Month: May 2016

Introducing our new BAILLI Newsfeed Feature

Introducing our new BAILLI Newsfeed Feature

What is BAILII?

The British and Irish Legal Information Institute (BAILII) provides legal information, and especially reports of cases decided by courts, in the United Kingdom.   BAILII contains judgments, decisions, legal texts and commentaries of  British  case law and legislation.

What is RSS?

RSS is a technology that is being used by millions of web users around the world to keep track of their favorite websites.

In the ‘old days’ of the web to keep track of updates on a website you had to ‘bookmark’ websites in your browser and manually return to them on a regular basis to see what had been added.

What if you could tell a website to let you know every time that they update? In a sense, this is what RSS does for you.

RSS flips things around a little and is a technology that provides you with a method of getting relevant and up to date information sent to you for you to read in your own time. It saves you time and helps you to get the information you want quickly after it was published.

RSS stands for ‘Really Simple Syndication’. Many people describe it as a ‘news feed’ that you subscribe to .

IODPA has linked all the relevant searches concerning Police Pension and Injury Regulations  on BAILII into a single RSS search.

You can find this new feature on the right sidebar:

RSSCaselaw

Or click this link Caselaw RSS Newsfeed

Return to this page to see case-law as it is determined.

Merseyside Police do not review Band 1 Injury Awards

Merseyside Police do not review Band 1 Injury Awards

“The people heard it, and approved the doctrine, and immediately practiced the contrary.”
Benjamin Franklin, The Way to Wealth

The most glaring source of scepticism towards Merseyside Police’s affection for the Police Injury Benefit Regulations can be summed up in  five words: ‘they never review band ones’.

Merseyside Police recently set about conducting a mass review of the degree of disablement of former officers retired due to injury on duty, and who exist on an injury pension paid as compensation for those injuries. Merseyside conducted 502 such reviews last year.

We in IODPA have good reason to believe that these reviews were motivated by an intention to try to save money, and not by any concern to ensure that the pension Regulations were being properly applied. Merseyside was not looking to see if anyone was being paid their injury pension at too low band or too high a band, which would be appropriate if there had been some substantial alteration in their medical condition. No, they set out to see if they could reduce pension payments.

They accordingly started their review programme with those pensioners who are on the highest band of degree of disablement. The highest band pays the highest level of pension attainable, and, can’t be increased, but, Merseyside reasoned, might be reduced.

We revealed in an earlier blog how ‘only’ 25 individuals had their injury pension payments reduced. We don’t know by how much. We pointed out that it was beyond belief that not a single disabled former officer was found to be in a worse condition and given an increase in injury pension payment. Statistically, this lack of any increased pension payments is not possible.

The overall impression is that despite the fact that the Regulations impose on Merseyside’s Chief Constable (as the Police Pension Authority) a duty to ensure that police injury awards are administered fairly and lawfully, the Medical Retirement Officer (MRO) is happy to ignore the law when it suits him. It was the MRO who instigated and managed the reviews, and he has placed his Chief Constable in a very difficult position.

There are 880 individuals retired from Merseyside who receive an injury pension, 502 have been reviewed.  The remaining 378  are all on band one pensions – the lowest payments – and this force has a policy not to review people who have no possibility of having their awards reduced.

Merseyside has ensured our cynical view of its motives by admitting they don’t review band ones. This admission is the clearest possible illustration that it is Merseyside’s view that if there are no pips to squeeze, why get the juicer out of the cupboard?

Here is the admission, obtained via a Freedom of Information Act request.

FREEDOM OF INFORMATION REQUEST DJ 092/14 – RESPONSE merseyside
REQUEST RESPONSE
The Medical Retirement Office of Merseyside Police recently sent out a number of letters, together with a questionnaire, to former officers who are retired and in receipt of an injury award pension.

The letters requested that the recipient complete the enclosed questionnaire with a view to considering whether his/her injury pension should be reviewed.

The questionnaire is entitled, ‘Review Of Injury Award Questionnaire’

I am requesting the following information in relation to these letters and questionnaires:

1) How many have been sent out?

2) How many is it intended to send out within the next two months?

3) What criteria were used to select the recipients? When answering please pay particular attention to whether recipients were selected by reason of their age, or by reason of them being at or around what would have been normal compulsory retirement age for the force, or for reason of the degree of disablement of the recipient.

1) The process commenced in 2014 and a total of 35 questionnaires have been sent out to date.

2) Within the next two months it is anticipated that a further thirty questionnaires will be sent out.

3) The criteria for selection of injury award review were based on Band 4, then Band 3, then Band 2. Band 1 will not be reviewed unless requested by the former officer and in that case they would be seen as a priority.

As the self-proclaimed architect of  Merseyside Police’s retirement policy, it seems that the MRO enjoys the privilege of making up the rules to suit himself, and ignoring the Regulations whenever the fancy takes him. We understand that he, as a matter of common practice, acts completely outside the restrictions of the Regulations and makes decisions that he is not empowered to make.

