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
- 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
- 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 substantial alteration and then, it that seems likely, 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.