“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.
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.