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.
Hi,
I recently received my IOD award, however the SMP did say on his report that I should be reviewed in 18months. Is this unlawful?
Thanks
Hi Andy
There can be no good reason to hold a review unless the police pension authority firstly consider that there has been an alteration in the pensioners level of disablement.
What I am saying is that the police pension authority must have a sound reason for holding a review, and that reason can only be the one I set out above. A review held on a whim, or for any initiator other than the one I suggest must be merely a fishing expedition. This would include any review held because a pensioner had reached a certain age, or would have reached normal force retirement age, or because a certain number of years had passed since the last review. Reviews held to a timetable are not rational and are not appropriate.
It follows logically, that if a valid reason for holding a review is not present, then it is unlawful to hold a review. Indeed, I have to point out that logically the default condition is no review is contemplated. Many IOD pensioners have never had a review, and the majority of forces have only held reviews infrequently. Some forces have never held reviews. To make a review lawful there must be some change in circumstances – and that change can only be a substantial alteration, either an improvement or a worsening, in the medical condition resulting from the duty injury.
So to answer your specific time line … if time (18 months in your case) is the only predicate then it means nothing. If you are undergoing medical treatment and there is a possibility that the treatment will substantially improve your condition and the delay will be 18 months, then arguably 18 months is reasonable. There is no requirement in the regs for a SMP to forecast the next referral – the reason they do it is to pretend that the interval is suitable. In reality it isn’t. If ever reviewed due to a defined time with no other reason, the PPA has to be challenged and asked to explain it further.