We hear that he decides who will get an injury award and who will be refused. He does this without benefit of medical qualifications, or any meaningful input from the force’s tame SMP or FMA. We believe that the 502 reviews of degree of disablement were done similarly, with little to no consideration of medical matters, and were decided on the basis of a person’s income.

Some police forces have been quick to declare they have a duty to review degree of disablement, citing a positive power to do so, often quoting that a SMP has ‘recommended’ when an individual might be reviewed.  However, these forces do not exhibit moral consistency when they ignore where a SMP may have advised, on a decades old retirement certificate, not to ever review the individual concerned. How many of the 502 who Merseyside reviewed had ‘no reviews’ or ‘no further reviews’ on their certificates? Where was the individual consideration whether a review was indeed appropriate?

The stench of of hypocrisy hangs heavily over Merseyside, but proves nothing about the topic – in reality there is no legal authority for Merseyside to say they won’t review band ones, en masse, just like there there is no legal requirement for a SMP to recommend when a review might take place, or to exempt someone from reviews.

Merseyside completely misses the point, which is that the PPA is required – legally required – to exercise discretion in each individual case. If the PPA (in reality the MRO with one eye on a bit of brown-nosing and career enhancement) decides to review all injury pensions, except for band ones, then there clearly has been not even an imperceptible nod in acknowledgement of the need to decide whether a review would be appropriate in each individual instance.

Below is the result of a recent Freedom of Information request which provides damning evidence that Merseyside will not rest until all injury awards have been reduced to the bare minimum.

FREEDOM OF INFORMATION REQUEST Ref. SM4011/16

REQUEST RESPONSE ADDITIONAL INFORMATION
In FOI request SM322/15 you state that the review was restricted to band 2 and above. Please provide me with the reasons that band 1’s were not reviewed. We can confirm that historically Merseyside Police have not reviewed Band 1 Injury Awards unless the review has been requested by the ex officer themselves The rationale for this approach is that the Force Medical Advisor, acting in the role of Selected Medical Practitioner, records on their certificate “No further review”. The pensioner is provided with a copy of this certificate confirming that this is the case. Therefore they have been formally advised that there will not be a review of their award.

The proposition that an administrative authority must act within the powers conferred upon it by the legislature may well be considered the foundation of Administrative Law. In Latin, ‘Ultra’ means beyond and ‘Vires’ means powers. Thus, the expression ultra vires means an act beyond the powers.

A Selected Medical Practitioner who writes ‘never to be reviewed’ on a former officers H1 certificate is acting beyond their statutory duty. They might have decided the person being assessed for an injury award will never work again, or their condition may likely never improve, but the Regulations do not bestow any authority to allow the SMP to declare that someone should never have their degree of disablement reviewed. Merseyside has seized on these ‘recommendations’ as reason to abandon the over-riding duty of the PPA to ensure that the correct level of injury pension continues to be paid.

What a SMP thought, some years ago, can never be more than a guess. Maybe an informed guess, but as nobody can predict the future, it is plain wrong to claim that a guess, made outside the Regulations, as a sort of extra-regulatory add-on to a certificate, should bind a PPA as to its future actions. If the PPA is claiming that these recommendations are binding, then the PPA is wrong. If the PPA fails to consider, from time to time, for each and every individual who is in receipt of an injury pension, whether their degree of disablement has altered, then the PPA is fettering the power of discretion which the Regulations require he exercise.

We also must question the reason behind any SMP recording on a certificate or in a report his opinion that an individual need not be reviewed. It is not beyond the realms of possibility, given the rampant corruption that we know is the norm in some forces, for the SMP to make that recommendation with the deliberate intent of ensuring that someone who should properly have been placed in a higher band of disablement is never seen by any future, more honest, SMP who would conduct a review and see that the original decision was flawed.

We pause here to speak directly to all the Merseyside pensioners who are on band one. We say, if you have reason to think that you should have been placed in a higher banding when granted your injury pension, or if you feel that your degree of disablement has substantially worsened since you retired, then you should seek professional advice – via IODPA – as any earlier decision on degree of disablement can be challenged by means of regulation 32-(2). That regulations allows the reconsideration of any earlier decision, without limit of time. So, even if you have been retired for many years, you can request that the PPA arrange for any earlier decision to be looked at again.

We recommend that you think carefully about the benefits of using regulation 32-(2) over simply asking the PPA to conduct a review. A review may increase your banding, but any increase in pension payment will commence from the date of the review. If you ask for and get a successful regulation 32-(2) reconsideration of an earlier decision, where the SMP decides you should have been placed on a higher band all those years ago, then you stand to be paid all monies lost by underpayment for all those years, with interest added.

