Month: March 2017

Ms Doubtfire & Mr Williams

Ms Doubtfire & Mr Williams

“And what physicians say about consumptive illnesses is applicable here: that at the beginning, such an illness is easy to cure but difficult to diagnose; but as time passes, not having been recognized or treated at the outset, it becomes easy to diagnose but difficult to cure.”
Niccolò Machiavelli, The Prince

A 2010 judicial review had far-reaching implications for former officers in receipt of an injury on duty pension on the distinction between a diagnosis and a disability. We will take a look at it in this blog, but apropos of nothing more than amusement, note that the surnames of the two disabled former police officers appellants give the real name and character identity of the actor in a film which combines slapstick comedy with a poignant look at a broken marriage.  Hmmm? There is a fair bit of comedy in the pathetic efforts of some HR managers, who love to pretend they are something they most certainly are not. As Mrs Doubtfire (the character) might say, ‘Well my dear, they puff and pout and blather in a vain effort to appear professional, but they consistently fail to live up to their own low standards.’

Doubtfire & Williams, R (on the application of) v West Mercia Police Authority & Merseyside [2010] EWHC 980 (Admin) (14 May 2010)

This case changed how ill-health retirements and injury awards are conducted.

Doubtfire & Williams supplanted another judicial review which occurred just prior to it – that was the one where, in a ridiculously bizarre situation, Northumbria Police’s in-house solicitor Nicholas Wirz took his own doctor, Dr Jon Broome, to the High Court. (That case is Dr Broome (Industrial and Organisational Health) v Northumbria Police Authority – 2010).  You won’t find the Broome transcript on the bailli.org database (British and Irish Legal Information Institute) which is helpful as Doubtfire & Williams rubbished the point Wirz was trying to prove anyway.

In Broome v Northumbria, Northumbria conducted the legal equivalent of playing a game of shinty with itself.  Shinty is that rough-house where two teams of people hit each other with sticks whilst aiming for a ball. Wirz hired Sam Green QC to sue Northumbria’s own SMP, but despite his best efforts, this judicial review confirmed that when a review of degree of disablement is held a SMP cannot introduce into the assessment new medical conditions caused by police duties.   “Impuissant” means  powerless, ineffectual, feeble, or impotent – rather sums up this Wirz v Broome judicial review that even bailli.org doesn’t want show.

Anyway, bailli.org does have our Doubtfire judicial review in all it’s glory.  It post-dates, therefore over-rides, the Broome one and clarifies that the Regulations are concerned with the disability not the medical condition itself. The Doubtfire & Williams case had more to say about the diagnosis of the medical condition.

Appellant Ms Doubtfire served as a police officer with the West Mercia Police from 23rd October 1989 until she was retired by reason of ill health on 6th September 2008.  Even though her employers knew Ms Doubtfire had a history of underlying depressive illness she was posted to an extremely stressful and public-facing hate crime unit.  The stress of the role and a perceived level of insensitivity from her superior officers together with a lack of adequate line management at senior level aggravated her condition. There was a suicide attempt in 2004. She took sick leave in October 2005 and never returned to work. West Mercia, perhaps to their credit, or perhaps out of complete indifference, did not see fit to retire her on grounds of ill health until 2008.

The SMP in that process was a Dr Jackson who decided that her diagnosis was Social Phobia. Which is a condition classified in the International Statistical Classification of Diseases and Related Health Problems (ICD), a medical classification list by the World Health Organization (WHO).  The classification reference number is: (ICD10 F40.1)

The second jointly heard case involved Merseyside.  Northumbria & Merseyside are the panto villains of the IOD world.  It would be trivialising the subject matter and profound life-changing damning effects these forces have on the injured officers they attack to say this.  To imply a ‘panto‘ where villain is hissed and the poor victims “awwwww’d” would be improper.  But still, it’s always the same named employees salaried by the public purse that continually​ do this evil in a frequency beyond parody.

Appellant Mr Williams joined Merseyside Police in July 1991 and served with that force until he was required to retire by SMP Dr Smith because of Bipolar Affective Disorder (ICD10 F31.6), a condition which arose as a result of the refusal and repeated failings of Merseyside to help him with support and retraining. Mr Williams retired on the 4th September 2006.

After their ill-health retirement, both Ms Doubtfire and Mr Williams applied for an injury award.

