“He who does not understand your silence will probably not understand your words.”
― Elbert Hubbard
A person undergoing a DWP assessment for benefits needs to provide evidence they are still entitled to that benefit. If they don’t do this then the DWP investigator has the power to remove said benefit.
An Injury on Duty award isn’t a benefit and can not be removed. If there is substantial change in the degree of disablement then the award can be revised, but it can never be stopped. There is no investigator or benefit claim. Nothing can be revoked or cancelled. When a review is held a police pension authority is to consider the sole question of, ‘is there any substantial alteration?’ Only If there is evidence which indicates there may be a substantial alteration then must the authority refer for decision the question of degree of disablement to a duly qualified medical practitioner.
On their fishing trip to elicit a response from IOD pensioners, Avon & Somerset tried to bluff that if they didn’t disclose any information requested, (such as how many cars you drive!) then they could stop the injury award (which they can’t) or prosecute you for providing misleading or inaccurate information (which would be something they might well regret trying).
Here’s the nasty little threat they sent to vulnerable disabled former officers, all of whom have to bear the burden of very severe disablement.
This supposed threat of prosecution was queried with a FOI request:
The force provided a classic example of corporate blather in response.
“The statement has been on the questionnaire relating to injury awards since 2003 (arising from a meeting of the Attendance Management Group held on 9 October 2002). The statement reflects the details included in the questionnaires provided by Essex and Sussex Police at that time and agreed with the Federation in January 2003.
The statement is intended to clarify that there are possible consequences should a former officer either omit information which is relevant to the consideration of the injury award and/or purposely provides misleading information which could possibly be fraudulent.
If the statement is not signed, it does not halt the review process, but if the details were found be fraudulent due consideration would be given to the next appropriate steps. It may be helpful to note that this statement has never needed to be actioned to date.”
This sinister, and wholly unfounded threat came from a police force, for crying out loud !!
Threatening injured former officers with an invented prosecution?
Why would any IOD pensioner think themselves obliged to cooperate with a HR Department that thinks it can treat people like this?
What do the Regulations say about not engaging with a review?
The Police (Injury Benefit) Regulations 2006 Regulation 33
- If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then
(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;
(b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.
The interpretation of this is that if you deliberately don’t turn up for an assessment by the SMP then the force is allowed to make a decision based on such evidence and medical advice that they think is necessary.
That’s it. No reduction or suspension of injury award.
If you decide to attend for assessment by the SMP, but also decide to refuse to agree to full disclosure of medical records, back to birth, confining agreement to release of only records made since the last decision on degree of disablement, then you have complied, albeit with conditions.
The SMP and the force might not think you have been as cooperative as they wish.
In either circumstance – complete refusal to engage in what we know is a mockery of what should be a lawful process, or limited, conditional cooperation – then the force might, if they are daft enough, try to use regulation 33.
Their first problem though would be to satisfy the stringent test of ‘wilfully or negligently’. This is a high hurdle to jump and a hard condition to prove. How could any IOD pensioner be said to be wilfully or negligently refusing to engage with a process which he or she has very good reason to believe is unlawful? That is more than enough of a rational reason for refusal.
Their second problem would be trying to make a determination on such evidence and medical advice as they could obtain. The force seems to have lost or destroyed a lot of files and even if they have a full set most of them will contain information which has not been added to for many years. What evidence could there be of any alteration in degree of disablement?
The force can only use factual information – your notes when you retired for instance – to prove that there is a case for substantial alteration. They can’t pull a fresh assessment out of thin air as this inevitably revisits causation and apportionment and is forbidden. The High Court says so.
If there is no evidence of a substantial alteration in your degree of disablement then the status quo continues, no alteration means no revision of injury pension.
Instead of politely enquiring with pensioners whether their medical condition resultant from the duty injury had improved or worsened substantially over the intervening years since the last time degree of disablement was decided, the force thought it best to ask sneaky, irrelevant questions in the hope that it might provide cover for what was a predetermined decision to conduct a full review involving referral to a duly qualified medical practitioner.
When debating any issue, there is an implicit burden of proof on the person asserting a claim. An argument from ignorance occurs when either a proposition is assumed to be true because it has not yet been proved false (no evidence of change so the condition must have improved) or a proposition is assumed to be false because it has not yet been proved true.
This has the effect of shifting the burden of proof to the person criticizing the proposition, but is not valid reasoning.