When we look at what Merseyside are saying in the above FOIA response, we have to point out that  it is scurrilous to claim that pensioners were advised they were never to be reviewed. Merseyside could not make that ‘promise’ (or was it a threat?) without breaking into pieces a fundamental part of the Regulations, which is the provision for the PPA to exercise discretion over whether or when to hold a review. Merseyside could not bind any future office-holder’s power of discretion, nor could Merseyside effectively say that the individuals concerned would never experience any alteration in their degree of disablement.

The point is that the Regulations definitely do not allow a band one to be treated any differently from a band four. Merseyside has deliberately set out to deny all the people who are on band one injury pensions any chance of having their pension increased. The recent mass review unfairly discriminated against all former officers who are on band one.

Some HR managers may ask, ‘Why can’t a former officer be labelled as ‘exempt from review’?  The answer is that the Regulations do not confer the power of exemption upon the decision  maker. The decision maker under the Police Injury Benefit Regulations is the Selected Medical Practitioner (SMP) but the decision itself belongs to the PPA.

The way that decisions are to be made has been clarified by cases which went to Judicial Review, but it is still surprisingly common for HR managers to still not understand the profound subtlety of what His Honour Judge Behrens declared in paragraphs 66 and 68 of Crudace, R (on the application of) v Northumbria Police Authority [2012] .  HR managers seem to think that the decision is only for the PPA to make.  It isn’t – the decision is owned by the PPA but it is delegated to the SMP.

  1. He accepts, of course, that the actual decision is made, in the first instance, by the SMP or on appeal by the PMAB. He also accepts that both the SMP and the PMAB are independent. However he submits that the decision is still a decision of the Police Authority albeit a decision that has been delegated to the SMP/ PMAB by regulation 30(2) or 30(3). He referred me to paragraph 18 of the judgment of Laws LJ in Laws where he referred to the decision as being of the Police Authority (via the SMP/board). …

…68.It seems to me that the wording of regulation 37 makes it clear that the decision to revise the pension is the decision of the police authority. It follows, in my view that the decision of the SMP and/or the PMAB on appeal can only be as the delegate of the Police Authority. This is so even though they are independent and the Police Authority is bound to accept their decision as final (subject to reconsideration under regulation 32(2) and/or judicial review).

If the SMP records that it is his opinion that a person should not be reviewed for medical reasons then that is well within his medical judgement to say so and this shall carry weight in any future considerations but the SMP as the promise maker, nor the promise recipient, has any power to enforce it.

That being said there will have to be exceedingly strong and compelling evidence to allow a review if the previous SMP had declared that such a review would be harmful to the former officer’s health.  Just being a band one is not a medical reason and is as opposite to compelling as can possibly be.

The decision maker can declare that a review should be avoided if at all possible:  A SMP might well want to write,“In my medical opinion this former officer should never be reviewed as it will be to the detriment of his health” but such sentiment, or opinion, is worlds away from writing, “I have made a promise to this former officer that he shall never be reviewed”.  Some people reading this will have documents stating exactly that this –  that the last SMP they saw made such a promise to them – but unfortunately a substantive promise cannot be upheld if it is ultra vires.

A declaration made on a medical certificate recording “No further review” giving formal advice that there will not be a review of an individual’s degree of disbalement just because they are a band one is a travesty of not only the Regulations but also the foundations of administrative law.

The statute is clear that there are only two agents involved in the decision making process, the PPA and SMP – so how little weight shall be put on the decision of a civilian medical retirement officer who is telling the force medical officer to write on a certificate to never review someone purely because they can’t be reduced further?

Until Merseyside performs the necessary checks to make sure all the band ones retired from that force are receiving the correct award entitlement, that none of them have suffered  deterioration in their degree of disablement in relation to their earning capacity, and as a result of  these checks a relative proportion of the band ones are increased up a band, then scepticism of their true illegal intentions will forever remain.

Merseyside’s claim that band ones can self-refer themselves if they ever want to be reviewed is ridiculous, given many will not realise the option is open to them, and those that do know will not want to flagellate themselves by dealing with corrupt elements of an organisation which are determined to abuse the scope and purpose of the Regulations. Not a convincing argument by Merseyside Police to encourage a band one to volunteer to put themselves forward.

Remember, pensioners, and take note Chief Constable, that in 2015, in all the reviews of bands two, three and fours, not a single award was increased. Something is rotten in Merseyside, and the smell will only get worse unless someone takes a broom and a shovel and does some stable cleaning.

Nottinghamshire Injury on Duty Reassessment Program – Part 2

Nottinghamshire Injury on Duty Reassessment Program – Part 2

“People who know what they’re talking about don’t need PowerPoint.”
Walter Isaacson, Steve Jobs

Welcome to part two. If you missed part one, here’s the recap:  Dr Ralph Sampson and Stephen Mitchel of Nottinghamshire Police, in December 2015, gave a presentation to National Attendance Management Forum (NAMF) delegates about how they are attempting to save millions of pounds by ‘cunningly’ and nefariously reducing injury awards.  The nightmare scenario of an active SMP such as Dr Sampson making an unintentional error of revealing his subconscious feelings that a review allows him to perform a ‘reassessment’, mixed with the total absence of referencing any case-law to the audience, leads to emboldened NAMF delegates going back to their forces thinking IODs are ‘ducks to be lined up’.

