Month: February 2017

ESA & Kier’s Cataclysmic Communication

ESA & Kier’s Cataclysmic Communication

“It is easier to get forgiveness than permission.”
Stuart’s Law of Retroaction

Let’s talk about Kier and ESA – no, they are not a comedy act on some obscure daytime TV channel, but they might as well be given the custard pie that Kier has recently thrown at disabled former officers.

Kier is a huge public company, noted primarily for major civil engineering construction projects, house building, commercial property development and for providing a range of services to businesses such as asset management, energy saving solutions, logistics, fleet management, highway and waterway management, and now, the administration of police injury pensions.

ESA is a State benefit – employment support allowance – which is intended to provide financial help to people who have an illness, health condition or disability that makes it difficult or impossible to work.

Several forces have signed contracts with Kier to take over the role of the traditional County Hall payroll department and to do the admin work involved with police injury pensions. We assume they also handle the admin on other police and civilian employee pensions, but here we are only concerned with injury pensions.

Some bright spark, perhaps within Kier, or more probably someone sat at a desk in Northumbria, has come up with what they think is a corking good plan. They have noticed that the Police (Injury Benefit) Regulations 2006 were recently amended. This is what the relevant regulation used to say, (and I will paraphrase for the sake of simplicity):

If you are entitled to incapacity benefit, then your police pension authority will deduct from your injury pension an amount equal to that of the incapacity benefit.

The amendment merely substitutes employment support allowance for incapacity benefit.

The bright spark, or as time will tell, the not so bright spark, has not thought things through, for Kier have been asked (or decided themselves) to send out letters to all injury pensioners who they administer.

Here is the letter:

ESA Kier letter

And here is the form which accompanied it:
ESA Kier consent

The gist of all this is that the police pension authority would like the Government to pay out ESA to all who qualify so they can trim a wodge of cash off the injury pension budget, and spend the savings on things like refurbishing the CC’s private loo, or buying a shiny new car with hidden blue lights and siren for the force’s solicitor.

You can see their point. As always the smell of money drives completely out the window all common sense and all semblance of decency, and all considerations of the needs and feelings of vulnerable disabled folk. And the Regulations do say that the PPA ‘shall’ make these deductions. Looks like a slam dunk case – if you have not taken the trouble to think things through, and have relied on the expectation that IOD pensioners will do as they are told, without question.

But, there are flaws in the plan. Kier write that, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant: it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made.’

Legally, this is a correct statement. It is its implications which need examining. We know this letter has caused a lot of head-scratching amongst IOD pensioners, and we also know that unfortunately it has caused a lot of raised anxiety levels and other unwelcome and harmful reactions – and that’s putting it mildly.

Pensioners who are in receipt of ESA – and we think there will be very few – have no immediate problem. They know where they stand. All they have to worry about is whether Kier will take the actual equivalent amount from their injury pension, or will take a gross amount, thus leaving them out of pocket.

It is pensioners who don’t receive ESA, and who thus don’t know whether they are entitled to it who are being upset.

They can’t know whether they are entitled to ESA without actually making application to the DWP for it. They rightly and understandably are querying why they should be put to this trouble. Some have made tentative enquiries with the DWP and are told that they probably would not qualify. We won’t go into the detail here, but it seems more likely that more IOD pensioners will not be entitled than those who would be.

The issue here is that there is no duty, no requirement, no legal imperative for any person to claim any State benefit. If their choice is not to make a claim, then that is up to them. Nobody can tell them to make application for ESA. Why would anyone see any reason to place themselves in the hands of the DWP, nice people that they are, purely for the benefit of the police pension authority?

The letter from Kier turns a bit nasty. It sets a deadline for a response from pensioners. It is an unreasonable deadline as nobody could complete an application for ESA and get a result in the time allowed. Worse, it is an unenforceable deadline. There is no legal authority behind it.

Kier than get even more nasty. There is a veiled and rather vague threat:

‘Failure to respond (by the deadline) will mean that we are unable to correctly assess your level of injury pension.’

