Month: May 2015

Who Pays?

Who Pays?

“Follow the money.  Allways follow the money”

Deepthroat.  All the President’s Men

“You follow drugs, you get drug addicts and drug dealers. But you start to follow the money, and you don’t know where the **** it’s gonna take you”  “The Wire: Game Day (#1.9)” (2002)  Det. Lester Freamon:

There isn’t going to be too much written in this blog post.  Just the weighing of a matter.

Strange that the invoice Dr Johnson submits, under the name of his own private limited company, Sarum Occupational Health Limited,  goes to the office of Police & Crime Commissioner Mountstevens when in fact it is the Constabulary which is the Police Pension Authority. It couldn’t be the case, could it, that this huge expense wouldn’t look good on the Constabulary’s accounts, but the PCC can swallow it up in her petty cash fund. Is it simply a case of joining the dots from this letter to this invoice? :

Invoice-page-001

Expiration of Consent

Expiration of Consent

“Nobody can hurt me without my permission.”
Mahatma Gandhi

Often the occupational health file of a former officer contains disclosed medical records; records that were obtained via consent for a specific purpose, be it the original decision or the last review.  The GP medical records do not belong to the force – they were collated for a reason and should be disposed of once that reason has ended.  Does the force have the right to dip in and out of these medical records as they chose?

Here is a response from the Information Commissioner’s office regarding the limitations of consent:

Case Reference Number ENQ0571696

In your email you ask questions about third parties gaining consent to access your medical records from your GP.

Question: […] once consent is  given, is that consent infinite until explicitly withdrawn? In other words once consent is so given is the passage of time, whether that be days, weeks, months or years irrelevant ?.

ICO answer: Consent would need to gained with each request.

Question: […] once that consent has been given in writing for a third party (as above) to access a patients medical records, at the point those records are provided (accessed), does that specific consent then expire?

ICO answer: The consent would last until the records were accessed by the third party.

Question: To clarify that, can that given consent be exercised more than once or continuously ?

ICO answer:  Consent would need to be gained with every request.

Question: Would any request made now be considered a fresh request and any attempt to use a historical consent be denied ?.

ICO answer:  If there is going to be a new request for your medical data, consent would need to be gained.

Question: Would any registered medical practitioner be acting unethically if they made such a request based on an historical consent ?.

ICO answer:  A medical practitioner needs to comply with the Data Protection Act 1998(DPA) and could not use a historical consent.

Question:  Would the ICO position be if such a historical consent was attempted to be used or presented as being valid (despite the passage of time and previous access) that any registered medical practitioner should reject such a request as invalid and require a ‘fresh and current consent’ from the patient ?.

ICO answer:The GP would be required to gain consent upon every request.

Question: Any consent should be subject to informed consent and valid, a gap of years surely must be contrary to the original informed consent ?.

ICO answer: The third party need to obtain consent from yourself, every time they wish to access your medical records. Requesting consent every time would mean the third party would be complying to the first principle of the DPA. The first principle is about processing fairly and lawfully and with respect to one of the conditions outlined in the act.

To clarify, this means that an organisation must:

have legitimate grounds for collecting and using the personal data; not use the data in ways that have unjustified adverse effects on the individuals concerned; be transparent about how they intend to use the data, and give individuals appropriate privacy notices when collecting their personal data;handle people’s personal data only in ways they would reasonably expect; and make sure they do not do anything unlawful with the data.

Information Commissioner’s Office

That seems very unambiguous.  Once consent is given that consent  has to be timely and relevantly exercised; subsequently, new consent has to be obtained to allow for further use of the data.  So a force is unable to delve into the medical records enclosed in a occupational health file at their whim;  they are unable to approach a GP practice and ask for further disclosure using previous consent without expressly renewing the consent.

Some forces are under the misapprehension that once they have copies of medical records, they own the data and their access to it is then infinite.  This is incorrect.  To give a clear view of this mistaken belief, here is the fallacy of what Avon & Somerset thinks historical consent allows:

Police Medical Pensioners Medical Record Authority Timescale – a Freedom of Information request to Avon and Somerset Constabulary

In respect of Police medical pensioners. When an authority to release medical records from General Practitioners, specialists and consultants in relation to that Officer has been submitted to the Force, how long in timescale does that authority last? Is it days, weeks, months, or years. Please be specific.

Private Our Reference 089/15

Philip Piper Your reference

[1][FOI #249845 email] Date 17 February
2015

Dear Mr Piper

I write in connection with your request for information dated 23^rd
January concerning medical records.

Specifically you asked:

In respect of Police medical pensioners.
When an authority to release medical records from General Practitioners,specialists and consultants in relation to that Officer has been submitted o the Force, how long in timescale does that authority last? Is it days, weeks, months, or years. Please be specific.

The authority lasts until consent is withdrawn.