Notts-IOD-Presentation.pdf

Notts-IOD-Presentation

*click image & use arrows to view all pages

Jumping straight in to where we left off in part one, slide 6 is a rather amateur  and extremely poorly presented summary of some of the statistics generated by the Notts ‘reassessment’ program so far.  There are few people on this planet that would admit to liking staring at text more than they like staring at pictures. Text takes time to read and it is boring to look at. But perhaps worst of all, when an audience is given text, they will, out of habit, attempt to read it. As they do so, you will be talking and they won’t be listening—because they’re reading. But they won’t be able to concentrate on what they’re reading because, well, you’re talking. It’s the vicious cycle of PowerPoint un-communication.

This is expounded further when the numbers don’t add up.  And the audience aren’t going to argue otherwise as they’re all too busy trying to fathom out what the heck is going on in the jumble of words in front of them.

6.Numbers so far

  • 381 former officers in receipt of lOD pension,
  • 281 aged under 70 and included in programme
  • Concluded or currently in process = 235 (16 batches) (87%)
  • Number of paper reviews undertaken so far = 140
    • 62 ‘no further action’ (44%)
    • 78 ‘ possible substantial alteration” (56%)
  • Individuals where SMP review no longer required:- 26 (deceased; age
    exempt; band 1 non-participants; terminal diagnosis)
  • 78 SMP face to face assessments
    • 2O reduced
    • 1 increased
    • 21 remained same
    • 27 appointments scheduled
    • 9 seen and Force awaiting outcome

In about five minutes we’ve cobbled together this graph.

Notts1

It isn’t perfect but we weren’t the ones giving the presentation.  What it does show is,  out of the numbers given above, 69 out of the 381 are unaccounted for.  They haven’t been reviewed, presumably they aren’t going to be reviewed and they are not in the exempted cohort.

What’s happened to them?  These numbers represent people – disabled former officers and Notts have just erased them from their presentation.  Perhaps they are selective in the data they want to portray. Notts definitely aren’t persistent in chasing a ‘non-engaging band one’ in comparison to when they attack, with shark-like ferocity, a ‘non-compliant’ band four.

The bottom line is that any way that you look at the figures, they are wrong, and they do not stand up to scrutiny.  We have provided the proof of our assumptions at the bottom of this page for the benefit of the mathematically minded. *

This presentation is purportedly given by ‘professionals‘ to ‘professionals‘. They can’t even get their maths right.  Dr Sampson supposedly makes sophisticated calculations of a former officers degree of disablement down to 2 decimal places but he is unable to subtract from 381.

7.Numbers so far

Of 42 ‘face to face’ SIVIP assessments where advised of outcome (28 days elapsed) – 21 changed bands (50%)
PMAB appeals = 3 potential
Numbers reduced to B1 due to non-compliance : O
Number of official complaints = 1

Slide 7 is aimed at promoting the perception that  their ‘reassessment’ program is all about forcing a change to bands and spinning the lie to the NAMF delegates that there are few pitfalls.  There is no neutrality and the agenda is always to change the status-quo. Why emphasis those changed when those kept the same outnumber the former and have just as much  relevance?   There has been 1 complaint and 3 appeals.  This slide skirts over the reason for the appeals and fails to state the outcome of the complaint.

Just because there is no appeal, it doesn’t mean the decision was just or legitimate.  Perhaps the ‘fight’ has left the former officer and they can’t cope with the dehumanising nexus of appeal forms and procedure.  Despite the strength of their appeal, they make a conscious choice that appealing against the  harmful side of bureaucracy is futile.  In the Judicial Review case of Crudace, the presiding  judge stated that twenty-one appellants withdrew their appeals after receiving a letter from the force Solicitor Nicholas Wirz, that in effect threatened the disabled former officers with a £6,200 adverse costs award if they persisted with their appeal.

Winston Churchill once said that the whole history of the world is summed up in the fact that when nations are strong they are not always just, and when they wish to be just they are no longer strong. And there is the clearest explanation possible of the case for justice where the former officers involved are not strong enough to do that themselves.  Banking on the weak to not appeal is a pitiful and inexcusable show of strong-arm tactics.

Stating the number of appeals is meaningless.  As far as Sampson & Mitchel are aware all twenty that were reduced could be submitting their complaints to the Pension Ombudsman.

