“If you have got a condition that has made you unfit for work and which can only stay the same or get worse, I think it is just pointless […] to just bring someone back again.” – Damian Green Work and Pensions Secretary
At last, some common sense. Damian Green was referring to people who are on long term State benefits for illness and injury which prevents them working. In a change of rules due shortly sickness benefits claimants will no longer have to go through reassessments to keep their payments if they suffer from chronic illness.
Now, what are the chances that the unthinking, unfeeling, drones who populate the HR departments of certain police forces will see the close fit of Damien Green’s remarks to the situation faced by disabled former police officers who have permanent disability due to injury on duty?
Think of pushing peanuts uphill with a rubber fork, or of meeting Elvis in your local Pound Shop.
The long sad history of maladministration of police injury pensions has taught us that expecting any degree of initiative from some people is an exercise in futility. They wait patiently to be told what to do, and then do it without critical examination or engagement of moral sense. That’s why IOD pensioners face so much difficulty and why so much taxpayers’ money is wasted on attempting to use unlawful means to review injury pensions.
HR drones fail spectacularly in some part of the country to understand that their job requires them to understand a few simple concepts in regard to injury pensions. And to apply those concepts in a humane fashion, in accordance with the scope and purpose of the Regulations, rather than in compliance with the ramblings of some crazed force solicitor or financial director, or on the unlawful guidance of some long retired Home Office civil servant.
One such concept is that of minimum income guarantee.
The Police (Injury Benefit) Regulations 2006, Schedule 3 gives a description to the injury pension granted to former officers disabled through no fault of their own whilst on duty. It is described as ‘a minimum income guarantee‘
In this blog we are going to be concentrating on what that means, particularly the meaning of minimum income. However, it is worth bearing in mind as you read on, if you will, the word ‘guarantee’. Which to most folk, save for certain HR drones and assorted persons of evil intent, means that the Regulations give a promise or assurance, which attests that the injury pension will be paid no matter what.
There is no small print with this guarantee. Note well, there is nothing about it being reduced should a pensioner have other income. It is an unconditional guarantee.
The only way an injury pension can be ceased by some default on the part of the pensioner is if the pensioner commits treason or is sentenced to at least ten years imprisonment for an offence against the Official Secrets Act.
The concept of the injury pension providing a minimum income guarantee is lost on those HR drones who park their brains alongside their overcoats when they commence their day’s work.
They may well have at some point unthinkingly, uncritically, adopted the misplaced idea that was touted by John Alexander Gilbert, civil servant in the Home Office (retired). He was responsible for issuing the nattily entitled, ‘Guidance for SMPs, Police Medical Appeal Boards, Chief Constables and Police Authorities’. [Hereinafter referred to as ‘the guidance’]
Mr Gilbert wrote:
‘How an Injury Award is Calculated
An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.‘ [Emphasis added]
Even small child sucking a sherbert dipper and clutching a favourite teddy bear would, upon reading this utterance, have piped up and cried, ‘I may only be little but even I can see that according to Mr Gilbert an injury pensioner could never be paid more than the amount of his or her injury pension. The way Mr Gilbert puts it, if a pensioner earns a few quid collecting shopping trolleys at Tesco, the HR drones would want to reduce his injury pension by an equivalent amount.’
Where do we get the idea that the injury award is a guarantee of minimum income?
The Regulations clearly says the injury pension is quantified as minimum income guarantee expressed as % of average pensionable [police] pay. In plain language, the injured officer’s police salary is used as one element to calculate the amount of injury pension due. The other elements are years of service and degree of disablement.
And that is the last time any form of wages come into anything to do with injury pensions. Wages and earnings are not mentioned anywhere in relation to any review of degree of disablement.
Let’s be clear – there no link of minimum income guarantee with earnings. And a minimum income guarantee is not designed or intended to bring total income up to a certain level.
Why can we state this as undisputed fact? The facetious answer would be if this was true it would be better called a maximum income guarantee.
The legal answer concerns the 2012 demolition in the Administrative Court of the Home Office guidance which wrongly put forward that a link with earnings as a ‘top-up’, is necessary.
