review is then carried out as to the level (or banding) of the injury award.’

But the Regulations don’t allow for this ‘two reviews’ approach which the HR department think is permissible. They have to consider whether there has been an alteration in the pensioners level of disability and then, ask the SMP to decide if there indeed has been a substantial alteration. If there has been, no further calculation is needed. The pension is revised in line with the table set out in Schedule 3 of the Regulations.

When the SMP is assessing a person’s disablement for evidence of substantial alteration there can only be one of two decisions which result.  It’s either salt and vinegar or mayonnaise. The SMP can decide there has not been a substantial alteration or he can decide there has been. There is no room for a decision not to be made. If he can’t decide, for whatever reason, then the decision defaults to no alteration in degree of disablement.

But Dr Philip Johnson thinks he has the luxury of making no decision and has done this in all the Avon and Somerset reviews he has been a part of. Is his lack of decision nothing more than the result of his growing realisation that he is willingly participating in an unlawful process? Does he realise that his reputation, even his licence to practice might well be in jeopardy? His lack of decision and Christine Jones’ view of how a review should proceed give the clearest confirmation that there is indeed a hidden agenda to unlawfully revisit the basis of earlier final decisions.

The SMP, out of a well-honed sense of self preservation can see a storm coming and is steering his boat for harbour. No more fishing expeditions for him. And as for Christine – see you in court.

Pension Ombudsman

iodpa Pension Ombudsman
Pension Ombudsman

When your injury pension has been abused by maladministration you need to know two things.

How to recognise maladministration and who can put things right.

Let’s look at what maladministration is and how we can recognise it. This Google search clarifies how many times the Pensions Ombudsman has had to make determinations against police pension authorities specifically concerning injury awards:

https://www.google.co.uk/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site:www.pensions-ombudsman.org.uk+Police%2BInjury%2BBenefit%2BScheme&start=30

Given the relatively small number in receipt of an injury award, the number of results is mind boggling and it demonstrates the simple fact that police pension authorities are not competent custodians of our injury awards. Remember these are only those that have complained – many, many more are too ill, elderly or restricted by the injuries to pursue a complaint. There are also a number of decisions not returned by the search link, in other words, this result is just the tip of the iceberg.

Maladministration covers the following:

  • 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

One thing to be mindful of is that so far as police injury pensions are concerned, it seems to be the case that little will result from any form of challenge or complaint unless the maladministration has resulted in what is termed an unremedied injustice. In other words, unless you have lost out financially, then forget about the Pensions Ombudsman.

Instead make a formal complaint against the individual or individuals concerned. Again, probably not much will result, as Chief Constables have a highly-tuned sense of self preservation and will never willingly admit that they, or anyone else has ever done anything wrong. The point is, to make the complaint and get it on record.

If you have good reason to believe your injury pension is being paid at less a rate than the circumstances would seem to dictate, or that the SMP or HR have done you over by mangling the Regulations, then please do something about it. You don’t necessarily need a solicitor, or extensive knowledge of the case law concerning injury pensions, but you do need to make yourself familiar with something which your police pension authority may well not be open about.

Hands up all those who have heard of an Internal Dispute Resolution Procedure?

Anyone?

Before accepting assurances from HR that if you are dissatisfied with any decision made about your injury pension you can appeal to a Police Medical Appeal Board – a daunting prospect – ask them to tell you all about the force’s IDRP.

Every pension scheme has to have an IDRP system built in to enable members of that scheme to complain about matters concerning the administration of their pension (section 50 of the Pensions Act 1995). Injury awards are no exception.

An IDRP can be a one or two part process. One part may settle the matter, but if not on it goes to part two. Be very aware though that the ‘I’ in IDRP does not stand for Independent. In part one a senior person is asked to consider your submission. If there is no resolution, then someone else is appointed to take a look. That person may be another force employee, or, more often will be someone with no close connection to the force who is deemed to have some relevant expertise. We have no data on how many IDRPs produce an acceptable solution at either stage. The process can take several months.

But if you don’t initiate an IDRP you will find that the Pensions Ombudsman – who is the person who can really do something about maladministration – will not be able to accept your complaint. He likes to see himself as a mediator, a settler of differences, and an arbiter of the law. He wants to see the parties to a dispute make efforts to resolve it before he is asked to get involved.

From anecdotal evidence we believe that more often than not a police pension authority does nothing positive to resolve a dispute or deal with a complaint on the stage one and stage two parts of the dispute. We know that quite often they have no idea what an IDRP is and thus the complainant may be faced with glib meaningless waffle or, after an interminable wait, will have to conclude the file is lost in the bowels of bureaucracy.

Bear with it. There is a time limit. OK, it is only a guideline, but if you have faced unreasonable delay with no conclusion, the PO will look kindly on you and accept your complaint.

