‘The award of 100% is a special case reserved for an officer who is an inpatient at hospital’ – Mr W : Regional Welfare Advisor to the Police Federation
‘He said that to obtain a 100% degree of disablement in an initial assessment, he would normally expect that the pensioner themselves would be unable to even apply for the Injury Award as they would be so incapacitated.‘
The words of a HR Manger, reporting the opinion of Dr C, a SMP.
When an injury pension is reassessed, under provision of regulation 37 of the Police (Injury Benefit) Regulations 2006, the task of the appointed duly qualified medical practitioner (the SMP) is to decide whether there has been any alteration in degree of disablement.
Within the strict confines of the Regulations degree of disablement is based on a medical opinion of an individual’s capacity to do work which results in earnings.
The focus is the capacity, not the earnings.
For some considerable time there have been efforts to seek justice concerning the maladministration of injury pensions. Areas of error have been identified and arguments put forward that the calculations which have been made concerning wages and earnings have been done improperly.
IODPA is content to see legal challenges focus on these details, as the idiocy of the SMPs who speculate wildly about jobs and earnings makes them vulnerable to being shot down in flames. However, we now want to to present a root and branch argument that the entire basis of any calculations concerning wages and earnings in regard to degree of disablement is unsound and unlawful.
We at IODPA believe that SMPs have regularly failed to properly conduct, within the Regulations, the task placed on them when conducting a review. They have conducted what amounts to a process which seeks to measure loss of earnings. The focus has been on what has been earned, what was being earned at the time of the review and, what might earned in future. Moreover, the necessary impartial status of the SMP’s task has been interfered with by other persons in the employ of the former force, who have supplied them with information about jobs and wages, and calculations based on jobs and wages, which have no place in a properly conducted review process. This amounts to undue influence.
The Regulations do not set out any method by which earning capacity should be assessed and quantified.
They do, however, provide some definitions:
7-(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.
7-(6) Notwithstanding paragraph (5), “totally disabled” means incapable by reason of the disablement in question of earning any money in any employment and “total disablement” shall be construed accordingly.
The Home Office has seen fit to provide guidance to PMABs. It is entitled:
This guidance is routinely made available to police pension authorities and to SMPs. Section Five of that guidance contains a detailed description of how a SMP should address the matter of degree of disablement. The heading of that part is, ‘How does the SMP calculate the degree of disablement?‘
The word ‘calculate‘ indicates very clearly the extra-regulatory view of the Home Office that degree of disablement is nothing more than a matter of what results when someone does some speculative mathematics with wages and arrives at a percentage figure.
At review however, the SMP is required by the Regulations only to give an expert medical opinion, in broad terms, of whether there has been a substantial alteration in degree of disablement. No calculation of any sort is required. The SMP is there to deal with medical matters, which by their very nature are not amenable to ‘calculation’ to the sort of fine degree which the Home Office guidance suggests is required.
The Home Office’s suggested method for quantifying degree of disablement is flawed and should not feature in any way in the process of review of an injury pension. The guidance sets out to encourage a measurement of loss of earnings, which is not the correct approach as it does not comply with the Regulations.
The correct approach to degree of disablement is to quantify earning capacity at the time of the initial grant of an injury pension, and any any substantial alteration upon review, as being within one or other of the four bands set out in Schedule III of the Regulations, using only a medical assessment of the effects of the duty injury on the capacity to work so as to be paid.
It should be noted that the Guidance states, ‘This [guidance] has no binding authority . . .’
Yet the Home Office claims that it is the procedure followed by, ‘. . . most forces and by Boards in recent years.‘
This is something of a chicken and egg situation. The guidance until recently was the only source of advice available to SMPs. It is no wonder that it has achieved wide acceptance. However, that wide acceptance does not mean the guidance is accurate or lawful.