The red highlighted bullet point shows the new invented weapon in the armoury of those SMPs trained by NAMF.   The weapon of mutual destruction (WMD) is in the form of ‘if the former officer is non-compliant then we will reduce to band one.’  Of course, such a bullying course of action is not permitted anywhere in the Regulations.  The presentation makes no reference to the actual Regulation 33 that only permits the police pension authority to make a determination on the available evidence if there is a failure to attend a medical examination.  Pressing the ‘big red button’ on this WMD will be financial catastrophe for the victim but the response would be so massive that Notts would suffer “assured destruction” at Judicial Review.

8. £ to date

Funding for programme agreed
GP notes – approx £50 each
Impact to date -18 out of 21 that have changed band = £10ok net saving per year
With average life expectancy estimated at age 83…possible £20 million saving on the cases so far.

And the spin continues with slide 8.  With a slide callously titled ‘£ to date‘ there is no doubting this is all about the money and this not about a genuine medical assessment, but rather, an opportunity for Notts to take away the injury award the former officer is entitled to.

The slide assumes the ‘savings’ are fixed.  That Notts have got what  they wanted, they can spend the £20 million they will save over the lifetime of those reduced and that’s the end of the matter. This could not be further from the truth.

This mindset is further evidence that Sampson cares not for the Regulations but only to please his bosses.  Those reduced on his evidence of an improvement to their degree of disablement are surely, under the logic of Sampson’s suitable interval and positive power to review, absolute certainties to be reviewed again and their degree of disablement invariably likely to deteriorate accordingly.

Sampson & Mitchel surely can’t  be insinuating  that Regulation 37 vanishes once Notts  have got their way, and once the goal of reduction is achieved then the former officer is gone clean out of their mind and consigned to oblivion?

The stench of hypocrisy oozes from slide 8.  Later in the presentation (slide 15 to be exact) Sampson makes his brazenly duplicitous point that former officers were ‘reluctant to engage’ and there is a ‘misunderstanding from officers who claim previous SMP advised for life’.  But in slide 8 Sampson is saying the reduction in banding is for life – with no balance check review ever again to see whether the reduction is perdurable.

9.

We have heard recently of an Australian qualified physiotherapist who is being used as an SMP. He has never practiced general medicine and although registered with the GMC is not on the GP register. How could someone like that be qualified to form an opinion on PTSD or complex trauma injuries? I wouldn’t let him lance a boil on my bum let alone make a decision about my degree of disablement.
I am sorry to say, but he is by no means untypical.
Forces are deliberately hiring the lowest level ofthe medical profession – those for whom payment was” ___is more important than professionalism

Slide 9 would be hilarious is the issue wasn’t so serious.  A bias SMP, dancing to the tune of his paymasters and forgetting his Hippocratic oath, criticising other forces from using not only an physiotherapist – but an Australian physiotherapist!  The nerve.  These antipodeans coming over here and taking money from members of the faculty of occupational health – it’s obscene!

10. IOD REVIEW – Medical Assessment – REG 37.1

No pre-conditions for Reg 37.1 review suitable intervals
Degree of disability vs degree of disablement Need to clarify
Complete GP records/OHU records
Can’t revisit causation
Reviewing LOE calculation

Slide 10 incorrectly says there is no pre-conditions for a suitable interval.  If this was the case the ‘suitable interval’  qualifier would not have been written into the Regulations.  In fact the interval between reviews has a defined pre-condition – it has to be suitable, right or appropriate for a particular person, purpose, or situation.  The pre-condition is implicit.

The presentation is also confused about their remit as they need to clarify whether a review concerns the Degree of disability vs degree of disablement.  Surely it is rather too late to be asking such a question?  The revisiting causation is a contradiction as that is exactly what they do in slide 14 but we will come to that later.

LOE is their acronym for level of earnings.  Again this is contrary to the Laws judgement.  We think that the 3 appeals now have the evidence they need to overturn Dr Sampson’s decisions.

11. IOD REVIEW – Medical Assessment – REG 37.1
Degree of Disablement – The degree to which their earning capacity is reduced by the injury condition, and expressed as a % of the appropriate comparator salary

(UEC-AECVCOMP SALARY
UEC – Uninjured earning capacity – same as Comp salary if no non-injury conditions affecting earnings
AEC – Actual Earning Capacity – takes into account injury and any non-injury conditions if present

Slide 11 defines degree of disablement.  Sampson & Mitchel are totally incorrect to say it is expressed as a percentage of comparator salary.  In fact it is minimum income guarantee expressed as % of the final average pensionable pay.

12.

Change in assessed LOE
Change in assessed LOE
Medical condition – improve/worsen
Non injury medical conditions affecting work capability/earnings
New Training/Qual Skills
New job/career opportunities – may be evidenced by salary

Slide 12 shows this ‘reassessment’ program is really an unlawful work capability test.

13. Outcomes so far
Paper Screen – 157
Assessments – 55
No change – 22
Change in perm disabling condition – 2
Non injury conditions – 14
Salary – 6
Change to comparator salary – 3

Slide 13 is another example of Sampson & Mitchel’s figures not standing up to scrutiny.

