Month: September 2015

Simpson Uncovered

iodpa caselaw
Simpson Uncovered

“D’OH!”
― Matt Groening

This post is about the landmark judgement:

THE QUEEN on the application of SIMPSON (Claimant)
– and –
(1) POLICE MEDICAL APPEAL BOARD
(2) SECRETARY OF STATE FOR THE
HOME DEPARTMENT
(3) NORTHUMBRIAN POLICE AUTHORITY

Why is Simpson so important? (As an aside, regular readers of this blog will let out a sigh of frustration when they read that Northumbria was involved yet again).

It is important as this particular judicial review is famed as being the one that put the nail in the coffin of the blatantly unlawful Home Office circular that stated that those aged over 65 have no earning capacity. Crudace and the pension ombudsman decision in Ayers raised the spectre of the unlawful guidance but in Simpson the Home Office itself was one of the defendants.  Shamefully it took from 2004 to 2012 to get the Administrative court to quash this guidance (even though it was known to be unlawful from the start).  But Simpson is more than this. Mr Justice Supperstone, in his findings, dismantles the illogical and twisted thought process of people like Nicholas Wirz (yes, him again) and the SMPs he has, and still is, unhelpfully giving guidance to.

Simpson reaffirms the findings in Turner (2009) and Laws (2010) and also substantiates the decision in Crocker (2003).  So it is more than the sum of its parts – Simpson goes beyond the earning capacity of those aged over 65 and is relevant to all those  with an IOD award.

How many more people with an IOD award have to go before a SMP and through the grinder with the vague and unrealistic job comparison of PEAM and other unsuitable and inappropriate jobs just so the SMP has a new ‘measure’ that they can then calculate a new percentage?  Judge Supperstone continues that using a new figure to compare against the old is unlawful.

I accept Mr Lock’s submission that the SMP and the PMAB cannot conduct a fresh review of the uninjured earning capacity and the actual earning capacity of the former officer and then, comparing the outcome of that assessment with the previously determined degree of disablement, conclude that there has been an alteration in the former officer’s degree of disablement. That approach is contrary to the analysis approved in Turner and confirmed in Laws and reverses the approach required to be taken by Regulation 37(1). The statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first. A further quantum decision on the present degree of disablement is only permissible if the police authority, acting by the SMP, have first decided that there is a substantial alteration in the former officer’s degree of disablement.

It seems lately that some police pension authorities are reverting to type and seem to think that no one is looking when they sneakily and unlawfully try to conduct a fresh assessment upon  a regulation 37 review.  Simpson again reminds us that this is as unlawful as it ever was:

  1. In Laws the Court of Appeal approved the construction of the Regulations adopted by Cox J at first instance. As the judge put it at [2009] EWHC 3135 at 35, the Board erroneously conducted “…an entirely fresh assessment of the claimant’s degree of disablement and its causes, rather than directing their minds, as required by the regulations, to whether her degree of disablement had substantially altered since the last review in 2005.”

The only question is consideration of substantial change since the last decision and this isn’t concerned with adjusting a percentage.

The Court of Appeal in Laws expressly approved the decision in Turner. Rejecting the submission made by Mr Pitt-Payne for the police authority to the effect that the starting point for the Board or the SMP is to consider the pensioner’s current degree of disablement and compare it with the previous assessment

In any case the out-turn figure is not a measure of change – it is the substance of degree of disablement.

The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

In Simpson Judge Supperstone removes any lingering doubt from the mind of police pension authorities that an IOD award is in no way concerned  with the injured person ‘not’ receiving a salary as a police officer.

I also reject Mr Sanders’ submission that the purpose of an injury pension is to make up for the financial consequences of an enforced inability to continue operating as a member of a police force. Regulation 7(4) is the gateway into the benefit, defining disablement. Regulation 7(5) is concerned with the assessment of loss of earning capacity

This is picked up on the PSNI report on Injury Awards wherein the judgement made in Simpson was echoed by David Scoffield QC.