It has to be borne in mind the Home Office historically has provided the training for SMPs and this inevitably results in SMPs being brought to think, as the guidance is the only procedure offered to them, they are obliged or required to follow the guidance. We may be doing some SMPs a disservice, but it can be seen that it could be easier for them to follow the Home Office guidance than to work out alternative procedures for themselves.
There is also the natural inclination to follow guidance which is seen to be from a highly placed and presumably authoritative source. It is easy for SMPs to put their critical faculties to one side and fail to analyse the value and accuracy of such guidance. However, a significant part of that guidance has now been deemed to be unlawful and that surely must cast grave doubts on the entirety of the guidance.
The Home Office influence inevitably skewed the take-up figure and leaves us wondering if SMPs would have used different procedures if alternatives had been offered to them or if they had been left to work out how to approach their task for themselves. The way the Home Office presents it, the Guidance is a reflection of procedure that has been developed by SMPs – that the Guidance merely reflects common practice. That may not be the case, and the reverse may be a more accurate picture – that the common practice (such as it is or is not) arose from the Guidance.
It takes a large leap of faith to believe that SMPs are so organised, and so in agreement, as to be able to produce such a detailed method of assessment. Merely pointing to use of the Home Office’s procedure is a far step away from providing confirmation that it is a lawful procedure, the only procedure, or even the best procedure.
We also have to bear in mind that even if the procedure is used at review, it may produce a result that is similar to one achieved by another method. Hence the absence of any challenge to a decision which, although unlawfully arrived at, is an acceptable decision does not ratify the perceived quality of the guidance. Moreover, the decision owes more to how the SMP operates the procedure than to its quality or lawfulness.
Indeed, the prime fault in the Home Office method is that it is open to manipulation by forces, SMPs and by the Home Office so as to produce assessments that are detrimental to the rights of former disabled officers. It is too easy to pluck jobs and wages out of the vast market place that is working life which can be used to arrive at any desired percentage degree of disablement. By way of illustration, let’s detail how a SMP and a HR department recently calculated a degree of disablement. This is a real case. This actually happened.
A force’s HR department provided a SMP with a list of four jobs which someone in HR thought the pensioner was qualified to do.
There were six wages relating to the four jobs. Each job had two wages – a lower one which was said to be the starting salary and a higher one which was said to be the salary achievable after some time. The lowest wage of the six was £24,717 and the highest was £38,484. The SMP, for reasons he failed to reveal, selected only one wage, of £27,270, and worked out that this represented 75.08% of the individual’s previous police salary of £36,321.
The resultant calculation produced a figure of 24.9%, which he named as the individual’s ‘injury-on-Duty‘ thus placing his injury pension in the lowest of the four bands set out in Schedule III of the Regulations – BY JUST 0.2%.
For the sake of completeness, here are the six possible calculations. I doubt it can be explained why any one of them has any quality or factor which makes it more appropriate for selection than any other wage? Alongside the wages are the percentage ‘degree of disablement’ which the SMP would have calculated.
£24,717 = 31.05%
£25,423 = 30.01%
£26,321 = 27.54%
£27,270 = 24.92%
£32,108 = 11.6%
£38,484 = -5.48%
Note the bottom (highest) wage, which produces a NEGATIVE degree of disablement. Nobody can have a negative degree of disablement and remain disabled. However, this illustration is an example of what can result, and has resulted, from reliance on the Home Office guidance.
Logically, any system which is capable of producing a negative degree of disablement must be flawed.
We won’t propose now to conduct a line by line critique of the Home Office guidance but we have strong reservations about its honesty, impartiality and lawfulness.
It needs to be remembered the author of the above guidance claimed, in other guidance issued as Annex C to Home Office circular 46/2004, in relation to reviews at normal force retirement age, that,
‘Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached – others continued to pay benefits at the same rate until the death of the Officer concerned.’