To which the response which immediately forms in our heads is, ‘So what?’ What are Kier going to do?

Well, the answer is, to quote our American cousins, diddly-squat.

Logically, Kier were happily paying your injury pension at the correct level before they sent out the letter, and the absence of knowing whether you are entitled to claim ESA or not does not alter that situation. If you were to chuck the letter in the bin Kier would have no option but to continue paying your pension as normal. Kier could not deduct an ESA equivalent because it is legally bound to only do that when it knows, for certain, with evidence of proof, that an individual is ‘entitled’ to ESA.

In their own words, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant:  it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made’

If Kier doesn’t know, and the pensioner doesn’t know, and the DWP doesn’t know, then Kier can not be in a position to deduct anything.

Now we come to the attached form, which Kier call the ‘authorisation’.

We fully appreciate that pensioners ought to let Kier know if there are changes in respect of relevant benefits received. Nobody is suggesting that IOD pensioners should get more than is their right, and equally none should be paid less than is their right.  However, there is a broad river of difference between an actual change, and an entitlement. If you don’t know whether you are entitled to ESA and don’t care to be bothered to find out, then that is not a foul.

Kier wants pensioners to give permission, via Kier, to the DWP for the DWP to tell Kier details, ‘of any benefits which I am entitled to receive wholly or partly (whether in payment or not) in respect of the relevant injury.’

Well, we are sorry to say to Kier that the DWP won’t have that information. The DWP can’t possibly know whether anyone is entitled to any benefit until and unless they actually apply for it. On that basis, the request for permission is a fishing expedition, and amounts to asking for unlimited, unrestricted access to every detail of all benefits, whether specified in the Regulations or not, for the full lifetime of the individual. Anyone who gives such permission would be unwise in the extreme to do so.

The letter, and the ‘authorisation’ form are poorly worded, capable of causing confusion, logically inconsistent and are coloured with poorly-disguised threats. It does not reflect well on the standards of this multi-million pound industrial company and smacks of being a letter they have cobbled together with little thought.

Kier are hoping for quiet acquiescence, and are trusting that pensioners will do what they are told. As evidence of this, we report the experience of more than one pensioner who have rung Kier to query the letter and the ‘authorisation’ only to be told, and we quote verbatim, ‘Don’t worry about it. Just tick the top box and send the form back to us.’

Amazing!  Kier are saying that they don’t care a jot whether you lie on your form. Just fill in that you don’t get ESA and they will leave you alone. Never mind that would be lie, which would be fraud. It might even be conspiracy to defraud by you and by Kier.

We don’t think Kier’s heart is in this custard pie fight. They have thrown the first pie, and must realise that quite a storm of pies will be flying back at them.

IODPA says to any IOD pensioner who has concerns about these letters and forms: seek professional advice from an independent expert, such as a solicitor. Don’t rely on local NARPO or Federation to give you sound advice, for with the best will in the world they won’t know how to deal with this unusual situation. If you are unsure what to do about the form, then the best course of action is to do nothing. Wait until the custard pies have hit the fan and see what Kier do next.

We anticipate that nothing bad will happen, and, to extend what Stuart says, “It is easier to get forgiveness for not filling in a stupid form than to sign that permission and regret doing so.”

Independent report published into allegations regarding former police doctor – Avon & Somerset Police

Independent report published into allegations regarding former police doctor – Avon & Somerset Police

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.~Deputy Chief Constable Gareth Morgan

Operation Hay Independent Investigation Report
Operation Hay Avon & Somerset Police Response
Independent report published into allegations regarding former police doctor – Avon & Somerset Police

Reviews are just like painting the Forth Bridge, claim Merseyside

Reviews are just like painting the Forth Bridge, claim Merseyside

“Painting the Forth Bridge” is a colloquial expression for a never-ending task, coined on the erroneous belief that at one time in the history of the bridge repainting was required and commenced immediately upon completion of the previous repaint.  Such a practice never existed, as weathered areas were given more attention, but there was a permanent maintenance crew.https://en.wikipedia.org/wiki/Forth_Bridge

We have to laugh at the brass neck of Merseyside Police. According to Supernintendo Markay & Peter Owens the purpose of injury award reviews is to save money. That’s the stated, written into policy objective of the terrible-twosome who perform the dubious role of Merseyside’s medical retirement officers (MRO). They no doubt think that as soon as they have gone through the list and attempted to tar all IOD pensioners with the same band-one-brush, then hey-ho, it’s time to start up again to continue the misery, until everyone damn lot of them is whittled down to a band one.