It is worth mentioning here that an IDRP, as a route to the PO, is often the only avenue of redress open. There are stricter time limits on when an appeal to a PMAB should be made, and also with taking matters to the Administrative Court for judicial review. One avenue does remain open, without limit of time, and that is a ‘reconsideration’ of a decision, under regulation 32-(2) of the Police (Injury Benefits) Regulations 2006. Of which route, more in another article.

If you are not satisfied with the result of an IDRP, then it can be useful to speak to The Pension Advisory Service. Once you have hit a brick wall with attempts to get matters resolved TPAS should be able give you advice on how to raise the matter to the Pension Ombudsman for a decision.

The Pension Ombudsman has made some very useful, helpful, decisions on injury pension issues in recent years. If you can get your complaint on his desk for investigation, and you have a good case, set out well, then in all probability you will have the pleasure of seeing him tell your PPA to put things right.

Regulation 12

iodpa regulation 12
Regulation 12

The word ‘secret’ on the blog featured picture is conveniently obscured by the text.. This works as a good analogy with explaining regulation 12:

If, within 12 months of an injury on duty, you are totally and permanently disabled so that you are unable to earn any money in any employment, you will be entitled to a disablement gratuity under the provisions of the Police (Injury Benefit) Regulations. • The gratuity is the lesser of (a) five times the annual rate of your pensionable pay on the last day of service or (b) four times your total remuneration during the 12 months ending with the last day of service together with your total pension contributions. • The gratuity is reduced by the amount of any other gratuity payable under the Police Pensions Regulations and takes account of damages or compensation recovered in respect of the disability.

Up to 5 times the last pensionable pay.  Quite a substantial monetary figure.

This gratuity is provided under regulation 12 and is rarely known about.  The permanently disability isn’t physical disability, it is the disability of earning capacity and therefore includes the mind as well as the body.  It is the total inability to earn.

The scandal is that it is never given.  People given a 100% band 4 are never told about it by the federation.  Those that do find out about are often told they have passed the 12 months and therefore not eligible.  Those that apply within the 12 months are told that their 100% disablement of earning capacity is not permanent and so aren’t eligible.

Do you see the paradox?  An award of a lump sum gratuity is never given due the hurdles put in place – the police pension authority use a circular argument to deny its application and the federation neglects to inform its members of it and to fight for it on their behalf.  There are hundreds of IOD award recipients retired on 100% band 4 awards that should have had the regulation 12 gratuity but were deliberately misled about their entitlement to it.

The permanence can not argued as that it is a defining criteria of an injury on duty award (under regulation 30) BEFORE the degree of disablement is calculated.  If the degree of disablement is 100% then the IOD recipient has total disability of earning capacity.  Therefore the gratuity should be given automatically  – why should the onus be on a claimant to claim given they are suffering a debilitation that amounts to them being totally disabled from earning due to the injury they received in the execution of their duty.

Given that conjecture is prevented as there is a power to review under regulation 37 the decision of entitlement to the gratuity should be given in the here and now.  There is no remit to speculate about an improvement – if the 100% remains for 12 months post retirement regulation 12 is applicable.  If someone has been a band 4 for years, missed the 12 month window due to maladministration and has never been able to have any earning capacity then regulation 32 may be used to reconsider the entitlement to a regulation 12 gratuity.

The function of the SMP

iodpa selected medical practitioner, smp
The function of the SMP

What does a duly qualified medical practitioner (selected medical practitioner or ‘SMP’) bring to the table?  Firstly it is peremptory that any final decision made under Police Injury Benefit Regulations 2006 is a medical decision.  It is not a legal question or an occupational assessment – it is a medical question and therefore can only be answered by a medical doctor.  ‘Suitably qualified’ has no specific definition under the regulations other than the implied possession of  medical degree so a general practitioner or a surgeon could perform the task.  However it is the praxis of police pension authorities to have interpreted the suitable qualification as being a member of the Faculty of Occupational Medicine.

This hugely narrows the pool of suitable potential SMPs.  Forces are deliberately hiring a specific type of medical professional.  Quite often the SMP belongs to an umbrella  limited company that contracts the occupational health doctors back to several forces in a consortium pact.  This insular arrangement is amplified by use of the NAMF’s white list of approved providers.  An otherwise excellent medical practitioner is barred from working as a SMP if not a member of this closed club, further adding to the erosion of the independence of SMPs.