Remember slide 6 and the bullet point informing everyone that 140 had been papered reviewed?  By slide 13 of the same presentation this number has increased to 157.  In other words, whilst Sampson & Mitchel were talking to the NAMF delegates, at the same time and without a pause of breath, they magically managed to paper review another seventeen people.

Of the  former officers who had a change of banding, only two had a change in their disabling condition – the prerequisite for substanstial change as dictated by the Laws judgement.  But again the numbers do not add up.  Earlier in the presentation it was stated there was twenty-one former officers who evidenced substantial alteration and had their bands changed.  On this slide the count is twenty-five.

2 + 14 + 6 + 3 =  25 

Fourteen former officers had their award reapportioned.  Six reported a salary of whatever amount and had their awards changed.  It is evident that Sampson has not been following the Laws determination at all.

14. Diagnoses l Causation
LBP – playing table tennis at lunchtime
No of sports injuries
Neck Pain – 80% – then commercial pilot for 12 years
Collapsing chairs
Psychological defects of Low Self esteem and Low Confidence” Band 1

Slide 14 revisits causation.  An avenue barred to any SMP upon a review and explicitly referred to as verboten in slide 10.   This slide is one of those faux ‘humorous’  ones – put in so that everyone in the audience can have a good giggle.  The commercial pilot anecdote is intended to spark outrage from the delegates.  What it takes out of context is the pilot could have been earning £160K a year if his neck injury didn’t restrict his flying hours.  Instead he is only earning, say £80K.  This analogy is pure supposition, but technically this fictional example has lost 100% of his potential capacity to earn.  Rather than point out a similar possibility, Sampson & Mitchel use a sensational tabloid headline, absent of any context, to get the delegates ‘clucking’.

Mentioning sports injuries is another example of sensationalism.  The last final decision is a given and it is not up the the SMP to revisit the medical judgement of the previous doctor.

The ‘loss of confidence’ is a repulsive bullet point.  If the index injury is, or leads to, an impact to self-esteem of the former officer by psychological detriment to the capacity to earn then the award is designed to reflect this.  Such a detriment often means that there is no prospect of maintaining any employment.

A previously high-functioning individual who attained all the tests to become a police officer and is now unable to leave their home due to psychological affect of low self-esteem and poor confidence is, by definition, suffering from a personality disorder.  People with avoidant personality disorder often consider themselves to be socially inept or personally unappealing and avoid social interaction for fear of being ridiculed, humiliated, rejected, or disliked. As the name suggests, the main coping mechanism of those with avoidant personality disorder is avoidance of feared stimuli.

Let’s emphasis again that these people used to be police officers – an occupation where avoiding stimuli is the antithesis of the necessary qualities required – and their index injury has forced them along the road to suffer from such a disability.  To proclaim in such circumstances that it is an automatic band one fails on all measures to take the position of the individual into account.

15. Lessons Learnt / issues

lnitial letter despatched Christmas time – Fed / NARPO availability
Locate relevant IOD information
OHU and IOD files mixed
Addresses ~-~- stage 3 / those that live abroad
Former officers reluctant to engage in process
Misunderstanding from officers who claim previous SMP advised ‘for life’
Some former officers want reassurance medical records and questionnaire are not seen by non-clinical staff
Draft report – 28 days
Overpayment recovery
Traveling – Skype?

The ‘lessons learnt’ mention that a batch of review letters were sent just before Christmas time.  Notts police is such a heartless and uncaring organisation that it never struck them at the time that this was a bad idea.  They aren’t seemingly concerned of the impact to the individual by dumping such grief over the festive period – they just think its a lesson learnt because local Fed & NARPO couldn’t answer the worries of those affected as they were off enjoying their own Christmas break.

NAMF allowed Sampson & Mitchel to present their talk as so-called ‘experts’, to help delegates to fill in their gaps, to add to their shallow knowledge concerning reviews. Supposedly they had the hands on experience.  Instead they’ve perpetuated all that is wrong with mass review programs.

These ‘experts’ are stuck in their own prejudicial thinking and are inflicting significant harm onto disabled former police officers. When SMPs such as Dr Sampson perform reviews just as a cost-saving mechanism they are renouncing  the ethics, morals, culture, empathy, philosophy and understanding of their role as the medical authority required by the Regulations into much simpler factors based on numbers and calculations. They are manifestations of the phenomenon of  doctors who know the price of everything and the value of nothing.

They are anachronisms who deny the changes, the evolution that’s happening since the case-law has defined how reviews should be carried out post HOC 46/2004.  Their so-called experience is jaded (and diminished) by the ‘way they’ve always done it wrong’.  They should not be allowed sustain the errors by briefing others.

So that’s it.  There are bound to be glaring misdemeanours that you have found and we’ve missed.  Feel free to post such findings in the comments.