The hypothetical question we have to ask is: once all are band one, will they wash the brush with white spirit, put the tar bucket in the shed and then leave the pensioners to peel and blister without applying any new coats ever again?  Will a single disabled former officer be left in peace, or will Merseyside ensure they all are reviewed regularly for the rest of their lives?

Both Markay and Owens are guilty of unleashing a form of barbarism against those injured on duty from this force, on the basis of a misconceived grasp of the Regulations, alternative truth, and spin. They intend, by their review policy to interfere in disabled people’s lives, to maintain them in a state of financial uncertainty, and to subject them to regular intrusive inquisitions, all in the name of their perverted and utterly unsupportable view of what the Regulations require.

They are determined, indeed, required by the force’s policy, which they seem to see as more important that the rule of law, to regularly demand that IOD pensioners declare any 10% increase in earnings. In the strange world occupied by Markay and Owens there is the belief that if someone sees a 10% increase in earnings then their degree of disablement will probably have altered substantially. However, they, very tellingly, have decided not to ask IOD pensioners to report a 10% decrease in earnings. They are not bothered by that inconsistency as fairness is not part of their game plan.

Do you remember this, below excerpt, from a letter penned by Owens to a person with an IOD award?  The bit about a salary increase is in red.  Note well that there’s nothing about a salary decrease.  In Owens’s world it’s a one-way-street with skills, and earnings dictating the degree of disablement. Leaving aside that the Regulations speak of the capacity to earn, not what might result from that capacity, we see again the one-sided, biased, money-saving objective. Gain a skill and your degree of disablement must have increased. No mention of skills eroding over time due to lack of opportunity to keep them honed and current. On this one way street, there is no traffic in the other direction. Skills can be acquired but never lost, earnings can increase but never decrease, co-morbidity can overtake the index injury never the opposite.

During the EU referendum campaign, there were many spurious overblown claims by leavers and remainers which ran fast and loose with the truth. Those scare tactics were but small fry, infinitesimally small fry, in comparison with the guff Markay and Owens are coming out with. For Peter Owens to create a policy to review injury awards and then to crow about the money he saved, whilst neglecting the laws broken and lives ruined, is an affront to truth and decency and reason.  It will cause suicides.  It may have already, we just don’t know all what happens after ‘they’ fire the gun at their target. No self-respecting citizen should put up with it.

We have a copy of Merseyside’s processes for the review of injury awards and it apparently relies heavily on a devoutly orthodox take on NAMF (now NWEF) guidance

Merseyside injury-pension-review-process-dj2016-161
(3 pages – hover cursor & navigate with bottom left arrows)

Advised not to have an age limit for holding reviews by a weasily solicitor plying his trade in Northern police force?  Don’t worry – have a limit anyway.   How can someone who has evidently heard of the word ‘discrimination’, even uttered by someone else, write such tosh?

The advice from the author of the NAMF guidance is that no upper limit should be used due to age discrimination. I have noted that some forces have considered using seventy years of age as an upper limit and to date Merseyside have used a ceiling of 65 years.

For the rolling review program, Merseyside policy ignores band one and focuses it’s attention more forcibly on those that cost the most.  Discrimination incarnate.

As previously reported injury award reviews have been prioritised with Band 4 reviews being undertaken first then Band 3 awards and finally Band 2. Band 1 awards are not subject of this review.