Mr Justice Supperstone in the 2012 case of Simpson V PMAB & SECRETARY OF STATE FOR THE HOME DEPARTMENT & Northumbria explicitly rejected the position of Mr Sanders QC, who, defending the position of the Home Office and their guidance, submitted:
‘. . . that it is the claimant [the pensioner] who falls into error by seeking to divorce earnings capacity from practical reality in the purpose of injury pensions.’
Section 5, paragraph 6 of the guidance brazenly claimed that this imaginary link with earnings as a ‘top-up’ is necessary:
Degree of disablement 6.
For the purposes of police injury awards “degree of disablement” means the extent to which the SMP assesses a person’s earning capacity has been affected by the relevant injury. The link with earnings is necessary because injury pensions are based on a system of “minimum income guarantee” designed to bring total income in retirement up to a certain level.
Mr David Lock QC, acting for the pensioner, disagreed with Ms Sander’s submission. He submitted his learned opinion that the guidance is wrong in that,
‘. . . it mistakes earnings for earning capacity.’
The Court accepted Mr Lock’s view, rejected Mr Sander’s view, and confirmed that degree of disablement is assessed by regard to the loss of capacity to earn, and not by regard to any actual loss of earnings. In other words, a pensioner can earn whatever he is able to earn, and any earnings are irrelevant to the assessment of earning capacity. The correct test is to what extent has his ability to do paid work been diminished by the disabling effects of duty injury.
This is nothing more than common sense, and if any of that quality in HR people, SMPs and all others concerned had been less rare and less fogged by the insidious Home Office guidance then the case need not have been brought to trial.
Unfortunately, the residue of the misleading guidance still permeates the brains of those who administer injury awards. The effects have been damaging and long lasting.
Although the argument was lost, the pernicious after-effects resonate still. Certain people blatantly refuse to accept that their interpretation of the Regulations, based on the guidance, is wrong
They are the equivalent to flat Earthers who, given a globe for their birthday, would wish to take an iron to it and deflate it into two dimensions.
A minimum income guarantee isn’t a ceiling – it is a floor. When a floor for income is set, a certain minimum amount must be paid – as is the case with injury pensions. A floor for the injury pension does not create a barrier to the pensioner making other earnings.
Back in 1978 the case of an injured officer from Merseyside Police was discussed in the House of Commons. The basis of this exchange hinged on the thoughts of the Member of Parliament for the injured officer. Merseyside had cast a young police officer aside onto the scrap heap after being run over by a stolen car whilst on duty.
http://hansard.millbanksystems.com/commons/1978/dec/15/police-constable-turner-merseyside
Dr. Shirley Summerskill (Under-Secretary of State for the Home Department) was justifying that the retired officer was compensated for loss of status as well as loss of finance:
Mr. Turner has not appealed against discharge or against the degree of his disability, which has been assessed at 40 per cent. We have checked with the police authority that Mr. Turner’s award has been correctly based. He receives an ill-health pension and an injury pension, which have been increased annually since awarded….
A police pension is not reduced on account of any pay received from civilian employment. …
I hope that I have shown that the financial arrangements that the police service makes for those of its officers who are unfortunate enough to have to retire on account of injury on duty are very fair. There is obviously nothing which can adequately compensate for Mr. Turner’s lost career, as the hon. Gentleman is emphasising. I hope, however, that the hon. Member will agree that the care and sympathetic consideration shown by the police service for officers injured in the line of duty.
The Secretary of State was explicitly saying in the House of Commons that Mr Turner, as a former officer with an injury award, could earn whatever he was able to without reduction of his award. But Dr Summerskill did not end her point here. She also continued that Mr Turner is admirably advancing his future prospects.
Ex-police constable Turner has been very much worse off ever since the accident, even though he has worked very hard as a clerk and has been promoted. He has passed a number of examinations which he took to improve his position and pay, and he must be commended.
Fast forward to 2016 and the self-created Merseyside Police Medical Retirement Officer, Peter Owens, would have felt obliged to see Mr Turner’s promotion as a certain indicator that his degree of disablement had substantially altered and would hasten to reduce his injury pension to a zero percent band.
The Regulations in 1978 when Dr Summerskill spoke up are in no material way different from the current Regulations. The only difference is the way they are administered.
