Dateline: 24th April 2015.
A response by Staffordshire Police to a freedom of information request.
Staffordshire are proud to reveal exactly how they calculate the degree of disablement for the purpose of grant of a police injury pension. The same method is used when they review an injury pension.
One small problem. Staffordshire are acting unlawfully. Their method is intended to provide a way of subverting the purpose and scope of the Police (Injury Benefit) Regulations 2006 so that they can get away with paying disabled former officers less than their due by way of injury pension. Staffordshire takes what is a medical decision on how much remains of a disabled former officer’s capacity to work, and thus earn, puts it through a calculation which has no basis in the Regulations, compares a police wage with a nominal wage and doubly reduces the degree of disablement.
People who should be paid a band four injury pension are finding that under the magic of this slight of hand they are hardly disabled at all and thus get paid only a band one pension. The savings to the force are considerable.
Let’s look at this in detail. The percentage of degree of disablement is a medical question. It says so in the Regulations. The police pension authority is required, by law, to hand the decision on degree of disablement to a duly qualified medical practitioner. Reason being that disablement is a medical matter. It is all about twisted or missing limbs, constant pain and medication, or mental injury. Damage to body and/or mind so bad you would not wish it on your worst enemy. An independent medical person makes a decision which is binding on all concerned. Apart from Staffordshire police pension authority, that is.
The Regulations tell us how an injury pension is to be calculated. For example, a pensioner is given a degree of disablement figure of 66% by the ‘duly qualified medical practitioner’ selected by the police pension authority (the SMP). That is the final figure, and there is no need, and no legal authority for further calculation or decision. As the percentage is between 50% and 75% it falls within band 3 of the Schedule 3, as set out in the Regulations. In our example, that means a former officer with more than 15 years service but less than 25 would be paid an injury pension calculated as 75% of his former police salary.
Staffs can punch in a few figures plucked out of thin air into a calculator and turn that 75% into a lowly 45%.
Staffordshire and some other forces use what is known as the PEAM system (Police Earnings Assessment Matrix), which is a system not specified or sanctioned anywhere in the Regulations, to set aside the SMP’s decision and come to another perverse conclusion which artificially reduces an IOD award to the minimum.
The Regulations do not permit this, yet Staffordshire seem oblivious to that fact. Or, is it the case that they know full well they are breaking the law but just don’t care? Has someone in high authority calculated that disabled former officers are very unlikely to a) realise that they have been screwed and b) if they do cotton on, are too crocked up to do much about it?
Staffordshire was asked a simple question in the freedom of information request. If a SMP gives a degree of disablement of 75%, can a Band 1 be awarded? Think on this – the SMP has awarded a 75% degree of disablement. To award 75% the SMP has judged the disablement caused by the duty injury has caused a reduced amount of earning capacity and has given what the Regulations very clearly state is a final decision on the matter. That’s it. Over and done with. But not in Staffordshire.
Let’s take a look at that:
Regulation 30-(6) ‘The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall . . . be final.’
But not final in the twisted world of PEAM.
Here’s what Staffordshire said:
To break this down, Staffordshire has admitted that a 75% degree of disablement, which the Regulations name as ‘major disablement’ and which is but one degree short of ‘very severe disablement’, can be turned into an 18% degree of disablement – ‘slight disablement’.
Here is the warped logic:
- A SMP gives a percentage of 75%
- Despite the finality of the 75%, Staffordshire thinks that any retired police officer can earn £28389, no matter what the degree of disablement decided by the qualified medical practitioner. Moreover, they describe this as ‘potential earnings’. It is nothing more than a wage picked out from a job advert – a job some functionary in HR, with no medical qualifications, no understanding of disability, and no right to do so, ‘thinks’ the individual ought to be able to earn. And ex-pigs might fly.
- Staffordshire work out that a maximum salary for a PC is £37500. So the ‘loss of earnings’ is the difference between what they would be earning as a PC and what they say the person could be earning outside the job: £37500 minus £28389 equals £9102.
Note: Remember that the 75% is a final decision and this extra calculation is post-decision and thus extraneous and unlawful. Note also: An injury pension is compensation for duty injury and is not compensation for loss of earnings.
In fact, the Regulations do not mention loss of earnings at all. They do speak of earning capacity however, of which regulation 7-(5) tell us this: ‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.’
Earning capacity has been determined in the Administrative Court to be a measure of a person’s capacity to work and thus earn. No mention of wages or loss of earnings. It’s the CAPACITY stupid! Not what that capacity might produce in terms of earnings.
- So where were we? Oh yes, Staffordshire had worked out that £9102 is 24% of £37500. (Which you and I can readily see makes a ‘loss of earnings’ of 24%, which, if that was a legal way of calculating degree of disablement, which it isn’t, would already place the pensioner on band one.)
- That’s not good enough for Staffordshire. They want a lower percentage, more firmly down in band one and thus less likely to see a future SMP move it up into a band two. So, now they calculate a percentage of a percentage. They bring the 75% back into it and calculate 75% of 24%. This gives 18% and a band 1 award.
- Taking the poor mathematical logic further, just say the SMP decides the person is totally incapable of any work and so awards a degree of disablement of 100%. Staffordshire will then still award a band 1. The calculation for ‘loss of earnings’ remains the same, but 100% of 24% is 24% and a band 1.
- The fallacy is the double jeopardy of calculating a percentage of a percentage to factor down the SMP’s ‘final’ given degree of disablement.
- The unlawfulness is that Staffordshire have overruled the final decision of the SMP.
Is it a coincidence that the majority of those injured out in Staffordshire with an on duty injury are band 1s?
Here is how it should happen:
- SMP awards 75%
- Look for where 75% sits in the following table for a PC retired with service between 15 and 25 years
Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service. (1) (2) (3) (4) (5) (6) 25% or less (slight disablement) 12.5% 15% 30% 45% 60% More than 25% but not more than 50% (minor disablement) 25% 40% 50% 60% 70% More than 50% but not more than 75% (major disablement) 37.5% 65% 70% 75% 80% More than 75% (very severe disablement) 50% 85% 85% 85% 85%
- It is band 3.
- The % is still 75%75% of the final salary is due as the IOD award
The insight into Staffordshire’s calculations given by their response to the freedom of information request is scarily enlightening. Staffordshire has given us a clear understanding of the perverse ploys that they, and some other forces, use to go against the Regulations.
Needless to say, use of PEAM to make calculations after the SMP has announced a final decision is blatantly unlawful and needs to be taken to Judicial Review.
Now, if only there was an organisation, say a federated organisation created by statute, which could support retired officers and fight their cause . . . .