This claim was exposed as completely untrue. It was a deliberate lie. In fact no force had ever automatically reduced degree of disablement to band one, at any age. The Part 5 Guidance is written in a way that mixes unsupported assertions with erroneous paraphrasing of legislation and unfounded opinion. The guidance is at best unreliable, erroneous and unlawful and at worst a deliberate underhand attempt, using smoke and mirrors, to subvert the Regulations in a way intended to reduce the amount of injury pension paid.
Right at the beginning, it attempts to set the reader off on a wild goose chase:
‘How an injury award is calculated
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’
Why is there reference to unidentified pension award systems that are outside the Regulations? The Guidance says, ‘. . . as is normally the case . . ‘ Why is what might happen elsewhere of any relevance to how an injury award should be calculated under the Regulations? There is no need for that phrase other than to give the (false) impression that the procedure which follows is well founded, common practice found elsewhere in the administration of other pensions and therefore applicable to police injury pensions.
There is no reason for injury pensions to be governed by rules that might apply in other pension systems. Police injury pensions are governed by the Regulations and they most certainly say nothing about any earnings calculation mechanism intended to top up total income.
The Guidance errs by stating that a pensioner’s
‘. . . other relevant income needs to be topped up to the level of his or her minimum income guarantee.’
This concept is repeated a few paragraphs later:
‘The link with earnings is necessary because injury pensions are based on a system of “minimum income guarantee” designed to bring total income in retirement up to a certain level.‘
This is nonsense on steroids. The author of the guidance asserts that the link with earnings is necessary, because he thinks that the Regulations intend that total income in retirement is brought up to a certain level.
He seems to be saying that the pension is added to any income to produce a total. That would be not a minimum income guarantee it would be a control mechanism that produced a cap on income. If the pensioner earned a few pounds more one year, then according to the guidance, he would see his injury pension reduced by a similar amount.
The guidance has missed the point – or deliberately obscured it – for the minimum income guarantee is the amount of injury pension paid, not an expression of total income and is there to provide an income even if no other earnings are present.
How can it bring earnings up to a certain level, and what is that level? Earnings do not feature in the Regulations. Earning capacity does. As the premise in the guidance is wrong – that the pension is there to top up total income (to effectively put a cap on total income) then its assumption that the link with earnings is necessary is also incorrect.
The logic is in the form of ‘as A then B’ – that there is causality between A and B. Therefore, the quality, or truth, of B is dependent on the quality or truth of A. The guidance wrongly describes the nature of an injury pension ‘A’ and from that incorrectly infers earnings ‘B’.
The purpose of the perverse logic is to bring focus to bear on earnings, which the Regulations do not mention, so as to set it in the mind of the reader that it is permissible to equate ‘earnings’ with ‘earning capacity’. The Guidance seems to be saying that it is possible to use earnings, or their notional loss, to determine earning capacity. And that is where the rot sets in and why everything which follows of the suggested method to assess degree of disablement or any alteration in degree of disablement is completely invalid and utterly unlawful.
Reference to earnings is not necessary to determine degree of disablement and earnings cannot determine earning capacity for they are an unreliable indicator which owes more to variable and irrelevant factors that are impossible to quantify than to the effects of the duty injury.
At the heart of the confusion over how to assess degree of disablement is the false and misleading concept that there is a reliable, measurable causal link between earnings and earning capacity. There is more to say on this below, but it can be agreed that how much or how little a person earns is influenced more by a raft of irrelevant factors than by earning capacity.
Only the duty injury is recognised by the Regulations as being a relevant factor in determining earning capacity and thus degree of disablement. Put simply, you can’t look at earnings, whether they be past, present or potential, and use them as a reliable indicator of earning capacity. Earning capacity is an exercisable power, not amenable to measurement in terms of earnings.
Look at it this way – an engine’s cubic capacity does not tell us the brake horse power of the car the engine is in, nor the maximum speed the car can go. If we knew the maximum speed or brake horsepower of a car could we use that to determine the cubic capacity of the engine? Of course we could not. If we determined the maximum speed or brake horsepower had declined could we conclude that the cubic capacity had also altered? Not likely. Similarly, no amount of juggling of earnings, wages, jobs whether past, present or potential can ever lead one back to quantifying earning capacity.