Of course, we regularly say that anything written by Nicholas Wirz automatically disqualifies itself. But it seems Merseyside take the spoutings of NAMF/NFEW that much further.  Take this rotten festering sore of a sentence found in page two:

When considering the implications of example 4 it is inevitable that a large proportion of ex-officers would have their injury awards reduced to Band 1.

Let us translate the above quote lifted from the policy.  They are saying if someone’s index injury has not improved, that if there are no jobs available that were not available or if no new skills are evident, but the former officer has developed cancer, then Merseyside are happy to reduce them to a band one.  Sod the consequences.

What about our more likely, real-life example that avoids Merseyside’s cliff-edge.  A former officer retired with physical injuries who developed a mental illness due to the adverse psychological effects resulting from being physically injured and disabled.  Over the years their injuries got somewhat better but their mental illness progressively worsened.  Should they be reduced to a band one by Merseyside?  Their disability is still a duty injury – they wouldn’t have mental health problems if they had not been injured on duty. It would be unlawful to reduce someone in such a situation, just as it is morally corrupt to reduce an injury pension because a person has cancer or Parkinson’s disease.  Why would Markay and Owens take a different position? … because they are delusional about the Regulations and blinded by their objective to save money, that’s why.

The 2010 Doubtfire (& Williams) judicial review sheds light on the truth that the focus is always on the disability, not the diagnosis.  We will return to Doubtfire & Williams (a dual hearing involving West Mercia and, quelle surprise, Merseyside) in another blog post.

What about the acquisition of skills being a two-way street?  As we mentioned above, Merseyside states that new skills can improve job prospects and thus earnings but nowhere does it say that the loss of skills, by being out of the job market, can reduce earning capacity.  Why is this?  Rhetorical question, of course.  It isn’t mentioned as this doesn’t allow Owens & Markay to work towards reducing all IOD pensioners to a band one.

Is anyone still in any doubt about the Mersyside’s nefarious position that reviews of degree of disablement are a cash-cow to recoup money? Look the last paragraph on page two.

In summary ten per cent of questionnaires sent out at this time have produced ongoing savings of approximately £30,000 per annum. [Exempt information section 40(2) Freedom of information Act, 2000, the personal data exemption].

We haven’t missed the stated implication that the questionnaire has led to the reduction, not the medical decision of a SMP.  Why employ a gun-for-hire SMP when a poxy and fallacious questionnaire combined with the stroke of Owens’s pen can do the dirty deed?

The policy sums up the elitism and arrogance and contempt for Regulations of those who just cannot accept that deserving people were given injury awards.

Wirz, Markay and Owens, and their coterie within the NFEW can’t get their heads around this. They are riddled with prejudice and are dismissive of the rights of disabled folk. They have produced policies and guidance which contravene the Regulations, and have done this not out of simple stupidity, but from a misplaced and wholly erroneous conviction that IOD pensioners need to be continually harassed in an attempt to reduce the impact of injury pensions on forces’ budgets.

Anyone with a brain can see that only a small minority of the people involved must actually believe the tripe that Merseyside uses to justify their position. They go along with it, for the sake of not poking their heads above the parapet. They value their jobs more than their conscience. Nor do those who are the named targets of our criticisms care to attempt a defence. They remain silent and acquiescent, for they dare not do otherwise. Our blogs remain unchallenged, for there is no riposte to the truth.

How can anyone with any knowledge of the Equality Act and the legal requirement for reasonable adjustments think that, just like the idiom of painting the Forth bridge, a future review can be scheduled immediately after the current one has finished?

Merseyside is disdainful of the law, and of the rights of disabled people:

On completion of this initial phase of injury award reviews the process will recommence and will be ongoing with new cases that have received awards in the preceding two years and also the reviews conducted at the start of this process will be due their next review.

Hogwash.

We now must speak in the language of revolution.  We must ‘rise up’. There is need for a ‘revolt’, by ‘force of argument’, against the dangerous madness of the policy espoused by Merseyside.