Yours sincerely

C Quartey

Freedom of Information Officer

Corporate Information Management Department

No it doesn’t Mr/Mrs C Quartey.  The consent lasts until the the records are accessed.  Once that access is completed then the consent expires.  Any decision made without valid permission for those records to be accessed is therefore unsound.

It is quite frightening that a Police Force has such disregard for data belonging to former officers.  What liberties is it taking with data of other members of the public?

An interesting point is raised if the review is unlawful for reasons given on earlier posts.  Here is an extract from the ICO’s website

In brief – what does the Data Protection Act say about handling personal data fairly and lawfully?

The Data Protection Act says that:

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

This is the first data protection principle. In practice, it means that you must:

  • have legitimate grounds for collecting and using the personal data;

  • not use the data in ways that have unjustified adverse effects on the individuals concerned;

  • be transparent about how you intend to use the data, and give individuals appropriate privacy notices when collecting their personal data;

  • handle people’s personal data only in ways they would reasonably expect; and

  • make sure you do not do anything unlawful with the data.

So if consent is provided and then the force revisits causation and applies apportionment then they are, by default, acting unlawfully.  The corollary is their unlawful action invalidates the consent.  This follows in revisiting previous disclosed medical records – if they try to look at any medical history prior to the last final decision they are contrary to the regulations, and not only is there no implied consent anyway the illegality is a block in the first instance.  The ICO is able to impose severe fines for such breaches.

Substantial Alteration

Substantial Alteration

“When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”
Edmund Burke, Thoughts on the Cause of the Present Discontents: Volume 1 Paperback: 001

A review of an Injury on Duty is an antonym to a Department of Work of Pensions assessment.  The latter is concerned with capability to work – it is often called a Work Capability Assessment.  It’s purpose is to determine whether disabled welfare claimants are entitled to Employment and Support Allowance.  It is a claimed benefit.

An Injury on Duty award is primarily an award for life in compensation for an injury sustained whilst on duty.  On-duty being defined as the following:

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received in the execution of duty.

It’s easy to keep repeating that the regulations state that the injury pension (award) is unaltered unless a substantial alteration is proved.  But what is substantial alteration?

David Scoffield QC raises this point in his report

“Broadly speaking, there appears to be two approaches to the interpretation of this word in case-law dealing with it in other contexts: that is to say, either that it means not insubstantial or other than de minimis; or that it means significant or large.

“It is a known tactic that SMPs deliberately put people 1% above the neighbouring lowest banding in order to make it ‘easier’ for them to claim an alteration significant enough to reduce an award .Slight amendments to banding levels reducing from 26% to 25%, which could hardly be deemed substantial yet costs the individual affected thousands of pounds per annum.”

Scoffield cuts through this deviousness of the Police Pension Authorities and the SMP:  

 1%-2%, which would otherwise not be considered to be a substantial alteration in the degree of disablement, might be considered to be a “substantial alteration” requiring revision of an IOD pension under regulation [37] simply because the percentage calculation happened to be on the borderline of two of the applicable bands. It seems to me illogical to say that such an alteration is substantial when, for instance, a percentage change of 20% or more would not be considered to be substantial, simply because the magnitude of change happens to be incorporated within one banding.”

So lets piece all of this together.  An example 6% drop for a band four originally on 80% is not significant or substantial by itself, so the reduction to band three is not permissible.  A 1% drop that straddles band 2 and band 3 is not substantial and no revision is permitted.

But arguing over the semantics of single figure percentages totally misses the whole-point – THE REVIEW SHOULD NOT HAVE OCCURRED IN THE FIRST PLACE.

For a review to progress to a SMP, there must be some change in circumstance. The PPA must ‘consider’ whether the degree of the pensioner’s disablement has altered, with evidence of an improvement or a worsening, in the medical condition resulting from the duty injury.  And that is the crux of it.

Substantial alteration is based on a comparator of the ‘here and now’ to the last decision.  Unlike an ATOS assessment it is not a measure of capability and entitlement, it is a measure of whether anything has changed – substantially.  Without any substantial alteration, it can not undo a generous award or uplift a miserly one.  If the person could work then and can work now, there is no change, irrelevant of the band previously awarded. No alteration to the medical condition, no change.  The status-quo does not amount to substantial change.  Managing a condition does not amount to substantial change.  A Police Pension Authority trying to rewrite history because medically retiring officers suited it’s recruitment policy does not amount to substantial change, nor does a PCC with a zealous chief finance officer.

If a tweak to a percentage is not permitted and a Lazarus type cure for a medical condition is unlikely to bordering ‘beyond impossible’ so what else can be classed as substantial change? Let’s discuss hypothetical new jobs that didn’t exist previously:  George Aldrich, Nasa’s “chief sniffer”  is a new position, but it’s filled. And it is arguably too similar to any other ‘taster’ say of wine or coffee; in any case when he’s not sniffing space dust he is a laboratory technician  – a job that has definitely been around for most of the modern era.  Space suit designer couldn’t be called a new job as it has too many overlaps with the existing position of a tailor.