And out of the seven billion people on this planet it seems only Mr Gilbert, said former Home Office employee, had the front to make the mathematically impossible assertion that a minimum can be a transmuted to ‘top-up’ to a maximum?
Although his UK Human Resources acolytes still follow his discredited teachings, everyone else thinks a minimum income guarantee is just that – a guaranteed minimum income.
Other organisations in other parts of the World have experimented with the idea of a minimum income guarantee. Let’s look to Alaska. The Alaskan government, for instance, has since 1982 paid a dividend on oil revenues to all residents, about $1,100 a year on average. Everyone gets a payout, rich or poor, employed or not.
The minimum income guarantee, or the income floor, in Alaska is thus about $1,100.
Finland is considering an experiment that would give up to 10,000 people roughly $625 a month, tax-free, which would replace most existing welfare benefits.
In Canada an experiment with minimum income guarantee was called a “mincome” experiment, as in “minimum income.” It was conducted in just a couple of places, including a town of about 12,000 called Dauphin. It’s in Manitoba, a few hours Northwest of Winnipeg.
No matter if any resident Canadian then earned big money working as a ‘Ice Road Trucker’, they would still get the payment.
The experiment was never finalised and a report never issued but it was proposed to give those involved a ‘minimum income guarantee’. Anecdotal evidence suggested that a guaranteed income can produce positive results.
What none of these guarantees ever did was to place a high bar and remove the income once the recipient raised their income over a set threshold. That would be ludicrous.
Noticeably, there doesn’t seem to be a legal definition of a minimum income guarantee in the UK.
Is this because the term is so self-explanatory it needs no explanation? It is only those who have been touched by idiotic Home Office guidance and similar advice issuing from elements within the National Attendance Management Forum who think differently.
Stop to think for a second. Concentrate on the hundreds of former police officers who have had their awards reduced or removed entirely because, like Mr Turner in 1978, they have managed to gain employment after being retired from the police. Now think of the reason: they disclosed a salary – or earnings. And because of this the HR manager took it upon themselves to turn a minimum guarantee into a maximum ceiling just to save the force money.
This travesty must be stopped now. All those affected should have their awards restored immediately.
Failure to do the right thing will mean this will inevitably be resolved in favour of the pensioners at Judicial Review – and that is something which we in IODPA can absolutely guarantee.
The CC only delegates authority to a HR person to discharge his/her statutory duties/powers under the Regulations. S/he does not delegate responsibility for the manner in which the delegated functions are discharged. The P&CC has a duty to scrutinise the actions of the Chief Constable and, where appropriate, bring her/him to account. The Home Office seems to have washed its hands of the whole affair have made a mullocks of the guidance..
Hello Rosie,
I think that the Chief Constables are far removed from this issue and they have put their misplaced trust in their HR Departments. I am not sure whether they have a grasp of the subject, but they should because the Chief Constables are ultimately responsible for the actions of the staff they are supposed to control.
There has to be a legal solution to this situation. This should also include taking to task the people responsible for these unlawful acts.
The way that reviews are being handled by a lot of Police Forces are already proved to be unlawful, yet no higher authority is yet doing anything much about it unless the IOD officer can afford to pay a lawyer or has the backing of his Federation officer for the Federation to help him out, because a legal court case is the only way to get things put right, if and when the IOD officer knows that something is not right. (Thank God for iodpa.org!!!) We all know that these unlawful (illegal??) acts are done in the name of whoever is the Chief Constable of that force. Do the Chief Constables actually KNOW what is going on? If not why not? It took years for the HOC 46/2004 to be put right and that was only after a few years of complaints about it. The fact that this could even happen shows that some HR departments are looking for any excuse to reduce IOD pensions regardless of how it would leave anyone financially very badly off.
It is retired IOD officers that have done the researching and looking for help with these matters when it SHOULD be the Chief Constables checking up on what goes on in his own force area and putting them right.
Thanks for that explanation. My understanding was that it was a change in my medical condition that could affect my pension. They have twisted things around and look as if they are calculating things just as they did when I retired. That can’t be right.