Although the SMP for Ms Doubtfire, Dr Jackson, had signed-off the social phobia as a permanent disablement for the ill-health retirement, when he came to assess her for the injury award he performed a complete u-turn.  He decided that what he had diagnosed as Social Phobia was questionable. In his words, “should not be completely discounted”, but discount it he did.  He decided it was not the result of an injury in the execution of duty and that in any case the permanent disability was more to do with the depressive illness.

A similar example of the mercurial minds of SMPs was experienced by Mr Williams.  For his injury award he was put in front of a new SMP, Dr Vincenti, who brazenly over-ruled over-ruled Dr Smith, by claiming that he could find:

“. . . no evidence whatsoever from the history, examination of the documentary evidence, and from my examination of Mr Williams as well as my conversation with his wife, that he ever suffered from a bipolar affective disorder.”

But Dr Vincenti none-the-less approved the injury award, stating that his opinion was Mr Williams’s depressive illness had a precipitating cause linked to his work and in particular the lack of support. Dr Vincenti therefore concluded that the permanent condition from which the Claimant suffered, namely depression, was

the result of an injury received in the execution of his duty

True to form, Merseyside didn’t like this one bit and started judicial review proceedings against Dr Vincenti.  The case never went before the court as a compromise agreement was put into place for Mr Williams to be referred to a new SMP.  This time a Dr Staley of West Midlands Service for Police Psychiatry was asked to consider the regulatory questions.

After having his award approved by one doctor, it was now effectively taken from him by another.

Dr Staley stated in his 2009 report that:

Mr Williams’ reaction to the alleged bullying should not be considered an injury on duty in that if an injury did occur it happened as a result of his status as a police officer rather than as a result of his carrying out his duties as an officer.”

As might well be expected, Mr Williams appealed to a PMAB.  One of the board members, Dr Nehaul, changed the diagnosis yet again – this time to moderate depressive illness.

The PMAB all agreed that the moderate depressive illness was an injury on duty and therefore there was eligibility to an injury award.  But in a twist, they went on to say he suffered from a psychological impairment as a result of an injury on duty and this was a depressive disorder not Bi-Polar Affective Disorder, as diagnosed by the original SMP, Dr Smith.

The Board considered that as Dr Smith had, in its opinion, certified the wrong diagnosis then it could not decide Mr Williams was entitled to an injury award!

In other words, his permanent disablement that necessitated his ill-health retirement was, in their view, wrong and even though he had been injured on duty then they could not give him what he was entitled to, due their interpretation of a point of law.

These events led both Ms Doubtfire and Mr Williams to a judicial review as a joint appellants, to be heard before His Honour Judge Pelling, QC.

Of course a cynical mind might say that the SMPs involved were quick to decide upon permanent disablement when there are no cost implications to the force, but become truculent in such matters when financial exposure means it’s in their employer’s interest to refuse to grant injury awards.  An ill health retirement is funded by the contributions made by all officers during their service. An injury pension stands to be paid out of the force budget.

The experiences of Doubtfire and Williams is closely reminiscent of the previous history of forces using medical retirement as a personnel management tool when central Government funds picked up the tab and has similarities with the current trend of nowadays never medically retiring anyone and keeping ill and damaged serving officers in limbo.

The Doubtfire & Williams case shows the problems which can be caused to injured officers when doctors argue between themselves over medical opinion.  It shows the farcical potential of the injury award procedure in glaring detail – a process where officers injured in the line of duty in certain forces can now expect to be royally done over if they apply for an injury award.

Merseyside and West Mercia lost this judicial review.  The former officers got the injury award they deserved and were entitled to.

Justice Pelling quashed both PMAB verdicts.  For Ms Doubtfire he said:

In relation to Ms Doubtfire, it is clear from the defendant’s report that it asked itself the wrong question namely whether “workplace events” might have led to Social Phobia. That was not the correct question. The correct question was whether her permanent disablement had been caused by an injury in the execution of duty.”

And for Mr Williams,

In relation to Mr Williams, exactly similar conclusions follow – the Defendant asked itself whether Bi Polar Affective Disorder was the result of an injury on duty. This was not the correct question as I have explained. The correct question involved asking whether Mr William’s permanent disablement was the result of (a) an injury, which (b) was received in the execution of duty.”

The judge’s explanation on why the wrong question was asked hinges on the Regulations.  The wording of Regulation 30(2) taken as a whole makes clear that the reference is to “…the disablement …”.  The diagnosis doesn’t feature.

Let us take a closer look at this Regulation.