… represent a fundamental and deep-rooted finding about the nature and purpose of the statutory scheme, including that disability is a ‘gateway’ to the benefit; that once that gateway has been passed through, the officer is compensated for the impact of the injury on what he is capable of doing (irrespective of whether, realistically, he would have been employed to do what he is now incapable of doing); and that such an entitlement is designed to be a life entitlement.

It is compensation for work related injuries and how the injuries has affected the earning capacity of the individual.

Even with the strength of case law such as this, there seems to be still a concerted effort to undermine the regulations.  The evil intent of police pension authorities is simple – use pressure to suck out the willingness of those it has retired to fight any decision at appeal.  Despite the strength of case law such as Simpson, it is only as powerful as how far the plaintiff is willing to go to appeal.  Some police forces treat this as a numbers game – they will get away with unlawful behaviour as long as no one appeals.

Compensation for Injuries received

iodpa PCC
Compensation for Injuries received

“Confidence is ignorance. If you’re feeling cocky, it’s because there’s something you don’t know.”
― Eoin Colfer, Artemis Fowl

Police pension authorities often have difficulty in grasping the concept of an Injury on Duty award.  Sly words are used to try to dilute the actual purpose of an IOD – if a falsehood is repeated often enough the truth gets left behind

Sue Mountstevens, the PCC of Avon & Somerset has opinioned often in her replies to that an IOD award an ‘enhancement’ and, according to her is  is ‘therefore not a compensation payment for the injury received’.

She is wrong on both counts.  More likely the subordinate she instructed to write the reply is wrong and the ‘expert’ from the constabulary that advised the subordinate is wrong.

Lets examine the Explanatory Memorandum to the  Police Injury (Benefit) Regulations 2006  legislative instrument :

Policy background 7.1 Police injury awards do not depend on membership of the Police Pension Scheme, but are in effect compensation for work-related injuries

So an IOD is compensation for work-related injuries.  The regulations say so.  Regulations that no-one within any administrative role in the management of injury awards seem to bother reading.

Is an IOD an ‘enhancement’?  No.  As the memorandum says, an injury on duty award is not part of the police pension scheme.  If a former officer opted out then they would not receive a medical pension, they would just receive the award if they were unfortunate enough to be injured on duty.

So they are mutually exclusive – one does not depend on the other.  Looking at it this way (and this is the only way it can be looked at) , you can see that an IOD isn’t an enhancement to a medical pension – it is a standalone device.

Often an injured former officer had the foresight to pay a percentage of their salary into the police pension scheme so they receive both the award and the pension but the former is not an ‘enhancement’ of the latter.  In fact there is a deduction from the overall injury pension’s guaranteed ceiling level given by the band  – the award amount actually paid is proportionally lessened the higher the medical pension.

There is no duplication of payment, no double jeopardy, the medical pension doesn’t advantage the pensioner – someone with no medical pension and just an IOD award gets the same remuneration as someone on the same banding and final salary who has a medical pension and an IOD.  It’s just that the former is paid wholly out the constabulary’s budget and the latter has the medical pension paid by the pension scheme.

In other words, with the medical pension the police pension authority is exposed less to the IOD award.  Without the medical pension all of the money paid to the former officer will be in the form of the IOD award.  In a way you can view the medical pension as a deductible ‘payment’ from the IOD award. So definitely not an enhancement – quite the reverse.

Take note Mounstevens, all PCCs, SMPs and Directors of HR !

The case of Simpson, heard at Leeds High Court in February 2012, clearly shows Mountstevens is wrong:

Simpson 32.

‘I also reject Mr Sanders’ submission that the purpose of an injury pension is to make up for the financial consequences of an enforced inability to continue operating as a member of a police force’

And so the defining character of an IOD award is primarily an award for life in compensation for an injury sustained.  It is not a temporary facility to off-set a loss of earnings.

IODPA has had insight of several people inside Avon & Somerset stating in writing that ‘various organisations have been misdirecting their members’.  Comments like this deserve a triple face palm

The only purpose of these ‘various organisations’ is to evangelise the correct application of the regulations and the case law built up around it.  All the legion of pension ombudsman decisions and high court rulings would not exist if there wasn’t a concerted and directed campaign by police pension authorities to undermine the regulations.