 


*The proof:

Out of 381, 100 are age exempted – excluded because they are over 70 (why can’t those over 70 go up a band?). Of the remaining 281, 46 are yet to be contacted at all. This leaves 235. 62 are No-Further-Action. We are down to 173. 78 include those where they think there is evidence of substantial alteration.
Of the 78, 20 have been reduced. 21 Not altered. 1 Increased. 27 Future Appointment.9 Awaiting an outcome

20 + 21 + 1 + 27 + 9 = 78

Let us take the 78 from the 173:

173 - 78 = 95

Ninety-five remain. the 26 who are deceased, terminally ill or are band ones who have not ‘engaged’. 

95- 26 = 69

Sixty-nine are left over. The 69 forgotten few.  All the colours match so you can check this for yourself. A missing sample of nearly 25% of the eligible 281 makes a mockery of the denominator used in their percentages throughout the presentation.

Nottinghamshire Injury On Duty Reassessment Program – Part 1

Nottinghamshire Injury On Duty Reassessment Program – Part 1
              A hypocrite is the kind of politician who would cut down a redwood tree, then mount the stump and make a speech for conservation.”

Adlai E. Stevenson II

Another definition of a hypocrite is someone who uses PowerPoint slides to say one thing to others although they value and believe something else entirely.

Recently Dr Ralph Sampson and Stephen Mitchel of Nottinghamshire Police (Notts) gave a presentation (perhaps using PowerPoint – other presentation software is available) at a National Attendance Management Forum conference (NAMF) to fellow NAMF delegates.

They were talking about how they do things in Notts.  The bad news for them is the former officers reviewed by them inform us that, not only are they confused about their statutory duty, they are selective in their own rules and advice.  Notwithstanding the rules used in Notts by Sampson and Mitchel, those that they wax lyrically to the NAMF audience, are predominantly worthless.

The presentation concerned how Notts are reviewing those former officers they have medically retired and awarded Injury Awards.  We have obtained the slides for the presentation and have put it out into the public domain. The talk given by Sampson & Mitchel sets out their intention to conduct reviews because of concerns over their obligated cost of paying the awards until the former officer expires at an average of 83 years of age. It also says that reviews are intended to assess degree of disablement. Both premises are wrong.

Constant readers of these pages will not be surprised to hear the conflict of interest of having Dr Sampson as not only the reviewing SMP, but also as concerned with cost savings as his Notts paymasters. Notts-IOD-Presentation.pdf

Notts-IOD-Presentation

*click image & use arrows to view all pages

There are 17 pages to the presentation so we intend to spread the talk about the slides over a couple of blog posts.  But before will delve into the first few slides, let’s have a quick look at the words used by Sampson & Mitchel.

As expected with a NAMF presentation where the audience are eager to hear ways to reduce their financial commitments, ‘salary‘ is one of the most frequent words in the presentation.  This table shows the 6 words most prevalent:

programme salary medical band review smp
Word frequency count 6 6 7 8 10 10

The frequent use of ‘salary’ just shows what their real agenda is.

We can’t find fault with slide one.  It just contains the title of the presentation. [edit: A reader has found fault. The use of ‘reassessment’ (unlawful) in lieu of the correct term ‘review’ is indicative of a Freudian slip – thank you Whendie]

Slide two starts with the ‘background’ and mentions ‘earnings’.

2.Background

  • Reg 37(1) of Police (lnjury Benefit) Regulations 2006 Forces can undertake a review “at such intervals as may be suitable, to consider whether degree of …disablement has altered”
  •  SMP to make a determination if/ how much earnings capacity has been affected
    Band 1 (<25%)
    Band 2 (25% – 50%)
    Band 3 (50% to 75%)
    Band 4 (>75%)
  • Minimum = Band 1

The red highlighted text shows that either Sampson is ignorant of the Laws case (unlikely) or he is intentionally willing to review former officers contrary to it’s judgements.  They fail to explain how it is beyond all improbability that the interval is suitable to all the people they intend to review  by pure chance alone.

‘Earnings’ is a word synonymous with salary and has no place in a review. Use of salary as the only measure is a failure to  follow the judgement of Court of Appeal in Metropolitan Police Authority v Laws and can only amount to an unlawful reassessment where a former police officer could find his injury pension being reduced because of a difference of medical opinion on his capability for work rather than there being any real alteration in the officer’s degree of disablement.  Sampson can not just ‘assess’ the degree of disablement.

The finding of Laws is that the SMP (or board) is not allowed to consider the pensioner’s current degree of disablement and then compare it with the previous assessment. The duty – the only duty – is to decide whether, since then, there has been a substantially altered change.

The right question for the SMP is not “what jobs can this person do today” but the comparative exercise of “has the impact of the index injury on the jobs she/he can do today substantially changed from the position at the last review date”.