Degree of disablement is determined by the extent of erosion of earning capacity, not any calculation concerning earnings. A capacity is the ability or power to do something – in the environment of the Regulations that ‘something’ is work – specifically work resulting in payment. The payment is nothing more than a by-product of the work. The capacity to work is what has to be measured, not the amount of payment resulting.
Any examination of earnings alone can never lead us to being able to quantify the available capacity to work. The capacity to work can exist without any earnings resulting.
The entire approach, as recommended by the Home Office guidance, to assessing degree of disablement when an injury pension is granted and also at review is fundamentally flawed because of the confusion between ‘earnings’ and ‘earning capacity’ and introduction of the false concept that the injury pension is there to compensate for lost earnings.
This flaw has remained largely hidden because so far it has been only peripherally examined in the High Court or by the Pensions Ombudsman. It is rather like the iceberg which sank the Titanic – mostly underwater and out of sight, but capable of causing enormous damage. The absence of clear direction – a more timely shout from the crow’s nest – combined with an unwarranted certainty that matters were being dealt with lawfully has created much confusion, not all of it innocent.
Mr Justice Stephen in Re Castioni  had this to say:
‘I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.’
It is all too obvious that there has been a sulphurous mixture of ignorant misunderstanding, overlaid with a heavy dose of deliberate misunderstanding, of the Regulations and how they intend degree of disablement shall be determined.
How and why there has been so much confusion, leading inevitably to maladministration? Given that ‘earning capacity’ was adequately defined as far back as 2002, in Crocker, and was well examined by the Pensions Ombudsman in the case of Ayre in 2009, there really is no excuse for seeing its meaning altered, or confused, in any official document from any source.
Unfortunately, it seems abuse of the phrase ‘earning capacity’ which is used in the Regulations is commonplace – so much so that it has been almost supplanted by the cuckoo phrases used by those who should know better. Good and lawful administration is not helped when people who have to apply the law depart from the words and phrases contained in the legislation and indulge in casual paraphrasing or thoughtless substitution. Such lapses should not appear in anything which originates from someone of whom we have an expectation that they get things right.
Casual paraphrasing and thoughtless substitution is indicative of lazy thought processes and poor skill levels, or even of a desire to manipulate the Regulations to the disadvantage of pensioners.
Those false phrases are seemingly innocent but they have exerted a malign effect on the administration of injury pensions. It is not acceptable for those who administer injury pensions to take the phrase ‘earning capacity’ and change it into ‘earnings capacity’, ‘loss of earnings’ or ‘loss of earnings capacity’ or ‘loss of potential earning capacity’ as the fancy takes them.
Examples such as these are found scattered throughout the Home Office guidance, in force policy and procedure, in reports, letters and minutes. Each time ‘earning capacity’ is transformed into something that is an inequivalent paraphrase or substitution, the meaning and intent of the Regulations is twisted. This leads inevitably to misunderstanding and incorrect application of the Regulations.
As this error has become embedded in the administration of injury pensions we have to try to make it a clear as it can be that ‘earning capacity’ is the measure of available physical and mental facility, placed within the work environment. It is a measure of what a person in capable of doing, and thus capable of earning. It is not a measure of what a person is capable of earning and thus capable of doing.
Earnings may result from work, and be the intended outcome of work, but the amount of those earnings does not depend solely on earning capacity.
We will draw your attention to the case of Simpson, heard at Leeds High Court in February 2012. This case could not have made it clearer – neither the pension, nor the amount of pension paid, has anything whatever to do with earnings.