IODPA would just love to hear Mounstevens and her ilk  riposte to the things we have written. The difference between her and IODPA is that we know what we are talking about, we live day to day with an IOD award.  Our careers were cut short and our lives thrown upside down. We have seen the injustice inflicted on our fellow former officers in receipt of an IOD. Consequently we have been compelled to become experts on the Regulations and their application.

We know exactly what little people like Mountstevens know about these things, the ignorance of what they are doing and their lack of comprehension of the damage that they cause.

Ignorance can be forgiven, and it can be corrected. But deliberate flouting of the Regulations and case law and a complete lack of willingness to admit mistakes, and to continue making, them will attract nothing but contempt and determined resistance.

Buzzwords Bingo

iodpa HR, smp
Buzzwords Bingo

Bullshit Bingo

A game that can be played in large meetings. The players write down management-nonsense word like “Out-of-the-box-thinking”, “Synergy”, “Content streamlining” etc. in a 5 by 5 square bingo card.

If a word or phrase is used during the meeting you check the box. When you get a five box line (horizontally, vertically or diagonally) you shout “BULLSHIT!” and win.

-Company Bigshot Fancypants: “And that is why this merger is going to benefit shareholder value by creating value driven content.”

-Eager But Dim Employee: “BULLSHIT BINGO!”

-Company Bigshot Fancypants: “You’re fired!”

It wasn’t long ago that Avon & Somerset HR employees stated in a meeting that their ‘procedures’ weren’t aligned with the Regulations.

I think they meant to say that they knew they were breaking the law.

On learning of that remark, IODPA dared to think for a moment that the ignorant had become a bit more enlightened. We were mildly excited. We were prepared to ignore the fact that the remark was good enough for a Bullshit Bingo award, and concentrated on its meaning rather than its delivery. We knew there was a still a lot of work for HR and their string-pullers to do – we’re worldly-wise and know how HR types operate – but we thought we saw the first faint flicker of light on the horizon.

Oh, but how we underestimated the force’s capacity to continue to muck things up.

Our internal source (God/Allah bless him/her) has informed us that the force is about to send out final reports for some of those under review.  Remember these are the ones Dr Johnson has been ‘contemplating’ since May 2014.

When those reports finally end up on the doormat of the IODs the mistakes will bound to be numerous. In the spirit of Bullshit Bingo here is a list of errors only the truly ignorant can make – all of which are usually and inevitably wrapped up in phrases carefully intended to obscure rather than elucidate.

As Johnson’s reports arrive, let’s count how many times these errors are contained therein:

  • Fresh assessment.

Everyone’s most unfavoured cock up. This error occurs when the SMP oversteps the mark and starts from scratch to assess and quantify degree of disablement. There are many ways to make this fundamental error, but the most frequent ploy is where HR gives the SMP a list of jobs and wages and the SMP compares the speculative, future, income that might result if the pensioner, say, moved to Aberdeen and became a lecturer in quantum physics, with either what he or she earned as a police officer, or what the average wages were seven years ago for the entire population of the UK, as set out in the NAE index.

OI! YOU! SMP! DON’T YOU UNDERSTAND YOUR JOB

IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

Not being able to read the notes of a doctor who retired someone 15 years ago is not a free pass to start again on someone. There is no excuse for this error, and, trust us, this will go to the High Court at some point.

Oh! hang on a minute. This was already decided – back in 2003, in the case of Crocker:

‘The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.’

The Judge’s binding opinion, which has never been challenged or amended, relates to the initial grant of an injury pension. At review, therefore, the SMP can not do what is prohibited when the pension was first granted. That would not only amount to a fresh assessment, from scratch, but a fresh assessment using an unlawful approach. Double whammy.