30.—(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent,

except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations;
and, if they are further considering whether to grant an injury pension, shall so refer the following questions—
(c) whether the disablement is the result of an injury received in the execution of duty,
 and
(d) the degree of the person’s disablement;

The questions have to be answered sequentially at each stage in the process. The decision made are required to be final, (subject only to appeal or reconsideration).

Paragraph (c), the question of whether it is an on duty injury, is to the disablement in respect of which either the disablement questions identified in (a) and (b) have been answered affirmatively or the disablement is one to which the proviso applies.

The Regulations do not call for a diagnosis.

In the Doubtfire and Williams case we have seen the sorry mess that medically qualified, but largely legally ignorant doctors can make of what is a very simple matter. Of course, permanent disablement has to be of a qualified medical condition (affirmed in the Clementson & Doyle judicial review – Northumbria AGAIN!), but even if a doctor is unable to give it a classification or is uncertain as to exactly what the condition is, that does not prevent them from deciding that it is an injury on duty which is likely to be permanent.  It is a medical question after-all that needs to be answered.  But this is only for the purpose of demonstrating that the relevant disablement has been caused by an ” … infirmity of mind or body“.

Once that test has been passed it is only the answer to the question whether the officer is permanently disabled that is final and the causation to it that is binding.

Justice Pelling clarifies this point with an example.  If a former officer is refused an injury award on the basis of a flawed diagnosis then he has the avenue to appeal the decision to a PMAB.

Imagine though if the former officer is given an injury award, the permanent disablement is obvious but the diagnosis is factually incorrect as the SMP has little experience in such a specialism.  The former officer has no incentive to appeal as he has the end result he applied for, notwithstanding the diagnosis is a bit topsy-turvy.

This position is affirmed in Regulation 31 – the power to appeal a decision to a police medical appeals board.  A former police officer has the power to appeal when they are “… dissatisfied with the decision of the [SMP] as set out in a report under Regulation 30(6) …”.  They do not necessarily have the same right to appeal with regards to the contents of the report other than the decision.  Mistakes in the content of a medical report can be remedied by withdrawing consent until the errors are rectified by use of the Access to Medical Reports Act (AMRA).

Parts (a), the disability and (b), the permanence of Regulation 30(2) can not be revisited if the question of the injury award is not decided concurrently with the question of ill-health retirement.

The arguments Merseyside and West Mercia presented to the court, if they had won, would lead to the absurd situation Mr Williams found himself in – a purgatory where someone could be permanently disabled and medically retired but not disabled permanently enough for an injury award.  Just because two medical practitioners have a difference of opinion.  Too ill to be recalled to duty but now not having a disablement sufficient for the ill-health retirement just given – a limbo position existing nowhere but upon the borders of Hell.

Justice Pelling put this into legal speak:

If the analysis identified above is adopted then the absurdity that so concerned the Defendant Board in relation to Mr William’s case – that is that the permanent disability of the Claimant was caused by an injury and was caused in the execution of duty but the Defendant was precluded from answering the causation case in favour of the Claimant because it did not agree with the original diagnosis – cannot arise.”

So it is the disablement that matters, not the diagnosis.  And if the disablement for the ill-health retirement is the same as those applied for in the injury award then the questions of permanency and disablement are answered and can not be revisited.

But what happens if someone is retired on a medical grounds for a non-duty injury and after retirement applies for an injury award?

Justice Pelling covers this succinctly and says no paradox is caused.

When an officer suffers a permanent disability otherwise than in execution of his duty but sustains another disability thereafter then his or her permanently disability will have been established for retirement purposes and does not have to be established again.
However, in relation to any claim for injury benefit by reference to the subsequent duty injury all three questions (the disablement questions and the causation question) identified in Regulation 30(2) will have to be answered.
This is not because it is relevant to the retirement decision but because on this hypothesis all three will be relevant to the question whether injury benefit should be paid by reference to the permanent disability alleged to have been caused by the duty injury.

Justice Pelling says that this way the absurdity of Merseyside and West Mercia  is solved,

Thus as I see it there is no risk of the sort of absurdity that the Claimant prays in aid arising, nor do I see this issue as assisting in the question that arises one way or the other.”

We can only hope that common sense prevails and that the sort of unnecessary trauma Ms Doubtfire and Mr Williams went through stops for good and the legal services of certain police forces stop this ‘gamesmanship’ interpretation of statute.

Until forces like Merseyside and Northumbria start to understand the harm they cause to disabled people and chose to take a more humane path, there’s always the possibility that they will continue to drag injured officers before the courts, only to lose.