It is hoped that the reader can see the tacit  finality of an award. A review is a rigorous and exceedingly stressful undertaking with a high standard to be able to revise it  – the regulations define it as an injury pension not a benefit.  The corruption that has allowed Police Pension Authorities to chip away at someone’s award by slowly reducing the percentage figure is not only unlawful but a horrendous breach of trust.

One Year Later

One Year Later

“Everyone, at some time or another, sits down to a banquet of consequences. ”
Robert Louis Stevenson

It is a year since this started for us.  For  Avon & Somerset HR this has been in their planning back in January 2013.

Annus horribilis is an understatement.

On the 29th May 2014 the world collapsed for 16 people – sixteen people who have had no contact from their former employer for over 13 years and some for up to 20 years – when Christine Jones, a HR manager for Avon & Somerset  sent this letter:

first

It has been a roller-coaster trying to teach to the unteachable, attempting to show the HR department  that the PIBR (2006) does not give them free reign to act totalitarian and do whatever they wish.  If you read the opening sentence you will notice that Jones states that forthcoming regulations are a justification for starting reviews.

How weird?  Given the Home Office circular for the PIBR 2006 amendments had not been published in any form at the time she wrote this.   A year later they have been published;  unsurprisingly they are not retrospective and are only concerned with integrating members of the 2015 scheme into the Injury Pension/Award regulations.  Nothing to concern those all-ready retired.

https://www.gov.uk/government/publications/circular-0142015-the-police-injury-benefit-scheme-consequential-amendments/circular-0142015-the-police-injury-benefit-scheme-consequential-amendments

She also states that reviews are about to commence – she is strangely blind to the fact she has started a review already by sending the letter in the first place.  IODPA will fix it for you, Mrs Jones, and rewrite it in the manner you intended:

Dear Parasite on the public purse

We need to save money and your undeserving  injury pension, that we gave to you and can so easily take away, is our target.  We will say some guff about new regulations that will not in any way apply to you in order to bamboozle you into compliance.  We will try to squeeze you until the pips squeak.  We will in no way take your individual circumstances into account and the interval since your last decision is entirely suitable to us and so blow the rest of you.  Our guidance has been purposely drafted by NAMF and this policy has absolutely no legality and has zero precedence over the regulations…

And in this ‘review of the year’ blog post (excuse the pun) here is the HR department kindly telling a band four injury pension recipient that it’s  all to do with ‘their’ financial constraints that you’ve been chosen.  Jeez, thanks for that Christine.

IMG_20150524_093148518

So where does this leave us 12 months on?  Of the 16 people receiving review papers on May 29th 2014 no 1 person has been given a reason, individual to their circumstances, why they have been reviewed.

Six were seen by Dr Johnson over the 12th and 13th of November.  None of these 6 have had a final decision and are still in limbo.  Two were seen by Dr Judge in early December – all those seen by this SMP have had a final decision.  Another three were seen the week before Christmas day by Dr Johnson – and a jolly festive period to you to!  None of these have had a decision from Johnson.  Two as yet have not been seen at all.  One was shocked to receive the letter on the 29th telling them they are to be reviewed by virtue of them receiving a band 4 injury award, as in fact they are not a band four but have been a band two for the past 20 years.  HR thought they were a band four because they hadn’t updated their spreadsheet when the person was previously reviewed and unlawfully reduced.

The farce has blamed the delay on medical notes but Johnson has had full disclosure of all medical notes from 90% of the people he has seen.  He has had the majority of all medical files sent to him  by late August 2014. So that pony excuse doesn’t wash. Johnson has stated on tape for the majority that he can see no change. But has not done the decent thing and signed off the interview with no alteration.

Other excitement over the past 12 months includes the farce declaring that any freedom of information request concerning IOD awards are vexatious.   The ICO may or may not have a differing view on the matter.

Move forward to the present and the stalement persists so what does the future hold?  Well it seems the force has employed the services of a barrister to either protect itself from itself or to go full bore on the  poor people who were unfortunate to receive a letter on the 29th May 2014.  Also the force intends to start further reviews but this time on a first-in/first-reviewed basis.  Those the longest with an IOD are to be called in.  So those 80 year olds last reviewed in the 1970s seem to be fair game in Carol Wood’s eyes.

What has IODPA learnt over the past 12 months?  Lots.  But primarily that Avon & Somerset HR department has some sort of  delusions of megalomania.  They are incapable of listening, they have a bunker mentality and refuse to admit mistakes, they will not apologise or in any way just ‘Do the Right Thing’.  Shame on them.  The force seems to be run by an Oligarchy who are not held to account by anyone.  Perhaps this is due to the void of having a suspended CC.  They eventually will sit in front of their created banquet of consequences .