‘The two grounds in respect of which the Court of Appeal granted permission to the claimant to challenge the Guidance are: first, that the Guidance is inconsistent with the Regulations (ground 1A); and, second, that the Guidance is wrong in that it mistakes earnings for earning capacity
‘As for ground 1B, Mr Lock submits that the test under Regulation 7(5) is based on the loss of a former officer’s earning capacity, not his actual loss of earnings. In this regard he relies on the judgment of Ouseley J in R (South Wales Police Authority) v. The Medical Referee (Dr David Anton) and Crocker  EWHC 3115 Admin where the judge said at paragraph “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.”'[My emphasis]
‘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. The degree of a person’s disablement should be determined by reference to the degree to which his (emphasis added) earning capacity has been affected as a result of the injury. The focus is on the individual’s earning capacity which, in the case of a former officer, may or may not involve the police officer’s salary. As Ouseley J noted in Crocker, the task in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not an assessment of whether somebody would actually pay him to do what he is capable of doing.‘ [My emphasis]
So there is no need for the SMP (or anyone else involved) to have access at review to any information about a person’s earnings, past, present, or potential. Nor is there any need for the SMP or the Human Resources Department to try to conduct a job-matching exercise by identifying a job which the individual could do. The SMP should not need to look at any data showing earnings, for any section or category of society, be they average, median or mean earnings. His task is entirely a medical one.
Erroneously, the Guidance advises that the SMP begins to assess degree of disablement by an exploration of irrelevant factors:
’10. In order to assess the degree of disablement the SMP will need to consider by reference to the person’s background, skills and qualifications what kind of employment he or she could undertake, allowing for the particular effects of the qualifying injury.’
Starting with an exploration of jobs and earnings is going at the task from entirely the wrong direction. The starting point at any review is the injury and evidence of any alteration of the effects of the injury on the ability to work.
The SMP should determine at review if there has been any alteration in degree of disablement, and if necessary, whether or not any alteration is substantial, by an examination and assessment of any alteration in the individual’s current, post-injury, physical and mental capabilities, as set within the environment of paid work, compared to the last final decision on degree of disablement.
It needs to be borne in mind the pensioner’s degree of disablement has been fixed, and is final (subject only to Reg. 31 appeal or Reg 32 reconsideration) unless the SMP assesses there has been a substantial alteration in degree of disablement, caused by some change in the effects on working capability of the duty injury, and only the duty injury. He is prohibited from conducting a fresh assessment of degree of disablement, even as a means of using that to compare with the previous assessment. He also cannot revisit causation or diagnosis or apportionment.
A scientific approach demands that the SMP can only properly arrive at an assessment from the known facts before him. His task is not to hypothesise about future earnings and jobs, but to ascertain if there is any alteration in degree of disablement, which itself rests on available earning capacity, which, in turn, is determined by the effects of the duty injury, and only the duty injury.
That necessarily means the known facts can only be medical facts. Any facts about potential earnings or comparisons between earnings, or ratios between earnings, or calculation of theoretical ‘lost’ earnings is in the realm of speculation and bears no relevance to the task in hand.
Nor is the SMP, or anyone else, required to give an opinion on what sort of jobs a pensioner might be able to undertake, or to what extent the pensioner could perform in those jobs, or what someone might pay him. That would be a labour market assessment, which is expressly forbidden by the case of Crocker.
Where a pensioner is working, or has been working, and thus earning, it is impossible, for all practical purposes and for the purpose of the Regulations, to filter out the disabling effects of the duty injury from the multitude of other factors that could affect the earnings of a pensioner. If such a calculation were attempted, the variables would be infinitely abstruse due to their interaction and their resultant propensity to mask the singular effects of the duty injury.
The case of Turner, however, raised the suggestion that degree of disablement might alter if either a) the condition of a pensioner improved so that he could take employment in a job that otherwise he would have been unable to manage, or b) that some new job suddenly became available that the pensioner could manage without having experienced any alteration in his condition.
This invited a diversion into more improbable theorising and speculating. It is not an opinion which detracts from the grounded proposition that at review the SMP need not concern himself with speculation about possible jobs.
