Reasonable Adjustments & Disability Discrimination

“Hope
Smiles from the threshold of the year to come,
Whispering ‘it will be happier’…”
― Alfred Tennyson

For IODPA, the most shocking thing about 2016 wasn’t Brexit, or even the election of Trump. Such ballot-box revolts are to be expected in an era when politics has become so paternalistic and government (and it’s sub-bodies) so estranged and, literally in some cases, out-sourced from the public.

Sadly we’re used to seeing the truth being obfuscated by those senior police staff, the ones who pretend they are in fact the police pension authority when the the scheme of governance says nothing of the sort.

Beings such as Wirz (Northumbria),  Supernintendo Markay (Merseyside), Julian Kern (A&S chief finance officer) & Stephen Mitchell (Notts HR) are bureaucrats that want to abuse the Regulations and then seek to claim credit for cutting costs (when ironically the appeals they create end up costing more); all along applying political strategies, including agenda limitation, scapegoating, ‘passing the buck’ and ‘jumping on the bandwagon’, whilst retaining the politician’s motivation that is driven primarily by the desire to avoid blame. 

No… what has shocked and disturbed us the most this year is the lengths that some doctors, the selected medical practitioners, go to to oppress both those injured police officers and those medically retired. Especially the energy they use in ignoring the medical need of those forced upon them and simultaneously making over-bearing threats of enforcement to their diktats.  This amounts to nothing short of bullying.  One such heinous example is denying the right to allow a  companion into the medical assessments.

Want to take along a Fed rep who knows the Regulations?  Dr Karen Nightingale won’t allow them in the room. Nobody.  Not even a spouse.  She enforces that you have to go alone to be interrogated on pain of ‘non-compliance’.

There is a pattern to the stories we hear.  Everyone of these SMPs reported to us in 2016, those who scream their zealous decrees and threaten the reporting of non-compliance with no hope of appeal, have attended a Northumbria sponsored training seminar that was hosted by Nicholas Wirz the solicitor of that parish, and was organised by the College of Policing.  For those only with a strong constitution, here’s his presentation again.

In 2017 we are planning on releasing a series of posts that will arm you with knowledge of the Equalities Act 2010 (EqA) and for those in Northern Ireland, the Disability Discrimination Act 1995.  note: In the UK the DDA has now been repealed and replaced by the Equality Act 2010, except in Northern Ireland where the Act still applies.

Wirz ‘trained‘ SMPs, like Nightingale, Cheng and Broome, think that their role as a SMP lifts them above the hierarchy of UK law.  They think that a medical question defined with a secondary instrument means that they can ignore the primacy of Acts of Parliament, such as the Equality Act 2010 (EqA).

Quasi-Judicial.  That’s what Nichola Wirz attempts to brainwash the delegate SMPs who attends his training seminars into thinking.  Quasi means semi, thus, such bodies which have some characteristics of a judicial body but are not strictly bound by the rules of procedure (unless provided by law) are quasi-judicial bodies.

Here is a sample from the book of Wirz:

In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPOLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So in this training seminar, Wirz bizarrely declares that these doctors have a similar power to Coroners.

One fault in many of Wirz’s assertions, is that whilst the role of a coroner is defined is primary legislation – the Coroners and Justice Act 2009 – there is no such legislation defining the role of a SMP.  A medical authority has no power under any Act of Parliament to act as a judge – they are a medical authority and as such are under the remit of the GMC.

Remember that the statutory question asked under the Regulations is a medical question.  A medical authority is defined as requiring registration with the GMC in the Medical Act 1983, specifically in the prosaically titled part two of this act: “Medical Education And Registration Persons Qualifying In The United Kingdom And Elsewhere In The EEC”.

A person is disabled under the EqA if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  Being permanently disabled in relation to Police Injury Regulations means the EqA applies in most circumstances when dealing with injury awards.

Even Coroners aren’t exempted.

So you will see over the next few months a series of blogs looking into disability discrimination and how SMPs and HR employees are failing to give due reasonable adjustments to those medical retired or to police officers on long-term sick leave.

There is no defence against disability discrimination to say ‘processes were followed’.

Reviewing band threes or fours purely because they cost the most = discriminatory.
Setting a five year interval on those you reduce and twelve months on those you increase = discriminatory.

This quasi-judicial phrase spouted by Wirz gives SMPs the false impression that they can do whatever they want, to whomever they want. But another quasi-judicial process has fallen foul of the EqA already when Atos and the DwP faced humiliating legal defeat after Appeal Court judges upheld a decision that the Atos assessments for sickness and disability benefits discriminate against people with mental health conditions.

The injury award process is universally and unnecessarily harsh to all.  Drs  Nightingale, Cheng, and Johnson act like Inquisitor-Generals rather than doctors.  The process is bad enough when the serving or former officer is physically disabled but magnified exponentially for those with PTSD.  Failure to make reasonable adjustment to those with mental illness was dealt with in Secretary Of State For Work And Pensions V MM & DD wherein Lord Justice Elias stated that:

“the Tribunal identified various ways in which [Further Medical Evidence] would assist [people] with a range of mental disabilities, and in my judgment there was sufficient evidence to justify the conclusion that [mental health patients] were placed, as a group, at more than a trivial disadvantage”.

One size does not fit all and this is exactly what our upcoming series will show.

Just because there’s a UPP process, it doesn’t mean it should be blindly pursued (Buchanan v The Commissioner of Police of the Met).  A policy of reducing a person onto half-pay or no pay doesn’t mean the process has to be applied to a certain individual (O’Hanlon v Commissioner for HM Customs).

Conversely, we will show when some SMPs say, despite evidence of the opposite, someone isn’t permanently disabled and they should be retained with ‘reasonable adjustment’, that they are not considering the judgement of Hart v Chief Constable of Derbyshire Constabulary 2008 where it was made clear that:

Tribunal did not err in law when it held that the requirements of the regulations which necessitated training and experience in confrontational situations were what it described as an “irreducible minimum” in the training of police constables and it was not therefore open to the respondent to make an adjustment which would have the effect of waiving the strict requirement under the regulations that an individual must be fit physically and mentally to perform the duties of a police constable.

The EqA has quite a far-reaching application.  The case of Paterson v Commissioner of Police of the Met held that a senior police officer had a ‘disability’ within the DDA because of the effect his dyslexia had in a high pressure exam for promotion. The exam was a ‘normal day-to-day activity’.

Those injured on duty have to to deal with their injury on a normal day-to-day activity – in a much, much more life-inhibiting and extreme fashion.

So, even self-declared quasi-judicial SMPs have to abide by reasonable adjustments.  We plan to discuss in more detail Rackham v NHS Professionals Ltd [2015] UKEAT/0110/15.  This Employment Appeal Tribunal categorically asserted that:

“a Tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments to accommodate the disabilities of Claimants.”

In other words, everyone involved in the Regulatory process and resultant medical question, from HR drones, to SMPs, to PMABs have to accommodate reasonable adjustments – even, cough!, coroners SMPs aren’t exempt.  And over the next few months we will tell you how your rights should upheld, including informing SMPs that if you need help and a companion in their assessment to assist you in your disabling medical condition, then company you shall have.

Buckle-up for 2017.  It’s going to be an eye-opener.