Anyway, thank you for being here and thank you for providing all of this information. There seems to be some overwhelming evidence that they have been doing things unlawfully. I think they will have to answer to someone over what they have done.
Thanks again
Robert.
So are you saying that the use of random jobs/wages that these SMP’s are using to calculate degree of disablement is also wrong. They used this method at my last review and I thought it was wrong at the time.
From what you are saying the measure is how the injury affects your ability to work. Unless I’ve got it wrong. But it does look as if that would be the proper way of going about it. I’m afraid my ability to understand these things is affected by my advancing age. I’m reasonably okay with reading some things and I think I can still express myself fairly well but I now find legal documents difficult. That’s surprising isn’t it as I was a policeman for almost 30 years.
If you could explain, slowly then I might get it.
Thanks
Hi Robert. Your understanding is spot on. Any use of comparative jobs and the respective salaries is wrong. But they keep being used because the unlawful home office guidance is still being applied. Mostly as the administrators can’t for the life of them use their own thought processes to get it right.
Use this as an analogy. If a band three has earningS ( note well the S, also note this example there is no substantial change to their medical condition) then some HR muppet will use this as a reason to reduce to a zero percent band one.
But if an actual band one chooses not to work – to say, be a stay at home parent – at a review, will the same the HR muppet or medical retirement officer raise their award to a band three? Of course not. But why not! They want their cake and eat it too. in the real world earnings are irrelevant. They fail to grasp their own contradiction in their unlawful logic in this example when one has earningS and is reduced and the other doesn’t have earnings but they never increase.
It is the medical condition not earnings.
The original decision on the degree of disablement is final. They are not allowed to perform a fresh assessment and this is exactly what the three job card-trick does. Quantifying the degree of disablement and then comparing it with the original decision is a fresh assessment however ‘they’ try to spin it.
At the time of my review following the introduction of HOC 46/2004 I was living and working abroad. My income was found to be in excess of ASHE and consequently the SMP reduced my IOD to Band 1. The effects of my injury had remained the same.
I was working in a part of the world with low unemployment rates and high wages. High wages were needed to live reasonably well in an area with a high cost of living. So the two more or less cancelled each other out. I was not living a lavish lifestyle – just a normal working class existence in line with everybody else.
When I was reviewed and reduced I argued that my pension was not a means tested benefit and that my pain and discomfort were not affected by how much my wages were. This argument was totally ignored.
In reading the article above I clearly see that my Force had no legal right to make this reduction based upon my income.
We have brave men and women who regularly put themselves in harms way, dealing with the issues that society has abdicated responsibility for. Seeing sights that are traumatic and they will have to live with on and off duty as well as life after “the job.”
Working in such an environment has consequences, no one signs up to be retired. Losing a career is bad enough, then comes the finacial hardship, the constant queries for your employers as to your entitlement.
There would appear to be a huge gulf between those forces which recognise their moral obligations as well as the covenant that exists between society, the force and former officer and those that regard injury awards no more than a financial millstone.
Sooner or later these people will be brought to book, as in the case of the DWP where lives have been lost ie the former soldier who’s benefits were sanctioned found with a pile of CV’s at his feet, as his power had been turned off due to non payment of bills he was unable to store his insulin for diabetes at the correct temperature. We call ourselves a civilised society yet we cut peoples injury awards, poeple commit suicide because of others with no scruples unlawfully cutting awards. The offence of misconduct in public office carries a heavy penalty, I hope to see those responsible for this needless and wholescale tramping over, through no fault of their own police officers end. If that takes someone to go to prison to teach those who administer Police Pensions and do so unlawfully a lesson I will shed no tears!
Thank you for another informative blog. I am really appreciative of your knowledge. I wish IODPA were about when I was retired out. But thank god you’re here now.
Do SMP’s understand that recent research shows that PTSD causes permanent changes in the brain?
http://trialconsult.com/litigare-blog/2012/11/4/ptsd-the-permanent-life-altering-injury
Sufferers can learn to adapt their lives to living with the injury, but that does not mean they are cured. It lurks there, in the brain, ready to emerge again at full strength should it be triggered by events.
Sorry to say, but that means many types of employment are off limits.