In the instance of a), above, occurring, the improvement in the pensioner’s condition would be detected by a medical examination, and only if it were a substantial alteration could the job be taken as a confirmatory factor. It is important not to confuse cause and effect. There would need to be an improvement in the medical condition before the job could be taken. Taking the job does not, of itself, indicate a change in the medical condition. The job would, therefore, not be relevant, for if the SMP determined there was a substantial alteration – an improvement – in the pensioner’s medical condition then surely the pension stands to be revised purely on that basis. The job has merely alerted the pensioner and presumably the Authority to the probability that a review might be appropriate.
In the case of b) Mr Lock QC was speaking with mischievous intent, indulging in drollery at the expense of the opposing QC, not expecting the court to take his words at face value, for he must have known, as a moment’s thought will confirm, that the likelihood of some completely new sort of job suddenly becoming available is so rare as to be extremely improbable.
It would be extremely difficult for anyone to point to a job and prove that it was completely new in nature. All jobs, whether old or new, demand a mixture of physical and/or mental capacity. A bin man’s job might be re-branded as a career-path step for a refuse recycling specialist, but the person doing the job still would need the same old mix of physical and mental capabilities. If an injury pensioner is not able to sit or stand for long, has difficulty in concentrating, has mood swings, constant unremitting pain, or is befuddled by the prescription medication he must take daily, then what new job could possible be any more do-able than any old job?
What was reported in Turner is applicable only to the two specific circumstances outlined by the court and is not amenable to general application. It does not open the door to allowing other factors to be considered relevant to determining degree of disablement or any alteration in degree of disablement.
It is likely to be the norm for the SMP to see pensioners who are working and earning. The Regulations anticipate this, and make no provision for the amount of pension to be adjusted according to how much or how little the pensioner earns. Instead, they speak of a minimum income guarantee – an amount that will be paid regardless of how much or how little a pensioner earns.
Thus it is unwise, when considering degree of disablement, to look at the fact a pensioner is working, doubly unwise to look at the amount he is earning and just plain stupid to use either the fact of working or the amount of earnings to attempt to infer and then quantify earning capacity and thus degree of disablement.
There is a word that very aptly helps describe the situation facing the SMP, should he embark on an exploration of jobs and earnings, past present or future. The word is stochastic.
The Oxford English Dictionary defines it as, ‘ Having a random probability distribution or pattern that may be analysed statistically but may not be predicted precisely‘. The online Free Dictionary defines it as, ‘Of, relating to, or characterized by conjecture; conjectural.’
Stochastic thus refers to systems whose behaviour is intrinsically non-deterministic and sporadic. In plain language, blooming hard to see the wood for the trees. Such a system is the interrelation of random and unpredictable variables which combine to create any particular income stream.
To give a flavour of the stochastic situation of attempting to determine degree of disablement, we can view the relationship between earnings and the labour market in terms of supply and demand. The supply is the work a person might be able to do. What the person can do by way of work is determined by his capacity to work. What he is willing to do for any given wage is a matter of personal preferences, which are difficult to measure with any certainty for they are subject to fluctuation, sometimes rapid and substantial. Demand is the availability of jobs that the individual is able and willing to do for the wage offered.
A stream of actual earnings is a series of varying outcomes of a complex stochastic process involving the interaction of a person’s capabilities and preferences with the needs and demands of employers. Thus data on previous, present or potential earnings presents an uncertain basis of fact from which to draw any clear inference.
Moreover, without a crystal ball, the SMP cannot accurately come to a view on future potential earnings, which depend on chance and choice as well as on skills, qualifications and abilities, and on location, local market rates, exchange rates, government control, supply and demand, who you know, and even the weather, all of which are variables capable of infinite and indeterminate fluctuation. The SMP is, in any event, required to conduct his assessment in the reality of the here and now. He should therefore confine his deliberations to the observable facts before him.
‘The concept of earning capacity might be thought itself to contain an element of future potential, but the more normal earning capacity connotations of capacity are of what is now achievable, to be contrasted with actual achievement, rather than with what in the future might become achievable.’