And as a footnote to this error, SMP, (and HR please take note) The National Average Earnings (NAE) Index stopped being a National Statistic in January 2010. The Office of National Statistics continued to publish this index until September 2010. Indices were published two months in arrears so the last index that was a National Statistic was that for October 2009 and the final index ever published was for July 2010.

The Average Weekly Earnings (AWE) measure was accredited as a National Statistic in January 2010 and, consequently, it replaced the National Average Earnings Index as the headline measure of earnings growth in the UK.

So, please do tell – where, exactly have you been getting these figures which you claim are from the NAE Index?

How much case law is there which states clearly that apportionment cannot be reapplied?.  Has any SMP actually bothered to read the most helpful body of case law which has accumulated?  Evidently not.

  • The straw that broke the camel’s back.

It doesn’t matter what causes the degeneration of a duty injury.  If the index injury has progressively got worse a SMP can’t mitigate the reason why it’s got worse by ascribing the whole or part of the degeneration to a specific non-duty cause in order to try to reduce the banding.

A spinal disc compression sustained in dealing with a riot whilst on duty 20 years ago, which has become more severely damaged because a young child was lifted 5 years ago?  This doesn’t mean you can reduce the band !!!

Degeneration of the index injury is just that – a worsening of the index injury.  Where does this illogical SMP train of thought stop?  Is age not allowed to be a reason for the degeneration?  Without the original injury, age & time would not have caused the disablement in the first place.

  • Disagreement with the diagnosis.

The last previous decision is a given. It is a final decision.  Simples.  What makes the SMP think he can say he disagrees with it? Apart from ignorance, a complete lack of professionalism and one eye on his pay-cheque, that is.

  • The SMP reporting there is no change to degree of disablement and then changing the % degree of disablement.

Yes, they do this. Unbelievably. They consider substantial change, find there is none and then provide a new figure of degree of disablement.  So you are a band 4 on 76-100% and there is no change?  So now Dr Johnson says you are 85% or 90%, or any other figure in the 76 to 100 percent range that takes his fancy. Plucked out of thin air with no stated reasoning to support it. Just because the last SMP gave a range instead of an exact figure does not mean you can now give an exact figure.  No change means just that – no change.

In fact, it seems obvious that the SMP has not realised the Regulations do NOT intend, or allow degree of disablement to be stated as a precise percentage. Perhaps HR and the SMP have also not bothered to read what eminent QC Scoffield wrote in his report to the Northern Ireland Policing Board recently?

‘However, there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

As I have also noted in Chapter 1, the calculation of a precise percentage figure is also an exercise with which the SMPs are not terribly comfortable, involving, as it does, something of an accountancy exercise. Indeed, the fact that the degree of a person’s disablement is a “medical question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data.’

  • Suggesting treatment.

Remember, if you are capable of remembering , SMP, this is really for you what should be point number one. Please feel free to print it out in large type and pin it on your wall next to your insubstantial certificates of qualification. It is worth more than any of them:

YOUR JOB IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

You have no jurisdiction to say a pensioner should see a consultant cardiologist, psychologist, psychiatrist, clinical nuerophysiologist, urlogist, gynaecologist, or any other ologist to cure all their ills. Not only are you unlawfully altering a previous decision but you come across as a slimy snake oil salesman – ‘take this elixir and you’ll be cured’.  As if.

Pensioners, please email IODPA (admin@iodpa.org) if you have evidence of more errors or Bullshit Bingo-worthy scribblings from SMPs and forces.  If the SMP scores full marks on a single report then a chocolate teapot will be sent directly by special delivery.  This teapot will be pre-filled with hot tea for the doctor’s convenience.

And, as a special one time offer only, IODPA will also provide a thick book compiled from case-law, Pension Ombudsman determinations and the full unread text of the Regulations so the SMP can insert it into the seat of his trousers so that the spanking at PMAB for being such a muppet will not sting quite so much.

In all seriousness though, HR types, please read the reports your SMP has signed off.  If any of them contain a trace of the bullshit terms and errors we have briefly outlined above then you can prepare yourselves for a few years of complaint, challenge, appeals and litigation. And that is from around a dozen reviews only.