“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 Reid, Pinner 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.
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.
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.