“I am the law and you’d better believe it!” – Judge Dredd: 2000 AD prog 40.
We haven’t discussed for a while the landmark decision in the appeal of Metropolitan Police Authority (Appellant) – and – Belinda Laws (Respondent)- and – Police Medical Appeals (Additional Party).
A timely revisit of the basic principles has been provided to us by the Lake Jackson legal team involved in both the first judicial review and the appeal.
It’s important to remember that this opinion relates to the duty of the SMP, when the decision to revise the injury award has been passed to the medical authority – in other words the police pension authority has already considered, that there has been an alteration (“shall” so are referring the question of degree of disablement to the SMP: Regulation 30(2)(d)).
Police Authority v Laws is the leading authority on the correct application of injury award reviews under Regulation 37 of the 2006 Police (Injury Benefit) Regulations 2006. The leading judgement was given by Lord Justice Laws.
In the course of his judgement Laws LJ approved the decision of Burton J in MPA –v- Turner.
The correct interpretation of Laws is that the Regulation 37 duty of the SMP (or logically the PMAB on appeal) is primarily a comparative exercise.
The SMP must consider the pensioner’s current degree of disablement [Regulation 30(2)(d)] at the date of grant or last review and then compare it with the pensioner’s current degree of disablement.
A revision of the pension, upwards or downwards, is only permissible where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.
This may be occasioned by some substantial improvement or substantial deterioration in his/her medical condition or because of external factors such as the availability of a job or jobs which were not available previously but which are now available to the pensioner either because of the advances in medicine; e.g. a very ergonomically friendly chair which allows those with chronic back complaints to sit and work at a desk for longer periods and/or changes in the employment market [‘The law degree point in Laws’] such as for example the greater availability of jobs in the private sector for officers with Counter-Terrorism training and experience.
The right question for the SMP is not “what jobs can this person do today” because that would be a re-assessment of the degree of disablement and not a review.
Further the SMP is forbidden from calculating any quantification on the present degree of disablement unless the SMP has first concluded that there is a substantial alteration in the former officer’s degree of disablement even though HR used to instruct an SMP and often send them a list of suitable jobs before the examination had even taken place.
‘Degree of disablement’ is defined under Regulation 7(5) as loss of earning capacity. Thus any earnings (or salary) in itself cannot be used to calculate a new degree of disablement and then be used to compare against the previous assessment to prove substantial alteration.
This is consistent with the purpose of the statutory scheme as outlined by Cox J at first instance in Laws. The scheme recognises that police officers undertake an inherently dangerous job and the purpose of the scheme is to compensate officers for the loss of their careers and any loss of earning capacity going forward past compulsory retirement age and beyond.
Thus the earnings comparator is usually police pay whilst the ex officer is still within CRA. Afterwards the comparator becomes more subjective but the equation is usually the earning capacity of an injured officer as against that of an uninjured officer.
Another heresy is that an ex officer has no earning capacity at state retirement age. It is in any event inconsistent with state retirement being gradually increased to age of 70.
I’ve just been seen by an SMP known to this group I.e. Sampson. He practices Physiotherapy (according to the header on top of his report) However his ‘expertise’ in judging the long term affects and permanence of Major depressive disorder lasting over 3 years must be greater than the consultant forensic psychologist as he has just poo poo’ed the opinion of the said consultant and deemed permanence only in respect of spinal disc degeneration. The depression occurred as a result of bullying by senior management and a long drawn out Tribunal which was settled in the waiting room of the tribunal service on the morning if the trial. The Fed are helping but seem to be far to ‘tame’ when dealing with the whole debacle. Its been a comedy of errors that’s for sure. I’ve been suicidal and self harmed at times and also developed massive anger issues that cost me my marriage. Still they delay and avoid the issues with my head and concentrate on my back issue. I will stand and fight, arrest for corruption and misfeance where appropriate and support any group action that may be considered against dodgy SMP’s.
Thanks – appreciated.
Without wishing to go on about it and obviously repeating myself, I ABSOLUTELY believe that for head injury assessments and reviews, police authorities should be legally bound to use a RECOGNISED expert in head injuries (as required by their own regulations as anybody less qualified is not “suitably” qualified.