NARPO and the Police Federation need to take Merseyside to task and join with IODPA in condemning the concept of regular, repeated reviews.

IODPA’s advice to any IOD pensioner caught up in a revolving review program is they should seek redress in an Employment Tribunal for post-employment disability discrimination and subsequent victimisation.

Natural Justice: The Rule Against Bias

Natural Justice: The Rule Against Bias

Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.

British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.

The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding  maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.

The rules of natural justice

The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967)  the phrase “act fairly” was established making it incumbent on all  decision makers to act fairly. There are two parts to the rule:

  1. Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
  2. Nemo judex in res sua – “no one  should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.

Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua  extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.

Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.

Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates   how the Audi alteram parterm rule can apply.

Some Police Pensions Authorities (Chief Constables), HR, and SMPs  fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed.  Guidance only becomes a thing if the intention is to bend the rules.  Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.

The law is the form of the Police Injury Benefit Regulations and case law.  This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.

So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.

We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.

During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.

…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…[]

A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

This is nothing more than a shameful attempt to uniformly denigrate  good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.

However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.

The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.

 Now turning to the rule against bias  nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd Lannon [1969] CA.

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?

We think not for the following reasons :-

NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members,  force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for  SMPs who are meant to act as independent decision makers  to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?

The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?

Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.

SMPs  and the  HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look.  Both are eager to  convey how much money can be saved.

No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.

The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.

Don’t take our word for it,  she has been caught out writing to the Policing minister,  take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.

Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.

Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??

Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern.  It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?

So would the right-minded think police pensioners are treated fairly ? We think not.

The rule against bias compels decision makers to  leave aside prejudices and preconceptions In the case of  R v Bingham Justices ex p Jowitt (1974) QBD a  magistrate said

“My principle in such cases has always been to believe the evidence of the police officer.”

We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.

The test of apparent bias has  developed through  case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association [1960], Devlin LJ recognised:

“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.

Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] recognised:

“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “

In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant  appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for  the other party.  This case led to the  celebrated maxim:

 it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

During the inquest of “The Marchioness” disaster, the coroner was heard to have  described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating  the presence  of unconscious bias. A different  coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”

We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.

In R v Gough [1993], Lord Goff  formulated the test for apparent bias in the following terms:

 “the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.

The accepted test for apparent bias is from Porter v Magill [2001] HL, para 103:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.

We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.

Mr Wirz we would like to remind you of another  legal maxim:

 “The law is a shield and not a sword”.

Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews.  Does that not tell you something, Mr Wirz?

We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!

 

 

 

 

 

Toxicity travels: NAMF rebrands as NWEF

Toxicity travels:  NAMF rebrands as NWEF

It takes a lot more than a change of name to restore the reputation of a damaged brand…

Suppose you are eager to move forward with your determined but illegal mission to undermine secondary legislation but your plans have been hit by a series of serious high court losses.

Not only illegality, but also  a spectacular juxtaposition of incompetence and malevolence on your part, mixed with gross lack of judgement. Plus hubris. And arrogance. And sheer bloody-mindedness.

What are your options here?  Do you:

a) Learn from your errors and seek to quietly, but determinedly, rebuild your group’s reputation?
b) Put your group’s  ambitions on hold and invest in some capability-development training?
c) Simply change the name of your clandestine organisation?

But … a successful rebranding involves overhauling the goals, message, and culture – not just changing a name.

Unfortunately, it seems like Lesley Ann Knowles, the chair of NAMF  NWEF didn’t get the memo.

The Chair announced she had chosen the new title for the group from suggestions previously discussed and provided to her. The new name of the group being National Wellbeing and Engagement Forum (NWEF). A discussion was held around whether using the word engagement in the title of the forum may cause confusion. However it was agreed by the group that without engagement wellbeing may not be achieved, since effective engagement being important to receive and act upon the voice of the workforce.

Wellbeing‘ & ‘Engagement‘… Blurgh!!

