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.