Will the real Regulation 37(1) Please stand up

“In determining the meaning of any word or phrase in a statute, the first question to ask is always what is the natural and ordinary meaning of that word or phrase in its context in the statute.” –  Lord ReidPinner v Everett (1969)

So imagine, if you will, a world where the establishment wilfully ignores a specific sentence within legislation.  A sentence that  expressively only permits  a referral to a selected medical practitioner (SMP) on the stark prerequisite that the police pension authority is considering to revise the degree of disablement of an injury award. The essence of this sentence is  that without distinct proof of any substantial alteration existing a referral to a SMP is unlawful.  Ignored purely because it denies the fishing expeditions contained within mass review policies.

We’re not talking about wilful misinterpretation here or deciding the legislation permits something when it actually says no such thing; like when, in the 2012 Judicial Review of Simpson, R (on the application of) v Police Medical Appeal Board & Ors,  Peter Spreadbury as Head of the Police Pensions and Retirement Policy Section within the Home Office, tried to convince The Honourable Mr Justice Supperstone (one month before his sixty-second birthday) that people over sixty-five have zero earning capacity.

Mr Spreadbury’s non-fiction foolishness was a bizarre attempt to justify the unlawful Home Office Guidance contained in circular 46/2004.  Guidance that illegally demanded that a different approach to regulation 37(1) in respect of a former officer who reaches the age of 65 should be taken than in the case of a review for former officers of a younger age.

This world goes beyond making things up and then belligerently proclaiming that that the Regulations allow for it, such as Mr Spreadbury defending the indefensible that he and his predecessor John Gilbert at the Home Office helped invent.

Misfeasance acutely sums up what we are about to describe – total awareness that something is not permitted combined with a wilful, conscious and deliberate effort to continue regardless.

The Twilight Zone we are stepping into is a realm of  sound, sight, and mind beyond belief.   An exploration into the dark, terrifying and all too horrific realm of injury awards and reviews.

It is not an exaggeration to say that the particular ignored instruction has earthquake like significance to how police pension authorities try to impose their ‘positive duty to review’ by using Regulation 37(1).

As our constant readers know, Regulation 30(6) provides that the decision of the SMP on the question or questions referred to him or her shall be final

(6) The decision of the Selected Medical Practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to [regulation] 31…, be final.”

Case law has reaffirmed this principle that a decision relating to the degree of disablement at the last assessment is a FINAL DECISION and, as a result, the basis upon which it was founded cannot be revisited in the same way as causation cannot be revisited.  This covers all the medical questions referred by Regulation 30.

The courts have also clarified that the Regulations only allow for a revision of the pension, upwards or downwards,  where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.

This is again repeated in Simpson V PMAB

Simpson V PMAB paragraph 28:

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

The ruling in Simpson is clear that ‘the statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first’. 

Regulation 37(1) says the following:

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

If after a suitable interval AND after consideration of whether the pensioner’s disablement has altered AND if it has been found to be altered, Regulation 37 allows for  a gateway back into Regulation 30(1)(d) where the police pension authority ‘shall refer for decision to a duly qualified medical practitioner selected by them the following questions’ 

d) the degree of the person’s disablement;
and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

Please look carefully again at the emphasised and underlined text found at the bottom of  Regulation 30(1)(d) and repeated below in bold.

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

This clearly makes the distinction that it is not up to the SMP to determine substantial change in the first instance.

It can’t be as clearly the referral to the medical authority is only permitted once a revision to the degree of disablement is being considered, and a revision can only be considered where there has been a substantial alteration.

Therefore the police pension authority (PPA) is obligated to consider substantial change and then only refer the question of ‘how much’ once they have evidenced that substantial change to the degree of disablement may exist.  Then and only then, they refer the question to the medical authority as determined by Regulation 30(1)(d).

The new generation of police pension authorities have been getting it back to front.

Perhaps deliberately.

They have been referring the consideration AND the question to the SMP, at the same time.  When in fact the Regulations forbid this.  The question shall be referred to the SMP ONLY if they are considering to revise the injury pension.  And they can only consider to revise if substantial change exists.  Ergo, the consideration has to EVIDENCE substantial change before the question of (d) is referred.

The police pension authority can not use the SMP to determine substantial change if no evidence of likely substantial change exists.

This is contrary to the practice used in the recent mass review programs as found in Avon & Somerset, Merseyside and Nottinghamshire.

SMPs have been used by all three forces as a one-stop-shop when in fact the Regulation that powers the revision can only be used to access the SMP, as the medical authority, after the police pension authority has established a strong link that substantial alteration is going to be confirmed.

The consideration is for the police pension authority alone.