We have said it before, and we will say it again. It’s all about the money. Some forces, like Northumbria and Merseyside have Chief Constables who fail to make proper differentiation between their duties in that office with their duty as a police pension authority. When acting as the former, they quite rightly must be prudent with their budget. When acting as the latter they must not take any account of the cost of decisions made in the grant of injury awards.

And on the matter of costs. It seems that 38 out of the 43 police forces in England and Wales have seen the light. They realise that it is illusory to think that reviews of degree of disablement will result in savings. The opposite is true. Unless the regulations are applied honestly, fairly, and properly, then about-to-be-retired officers and IOD pensioners will mount very effective challenges which will create unjustifiable costs to the forces concerned. SMPs, HR managers, and in-force legal advisors have proved time and time again they are not competent to administer the Regulations properly. The most ignorant keep thrashing around with their shinty sticks.

The sensible ones have stepped off the field.

Comparisons

Comparisons

“Comparisons are odious.”
Attr. to John Lydgate in his Debate between the horse, goose, and sheep, circa 1440.

In this blog we will be looking briefly at the inconsistencies, irrelevancies and plain old deliberate contrivances used by some HR people and some SMPs in their desperate and immoral attempts to swindle retiring injured police officers out of their correct level of injury pension.

It has become common practice in certain force areas for horses to be compared to geese and sheep. By which we mean that when a police pension authority sets out to retire an officer due to disabling injury on duty, they must assess the individual’s degree of disablement. To do this, some engage in an arcane and entirely invented process of comparing what the individual might be able to earn as a disabled former officer, with some other wage.

The ultimate idea is that if the individual could earn as much, or more, after leaving the job, then they would not disabled at all. However, even the most corrupt HR and SMPs tend to be wary of killing the goose which lays the golden eggs, so content themselves with merely manipulating the figures so that the result is a lower injury pension.

Of course, such an approach completely discounts the fact of the injury and the physical and/or mental disablement that the individual has suffered – and will continue to suffer. It has to be remembered that an injury award is only payable where the disablement is determined to be likely to be permanent.

What is at issue is how degree of disablement is arrived at. How HR and SMP collude to come up with a percentage figure.

A quick look at the Police (Injury Benefit) Regulations 2006 might help understanding.

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.

Clearly, most officers apply for an injury pension either shortly before or shortly after they are cast from their force. Equally obvious is the fact that all of them will be have lost their police salary, and it is fair to say that most of them will not have yet actually found a new job, and new earnings.

So, what HR and SMP do is to speculate about an uncertain future, and dream up a scenario where the individual because of their skills, qualifications and experience, might be hired to do a certain job, which pays a certain salary. None of this is reality. It is all maybe and perhaps. Nor is it grounded in practicality. Instead, it is simply assumed, on the thinnest of grounds, that the individual will get a job paying the amount selected.

That in itself is such an unfair and woolly way of looking at earning capacity that it is surprising that it has gained such a foothold in some quarters. We should not be surprised though, because the whole idea of this kind of speculation is to arrive at a degree of disablement which is less than the real circumstances of the injury would otherwise dictate.

If that approach is not bad enough, HR and SMP further collude to ignore the fact that police officers’ pay varies according to where they work. There is a national pay scale, but it is subject to local variation.

Workers in the capital are usually paid higher wages than they would earn elsewhere, as employers have to take account of housing costs and/or commuting costs.

There is increasing concern that the high cost of working in London, and in particular the high cost of housing, makes it difficult to recruit enough staff for the essential services, because people cannot afford to live within a reasonable distance of their work.

A police constable with five years service currently earns a basic salary of £28,098 plus ‘London Weighting’ of £2,373 – that’s some 8.5% more than a colleague in, say, Staffordshire, Merseyside or Northumberland.

The effects of the high cost of working in London spread a considerable way outside the encircling M25. Police officers in Essex, Hertfordshire, Kent, Surrey, Thames Valley, Bedfordshire, Hampshire and Sussex all see more in their pay packets than do colleagues in other forces due to something called the South East Allowance. This was introduced in 2001 in recognition of the additional cost of living in the SE of England. Its purpose was to ease issues of recruitment and retention in those forces to which it applied.

So, if HR and SMP chose to compare a high potential wage which they claim the disabled individual could so, in some far-off city, with their former police wage, why do they not take the pay of Metropolitan police officer as the baseline for comparison? And why are overtime payments, which certainly most officers achieve, not added to the calculation?