These matters do need to be addressed by the Judge. Forces have been getting away with murder for far too long now!!! its time that the justice is done and protection from maladministration is afforded to injured officers.
Mac – Even then they would probably not admit it. These HR types been indoctrinated by NAMF for too long and it fits in nicely with the approach adopted by Chief Constables to reduce the financial burden. That’s what we are now. A financial burden. But we were alright when we were having to go into a mob and fight for our lives. Then we were hero’s.
For goodness sake can someone get in front of a Judge and get this resolved?
They have had their own way for far too long. They think that they are in the right all the time. The only way they will accept that they have been doing these reviews wrong is if the Judge tells them.
The point put forward by Damian Green is valid. There must be very many IOD pensioners whose condition will remain the same for the rest of their lives. Either they are suffering from PTSD or a physical injury which will never improve. In fact their condition could become worse. So why subject former police officers to the ordeal of being further examined, many years after they retired, unless the sole reason was to reduce the amount being paid to them in the form of a pension.
The manner in which some of these SMP’s approach the task of conducting reviews is nothing short of a disgrace. They are not conducted with any degree of fairness and are, by and large, unlawfully carried out.
A very well written and easily understood article. My only hope would be that HR people and SMP’s get to read it.
My first review occurred many years after my retirement, well over 12 years in fact, and my medical condition had not changed. I was earning more than the National Average Earnings (NAE) and as a result my degree of disablement was reduced to 0%. This was carried out by a SMP. From documents obtained from my former employers it was quite clear that the SMP was being directed by someone in HR.
From what this article clearly shows my review was carried out unlawfully.
The unfortunate thing about all of this is that the people in HR, SMP’s and also the PMAB’s all think and act in unison. Trying to get these people to understand that they are wrong seems as unlikely as the Queen becoming the leader of UKIP.
Heads up HR people!
Spot the difference.
‘Earning capacity’ and ‘Earnings capacity’
I’ll repeat it, knowing that this will annoy you HR types, but you have more than annoyed me for many years by your crass stupidity and willingness to do the wrong thing.
Look carefully. Mouth the words, or speak them out loud if it helps.
‘Earning capacity’ and ‘Earnings capacity’
Did you see that little extraneous ‘s’ sitting there like a wart on the end of an otherwise beautiful nose? If you did see it, then well done. There may be hope for you yet.
‘Earning capacity’ appears in the Regulations. It is not defined, but very obviously to all but those who have fallen under the spell of the Home Office guidance mentioned in this blog, it means this: It is the capacity of an individual to work, the product of which is earnings. In other words, only paid work, not voluntary work, gardening, achieving a qualification, or running a mile for charity.
Earning capacity is tied to degree of disablement in the Regulations. ‘7-(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.’
So, that means when degree of disablement is being assessed, at a review, then the SMP needs to look at the medical condition caused by duty injury and to determine whether there is any alteration to the extent by which the resulting physical and/or mental disablement has diminished the individual’s capacity to do work for which they would be paid.. He does not need to pay any attention to whether the person is working or not, nor to any earnings he or she may or may not be achieving.
‘Earnings capacity’ is a very different animal, with a very different meaning. Please raise your hand if you have been in the habit of using this phrase. If you have, then it is time you stopped. It means the capacity an individual has to earn an AMOUNT of money. The greater the capacity, the greater the earnings.
Now, I hear you say, ‘But if a disabled former officer can earn more than they did as when in the job, then surely, they can’t be very disabled?’ Sorry, HR, but that is peurile poppycock. What you, in cahoots with your tame SMP are guilty of doing is measuring entirely the wrong thing. You are measuring what a person earns, or what you think they are qualified to earn, and calculating that against the yard-stick of either former police pay, or average national earnings, or some other totally irrelevant figure of earnings.
What you should be doing is, a) keeping your noses out of the task of the SMP and b) educating the SMP to do the job which the Regulations require, which is to look at the medical condition, and not at irrelevant factors such as earnings, or indeed anything else other than the effects of the disablement on an individual’s ability to work and thus get paid.
HR people! Wake up! You have been taken for a grand old ride by Home Office guidance. Please stay at your desks for an hour after work and write out 100 times, ‘I must understand what is meant by earning capacity.’