IODPA has met some fantastic people over the year and are extremely thankful for the national support provided.  We IODs are not alone any more.  So for all the hardship, new friendships have been formed and we are thankful that there are genuine people always willing to give up their time for others.  Thank you to the good guys.

The Police Injury Pensioner’s Grand Day Out

The Police Injury Pensioner’s Grand Day Out

With thanks to the author – you know who you are !  The members of IODPA are forever in your debt.

The Police Injury Pensioner’s Grand Day Out

A one-act play.

Some reviews:

‘As compelling as the Mousetrap. The pensioner, played convincingly by A. Copper looks just like a lump of mouldy cheese.’

Daily Mail

‘A surreal insight into the quasi-judiciary. Reminded me of Waiting For Godot.

The Guardian

‘Crocked Cop Cracks Up’

Daily Mirror.

—————————————————-

The scene is a well-lit room in a modern concrete city centre building. It is furnished sparsely, with a set of cheap tables set in an open horseshoe shape.

Sat at the table forming the base of the horseshoe, facing the door and with the sunlight streaming in from a window behind them obscuring their features, sit the Judge Jury and Executioner – all three members of the Police Medical Appeal Board.

On one set of side tables are sat various anonymous persons. All are wearing expensive business type clothing and have a self-satisfied look. They are representatives of the pensioner’s former force and Police Authority, together with a self-styled pensions expert and a smug looking selected medical practitioner.

Judge: Bring in the prisoner – I mean pensioner!

The door opens and a police injury pensioner stumbles in, blinking against the light. A warder removes the prisoner’s straight-jacket and roughly forces him to sit in a chair placed in the open end of the horseshoe, facing the Judge.

Judge: Pensioner at the bar, you have been summoned to appear before us today to give cogent reason why I should not reduce your injury pension to the lowest band of disablement. You are charged that you did wilfully, knowingly and with scant regard to the public purse, reach the advanced age of 65. How do you plead?

Pensioner: Not Guilty.

Judge: What? Am I hearing right? Were you not advised that your only option is to throw yourself on the mercy of the court after admitting your sins against the State?

Pensioner: May it please the Bench, I reserve my right to supply the court with a number of cogent reasons why I should not be reduced to penury.

The anonymous onlookers whisper amongst themselves and one of them scribbles a note and hands it to the Judge.

Judge: Were you not warned that the Home Office (blessed be its name) issued guidance in this respect and that they make mention of ‘cogent reason’ – singular – not ‘cogent reasons’ – plural?

Pensioner: Yes, your worship, I did know that but why do I have to provide a cogent reason? Surely my previous employers know that there is nothing in the Police (Injury Benefit) Regulations 2006 about cogent reasons.

Judge: What they know or don’t know is not the issue. They are not on trial – you are. Shall we get on? Provide one reason only. Be quick about it. Time is money you know and that’s what this hearing is all about – your former employers saving it and you losing it.

Pensioner: With respect, your worship, I would like to have my solicitor present, and I have several persons outside who wish to address the court on my behalf.

Judge: Impossible! You can have a friend sit in the room if you insist, but he, she or it must not speak or take any part in the proceedings. We had a dog in here the other day – man’s best friend and all that, but the damned animal peed up my leg. (turns to anonymous suits) Why did we admit that creature?

The anonymous suits send another note.

Judge: I am reliably informed that dogs are allowed provided they are guide dogs. You are not blind are you, pensioner at the bar?

Pensioner: No sir, I suffer from chronic reactive depression and post-traumatic stress disorder.

Judge: Complete twaddle. There was no such thing in my day. We just got on with things. You are a disgrace to your uniform.

Pensioner: I was in CID.

Judge: Well, a disgrace to your cheap Marks and Spencer suit then.

Pensioner: What are your qualifications to preside at this sham of a hearing?

Judge: Listen sonny, I ask the questions, OK.

Pensioner: I only asked a perfectly reasonable question.

Judge: How dare you question the system. I’ll have you know that it was designed entirely with your welfare in mind. For the record, (turns and winks at the suits) I am a fully qualified medical practitioner and have been shown how to calculate in percentages.

Pensioner: But you are hardly independent and impartial are you? Doesn’t the Home Office pay your wages?

Judge: Listen up, you toothless old fart, it not only pays me but trains me and guides me and what is wrong with that!

Pensioner: Yes, but it does rather cast a doubt in my mind about your impartiality.

Judge: Mere semantics. The fact is, my dear little has-been, that you haven’t got a leg to stand on – just like the last chap who was in here. He’d lost the use of both of his. Ha! Ha!