Some HR and SMPs don’t even use a police wage. They select a nominal figure drawn from data collected by the Office of National Statistics. They seize on an average national wage, which is itself a fantasy, being the result of a 1% sample of the population taken two year’s previously. You don’t need to be a statistician to grasp that an average is pretty meaningless, for in any sample of earnings of a large population, the overwhelming majority will be earning more or less than the average.

What have the HR minions and tame SMPs been doing wrong when they use a heavy dose of wishful thinking to invent the uninjured earning capacity comparator?  Justice Garnham, in Fisher v Northumbria sums up their deliberate mistake nicely:

Since all the claimants appearing before the Board previously worked as police officers, and since the precondition for a claim to an injury award is the fact that the Claimant suffered an injury on duty, the previous police earnings must, it seems to me, at least feature in the Board’s analysis.

Northumbria’s blameworthy brainwave was, as the uninjured Mr Fisher would’ve reached his thirty years, the police salary shall not be the comparator .  They thought wrong.  Those behind the NAMF/NWEF orthodoxy that saw fit to reduce Mr Fisher’s injury pension to a 0% band one never once did justify their position on what Mr Fisher would be earning had he not been injured.  The judge quashed the reduction to the injury pension and surmised that the PMAB:

[…] did not refer to anything evidencing a change in his uninjured earning capacity

The question which still taxes many minds is why their eagerness to find injured comparator jobs in cities with high wages reflecting the inflated cost of living but their consistent unwillingness to look at geographic differences in the uninjured comparator?

We think you can do an immigration job in Heathrow airport”, they say, “but we will use the comparator final salary you had when you retired from Devon & Cornwall Police”.

Justice Garnham continued:

The concept of “earning capacity” in the regulations imports no element of earning prospects and warrants no allowance for market conditions.

In other words, in matters not where the job is – what matters is the person’s ability to do the work.

But if HR are selecting well-paid city jobs and saying the injured officer can perform them in their disabled state, why aren’t they considering higher allowances for non-South East retirees for their uninjured state?

Just because they never served in London or the South East, doesn’t mean they never had the capacity to serve in London or the South East. Police officers can, and do, transfer between forces.  Likewise, if the SMP thinks there is no medical reason why a job in Cardiff can be performed when the former officer resides in Northumberland, where is the medical reason that the alternative uninjured officer couldn’t have progressed up the ranks had the disability not occurred.

This is the realism of the Fisher judicial review.  No longer can the uninjured comparator be, as Justice Garnham put it, based upon vagueness where the:

reasoning on the issue of uninjured earnings capacity is thin in the extreme

The next time a HR minion says you should commute a 600 mile round trip to work in the centre of Cardiff, put to them the question of why they are using a city wage for the job they claim you can do when they aren’t using the South East police salary for the job you can’t do now – but were fully capable of doing when fully fit.

We in IODPA must wonder how many injured and disabled officers were robbed of being paid an injury pension at the highest level – for being totally disabled – at the point of retirement. Surely if an individual has not found work, because they are physically and/or mentally unable to work, then it is wrong to speculate that they could work and earn at some unspecified point in the future?

The Regulations allow for changing circumstances, so if the disabling effects of an individual’s injury substantially improves a year or so after retirement, then the degree of disablement can be put  under review and the amount of pension paid revised accordingly.

The mathematical gymnastics performed with such poor grace but evident crafty nimbleness by HR and SMP are intended to produce a result giving degree of disablement a whole band lower than it should be, and in an increasing number of cases, to deny the grant of an injury award altogether.

Merseyside take contortions of the maths to the extreme with the physics breaking ‘Cirque du Soleil’ manipulations of Peter Owens.  Their questionnaire has the evil voodoo powers of prescience by incomprehensibly figuring out earning capacity in a handful of loaded questions.  When these words of Justice Garnham were read by Merseyside:

The Board simply did not address what the Claimant’s earning capacity would now be if he had not been injured. Even when addressing the possibility that he was suffering from PTSD or his loss of skills, it did so in the context of seeking to determine his injured, not his uninjured, capacity

… their so-called medical retirement officer must have fainted.  Most, if not all, of their degree of disablement calculations are now arguably unlawful and open to a reconsideration.

It’s about time HR minions and give-me-the-money SMPs are made to justify their back-of-the-fag- packet sums. We look forward to further judicial reviews which will build on the case law established in Fisher.

We fully expect that the odious comparisons used by HR and SMPs will be inevitably debunked and demolished. Horse, geese or sheep – their chickens will come home to roost.