The Laws judgement was reaffirmed in the case of Simpson. The conclusion in Simpson is clear. There can be no new consideration of notional earning capacity (i.e. what the officer would have been capable of earning but for his injury) unless and until there has been a substantial alteration in his physical condition or his present job opportunities, that is to say that something has actually changed since the last review, other than the mere passage of time.

But this isn’t what the NAMF delegates want to hear so Sampson & Mitchel play to the desires of their captivated audience.

3.Numbers / cost

  • 380 + pensioners in receipt of an IOD award
  • £3.36 million per year
  • No programme of review for significant period of timetherefore no up to date medical information to ensure pension payments more accurately reflected up to date individual circumstances and ensure public money being spent wisely.
  • Notts Force Executive Board decision to commence programme of review – all Bands included; age under 70 for this programme of review

Slide three mentions the annual spend on injury awards (just to emphasis their mission to reduce this figure).  The point of ‘not having a reviewing program for a significant amount of time‘ is a non-sequitur. A decision not to review is as much an exercise of a discretional power as a decision to review.  Notts admit that they had consciously chosen not to review, and now they have changed their mind.  Not knowing the individual circumstances of any given former officer is down to them and them alone.  Never do these people think that once someone leaves the police service, they want to live their private life without the constant forensic examination and prying into their personal matters by their former force.  Not having a review program is no reason to justify a new programme – quite the opposite.

Not performing any reviews gives a legitimate expectation that is based on the principles of natural justice and fairness, a maxim that seeks to prevent authorities from abusing power.  A substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of expectation that they will be not have to undergo the trauma of a force reviewing them.  Not reviewing is as much a lawful representation as reviewing itself.

The last bullet point on slide 3 is revealing.  It was the force executive board that decided to start a review program, not the police pension authority.  In other words finance officers, estate directors and HR directors all decided it was a good idea.  The police pension authority is not a committee – it is the Chief Constable wearing a different hat.

4.Preliminaries

  • Letter sent to eligible pensioners Dec 2013 advising that a programme would commence
  • Tendering process for SMP (OJEU – with Derbyshire and Leicestershire) – SMP appointment Spring 2014
  • Process – Liaised with Federation; NARPO;
    Regional Legal Services
  • Retained HR Admin support identified
  • No Regional OHU involvement

Slide four talks about who Notts have liaised with. It also mentions that there has been no regional occupation health unit involvement.  Could this be because they have destroyed all the occupational information data they have and are reviewing people ‘blind’?  They have apparently briefed local NARPO as well as the local Federation.  This is mentioned in the slide as if such an action provides their review program with legitimacy.  There is no mention of how the liaison progressed or whether any objections were raised.

5.Process

  • Sequence of review – eligible former officers who saw SMP furthest ago
  • Batches of 15 – approx six weekly intervals
    Former officer sent (1) GP consent ; (2) OHU file consent; (3)questionnaire to complete
  • Letters – 3 stages – 28 days /14 days / 7 days
    Following receipt of consent form, GP records requested
  • With completed paper/work, SMP undertakes ‘paper review” to make a determination if there has been potential ‘substantial alteration’ since assessment / last review
  • If no substantial alteration – end of process
    lf substantial alteration indicated – former officer requested to attend meeting with SMP
  • Following assessment, SMP produces report and officer has 28 days to indicate whether they contest findings

Slide five exposes the process.  The bullet points allude to substantial change but here is where the hypocrisy lies.  There is no mention of change to the medical condition.  It is about salary and nothing else.

Note that Notts expect the whole procedure for the 3 stages to be completed in 49 days!  Notts also wants full medical records as well the notorious questionnaire to inaccurately condense decades of life into unrepresentative bite-sized chunks.  The true agenda here is to examine the smallest details: a minute examination to enable apportionment and to revisit the original decision.

How can a questionnaire determine the existence of substantial change when there is no previous questionnaire, completed back-in-the-day, that can be used as a base line? The closed questioning leads to answers being interpreted in such a way that you can accomplish much more on the good days than on the bad days, the HR functionary will ignore any detail concerning your bad days and focus ONLY on what you can achieve on a good day.

Be in no doubt that the SMP will not be the one to perform this paper shift. An health professional is too expensive to contemplate and  slide four stated that regional occupational health units will not be involved.  Using a SMP at this stage will cost at least £500 per person if a competent preliminary valuation of the former officer’s condition is conducted.  It is ludicrous to insinuate that for 380 former officers they will spend £190,000 just to consider whether there has been substantial change before they call the person to attend a face to face assessment with the SMP.

Mass reviews, blanket reviews, wholesale review programmes; they are all names for the same thing – always an attempt to reduce, never to increase an award.  They are a conveyor belt with a predetermined agenda.  For the former officer it is equivalent to entering a Mafia controlled casino where the dice man, pit boss and croupier all have complete control over the outcome.  The review casino is selling an illusion that they are paying due regard to the medical condition correctly and that they are abiding by the Regulations.

That’s it for part one.  Part two will follow in the next couple of weeks.