“He who establishes his argument by noise and command, shows that his reason is weak.”
― Michel de Montaigne
In 2016, the months of September and October has seen two interesting decisions handed down by the Pension Ombudsman (PO). In both decisions it is clear the arrogance of the pension authority involved led them to think the forcefulness of their command would conceal the lack of reason within.
One decision concerns Thames Valley Police and how this force (and vicariously by the SMPs they appointed) incorrectly apportioned an on-duty injury by trying to imply that the complainant, Ms E, had a pre-existing vulnerability to mental illness. The infamous Dr Cheng is in the centre of this particular stagnant mire.
The second Pension Ombudsman decision we are going to discuss here isn’t about police injury awards but it does involve ill-health retirement. Mr Y complained to the Pensions Ombudsman that NGF Europe Pension Fund’s refusal of an ill-health early retirement pension was maladministration. The Ombudsman upheld Mr Y’s complaint and directed the employer to make the decision again.
The points raised by the PO in these decisions have huge implications for police forces. Each will be discussed but let us first look at Mr Y’s case.
The PO found that NGF relied too much on it’s own occupation health clinician and ignored the expert opinion of the patient’s own clinicians:
NGF’s view that it is entitled to prefer its medical advisers’ opinions when there is a conflict of opinion between them and those of Mr Y’s GP and the consultant treating him, demonstrates that NGF saw its medical advisers’ own opinions of Mr Y’s state of health as at least equal to those of a specialist in a particular field of medicine. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/
Effectively, the PO is saying employers can not simply rely on the recommendations of their own ‘in-house’ medical advisers and that it is not…
“[…] rational to give considerable weight to a prediction that had not been fully explored and was outside the adviser’s remit”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/
The decision says that, whether or not the employer (or regards to injury awards, the police pension authority) is understandably concerned about if the treating doctors of the patient have understood the definition of total incapacity, it can not give undue considerable weight to the opinion of it’s own assessor.
How often is a one-sided view taken by a SMP? Every-time that SMP is trained or advised by certain elements within NAMF is the answer.
It is a well recorded fact that often SMPs deliberately disregard what a former officer’s General Practitioner or treating consultant have said. Indeed Nicolas Wirz, solicitor for Northumbria police has been so unguarded as to write in his NAMF approved ‘guidance’ to SMPs that:
SMPs are likely to be more skilled at resolving disputes of medical fact [Para 4.12 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]
A common occurrence is for the treating physician to “fudge” the issue [Para 4.14 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]
In other words, a highly qualified, experienced specialist consultant’s opinion is nothing compared to that of some money-grabbing quack who has jumped on the gravy train of doing SMP work. Moreover, said consultant will be biased, whereas the SMP will be squeaky clean unbiased.
Come off it Wirzy-boy, pull the other one, it’s got bells on. Do you really think that you can fool anyone other than the intellectually-challenged likes of Cheng and Nightingale, etc. with this sort of manure? You have got dear old Karen thinking she is a High Court Judge who can ‘direct’ people to do her bidding, and good old Billy Chung Wing prefers not to engage his brain other than to remember where he has stashed all his illicit earnings. The rest of the medical profession have wisely elected to give SMP work a wide berth because of you.
But we digress – the case of Mr Y shows that the PO disagrees with Mr Wirz. In fact it leaves Mr Wirz’s claims naked. His imagined invention of an aura of being ‘judicially all-powerful’ is simply his cloak for SMPs to wear. Cloaks that make them feel better about themselves. Not only delusional cloaks, if cloaks can be delusional, but clearly not in accordance with fact that the SMP is acting as an employer’s agent.
An agent with a role defined in statute – but an agent of an employer nonetheless.
The SMP is no more a presiding judge than, say, a Custody Sergeant with his duties defined in the Criminal Justice and Courts Act 2015.
The PO declared that when it comes to Mr Y’s ill-health retirement there were relevant questions which should have been asked and that the employer and his medical adviser should not apply a selective restriction to the reports provided by the patient’s clinicians.
The PO’s decision could be exactly applied to the erroneous methodology preached by Wirz. The PO has said it is wrong for pension authorities, like NGF, to only take into account its medical advisers’ opinions as this, by it’s nature, will also take in irrelevant considerations.