Should be ill-being & alienate. NAMF has chosen to rebrand themselves with a new acronym, the words of which mean the opposite to their true objective.  Words they’ve pulled straight out of the psychobabble and buzzwords prevalent in HR jargon.

Read their December 2016 minutes here:  [toggle pages with bottom left arrows]

December-2016-6

The Judicial Fallacy

The Judicial Fallacy

“All the fallacies of human reason had to be exhausted, before the light of a high truth could meet with ready acceptance.”
Friedrich Max Müller

Here at IODPA we are seeing regular references, made by people who should know better, to the Selected Medical Practitioner (SMP) having standing  akin to a Coroner or a Judge with case management powers. Indeed some SMPs have referred to themselves as being involved in a judicial process and acting as judges  (not only have we had anecdotal feedback incorporating these common themes, we have seen the reports containing such fallacious proclamations firsthand).

Before we look at the veracity of these claims  and their origins a brief understanding of the law is required. So lets test the proposition; is the claim of an SMP being a Judicial Office Holder valid or a convenient  invention?

Origins

The doctrine of Parliamentary Sovereignty is the cornerstone of our democracy. This legal doctrine means that parliament makes the law in the form of Statutes and gives authority to the provision of secondary legislation such as the Police Injury Benefit Regulations.

The Brexit debate and recent Miller case has brought this sharply into focus. In the Simpson High Court Judgement it was ruled that the attempt by a Home Office Civil Servant to issue guidance undermined Regulations and Case law. You cannot usurp Parliamentary Sovereignty and import meaning or intention which does not exist. The Home Office withdrew its guidance and directed Chief Constables to legislation and case law as referenced in the Simpson Judgement.

NAMF

The rule of law is another fundamental concept in our legal traditions. As Police Officers we had to accept the decisions of the courts after all we were servants of the law. The Home Office had no choice but to rightly recognise their errors when they were ruled to have acted unlawfully by Mr Justice Supperstone, and (with rapped knuckles and burnt fingers) withdrew their guidance as not to prolong their humiliation.

This unlawful guidance was much, much more than just a costly mistake.  Arguably it was pursued voraciously by some forces with eyes wide open.  It made many injured former Police officers face financial ruin including homelessness as well as the emotional trauma.  The costs to the taxpayer were enormous and the only winners would appear to have been the SMP’s paid to conduct these reviews and the Barristers acting for the Police.

Lessons were learnt by some, unlawful reviews were suspended.  The country’s largest force, The Metropolitan Police, does not undertake reviews unless requested by the former officer. However, there were those who couldn’t accept the rule of law; after-all, they parochially thought, why should those who were unable to work or have their earning capacity reduced, having put themselves in harms way and lost their careers and become disabled, receive an injury award?

Well, we have yet to meet a HR minion who has walked a mile in our  shoes, or any distance for that matter. The award is deserved both morally and legally. Parliamentary intention was to recompense Police officers who could no longer serve due to their injuries, the bands reflected the loss in earning capacity. The explanatory memorandum to the Police (Injury Benefit) Regulation was prepared by the Home Office and had been laid before Parliament by Command of Her Majesty; it says without ambiguity that police injury awards:

“…[] are in effect compensation for work-related injuries”7. Policy background EXPLANATORY MEMORANDUM 2006 No.932

The void created by the Home Office withdrawing from providing any central guidance was filled by the National Attendance Management Forum ( NAMF ).  Perhaps the Home Office considered that having a proxy would avoid them again facing the wrath of the High Court.

Interestingly not all 43 forces are involved in NAMF. That speaks volumes itself. NAMF is now chaired by the Head of Human Resources at Northumbria Police, Leslie-Ann Knowles, and it’s chief legal advisor is Nicholas Wirz – Solicitor of Northumbria Police. NAMF delegates  have included FMAs, SMPs, PMAB members, HR managers and Force Solicitors  as well as Mr Trevor Forbes who represents Police Forces at PMAB.

Naturally, we at IODPA are concerned about this as it would appear to breach the rule against bias. We’ll leave that issue for another blog and a High Court case submission.