Thus the SMP is actually not permitted to look to the future. This would seem to prohibit not just speculation about future earning capacity but also any speculation about future employment or earnings.
The only way through the miasma of conflicting, contradictory and irrelevant information and speculation is to look only at the medical condition and assess if it has altered, and if so to determine if it is a substantial alteration affecting a person’s capability, his potential, his exercisable power to engage in work which results in earnings.
Remember, the SMP is not permitted to make a fresh assessment of degree of disablement. His only duty at review is to decide whether, since the last final decision, there has been a change, a ‘substantial alteration’. As only the effects of a duty injury are relevant in determining earning capacity and thus degree of disablement, it follows that, when looking for any change, the SMP must look only at the duty injury.
This view differs significantly from what has been promoted (we should say ‘touted’) by the Home Office guidance, but we in IODPA believe our view is supported by the Regulations, by case law and by logic, whereas the Home Office view is not.
The Home Office has never produced any evidence to support its guidance, and its logic has been proved to be faulty to the extent that it has been declared unlawful in certain respects.
2006 Regulation 7-(5):
‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.‘
The causal link is between the injury and earning capacity. It is not between earnings, (past, present or potential) and earning capacity.
‘In my judgment, they erred in taking this change in the claimant’s skill set into account in order to determine that there were now jobs available to her which were not available to her previously. A change in the claimant’s skill set because of her law degree is not, in my judgment, a change in the claimant’s earning capacity “as a result of” the duty injury, as required by the regulations. The combination of regulation 7(5) and regulation 30(1)(d) requires that the assessment of any alteration in the degree of disablement is limited to those factors which are the result of the duty injury. The assessment process looks for the loss caused by the duty injury and nothing else. It should therefore discount the effect of any other factors (see the decision of Ouseley J in R (South
Wales Police Authority) ex parte Anton and Crocker  EWHC Admin 3115, in particular at paragraph 52.’ [My emphasis]
The phrase ‘earning capacity’ has been well analysed and pronounced upon in several High Court cases, notably in
‘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.’ [My emphasis]
This view has been accepted and confirmed in more recent cases. An assessment of what a person is ‘capable of doing’ does not need to extend to matching available effort to a particular job or a particular stream of earnings. It is an assessment of available physical and mental effort – of available capacity to work.
Once that is matched to a job or to a wage, it becomes an assessment of the output resulting from the input and is thus a labour market assessment. The phrase, ‘capable of doing and thus capable of earning‘ should not be taken as an invitation to allocate a job or a wage to an individual or to quantify that wage, but rather to allocate a general and broad assessment that the individual could earn something in the range of 0% to 100% of whatever amount he might otherwise achieve but for the disabling effects of the duty injury. It is not necessary to select a monetary expression of what he could earn but for the disabling effects of the injury. Potential maximum uninjured earning capacity is always 100% whether the earnings are £5,000 a year or £50,000 a year.
Let’s return to Crocker. The judge opined, ‘The task, in my judgement, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning.’ It can be agreed the first step in the assessment at review, with Crocker in mind, is to form a view on what the person is now capable of doing.
This is not a job interview where skills, experience and qualifications need to be examined. Nor is is an opportunity to speculate about jobs a person is qualified to do, or to point at jobs he has done. At review the SMP should conduct a medical examination, intended to assess any change in the person’s physical and mental capabilities. It is a measurement of available input effort. It is not a measurement of what jobs and earnings might result.
Logically, it cannot be otherwise, for the Regulations insist the task is handed to a suitably qualified medical practitioner. If the task was one of listing qualities other than medical ones or of looking at jobs and wages then the Regulations would have handed the task to a human resources expert, or a personnel manager, or an economist, or even a theoretical mathematician.