But what is the remit of a SMP?  Firstly the SMP is bound by the ethics of the GMC guidance which determines how its members are allowed to act in such positions (Confidentiality_disclosing_info_2009.pdf.)  The GMC guidelines dictate that any person the doctor has access to in such an event is still their ‘patient’ and it is irrelevant whether they are giving therapeutic treatment or not – as their patient, the well-being of the person is their first concern.  In partnership with their medical duty, there is the legal duty of the SMP to abide by the statutory instrument  enacted by the regulations. So the SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least).  The bands are simplified into 4 to make it easier for a medical expert (not a HR manager) to decide a suitable degree of disability.  When some SMPs use rounding to 2 decimal places in order to put an IOD retiree into a lower threshold (49.95%), they clearly haven’t taken the ‘decision in the round’.  This was talked about in the post concerning the PAEM & Bad maths.  As mentioned, although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.

On the original decision (when the award is first given) the SMP may ask for full medical records as well as accompanying report from specialists.  There is no given power that enables the SMP to demand things – indeed no legal powers are inferred on the role of the SMP – he/she can ask but accordingly there is no obligation to acquiesce.   They are not coroners with common law or statute powers – the statutory role is to answer a question – the referred question; they are not empowered in anyway to act other than as a doctor.  Of course, the SMP is entitled to make an informed  judgement on the available evidence and non-cooperation does allow the SMP to infer something.  The final decision is the SMP’s alone to make.  The procedure should be an evidenced based approached.  In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test.

Such questions the SMP considers are (but not exclusive of):

  • The Regulations specify that whether the injury includes any injury or disease, whether of body or mind
  • That disablement is deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement
  • It is necessary to establish a direct causal link between the permanent disablement and service as a police officer:
  • In cases where the permanent disablement through injury was the result of a single, significant incident the question will be a relatively simple one – was the injury received in the execution of duty
  • An injury does not have to be received though a single, significant incident; where no single moment of injury can be identified.  The question for the SMP is whether the permanent disablement through injury was caused by, or received in, the execution of duty as opposed to domestic or other circumstances not related to police duty – bearing in mind the following points:
    • police duty should not be given a narrow meaning; it relates to all aspects of the officer’s work;
    • the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
    • police duty does not extend to a sporting activity for the police while not carried out on duty, unless where the injury was due to the officer being known to be a constable.
  • There may be an issue as to whether there was a single injury or more than one injury which contributed to the disablement. This can affect the calculation of degree or disablement where a relevant injury was not received in the execution of duty. Where this is relevant the SMP’s findings as to whether there is one injury or more than injury should be clearly stated (apportionment).

If the decision is not accepted it can be challenged within 28 days and an appeal lodge with the Police Medical Appeals Board.  This a panel of 3 medical specialists on a Home Office list.  Before Laws V PMAB historically a PMAB panel rubber-stamped the decision of the SMP using the HO guidance 46/2004 – an example of Home Office officials keeping the bien pensant stance and ensuring the Home Office guidance is followed to the letter (despite the subsequent withdrawal due to the guidance being unlawful).

The role of the SMP in a review situation is the sole question of substantial alteration of the degree of disablement (earning capacity not physical disability) since the last final decision.  Has the medical condition substantial improved or substantial deteriorated?  Is there jobs available to the individual that were not available at the last final decision?

A review therefore should be a benign event.  As circumstance dictate (and not routinely), the submission of medical records, partially disclosed of dates between the last decision and the date of the review.  A quick face to face meeting IF and ONLY if there are points in the medical notes that need clarifying.  If there is no evidence of change then the person should not even be put in front of a SMP.  That’s it.  Nothing more.  If the SMP acts like a Gestapo officer, forensically examining medical history and interrogating the retiree for close to 2 hours during a review then it is obvious that there is an agenda.  How will other IODs react when they get called?  Defensively, no doubt.  Where’s the motivation to engage in a demeaning and unlawful process.

There is no excuse for any review to last from May 2014 and still be continuing in mid-March 2015.  That suggests that the police pension authority and the SMP are considering facts that are beyond their legal duty.  Rather like Avon & Somerset’s current reviews…

Regulation 32

iodpa caselaw, pmab, reconsideration, regulation 32, Regulation 37, selected medical practitioner
Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

“I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.

The opening of Pandora’s box

iodpa Regulation 37
The opening of Pandora’s box

“They gave Pandora a box. Prometheus begged her not to open it. She opened it. Every evil to which human flesh is heir came out of it.
The last thing to come out of the box was hope. It flew away.”
― Kurt Vonnegut, Timequake

Its been previously mentioned on these pages that a injured officer is rarely injured out on good terms with their former force.  Quite often management are uncaring and HR professionals become  zealous and officious during the administration of the retirement process.  Then the former officer has to adjust to the outside world without any assistance.  The silence from the force is then deafening – exiled and forgotten. Life moves on, years pass and some resemblance of normality mists over.  Grievances are shelved but not forgotten.  Any thoughts on the major maladministration of the medical retirement  is suspended, if the decision was unlawful, a pragmatic view of letting sleeping dogs lie is the default option for the former officer.

