“It’s being here now that’s important. There’s no past and there’s no future. Time is a very misleading thing. All there is ever, is the now. We can gain experience from the past, but we can’t relive it; and we can hope for the future, but we don’t know if there is one.”
― George Harrison
Imagine, if you will, that you are a 37 year old male police constable with 15 years service. You weigh 75 kilos and have 32″ waist. You have just run to work at a brisk 6 minute mile pace, performed a 14 hour shift and run home (or if you prefer cycling, you cycled the detour of 15 miles in a spritely average of 20 mph). You are basically immortal. Then you have an on duty injury, and after 18 months and numerous surgical interventions you are retired with an IOD award.
What relevance would your medical notes be at the time you were 37 and able to run the 5 miles to work in 35 minutes (or cycle 15 in 45 minutes) to start that early turn? How would looking to that past allow for an impression on your capacity to earn on the day you were retired?
Following this train of thought, how can your fitness or lack of it 3 months or 3 years ago be an indication of your present degree of disablement? It can’t be.
Speculation into the future is forbidden when an IOD is awarded, and this speculation similarly is not allowed at a review. The degree of disablement in relation to earning capacity shall be determined at the time of the decision and not make any reference to potential future earning capacity (South Wales Police Force vs Anton and Crocker)
The starting point is Regulation A12(3) [of the Police Pensions Regulations 1987]. It requires an assessment of how earning capacity “has been affected”, not of how it is likely to be affected. (1)
It goes without saying that a lot of people will have reports from the SMP saying, rather hackneyed, ‘might be capable of work in the future’ or at review, the vapid ‘has worked in the past’. These opinions are unwarranted and contrary to the above case-law. It is how you are now, not how you were before the review started, or 12 months ago, or in 12 months time.
This is important as the above melds two things: (1), the argument that a great number of SMP decisions are unlawful if the above comments have been used to lower a band, with (2), the reason FOR a review. If earning capacity in the ‘here and now’ is zero then the award should be 100% and if in the ‘here and now’ the former officer is still unable to work there is no legitimation to review. At a review, past medical records do not speak of the ‘here and now’ – arguably very recent records do, but historical records do not. The positive duty to review is a figment of the Police Pension Authorities’ imagination. The duty not to refuse a review if circumstances change does exist and if in the ‘here and now’ there is substantial change then the award can be revised.
The regulations are not there for any force to regularly spend over a year punishing a former officer by dragging them through a protracted review.
Interestingly, how can a force make a decision 8 months after that person saw the SMP? Surely after such a time of procrastination any decision can be appealed with an automatic appeal of ‘change of medical condition’. Life has moved on, health has ‘moved on’ but the SMP report looks in the past. The person can not be reviewed again as an immediate review consecutive to the last is not a suitable interval. The ‘here and now’ is important.
A review is time sensitive and should be finalised within a month of the assessment (if required) with the SMP. Otherwise time makes a non-finalised review obsolescent. It can not be any other way – if the detailed examination of the elements were conducted 6 or 8 months ago then the ‘here and now’ has ‘been and gone’. The “[…] assessment of how earning capacity [ ] has been affected” is twisted into “will be affected” and this distortion does not conform to the regulations and is explicitly denied by case-law, so therefore is unlawful.
Any decision made based on superannuated assumptions can and shall be appealed on basis of time without any need to question the content of the decision.
(1)