The Fisher Judgement & Uninjured Earning Capacity

The Fisher Judgement & Uninjured Earning Capacity

Monsters are real, and ghosts are real too. They live inside us, and sometimes, they win.”~Stephen King

In the Autumn 2000 issue of the The Independent Review, Hans Sherrer published an article called The Inhumanity of Government Bureaucracies.

The article can be heavy going but the conclusion pithily sums up the ‘the whys and the hows’ which lead an institution like Northumbria Police to treat injured officers so voraciously.

Sherrer concludes that bureaucracies:

“are the institutional equivalent of a psychopathic individual”

And when you have psychopathic individuals in a psychotic institution, well – you can guess where this is going!  We have recently seen the result of what happens when an officer medically retired because of an injury on duty gets his degree of disablement unlawfully reviewed and his injury pension reduced. Then to be threatened with backdating of the changes so as to claim the individual has been overpaid his pension, by a huge amount.

Only a warped and vindictive mind can think it right to chase a person for something never owed and think they can claw back invented over-payments totalling £19,567 – to be recovered by deduction of £250 per month from the injury pension which had been unlawfully reduced from the highest to the lowest possible level.

The inevitable consequence of such insanity it that you end up with yet another judicial review.

Fortunately, in the world we are inhabiting the monsters do not win.  In this blog we are going to try to demystify the judgement where a certain monster was slain … Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455

The real importance of this case lies in Justice Garnham’s decision to quash a PMAB’s decision which had hinged on the uninjured comparator used by the Board.  But first we are going to explain why the judge declared that backdating the PMAB decision was unlawful.

The Backdating

Does the decision of a Police Medical Appeals Board to reduce a former officer’s pension banding takes effect from the date of that decision or from the date of the SMP’s decision being appealed, which in this case was 18 months earlier?

Although there are observations on this issue in decisions of the Pension Ombudsman (Henderson and Beale being two of many), there has been no case law precisely on the point.

There is now, thanks to the Fisher judgement.

In February 2015 Mr Fisher’s injury pension was reduced by Northumbria’s SMP Dr Broome from a band four to band three. Mr Fisher decided to appeal.

Eighteen months later a PMAB quashed the decision of Dr Broome.  The panel said Broome was wrong and then, incredibly, further reduced the former officer’s injury pension from a band three to a band one.

The key here is that the PMAB overturned the decision of Broome.  They didn’t uphold or modify the SMP’s decision.  Maybe if they had decided Dr Broome was quite correct then the decision would be affected from February 2015, but they didn’t (and this was not touched on by the judge), they said the opposite – that they disagreed with the SMP and they used new evidence to make that conclusion.

Justice Garnham concluded that,

‘It would be odd in the extreme if an appeal were to be decided on the basis of evidence of recent change in disability, yet the altered pension were to run from some earlier date.’

This does not effect other decisions, say a reconsideration decision made under Regulation 32.  Such a decision can be backdated as the heart of a reconsideration is as a mechanism to fix a previous wrong.  The decision is re-made ‘as if’ it was historic  – the reconsideration puts the decision maker’s scope in a narrow limit to the original available evidence (or evidence that should have been considered at the time but for reason was failed to be considered).

So, the lesson to be drawn is that if a PMAB reaches a new decision, then it can not be backdated to be effective from the time of the last decision, made by the SMP.  The corollary on any revision under Regulation 37 is when the PMAB quashes a previous SMP decision and the PMAB decision is not appealed the interim decison is the last final unchallenged SMP decision – in other words, the original decision or previous unappealed review, whatever the later.

This wholly consistent with the Pension Ombudsman decisions where he declares no revision to the injury award shall be made until all avenues of appeals are exhausted.

Uninjured Earning Capacity

Imagine a writer with literary aspirations who has never quite found any success writing popular fiction.  This writer just hasn’t quite ‘got the Midas touch‘. What he doesn’t realise is that he has a brain tumour.  It is this tumour, embedded in his frontal lobes, that means the spark, the x-factor, in his writing just isn’t there and his books never sell.

Remove this author’s tumour and the writer could be a number one best-seller.  The writer is disabled because of the tumour, which makes him a writer of only average success; the uninjured alter-ego is a writer of wondrous success; but both are the same person.