The task at review is to see whether there has been any alteration in what the injured person retains of the ability to work. The result of the work is earnings, so it is clear the assessment of work capability (the ‘doing’ in Crocker) must be set within the specific environment of paid employment. We don’t need medical qualifications to suggest that the sort of tests the SMP might apply would revolve around the person’s physical abilities, such as lifting, standing, walking, fine motor skills, bending and climbing, hearing and sight; and cognitive abilities, such as reasoning, memory, perception, visual and spatial processing; also psychological factors such as motivation, mood, temperament and interest. We could go on, but the general gist of what has been said is plainly understandable.
A suitably qualified medical practitioner will know what tests to apply to the individual and how to grade the results so as to provide a figure within a broad percentage range indicative of the level of work ability retained. There need be no move to apply the retained ability to potential outcome in the form of a job or a wage.
The Regulations are unconcerned about how much a pensioner might be able to earn within his diminished capabilities. They are concerned to provide a minimum income guarantee, so that in the worst-case scenario, where the pensioner has no income from work, he has the pension to help pay the bills.
Other injury compensation schemes, such an insurances, pay either a lump sum, or a series of payments over what is determined to be the working life of the individual. The compensation is based on an assessment of loss of earnings. There is no provision to keep the amount of the payment under review, so if an individual’s capacity to work and earn improves or deteriorates, for whatever reason, the payment remains unaltered.
The police injury pension scheme is not like that. It is linked to the capacity to work, for the lifetime of the individual, and not to any calculated loss of earnings.
Having examined the first part of the phrase in Crocker, ‘. . . what the interested party is capable of doing . . .‘ this leaves us with the qualifying second part of, ‘. . . thus capable of earning.’
This has been sadly, even wilfully, misinterpreted. It has been taken to indicate the SMP must go off on a job matching exercise coupled with speculation about potential wages. This is all totally unnecessary. At review, the SMP will have determined any alteration in the amount of work capability remaining after the disabling effects of the duty injury have been taken into account, by adding or subtracting any alteration he detects.
He thus has a view of available work capability which, when compared to the last final decision, indicates whether the alteration is an improvement or a deterioration and whether it is a substantial alteration. The pre-review degree of disablement is the base line. It is, moreover a final decision, which can not be questioned or revisited.
From the above, emerges a picture of how the SMP can lawfully conduct his task, at review, of assessing whether there has been any alteration on degree of disablement, and if so whether it is a substantial alteration. There really is no need for the SMP to do other than decide which of the four bands set out in Schedule 3 is the appropriate one in which to place the degree of disablement.
The SMP need not seek to provide a precise value of any alteration, for it should be readily apparent if any alteration is a substantial one, and only a substantial alteration allows a pension to be revised. Degree of disablement is thus simply obtained from nothing more than a medical examination to determine any alteration in the effects of the duty injury, and nothing else, on earning capacity.
The Regulations never intended for a SMP to calculate a precise percentage figure. The Regulations only intend the SMP to give an opinion on which of the four bands of degree of disablement the individual’s condition would place him or her.
This view is based on a plain reading of the Regulations and on the opinion of Mr Justice Ouseley, in the case of CROCKER (2003) where, at paragraph 31 of the judgement he opines,
‘The very formulation of the disability bands showed that no refined precision was required.’
This eminently sensible opinion has recent confirmation from the compelling comments of Mr David Scoffield QC, who was commissioned by the Crown Solicitor’s Office, on behalf of the Northern Ireland Policing Board to conduct a review of the present arrangements for the payment of ill-health pensions and injury on duty awards to former police officers.
Mr Scoffield’s report makes this recommendation:
‘In the course of development of this further guidance, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure.‘
Mr Scoffield, it seems, has taken note of the way that SMPs have been swayed by guidance from the Home Office and, more recently by the College of Policing, into forming erroneous interpretations of the intentions of the drafters of the Regulations. There is no need to calculate a specific percentage disablement figure.
We in IODPA say it it time for HR managers and SMPS to read the Regulations and case law themselves and to chuck the Home Office guidance in the bin, along with all the other false advice and training they have been subjected to from other quarters.