So yet again the proclamations of Nicholas Wirz are proved wrong – SMPs must resist being brainwashed by the outpourings from this darkly dubious source into thinking the Regulations are too complex for the patient’s clinicians to comprehend. If the SMP has suspicions the clinician doesn’t understand the statutory question then he shall not dismiss the opinion outright, he should seek clarification. Put plainly, the PO says they should just ask:
It would not have been difficult to ask them, but this was not done; https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/
In the PO’s judgement NGF Europe held a dismissive view of important reports and it was wrong for it to claim that it had enough evidence already and clarification was unnecessary. This arrogance conveys the impression that the decision not to award a total incapacity pension had already been made.
And so, onto the decision in respect of Ms E’s complaint to the PO.
This concerned the granting of an original injury award. The first SMP, Dr Leeming-Latham, made the decision to apportion Ms E’s injury benefit on nothing more substantial than than the appearance of a single entry in her GP’s notes dating from 1988 stating, “Depressional neurosis”.
Despite being told that a reconsideration of Dr Leeming-Latham ‘s decision (under regulation 32) would be a paper exercise, Ms E had the unfortunate experience of attending an appointment with Dr Cheng. Not only did Dr Cheng think the apportionment applied by Leeming-Latham was reasonable but he also considered the 1988 notes demanded an apportionment bedfellow, and commented that:
“general formal grievances that were not upheld and disciplinary proceedings should not be classified as an injury on duty”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-5477/police-injury-benefit-scheme/
You can see how Dr Cheng’s brain was working … when you are asked to review a complaint of inappropriate apportionment, why stop at one. Why not add further apportionment and then you can try to apportion the whole award away?
Seizing the chance with both hands to go gaga full-bore crazy, Dr Cheng continued by saying Ms E actually had a problem with her wrist, which was incorrect. On top of all this Ms E had expressed concern her papers might have been mixed up with someone else’s. She also said that Dr Cheng had told her he never gave anyone a 100% degree of disablement.
This was all taken to a PMAB, where the basis for the appeal was that Ms E disputed Dr Cheng’s opinion that her disablement placed her in Band Two for an injury award.
Ms E won the appeal and was awarded a band three award. The PMAB found Dr Cheng was wrong and concluded that the psychological impairment arising from perceptions of work events were the only factor contributing to permanent disablement and that apportionment was not appropriate.
A victory against the odds! The PO mentioned in his judgement that Ms E raised concerns that the PMAB appeared to exhibit bias. Ms E specifically called into question the unnecessary time delays, the lack of female presence, that there was no mention at the hearing of her being put under surveillance while on sick leave, nothing submitted relating disciplinary proceedings whilst she was on sick leave and the horrendous situation of the conflict of interest that existed as TVP’s Pensions Manager and Dr Cheng both sat on the national HR board for the PMAB. Ms E was awarded £750 for all the maladministration.
And now we can weave together the similarity between Ms E’s decision and Mr Y’s.
Just like NGF Europe Pension Fund’s modus operandi, both TVP and the PMAB “cherry picked” Ms E’s documents. Favourable reports from a Dr Logsdail were not considered and personal development reviews, papers relating to her grievances, newspaper articles criticising her, and emails from senior staff criticising her were all ignored by Dr Cheng and the PMAB.
Sound familar? TVP, as a pension authority, had a duty not to have a predetermined decision in mind. But they used Cheng and Leeming-Latham to get the result they wanted by ignoring everything that contradicted their point of view.
This is exactly what the PO is getting at in the decision of Mr Y.
The simple message for all police pension authorities is to keep this in mind: you only get one chance to do things right the first time.
Why not dispense with your biased SMPs and save money and improve the quality of injury award decisions by making fewer mistakes and learning more from those you do make. Tell the SMPs you use to look objectively at all the evidence placed in front of them. Stop using Dr Cheng and the number of appeals will plummet.
This means also put the Book of NAMF in the bin where it belongs.
It must be better, quietly and without fuss, noise and bluster, to aim to get things right in the first place rather than having to forced to put them right through expensive appeal and complaint processes. You may well think that the likes of Cheng and Wirz save you money. You would be wrong to think that. The legal challenges you are facing now are only the tip of the iceberg.