Stephen King once wrote some books under the pen name Richard Bachman, but the gag was blown by a book store clerk in 1985.  King immediately  killed off Bachman with “cancer of the pseudonym”. In his 1989 book The Dark Half,  he tells a story about a writer using a pen name  – it is the pen name that actually writes the great books, the author himself is just a journeyman – who is exposed and a murderous rampage occurs as a result.

How does this tale relate to the uninjured earning capacity of a medically retired police officer?  Ask yourself this question, how could the earning capacity of the uninjured author – perhaps a potential best-seller writer – be quantified?

Unless he comes into being, as the author of successful novels, it will remain an unknown. The same principle applies were he to be a potential employee of the year in a MacDonalds or top salesman in a used car dealership, or a successful security consultant. Unless he or she were to actually achieve those things then there is no point speculating about whether the capacity to achieve them is present.

But if there is evidence that the talent is there then the picture changes.  As any police officer will know, it is impossible to find evidence without looking. Once the ‘looking’ has finished there is then a need to evidence the justification on  whether nothing or something was found. Just telling the senior investigating  officer  that you did this or that enquiry or search is meaningless without a contemporaneous corroboratation; but this is exactly what Northumbria and the PMAB failed to do – thereby they tripped up.

Would you say anyone’s earning capacity is national average earnings?  If you are Northumbria police pension authority you would.  Bear in mind that national average earnings is not a real thing. Only a tiny number of people in the country will actually be earning that precise figure. As it is an average it shouts to us that the vast majority of workers earn more, or less, than that figure. To Northumbria police pension authority it is a real figure, worthy of being used as a yardstick for comparison purposes.

They quite happily spent hours and hours searching the job websites for jobs they thought Mr Fisher could not do (the injured earning capacity) and conveniently forgot (or deliberately ignored) to do any work on investigating Mr Fisher’s uninjured earning capacity – what the man could have done if he wasn’t injured.

Mr Fisher’s uninjured alter-ego (think of the injured writer’s uninjured pseudonym) could have worked as a police constable up until his 65th birthday in a force that has never effected A19.  This was a choice that injury took from him.  Instead of a Gatwick security guard, why didn’t Northumbria provide the highest salary available for a police officer of the same rank Mr Fisher had on his retirement?  Why didn’t they test whether, uninjured, he could have risen through the ranks?  Or left the police to become a city lawyer?

Currently the top police constable salary is £38,001.  This should’ve been the starting point.  Northumbria flatly, without due consideration, said £25,146.

Justice Garnham said the PMAB blithely, unquestioningly and unlawfully accepted the figure provided to them by Northumbria police:

‘Although the Board’s reasoning on the issue of uninjured earnings capacity is thin in the extreme, it is apparent from the single sentence at the end of its detailed case discussion, that the Board was accepting the Defendant’s figures for the appropriate uninjured earnings comparator.’

So the injured capacity to earn was weighted higher and higher upwards towards mid-range salary scales and jobs in thriving cities (and not where Mr Fisher actually lived) and the uninjured earning capacity was an arbitrarily, plucked out the air – an unreal average figure derived from two jobs plucked out the air by a faceless Chief Inspector, namely a job in Gloucester City Council and a detainee custody officer for G4S at Gatwick.  Only a shiny-bottomed Chief Inspector working in HR department could choose jobs not only lower in pay than the injured comparator mean but also a 670 mile round trip commute.

A bloated injured earnings number compared to, and higher than, a low uninjured earnings number will always equal a zero percent band one.  And that’s exactly what they did to Mr Fisher.  Northumbria weighted their scales of pension justice on the injured side with large rocks and the uninjured side with a bag of feathers.

Let us return to our example of the damaged author.  What happens if the injured side is dull, routine, Mills &  Boon, silk pillows and lace – damned to never sell in quantity – and the tumour-less comparator is a Tom Clancy-esque colossus made of heavy-weight gold?

Of course, it’s plain to see that now the task of a SMP, or a PMAB, when deciding degree of disablement in relation to injury awards is to make the proper comparison between what a person’s earning capacity is when uninjured, with what it is given the disabling effects of the duty injury.

In Mr Fisher’s circumstances the start, the base, the floor must now be the police salary.  It may be higher – there is no ceiling.

Police pension authorities need to return to the reality of things and to stop speculating about an individual’s earning capacity as it might be if he got a job which they randomly think he is qualified to do.

The take home from this case is that the work of police pension authorities will now have risen exponentially whenever they attempt to calculate the degree of disablement. They will need to be more grounded in reality, and to provide real, provable evidence of what an IOD pensioner is capable of doing and earning.