Police pension authorities currently randomly choose an individual to undergo a review of their degree of disablement pursuant to Regulation 37(1) just on the proviso that an interval has elapsed.  They fail to apply their mind to whether the interval is suitable.

PPAs also collate the medical records, occupational health records and personnel records of the former officer being reviewed and submit this wholesale to the SMP for the determination of not only whether there has been substantial alteration to the degree of disablement in relation to earning capacity but also how much.

By doing this the PPA wrongly believes it has complied with the two stage process of a review.

The Regulations make it clear that it is not for the SMP to make this assessment.  The role of the SMP is distinct and independent to the PPA.  It is for the PPA to consider substantial change – using the medical proxy of the FMA if necessary – and only if such substantial change has been evidenced shall the question be referred to the SMP as the medical authority, where there will be a determination accordingly.

Home Office Circular 21/2003 concerns the The Police Pensions (Amendment) (No. 2) Regulations 2003.  This Statutory Instrument was included in full in the Police (Injury) Benefit Regulations 2006.  The circular also gives clarification to the distinct roles of the FMA (Force Medical Advisor) and SMP (Selected Medical Practitioner) in ill health retirements

[paragraph 32.] Separating the role of the SMP from that of the FMA, save in exceptional cases, with the FMA playing a separate but key role in the assessment of permanent disablement – Guidance paragraphs 17–27.
A particular issue here is to ensure the independence of the SMP from the pressures that can arise from being the FMA for the same force as the police officer, whose case is being considered, is a member of. At the same time there is a need to ensure that the SMP is fully competent to deal with such cases.

Home Office Circular 003/2004 also contains a Police Negotiating Board (PNB) circular within its Annex that separates the role of the  SMP from the role of the Force Medical Officer (FMA).

Both Home Circulars contain PNB Circular 03/19

 021 / 2003Annex A:POLICE NEGOTIATING BOARD JOINT GUIDANCE. In normal cases the police authority should ask the FMA most familiar with the case to provide advice on the case to the SMP, whose name and address should be confirmed with the FMA, unless the FMA indicates that the choice of SMP needs to be held over until he or she has completed the advice. The purpose of the FMA’s advice is to inform the assessment by the SMP.

By passing the question directly at the first stage to the SMP, the PPA neglects it’s statutory duty.  No consideration is performed and therefore the question is approached backwards – in affect there is a wrong and biased presumption that  a substantial alteration has occurred and the SMP engages  his mind to prove this by searching for evidence of substantial change at the same time as calculating how much.

Let us examine the flow chart contained within PNB Circular 03/19.  This concerns the original ill-health retirement but it shows clearly the distinction between the role of the PPA (and the FMA as its delegate) against that of the SMP.

The FMA prepares the recommendation for the SMP and the SMP answers the referred questions.  It is clear here that the SMP does not go on a trawl to forensically investigate everything from the start.

620978-ihr-flowchart

We will never give credence from anything published from NAMF but they have a similar flowchart that shows their idea of how a review should be approached.

NAMF flow chart 001

Again it is made clear that evidence of substantial change has to exist BEFORE referral to a SMP – the box marked ‘response received and if substantial change appears apparent’.  

Going back to misrepresenting and reading meaning into the Regulations where there is none, there is nothing in the Regulations that demand the completion of a questionnaire.

An invented questionnaire is just as much a made up device as saying over those aged over sixty-five have no earning capacity.  There is also no Regulatory demand that full disclosure to medical records is to be permitted.  Medical records are confidentially sacrament and no one is entitled to trawl through a patient’s medical and/or psychiatric history seeking material for cross-examination.

Could it be that the Regulations are only concerned with a review when the pensioner is a willing participant – in other words they are self-referring and seeking an upwards revision?

Such a position sits well with Regulation 33 and its ‘wilful or negligent refusal to be medically examined’.  This can only be invoked if and after a referral to the SMP has been made.  If there is no evidence of substantial change then the referral to the medical authority can not be made and therefore there is no requirement to be medically examined. If someone is demanding a review by saying they are worse but are unwilling to be examined then Regulation 33 can be used as a reason for the PPA to reject the desired upward revision – nothing else. Or Regulation 33 can more commonly be used to impose a need for attendance to a medical examination on the original grant of the award.

Within Regulation 37 it is impossible for the PPA to use Regulation 33 to make threats for the pensioner to disclose medical records from birth for fear of punitively removing the award in its entirety or automatic reduction to band one, when they are barred from forcing someone to be medically examined in the first place without strong prior evidence of substantial alteration visible to the PPA.

So to conclude, the assessment as to whether there has been an alteration in the degree of disablement need not be medical by nature.  It is not for the SMP to perform this consideration.  The PPA  via the FMA must be able to evidence substantial alteration for the second stage to be invoked.