NAMF has devised its own guidance , section 4.3 Case Management Powers of an SMP, there is reference to a quasi-judicial process. Some SMPs have been told they have powers similar to those of a Coroner or a Judge at NAMF training events. The SMPs have repeated this erroneous view in their assessments.  A recurring theme in some reports made by SMPs who have attended courses presented by Wirz, is that they claim the position of ‘SMP’ empowers them to be able to make any direction or demand.  No matter how unreasonable, discriminatory or contrary to primary legislation that demand actually is.

Serving and retired Police officer’s have told us about their assessments, the SMP likening themselves to a judge is a recurring theme.  So the phoenix has risen from the ashes and the Home Office Guidance has been resurrected in the form of NAMF guidance. Our members have repeatedly, and wrongly, been told by SMPs and HR staff that NAMF guidance is mandatory and must be followed.

There is a direct correlation to those forces involved in NAMF, unlawful reviews PMABS and JRs.  Mr Wirz, whose zealousness is not diminished by losing previous High Court cases, continues to spread his views which have no anchor in law.

Compare and contrast

The role of SMP is cited in the regulations. They are medically qualified doctors (or should be, we have encountered a physiotherapist). NAMF have introduced the mandatory requirement that membership of the Faculty of Occupational Medicine is required. SMPs are selected by individual  Police Forces. Coroners on the other hand are experienced lawyers or medical professionals whose appointment is approved by the Chief Coroner and the Lord Chancellor.

Coroners are Judicial Officer holders and must take the judicial oath. Judges are recruited via the Judicial Appointments Commission, their appointment must be approved by the Lord Chancellor, again they are Judicial Officer holders and must take the judicial oath.

Training is organised by the Judicial College, similarly, a formal disciplinary framework exists for the judiciary.  So when did the foundations of constitutional law that has central importance to the maintenance of judicial independence fracture and rip to such an extent to allow SMPs become quasi-Judges and Mr Wirz and NAMF the judiciaries’ training provider?  Of course, in the real world, there has been no such rupture.  The foundations of judicial appointment are still wholly intact.  Only Wirz thinks differently.  The edicts of NAMF cannot stand scrutiny.

The Simpson case should have acted as a warning. The Pensions Ombudsman case in Lightfoot v West Yorkshire Police at paragraph 33 encapsulates how innovation is occurring:

“….As has been found by my office in other cases (for example, Ayres 27979/2 and Sharp 80008/1) it is not appropriate to try and impose a meaning on the relevant Regulations which they do not hold simply because the Home Office (or the WYPA) think that logically they should. This was an error of law, albeit that WYPA was following Home Office guidance and was acting in good faith.”

The status of the SMP has been pushed by NAMF from that of a Doctor to that of a Judge.  This leap has no basis in law.  Legal chicanery as a description does a disservice because this goes far beyond that into the realms of a fantasist.

Powers conferred on police officers by primary legislation, such as those defined by Police and Criminal Evidence Act, are a statutory licence that do not empower any judicial functions onto an Inspector, say, authorising a search.  Can that Inspector forgo the need to reasonably believe the premises may contain evidence linked to the offence in question?  Of course not.  Taking the illogical thinking of Wirz to the extreme, if the Inspector thought the same as a SMP, and considered they were a judge, they could ignore PACE and sign their own warrant of entry.

The SMP is not a judicial office holder but a doctor  – a medical authority asked to answer a statutory question based on available medical evidence, in the same manner as a power of entry and search under s18 cannot be exercised without the statutory requirement of prior written authorisation of an officer of the rank of inspector or above.

A SMP can’t invent evidence.  He isn’t a judge in an inquisitorial system –  a legal system where the court or a part of the court is actively involved in investigating the facts of the case.  He is a doctor; simply asked a medical question that statute demands a referral to him or her by a police pension authority.  Statute does not gift any magical power to answer the question – only to use his medical training to make sense of the medical information presented to him.

To suggest otherwise is a fallacy.

 

 

 

 

 

 

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...