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.

Substantial Alteration
Tagged on:

2 thoughts on “Substantial Alteration

  • 2015-05-29 at 9:44 am

    Hi Andy. You posted originally on the ‘shoulders of giants’ blog. No worries, here is the reply again:

    Hi Andy
    There can be no good reason to hold a review unless the police pension authority firstly consider that there has been an alteration in the pensioners level of disablement.
    What I am saying is that the police pension authority must have a sound reason for holding a review, and that reason can only be the one I set out above. A review held on a whim, or for any initiator other than the one I suggest must be merely a fishing expedition. This would include any review held because a pensioner had reached a certain age, or would have reached normal force retirement age, or because a certain number of years had passed since the last review. Reviews held to a timetable are not rational and are not appropriate.
    It follows logically, that if a valid reason for holding a review is not present, then it is unlawful to hold a review. Indeed, I have to point out that logically the default condition is no review is contemplated. Many IOD pensioners have never had a review, and the majority of forces have only held reviews infrequently. Some forces have never held reviews. To make a review lawful there must be some change in circumstances – and that change can only be a substantial alteration, either an improvement or a worsening, in the medical condition resulting from the duty injury.
    So to answer your specific time line … if time (18 months in your case) is the only predicate then it means nothing. If you are undergoing medical treatment and there is a possibility that the treatment will substantially improve your condition and the delay will be 18 months, then arguably 18 months is reasonable. There is no requirement in the regs for a SMP to forecast the next referral – the reason they do it is to pretend that the interval is suitable. In reality it isn’t. If ever reviewed due to a defined time with no other reason, the PPA has to be challenged and asked to explain it further.

  • 2015-05-28 at 5:55 pm

    At the risk of posting again as I cannot see my previous post.

    Having recently been awarded an IOD pension by the SMP having gone to a PMAB he has stipulated that I be reviewed in 18months.
    Is this lawful as it is basically saying I am to be reviewed no matter what?


Comments are closed.