Pensioner: May I produce my cogent reason now?

Judge: Get on with it. We are none of us getting any younger sat here. You, more than anyone should know that. How you have managed to survive to the amazingly advanced age of 65 is a miracle. By any standards you should be pushing up daisies by now and not continuing to be a drain on scarce police resources.

Pensioner: I protest! You are displaying bias.

Judge: Idiot! Of course I am. That is the whole purpose of this hearing. If you were not so old and decrepit you would have realised that before you demanded this hearing.

Pensioner: Your Medical Worship, I didn’t ask to be here. I was injured due to no fault of my own, thrown out of the job I loved, and expected to be left in peace to pick up the threads of my shattered life whilst battling with a debilitating and disabling illness without the benefit of support from my ex-employers. Anyway, they commanded that I attend, under threat of reducing my pension to zero if I was unable or unwilling to stand here and be your patsy.

Judge: Are you from Devon or Cornwall?

The prisoner looks puzzled.

Prisoner: No, I’m from Yorkshire.

Judge: Well, why are you talking about pasties then? What has a convenient snack formerly used by tin miners got to do with these proceedings?

Pensioner: Patsy – I said patsy, meaning an innocent dupe, a sacrificial goat, a con-man’s mark.

Judge: Exactly so!

Pensioner: May I enquire if the court can offer me any guidance regarding what cogent reason would find favour?

Judge: You really are at an advanced state of decay aren’t you? If you had a few functioning brain cells remaining in that wrinkled and disgustingly bald head of yours you would understand that is for me to know and for you to guess.

Pensioner: Could you perhaps give me a clue?

Judge: Well, I am a reasonable man – provided the reasons are mine – so let me just say this: I will know a cogent reason when I see one. Please remember that these proceedings have been set up so as to provide a fairer and more cohesive approach to the management of police injury pensions. With that in mind, I feel it only fair to warn you I have not heard anyone air a cogent reason yet – and I intend to make damned sure that I never do!

Pensioner: But –

Judge: Silence! You have tried the patience of this court far enough. You should realise that it is the purpose of this court to try the patient. Ha! Ha!

Prisoner: May I present my cogent reason now?

Judge: (feigning a yawn). Well – if you insist, but you are wasting your time, you wrinkled old prune.

The pensioner stands and begins to deliver an impassioned and carefully constructed plea, but it is obvious that the Judge isn’t listening. He has plugged in the earphones of his iPod and the tinny strains of Abba singing ‘Money, Money, Money’ can be heard faintly throughout the court. The pensioner sits down.

Judge: Finished? Right then. After due deliberation, taking due cognisance of all irrelevant aspects such as apportionment, revisiting the final decision of the SMP and paying particular attention to Home Office (blessed be its name) guidance whilst totally misreading the Regulations, this court finds that the pensioner before the bar is guilty as charged. Warder, please confiscate his wallet and hand the contents to the honourable persons to my left. Leave him his old age pensioner’s bus pass so he can get back to the old people’s home.

The Judge bangs his gavel and all present, except the pensioner, decamp to the fine dining establishment conveniently situated next door for a well-earned lunch on expenses.

Do No Harm.

Do No Harm.

“Primum non nocerum. (First do no harm)”
Hippocrates

Doctor Philip Johnson is our least favourite medical practitioner.  Single-handedly this man is making the nefarious agenda of the HR department (well, their business manager Wood and her underling Jones) a reality. A gynaecologist by trade, he thinks the case law of the Regulations allows him to have access to the medical records of private citizens since birth. It does no such thing. When he is asked to do his part of a review of a police injury pension he is only entitled to decide whether there has been any alteration in an individual’s degree of disablement since the last time that was decided. Delving into medical records which pre-date that decision is not permitted. It is an abuse of the Police (Injury Benefit) Regulations 2006 and an abuse of his profession.

As far as knowing the law is concerned, the not-so-good doctor Johnson falls short. What he is rather better at is knowing how to behave in a way which has forced mentally ill former officers to seek help from their crisis teams after seeing him. What sort of a doctor is it who carelessly damages the health of a patient?

Johnson has declined, or is unable to make a decision in any of the reviews he has conducted so far. He then takes great delight in trying to blame that state of affairs on the disabled former officers who have, quite rightly, raised concerns about his blunders. This man is a champion of the art of procrastination and a leader in the field of shifting blame. He desperately wants to earn his fee by doing what his paymasters require -which is to manipulate the review process so as to reduce pension payments, yet he he wants to do this with no stain on his character and no possibility of being in the firing line when there comes the inevitable run of cases in the Administrative Court over maladministration of injury pensions.

The tenet of ‘first do no harm’ means only one thing to doctor Johnson – do no harm to oneself and stuff the rest of you.