You don’t have to tell HR or the SMP what car you drive, how you spend your day, what you submitted on your last HMRC return. The evidence required to determine alteration in degree of disablement is medical. If a SMP wants to know whether you are able to drive despite your disability, then he should ask you straightforwardly and not rely on information obtained under threat by the HR Department.
HR or the SMP have no power to try to get you to tell them your life story. What you did before the time of the last final decision is not relevant to the task in hand, which is only to look for any alteration in degree of disablement. What if the SMP takes an innocent comment out of context? You then find yourself fighting a nightmarishly complex, bizarre, and illogical game of trying to prove there is no alteration to your medical condition, whereas the burden of proof of any change is the responsibility of the SMP.
Just imagine, if you will, what might happen if you get notification that you will be reviewed. You might feel impelled to ask HR, why me? why now? What makes you think my condition has improved or worsened? Instead of an honest answer, namely that they intend to review everybody so as to try to see if they can save some money, you get the usual glib response from HR, claiming they have a right or a duty to review, blah, blah, blah. They are determined to review you and justifying their reason does not concern them. Giving a reason is not something we do. Don’t ask again or we will treat you as being vexatious, you cheeky bastard. So you comply: you sign consent for partial disclosure of medical records. You might decide to refuse to answer their loaded questions on the questionnaire, for after all, you didn’t fill in a questionnaire when you were retired so how can they compare the here and now to the past with a new set of answers?
You then get a date to see a SMP. You turn up, wish the good doctor a pleasant hello and sit twiddling your thumbs. You answer whatever query of medical fact the doctor wishes to talk about but only concerning your medical records relating to duty injury and decline to answer anything you think is not relevant.
A review is not the Spanish Inquisition and an SMP is not supposed to behave like Tomas de Torqemada. It is not for you to prove you continue to qualify for the amount of injury pension you receive: it is for the force to determine whether or not there has been any alteration in your degree of disablement. It needs a substantial alteration before an injury pension can be revised.
It my well be that some of you think that full, unquestioning, cooperation is just fine – that you know you are not any better and you trust the SMP and HR and those that pull their strings to stick to the Regulations and case law and that everything will be just fine and dandy.
Sorry to say, that has not been the experience of most of the IOD pensioners who so far have been assessed by a SMP. With the notable exception of those who saw Dr Jo Judge they all report abrasive and intrusive interviews, delving into areas which have nothing to do with determining whether there was any alteration. Most have not had a decision months after the event, and the SMP is trying to blame them for the delay.
So, it is up to you. Go along with a process which has about as much in common with a lawful review as does a rotten cabbage to a slice of apple pie, or give partial, conditional cooperation, or do you downright refuse to have anything to do with people who prefer to offer threats rather than ask honest questions, and who are happy to put you in front of a doctor who seems to know little about the Regulations and whose bedside manner would do justice to the little old ladies who used to knit as the guillotine did its grisly work.
What can they do if you refuse to cooperate? Downband you because they haven’t got any evidence that there is any substantial change and they feel you’ve been less then helpful? Not according to regulation 33 they can’t.
Pensioners accept that a police pension authority can hold reviews. But when reviews are not held lawfully, and when pensioners are not treated with dignity and respect, and are threatened and treated with contempt, then we need to remind ourselves that an injury pension is a right, enshrined in legislation, agreed by successive Governments, and is compensation for injury received on duty. It is not a State benefit, which we have to prove our continuing right to receive. It is part of the quid pro quo of police work. We readily put ourselves in harm’s way, and we held up our part of the bargain to the extreme extent of being damaged in body or mind, only to see some weasel with an eye on the balance sheet pressure ignorant and untrained HR types, and venal SMPs into abusing us, and the Regulations. Meanwhile, Nero fiddles as Rome burns.
The simple truth is that the drafters of the Regulations intended that reviews should only be held rarely – ‘at such interval as may be suitable’, is what they wrote. The status quo should be that no review is contemplated. When circumstances change, then a review might be appropriate. What we see in Avon and Somerset is a mind-set which thinks that a sizeable number of IOD pensioners are somehow not entitled to their pension, and that leads to the belief in certain quarters that no regard whatever need by given to the suitability or appropriateness of arranging a review in each individual instance, and no concern need be given to the health-damaging effects of putting vulnerable disabled people through the meat grinder of an unlawful process