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.