And you may well ask ‘where is your evidence to make so bold a statement about the ‘good’ doctor?  There is the fact that there are recorded transcripts of  reviews where Dr Johnson is heard stating that he can see no change and that the condition is obviously no better.  But this train of thought is lost when he makes his first report back to HR.  Rather janus-faced, he now insinuates in the report to his paymasters that there may perhaps be change and its up to the HR department to decide how much.  Or how-about the letter Dr Johnson wrote after a review saying there is no change and then 2 weeks later sending a follow-up report, stating in fact there maybe some change, and he needs now to have job profiles to see how much.  The inference is perhaps that Dr Johnson wants to defer the ultimate decision to his bosses in HR and if they aren’t happy with his first view then that view has to change to become the view of HR.   Or last but not least, the classic letter where Dr Johnson says he can’t make a decision and writes as such to both the former officer and HR.  But then still HR claims that its not as though Dr Johnson has decided not to give a decision, it’s just that Dr Johnson has decided to not decide to give a decision.  All these transcripts and letters exist.

Remember these ‘professionals’ are dealing with former officers, injured on duty and with severe disablement to their earning capacity AND who has had no contact from said force for over 12 years.

“Dr Wallington, I presume”

Dr Johnson isn’t alone in his willingness to apply his own tough love to those unfortunate to be in receipt of an IOD award.  Dr Cheng, the resident Met SMP, is of the circular view (and Joseph Heller of Catch-22 fame would grudgingly admire Dr Cheng’s logic) that a band four IOD award is an oxymoron, as to get a band four the former officer should be so debilitated that they shouldn’t even have the capacity to apply for an IOD award in the first place.

Then there is the infamous Dr Broome  of Northumbria.  He who reduced 75 former officers on higher bands to band 1 in a single afternoon.  He is still in post despite all the case-law that names him.

Dr Nightingale is an ubiquitous SMP who seems to focus her work around the Midlands.  She quite often sees herself as an all-powerful judicial authority and demands responses by 16:12 hours exactly or she will record non-compliance in a rather Borg like manner.  This doctor is often mentioned in Pension Ombudsman findings.

And to end the post, I’ll mention Dr Wallington.  Remember NAMF?  Well Dr Wallington is the head of the police medical appeals board (PMAB).  He has overseen more PMABs than anyone in recent times

34242.pdf

This is an HTML version of an attachment to the Freedom of Information request ‘ Police Medical Appeal Board’.

No. of Boards sat on 
from 01/01/2013 – 
Doctor 
GMC Number 
01/01/2015 
Dr David Wallington
2311212
64
Dr Lanre Ogunyemi
4571061
25
Dr Daphne Pereira
1625857
58
Dr Ian Lambert
2271118
12
Dr Prassana Krishnan
4186951
34
Dr Rosemary Waddy
1462942
7
Mr Anthony Robinson
2493684
1
Dr Adil El-Nujumi
3388422
1
Dr Paul Holmes
3604397
1
Mr John Plewes
666422
6
Dr Karim Rajput
4184289
27
Dr John Nehaul
1380264
5
Dr Abdel Salih
3448908
9
Mr Michael Smith
1467693
65
Dr Mark Groom
3124949
26
Dr Michael Forbes
1469217
7
Dr Philip Steller
1582994
9

5.  Please indicate ANY member of the listed PMAB members (lay or medical) who have
attended ANY NAMF (National Attendance Management Forum) meeting in the past three
calenders years to date (that is 2012, 2013, 2014).

Dr David Wallington 

So why does the lead of an independent appeals board attend NAMF meetings?  Is it to ‘first do no harm’?  Or to see how much harm can be done.

A Suitable Interval

A Suitable Interval

“Once obsolete, an automobile is thrown to the scrap heap. Once here and gone, the human life has likewise served its purpose. If it has been a good life, it has been sufficient. There is no need for another.”
Luther Burbank

There is life after being medically retired with an Injury on Duty award.  There are new opportunities and experiences available that were not remotely imaginable whilst serving. Losing a vocation through no default of your own is hard enough and trying to rebuild a life with a disability  is a trial of Hercules … but it is possible and the rewards are there to be taken.

But how difficult is it to build a semblance of normality when you are constantly placed on a carousel of continuous reviews?  Reviews that have been instigated with an ulterior purpose  to reduce the award to the lowest permissible band as soon as possible.  Are you now a member of the public or are you still under the umbrella of a disciplined serviced with the compulsion to respond to an order of a review on the whim of the Police Pension Authority (PPA)?  How can you progress when there is an interruption of a zealous and watchful eye looking for any change even though any progress and improvement could be short lived and ephemeral.

Is a review 6 months post retirement suitable?  What about 18 months?  5 years?

A 6 month timeline may possibly be appropriate for a person with a band one or two degree of disablement to see if the condition has deteriorated perhaps, giving time to find some sort of employment and if none if forthcoming and  there is substantial worsening to the medical condition then the award can be revised upwards.