The Fisher judgement had common ground agreed by both parties.  It was accepted that there had been substantial change to the degree of disablement and the Regulation 37 test to allow quantum changes in R (Metropolitan Police Authority) v Laws [2010] EWCA Civ 1099 had been passed.

The PMAB decision was quashed because they chose the lowest figure they could to represent the uninjured earning capacity, and because of this, they could not give reason to it.  Justice Garnham was more scathing:

‘. . . the reasoning given must be sufficient to identify, at least, the basis for the Board’s conclusion. Even taking into account its interim report, the Board fails to give any explanation at all as to what it is about the Claimant’s condition or circumstances which mean that his uninjured earnings capacity is now fairly to be represented by the earnings for the two jobs suggested by the Defendant.’

When a police officer is given an injury award the original decision uses the current police final salary as the starting point. But then this judgement is saying only half the work is done.  By all means use the final salary as the starting point, but investigate and reason with justification why this injured person could have had a higher earning capacity than their uninjured earning capacity.

An invented example may be appropriate to illustrate the point.

Take an Oral and Maxillofacial surgeon who, after 10 years in the NHS, wants to join the police.  They excel in their police role but after ten years become injured on duty and are medically retired.  Like the successful author, this person had an uninjured earning capacity without a ceiling.  Private work, plastic surgery on Hollywood stars … the world, before the police and his injury, was his oyster.

Would it be fair to use his police salary as his uninjured earning capacity?  Only if you are a Nicholas Wirz. The surgeon has given up a career of healing the sick for one where he catches criminals, only to come up against a Wirz-trained SMP who has emulated the surgeon, but lacking the second part – for which he has substituted a willingness to abuse the Regulations.

This injured qualified surgeon and ex-police officer can’t return to his Harley Street office due to his injury but his uninjured earning capacity is still the money his surgeon-peers, the ones he idealistically left behind to join the police, are able to charge their rich patients.

Using a one-size-fits-all uninjured comparator is no longer good enough.  This is the take-home from the Fisher judgment.

‘The Board’s focus throughout its determination was on the Claimant’s injured capabilities and capacity, not on his uninjured state. The Board simply did not address what the Claimant’s earning capacity would now be if he had not been injured. Even when addressing the possibility that he was suffering from PTSD or his loss of skills, it did so in the context of seeking to determine his injured, not his uninjured, capacity. It did not refer to anything evidencing a change in his uninjured earning capacity.’

Anyone whose injury pension has been reduced on review by use of any sort of average earnings figure, or by use of the ridiculous Police Earnings Assessment Matrix (PEAM) which is favoured in some unhinged recesses of the police HR world, or any universally vindictive device that artificially replaces what disabled former officers could’ve earned uninjured with an ‘average’ have now the grounds to demand a reconsideration.

Did the police pension authority, via the delegate SMP, ‘do your legs’ by spending hours loading the comparison towards high injured jobs and low uninjured capacity?  If they did, then demand answers. Get hold of the figures they used. Ask how they selected them. If no acceptable answers are forthcoming, then hand matters to a specialist solicitor.

This essence of the case brought by Mr Fisher is that reviews are all about the individual.  The judgement declares that SMPs and PMABs can not just pull something out of thin air on wages and earning capacity and then hide behind their proclamation.  They have to be able to justify the reasoning.

The workload of HR departments and SMPs has just been catapulted into the stratosphere, and it is time they faced the monsters and ghosts which inhabit their twisted minds.

 

 

 

 

 

Wirz loses High Court challenge

Wirz loses High Court challenge

BREAKING: Northumbria and PMAB’s Regulation 37 methodology DEFEATED in a judicial review.
Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin) (08 March 2017)

Nicholas Wirz, Northumbria Police’s principal solicitor as well as the National Wellbeing & Engagement Forum’s (NWEF/NAMF) self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.

A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon.  This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1.  It is the culmination of a 11 year battle fought against Wirz and Northumbria police.

Shockingly this isn’t the first time Mr Fisher has had his injury pension unlawfully reduced.  The Journal (along with The Chronicle, it is part of the North East’s most popular newspaper group) printed in 2008 a feature concerning the odious vendetta of Wirz against this former officer.

In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal.  The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.

He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand.  This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.

The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB:
Bitten policeman battles off bid to slash his pension

The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.

We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.

The decision of the PMAB has been quashed by Justice Garnham.  Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned.  Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker.  The corollary is that picking random jobs has to be justified and reasoned.

The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:

  • The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
  • Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.

 

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...