Graham
It is ABSOLUTELY clear that the police authorities are using the IOD review process for one purpose and one purpose only and that is to save their authority money by reducing IOD pensions. This they do by illegal threats and underhand ruses, attempting to reduce IOD pensions with paper reviews and then PERVERSELY interpreting any and all medical evidence to achieve their aim, to reduce the IOD pension at hearings.
In my wife’s case, Angela McLoughlin, in 2004 she was reviewed and reduced from 25% to 15.25%. In 2008, a PMAB found her to be 88% disabled, the PMAB placing their faith in a 2007 diagnosis from a top neuro-psychologist that Angela had been suffering from debilitating physical brain damage from her “on duty injury” suffered in 1982. The police authority, on the other hand, chose to totally ignore that diagnosis claiming that Angela had “not been been hit hard enough” by the semi-professional boxer-cum-burglar she had attempted to arrest – a phrase that the police medical representative repeated several times in front of Angela at the PMAB hearing!.
That having all been said, I have an extra point to make.
The police authority followed a standard process to arrive at their 15.25%. The ombudsman has stated that, in his opinion, they followed it correctly.
However, the correct finding of this “standard process” should have been 88%.
It follows logically that the “standard procedure” MUST BE FLAWED if it can come to a finding that is incorrect by a margin of over 70%.
I know what that flaw is and it comes from a failure by the police authorities to follow their own police injury regulations. These regulations clearly state that they must use a “suitably qualified” SMP to assess the degree of injury.
For head injuries, a standard SMP is not “suitably qualified”. Nothing more needs to be said on this point other than, quite clearly, in order to comply with their own regulations, police authorities, in the case of head injuries, MUST bring in a medical practitioner with special training in head injuries.
I believe that a genuine organisation, having witnessed that one of its standard processes could lead to a result that is over 70% incorrect, would naturally wish to investigate how that could come about and rectify matters so that it could not happen again.
IN OUR DREAMS when it comes to police authorities.
I believe that Angela’s case is a landmark case whereby all police authorities should be forced to review this “standard procedure” and adjust it as described above.
One extra point on a different matter. This article has emphasised, quite correctly, that the regulations demands that the review process is a “comparison” process to determine if there has been “substantial” change in the police officer’s medical condition.
As on several points throughout the regulations, we have a word here that is open to interpretation, namely “substantial”. Another one is the amount of time the police may take between reviews, that being stated in the regulations as “as may be suitable” which is a totally meaningless phrase and can be interpreted in any way to suit the police. In Angela’s case, it was over 20 years and once again the ombudsman seem to believe that this was “suitable”.
Sorry, I digressed! The point I am making is that unless a “substantial” change in the police officer’s medical condition has been found, then there should be no change WHATSOEVER in his degree of disablement.
This could be absolutely crucial in the case of a review deciding to reduce a police officer’s IOD pension from 51% to 49% as it straddles a banding but 2% clearly not representing a “substantial” change in degree of disablement.
In fact, according to the regulations, if a “substantial” change in the police officer’s medical condition has not been found, then the review should state that, and there should be no change whatsoever to the police officers degree of disablement.
However, the burning question, of course, is what change in degree of disablement qualifies as being “substantial”? A mathematician might answer that in different ways and I would welcome one to do so!
I believe that the regulations should quantify the meaning of the word “substantial” by some phrase equivalent to “a difference of at least 10% in degree of disablement”.
Graham McLoughlin
Wow Graham … just wow. Usually we shorten surnames for those who post just because we know how the police operate to those who challenge their power. But you have made it clear you have no qualms – we’ve just redacted your email address from the text to stop spambots. Your comment is just so powerfully honest and direct it will do a disservice to you by giving anonymity. You and Angie have all our best wishes. Thank you for being so eloquent
It is deeply upsetting that so many are having to battle for what is owed to them. I am sadly fighting the battle just to be allowed to retire with an IH pension. I still have the injury benefit battle to come if it goes that far. There have been many times I have felt the pressure was not worth it and I should just leave but seeing others fighting for what’s right spurs me on and I hope that someone somewhere will eventually do the right thing. I live in hope. Sad times
It couldn’t be any clearer. IT’S THE LAW- HRs and SMPs need to read and take note
A timely mention of the Metropolitan Police and IOD’s. I am sickened by what I am currently reading elsewhere about a serving Metropolitan Police Officer, who, injured on duty, is currently suicidal due to his treatment at the hands of his employer. Every OH and SMT member involved in this process should hang their heads in shame.