“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):
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.