Once substantial alteration has been evidenced then the statutory medical question in Regulation 30 (2)(d) is then passed to the SMP to answer.

Considering to revise an injury pension under Regulation 30(1)(d) presumes that a previous consideration, as specified by Regulation 37, has already led to evidence that substantial alteration preexists. It follows that the PPA has already performed some function to provide evidence to support or prove the truth of the existence of substantial change.

It is not therefore permissible to the PPA to delegate this consideration to an independent SMP.

The correct application of Regulation 37(1) is for the PPA to consider (after a suitable interval) the existence substantial change.  If there is found to be evidence of such then the question is passed to the SMP who confirms or rejects the evidence, and if confirms places a quantum on the amount of substantial alteration. It then becomes a matter for the Police Pensions Authority to revise the person’s injury pension in accordance with the medical authority’s decision.

With Stage 2 of Regulation 37(1) the SMP, after the PPA has found substantial alteration, must first confirm there has been a substantial alteration and then go onto compare the effect of the substantial alteration found on earning capacity.

Any pensioner with an injury award given a date to see a SMP  has to challenge the PPA to provide the evidence of the substantial evidence they say they’ve found.

If the PPA fails to explain justification of their claim that substantial change exists before the referral to the medical authority then clearly the requirements of Regulation 30(1)(d) has not been fulfilled and the referral is unlawful.

Any revision of the degree of disablement without referral to a medical authority is also unlawful.

 

Will the real Regulation 37(1) Please stand up

12 thoughts on “Will the real Regulation 37(1) Please stand up

  • 2016-07-05 at 1:36 pm
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    Well written but until tested we can’t rely on it.
    My concerns are that if you don’t complete a questionnaire or release notes etc how can the force determine substantial change.
    There has to be an avenue for them to make such an assessment.
    I can’t see a judge accepting a stance where all avenues for making such an assessment are challenged and closed.
    The Force will scream how is it “fair” that the regs ask us to make an assessment on review but we have no avenues to make such an assessment unless we use an SMP as all other options are not possible.
    I don’t want to answer questions on a form which are not relevant and indeed won’t.
    I don’t want to release my full notes and indeed won’t.
    But if answering the relevant questions or releasing partial notes or a letter from my GP makes my case without having to be sent before an SMP then I’m happy to do so.
    But only if an FMA is reading them and making the decision as a civilian HR person or whoever shouldn’t and indeed isn’t qualified to read them.
    In my mind if you give them nothing and they make a decision against you then they have an argument
    in their defence of such an error.
    If you give information and they fly in the face of it and still go against you then you have the stronger hand.
    My point is yes they abuse their authority but if we go too far and refuse to give anything to them how can we say you have to make a decision before submitting us to SMP when they can’t make such a decision in the absence of information.
    I can’t see a judge telling a force they need a crystal ball.
    If they don’t have a way to apply the regs then it forces the regs to be changed but I would bet that won’t be in our favour.
    Making SMP,s and PPA address only the questions the regulations allow is one thing.
    I see this argument as a catch 22 . We want them to follow this interpretation of the regs but they can’t unless they get information from somewhere and unless that somewhere is decided either they ask for a doctor’s letter whatever then it’s unworkable.
    We need to fight the fight of releasing notes and questionnaires with irrelevant questions first and lay ground rules of how they obtain information to make an assessment of substantial change .
    Before we argue that they should make the assessment before sending us to SMP.
    I think some battles need fighting first.
    Yes I know they are getting the info and still sending people to SMP. But until the question of notes and questionnaires is challenged and answered then they can argue that they have to send us to SMP because they have no other way of
    making an assessment because they are getting challenged asking retirees for information.

    • 2016-07-05 at 2:29 pm
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      Hi Olpk
      Nice comment, thanks. The catch-22 is there, true. But just a thought: where does the Regulations dictate that a ‘consideration’ means the former officer having to prove substantial change doesn’t exist. In other words, where is the burden of proof and upon who does the burden lie?
      The Regulations don’t mention that reviews being only and singularly a necessity to protect the public purse. This is how forces interpret it; as a snake opposed to a ladder, only downwards. If the Regulations are viewed as a retention and recruitment device or as a package of protection (insurance if you like) if ever injured on duty (and to encourage officers to act heroically), it’s not a huge leap that the legislators considered self-refered reviews only and the suitable interval existing to prevent repeated administrative drains on the force of dealing with self referrers whenever a deterioration occurs – for example keeping the worsening in the range of variance.

      In that context there is no need for fishing trips and questionnaires.

      Concerning it being untested … it is the literal interpretation of the Regulations. Why should it be tested? It is only because of the maladministration of how it has always been up till now doesn’t mean the stance of the rogue police pension authorities are correct. Remember some forces ‘get it’ and don’t pursue this farce of getting the IOD to justify that nothing has changed.