Decades pass.  The force has no intention to invoke any review.  It doesn’t care.  Until it sees a way to save money.

Then the gloves are off.

  • Was the original decision lawful?
  • Did the force summarily dismiss the injured officer on a injury process without following due process?
  • Has any previous review been unlawful?
  • Did the force collude to put the officer on an artificially low banding?
  • Is there a potential of a civil claim – something lurking in the former officer’s personal file that shows the force has acted dishonestly?
  • Will a review re-ignite the mental illness of the former officer?
  • Does Estoppel apply?  Was the former officer promised he/she would never be reviewed?
  • Is the former officer entitled to a gratuity that the force deliberately never told him about when originally retired?

It’s not a simple as ‘there is a duty to review’.  There should be other factors considered and not just ‘We need to cut costs.  The database says the ex officer is a band x.  Lets get the occupational health and personnel files out of storage and call him/her in’.  No matter the former officer has a mental illness aggravated by stress; that there is a PTSD driven phobia about attending police premises; that the former officer is currently on the inpatient waiting list; that the former officer is undergoing a high-stress personal life event.   All these examples are true of Avon & Somerset’s current review process.  And also of untold other forces nationally

SMP has left disabled former officers adrift…

iodpa Federation, HR, selected medical practitioner
SMP has left disabled former officers adrift…

Allegedly Dr Philip Johnson is no longer working for Avon & Somerset Constabulary as their nominated Selected Medical Practitioner.  Given there are 15 band 4s, under amoral intent referred to Dr Johnson for his consideration of substantial alteration to their medical condition, who saw said SMP over 3 months ago and still not received a decision, it is a shocking indictment of the arrogance of Avon & Somerset Constabulary.

So, what are the options open to the police pension authority now?

They have an obligation, indeed a legal duty to complete the review process. There is nothing in the Regulations which covers the circumstances where a SMP refuses to decide or can’t decide. The Regulations say that the PPA ‘shall refer for decision’ the statutory question of degree of disablement. Having referred it, and having got no decision, then the process is complete and it is shocking that severely disabled civilians have had no letter explaining the delay; no update, nothing but total silence, as if the HR department at Portishead are pretending as if nothing has happened.  At the least, the police pension authority and those delegated in its administration are culpable of serious maladministration; at most there is a case to be answered for Misfeasance in a public office.

A review is a highly stressful life event and this has affected the lives of those concerned since 29th May 2014.  Almost a year.  Some of the 16 have had serious relapses of their mental and physical health others have had surgical operations.  Why is the federation not asking questions?  Why is the force being so opaque?  The answers will be heard.

On the shoulders of Giants – Laws & Turner

iodpa caselaw, Regulation 37, selected medical practitioner
On the shoulders of Giants – Laws & Turner

It is no understatement to say that without Stephen Turner (versus PMAB 2009) and Belinda Laws (versus PMAB 2009 & Appeal Court 2010), police injury on duty pensioners would be in an extremely precarious position with police pension authorities riding roughshod over the regulations without impedance.  There was a wave of successful judicial reviews after them (regarding automatic reduction to band 1 at aged 65) but Turner and & Laws reaffirmed the regulations and arguably gave others the strength to challenge unlawful guidance.  They are truly the 0.001% who stood up and were counted and their efforts are held high in esteem.  The case-law can be found here

But what does Turner and Laws mean?

Turner V PMAB concerned substantial change and apportionment (the level of the index injury causing the degree of disablement when other non-IOD injuries are present).  It can be summarised into these points:

  • Causation can not be revisited at review.
  • A review of the degree of disablement can only occur if there is medical evidence of an alteration to the condition.
  • Apportionment can only be a factor if there was apportionment at the original decision.
  • No other illness can be considered at review other than that on the original certificate of disablement.
  • New skills or functional capacity can be considered if substantial alteration has been evidenced.

Laws reaffirmed Turner and, as it was challenged by the police authority and went to the appeal court, it is now the primary case-law that defines the application of the regulations at review.

  • A review does not allow the SMP or the Board to redetermine the merits of any earlier decision. They are only to decide whether there has been an alteration since the last decision.
  • The earlier decision as to the degree of disablement is a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”.
  • Acquisition of new skills can be a factor that determines how a disability of a duty injury affects the capability of work.  But the effect on earning capacity must be proven and more than speculative.
  •  The clear legislative purpose of the regulations is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.
Laws stipulates that a review is a comparative exercise  this means a comparison of the degree of disablement between the date of the grant or the last review.   The natural corollary of this is that medical records prior to the last decision are unnecessary.
There will be a post soon about what the SMP actually can and can’t do.