But a 6 month interval invoked by the PPA to see if the person is in any employment is not appropriate as a band two award states that the degree of disablement is between 25% and 50% so it can be expected that some capacity to earn is possible, so what is the purpose of a review after such a short period?  What happens if the review triggers a relapse of PTSD and the stress of a review combined with the difficulties of starting a new working life post being a police officer,  causes the mental illness to manifest more strongly and the employment is lost as a result – the paradox of a worsening of the index injury but with recent employment will not be viewed favourable by the PPA, with  their closed minded and misguided intent to reduce their financial commitments surely thinking the latter trumps the former.  Therefore a fair and suitable interval could be a further 6 months into the employment, once things have settled down for the former officer and the the employment is established.  An IOD award is for life and the peaks and troughs do not give an excuse for a knee jerk reaction by the PPA to change a statutory award.  Ultimately the finality and a stability of an award is undermined by the PPA’s determination to ‘prove’ the original decision wrong; that is the singular purpose of a review as seen by the PPA – always to reduce, never to increase. **

**note:  The two above paragraphs, although reality in a pragmatic sense, falls into the same trap that SMPs often stumble into  – “lets give a banding as a punt and then get the chap in a few months to see if I got it right”.  The regulations are apathetic to whether employment materialises or not.  The capacity to earn does not tally with actual employment or earnings; both are irrelevant to a person’s capacity … the terms ‘economically inactive’, ‘under-employed’ and ‘over-qualified’ alludes to this fact.  The bottom line is that the SMP makes a final decision of the degree of disablement and only substantial alteration can justify a review.  There is nothing in the regulations that allows for a ‘suck it and see’ approach. Once made a decision to the banding is final.  The SMP has no room to think he might get it wrong – he makes the award in the here and now.  An un-appealed IOD award banding once given is right by its nature of being given, and can only be ‘undone’ by a regulation 32 reconsideration.

If the person’s wellbeing is in the forefront of their mind then a review after 6 months is not the answer.  Why not ask a welfare officer of the Federation to check in with the former officer?  Ask how they are coping, suggest to the person that if their condition has deteriorated then they can self-refer themselves for a review, in their own time and  when they feel strong enough to face such a daunting  prospect.

What about a review every 2 years?  Is that a suitable interval?  Not if you are a band four with a severe degree of disablement of earning capacity.  If a review takes up to 6 months to complete then a review every 2 years will mean that in a decade you will have spent a full 2 years ‘under review’.  Intolerable to be living a  life that way.

Fundamentally  the timing of a review needs to be  dependant on the individual’s circumstances.  The timing of subsequent reviews requires a judgement by the PPA to allow the former officer to live before being reminded of a past life.  If after 5 years there is no change to the circumstances of a band four then arguably there is a strong case for no further reviews in that person’s lifetime.  If nothing has improved after 5 years, then what can change in the autumn years of that person’s life?

The answer to these conundrums is to ask questions of the PPA. Whenever notified that a review is to be arranged, the first response of any pensioner should always be to ask, Why? Why me, Why now? Get the PPA to qualify its interpretation of a suitable interval. Chances are that the PPA (in reality some bod in HR) will not have given it a moment’s thought. Explain to the HR bod that ‘suitable’ infers that the interval must be right and appropriate for each individual. Ask them to explain their understanding of what constitutes a suitable interval, in general terms, and in the particular circumstances of your case. Ask if they have a policy, or a procedure for considering if a suitable interval has passed. If the PPA can’t answer the questions, then arguably the legitimacy of the review fails on the first hurdle.

It has been the habit of forces to think they have unlimited power to hold a review whenever they liked. Some even set up schedules or programmes when reviews would be conducted. As mentioned, others have a policy – reviews every two years, or five years. Tellingly, and ultimately fatal to all who claim that regular reviews are a ‘duty’ there is nowhere to hide from a history of having either held no reviews or having told people they would never be reviewed. It is as legal, and as legitimate, for someone to decide there will be no more reviews as it is, when done properly, for a PPA to decide to hold a review. They can’t claim a duty to review when it is evidential that they have not held reviews. They can’t have it both ways.

Let David Scoffield, QC have the last word. He is the eminent Queens Council who was commissioned by the Policing Board of Northern Ireland to look into the administration (shouldn’t that be maladministration?) of police injury pensions that side of the water, where the Regulations are pretty much identical to ours.

He recommended:

‘There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.’

National Association of Retired Police Officers

National Association of Retired Police Officers

NARPO+27th+August+2014

IODPA is thankful for the help and assistance provided by the CEO and Deputy CEO of NARPO.  We recognise the time they have given to respond to phones calls and provide assistance.  The letter above sent by NARPO HQ clearly demonstrates  the views of IODPA – that reviews need to be performed fairly and in harmony with the regulations.