  • 2016-06-20 at 7:08 pm
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    What you publish on this website is factual, transparent, and infact all too true. Yet I am amazed that legal challenge seems to be remiss. Are the police being targeted by the home secretary as a pilot study in preparation for targeting next the fire service and military in an effort to save money? Help for Heroes needs to get prepared if this is the case.It is only a matter of time. I am apalled at the tragic murder of Jo Cox and it is warming that parliament pay tribute to her, but I don’t see fallen police offers getting the same emotional reaction from parliament and the government. There are many young people out there who I know are so willing and wanting to join the police. There are members of the public who say to me when an officer has fallen…. ‘ ahh well you know when you join the job it is a risk you sign up for’, unless of course it happens to them or their son / daughter. If only they knew that the real threat is’nt the robber, thug or murderer, it is their HR department, legal dept and senior police adminstrators who they need to fear, most of whom are individuals who are limited in experience and exposure but non the less have plenty to say! Once it goes pear shaped, unfortunately officers are out on a limb. What is your FED organisation doing on your behalf? Why are the individuals (doctors, solicitors)you constantly mention still in post? Why doesn’t the legal and professional regulatory system work? Are they protected by an organisation…the government? I am not suggesting this of course, just raising debate 🙂

  • 2016-06-17 at 9:15 pm
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    Another excellent article, thank you…It is complex, but necessarily so. If I am to have my only source of income challenged, then I welcome the effort the IODPA admins put into laying out the areas I need to examine.

    What interests me is that certain vindictive and malicious individuals names appear again and again on this site, and yet I assume IODPA isn’t being sued left, right and centre for libelling these individuals.

    My conclusion, IODPA isn’t lying…

  • 2016-06-17 at 5:10 pm
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    Superb article and well written.. It will assist those who are going through the process.

  • 2016-06-17 at 10:34 am
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    But what is actually being done to challenge this practice. Seems like our Fed reps and others just except it and challenge other things?

    • 2016-06-17 at 11:03 am
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      We at IODPA will try our utmost to challenge this forward Andy.

      First they ignore you, then they laugh at you, then they fight you, then you win

      said Mahatma Gandhi.
      They are currently fighting us. Mainly labeling us as anarchists malcontents – they no longer ignore nor laugh at us which is progress of sorts. Our posts are widely read by those determined to undermine the Regulations, they never dispute publicly what’s being said. It would help if all the Fed understood what’s happening (some local reps do). A judicial review on a test case would conclude this for all.

  • 2016-06-16 at 9:31 pm
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    I was under the impression that forces could put all the names of IODs into a random selector and choose them at random?
    Or don’t they just select the youngest IODs in the highest bindings who cost the force the most in pension?
    On the other hand can’t forces just get some civy to review all the IODs, not including band ones, and any who are earning money they reduce?
    If what you say is true and actually written down in regulations then why don’t forces follow the regs.
    One other question that I have is have any forces ever carried out reviews in accordance with regs?

    • 2016-06-17 at 6:47 am
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      Misfeasance is the answer Tom. Some know they shouldn’t but can’t help themselves – serial offenders such as Nicholas Wirz @ Northumbria who has real hatred and jealously issue with injury awards. The other type are people like Julian Kern, a chief finance officer that is clueless to his real duties.

      Before 2004 and the creation of NAMF the administration of injury awards was left to the individual force. There were bad decisions as well as good but there wasn’t many appeals that went to judicial review. This all changed when NAMF spread their dogma and finance officers saw awards as something to be milked to get them out of their financial mire. It suited them to try to baffle disabled former officers into compliance by threats and bureaucracy.

  • 2016-06-16 at 8:49 pm
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    Superbly written and explained. This article will assist anyone going through the referral process.

  • 2016-06-16 at 8:01 pm
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    This information is over complicated. It would be very helpful if you could do a simple bullet point header section in plain simple English and then go on in detail. My head begins to spin after the third stanza! No one enjoyed reading paragraph after paragraph of complicated law speak.

    • 2016-06-17 at 6:17 am
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      Sorry you feel that way Gary. We can’t please everyone all of the time.

      The bullet point is no one can be sent before a SMP unless there is already evidence of an alteration in the level of the IODs disablement – and the smp can’t be used to find this unless the force has already found it itself.

      The article is just over 2000 words. It could be less but then message would be loss – the message is read by those police employees who don’t understand the law but carry on reviewing regardless. They need to understand the implications of their ignorance. This whole concept hinges on law speak as you call it. Oversimplification just won’t cut it. Remember ‘law speak’ is the silver bullet that has been the salvation for many IODs.

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