IODPA would also like to thank a couple of senior members of the Avon & Somerset branch of NARPO for their constructive input and support recently.  We hope that we can continue the pleasant working relationship to make sure that future actions by the constabulary are always fair and lawful, as well as relevant and compassionate to the individual.

The Scoffield Report

The Scoffield Report

The Police Service of Northern Ireland has the same worded Injury Benefit Regulations as England and Wales.  The statute has a different name ( POLICE SERVICE OF NORTHERN IRELAND AND POLICE SERVICE OF NORTHERN IRELAND RESERVE (INJURY BENEFIT) REGULATIONS 2006)  but the content is identical to the mainland’s PIBR 2006.  Given the fact that serving PSNI police officers face a high number of incidents of public disorder along with the unique policing challenges of Northern Ireland it is not surprising that the province has a high proportion of Injury on duty awards.  The system of injury duty applications and reviews however were in chaos.  Largely due to the Police Board’s insistence on invoking Home Officer Circular 46/2004 but also with the number of applications compounded by the frequency those retired were called back for reviews.  The whole system was broken and the consequences of recent case-law (Simpson et al)  finding that the guidance it has imposed on it’s former officers was unlawful, was the proverbial straw .  Something had to be done.  David Scoffield QC was asked to write an independent report on the  administrative process concerning IOD awards:

https://www.nipolicingboard.org.uk/scoffield-review-injury-duty-award-scheme

Scoffield Review of the Injury on Duty Award Scheme _ Northen Ireland Policing Board

Following a number of concerns raised by former officers and various representative groups a decision was taken by the Board in March 2013 to suspend the review of IOD awards. A working group chaired by the Board’s Chief Executive and comprising of various stakeholders was also established.

In July 2013 the Board agreed to engage Senior Counsel to review the Board’s existing administrative process within the current statutory and policy framework. Mr David Scoffield QC was appointed to carry out the review. Terms of reference for the review were provided to Mr Scoffield QC.

The broken processes in PSNI are no different to what is happening in England and Wales other than the same issue has reached critical mass sooner given the higher number of IOD awards.  The Senior Council review has the same relevance on both sides of the Irish sea.

There was some attempt by the establishment to not publicly disclose the fully published report.  Pressure from interested parties managed to  overturn this and here it is:

redacted_version_of_scoffield_report

Over the next few weeks we will be discussing the points raised by the Scoffield report in more detail.

Neither Lawful or Unlawful

Neither Lawful or Unlawful

“If it doesn’t say it’s not, then its allowed” to misquote and paraphrase Dostoyevsky’s  “If there is no God, everything is permitted” .

Without a rule of law as a higher authority  – so the story goes – there is nothing ultimately to prevent us from ruthlessly exploiting our neighbours, using them as tools for profit and pleasure, or enslaving, humiliating and killing them in their millions.  This isn’t the case in truth – an action can be known to be unlawful even though there isn’t an exact line of text that defines without ambiguity it’s legitimacy.  Just because an esoteric Law or Regulation is silent on a particular transgression does not mean that the transgression is permitted.

The Police and Injury Benefit Regulations 2006 does not allow for the interpretation that on reaching 65 years of age a former officer has no earning capacity.  However nowhere is this explicitly mentioned; but it is still a given.  A given because the nature and purpose of the statutory scheme is to provide an entitlement of an award for life.

The Police Pension Authorities and the Home Office knew this and were ‘trying it on’ hoping that their illegality wouldn’t be challenged. And it was,  and they lost.

They are at it again…

The minutes of the National Attendance Management Forum hosted by West Midlands Police on Friday 27th March 2015 has this to say about PEAM (Police Earnings Assessment Matrix):

neither lawful or unlawful

If a matter is not lawful then it must be unlawful.  The opposite of lawful is unlawful, illegal, illegitimate, incorrect,unacceptable, wrong, illicit, prohibited, taboo.  So there is nowhere for NAMF to go on this; they state themselves that PEAM is not lawful.

Not lawful because it is up to the SMP to decide the degree of disablement as a medical matter by assessing the impact of the duty injury to the former officer’s earning capacity – it is a medical question not an accountancy exercise.  It is a broad judgement to be made by the clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data,  and that his/her decision is final.  When has a SMP ever used PEAM?   – the bad maths is always performed subsequently by a HR functionary.  That is not lawful.

The travesty is that they know such an artificial earning matrix is unlawful but they will not stop using it until a former disabled police officer is disadvantaged, agonised and tormented by an unjust calculation to such an extent that they have no option but to challenge it in judicial review.  Why should something known to be unlawful need to have a court to reaffirm it’s unlawfulness?  Because NAMF is on a crusade to undermine the regulations.