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.






The Fisher Judgement & Uninjured Earning Capacity

7 thoughts on “The Fisher Judgement & Uninjured Earning Capacity

  • 2017-03-29 at 10:31 am

    This is what happens when IOD pensions rules and regulations are not followed properly. The lengths Northumbria Police HR, FMA, and PMAB went with this has been a very difficult journey for the Fisher family. Bit it is now, hopefully all put right! It seems each and every IOD retirement and review through Northumbria Police needs to be investigated as to what earnings levels were used in each and every case IOD pensions and retirements to ensure that they are legally decided! In fact, this JR result should have every force checking that they are in the right when deciding these matters.

    I thank God yet again for IODPA being here to help all the IOD pensioners who have found themselves bullied and cheated over the years by their police authorities.

  • 2017-03-16 at 9:27 am

    Which legal firm helped with the case and who paid for it?

    • 2017-03-16 at 3:09 pm

      Haven won it Seasider instructing David Lock. PFEW backed it

  • 2017-03-15 at 7:17 pm

    As the long suffering spouse of Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 I feel it compelling to add a comment on your web site. First of all thank you IODPA for an extremely articulate summary of the ruling which makes it accessible to everyone. I am not an employee of Northumbria Police and never have been, nonetheless, their murky activities have cast a shadow on our family life for over a decade. Many of you reading this will understand exactly what I mean whether you are an IOD officer or a family member. The ruling by Lord Justice Garnham is welcome, but the court case is focused on particular aspects of the case and does not expose the deeper, darker issues that went on over this eleven year period. When your partner is a police officer, you live in dread of that knock on the door. However you never think your dread of the door bell ringing will be attributed to your local postman bringing ‘that’ letter informing you of a medical review and the subsequent harassment instigated by the employer. Well we have had plenty of those. I have experienced encounters with the likes of Wirz, Broome and the bogus ‘experts’ appointed by the PMAB. In summary, although they attempt to bully, intimidate and harass, their confidence exceeds their competence and this has been proven by the numerous defeats they have experienced in the High Court. You only have to read the blogs and comments on this website to appreciate that the expertise and intellect on this side far supersedes that of many police authorities. I hope that the Fisher case will have a positive impact on IODP’s across the UK . In the early days, we fought the battle alone, but now we have an expert legal team and IODPA. Thank you for supporting us . To those of you who are currently in the ring, remember….don’t back down 

  • 2017-03-15 at 9:29 am

    The bullies in certain HR departments, legal departments and elsewhere are so well described in LA’s post above.

    They don’t just bully vulnerable disabled former officers – they bully the people they work with, especially those over whom they have power.

    They rely on being able to make people afraid, and that is their weakness, and it is that which always, inevitably, leads to their down fall. It may take time, but the destiny of a bully is pre-ordained. They all eventually get the rug pulled out from under them and end up flat on their backs.

    When you are a bully, you get complacent. You become arrogant. You make miscalculations and mistakes. It takes only one work colleague to stand up to you and provide evidence of your behaviour, or one IOD pensioner to take you to a JR, for your world to crash and burn. You have to be lucky every moment of every day. We, those who you bully, have to be lucky just once.

    I would add though, that perhaps as bad, or maybe worse, than the bullies are the professional flannelers. These are the ones who can argue that snow does not melt in the sun, that PTSD is best not named, but referred to obliquely as it is better,’ to focus less on the clinical definition and more on the support available to an individual’.

    These are the people who would wring their hands yet still insist that inflicting misery is regretably a duty. They are the centres of their own world, and see everything and everyone around them as no more that objects to be manipulated so as to best help them maintain their position and salary.

    The flannelers facilitate the bullies. The bullies look at the flannelers and see justification for their own foul behaviour.

    Then along comes a quiet hero who reminds us that tyrants never prevail whenever there is someone who is prepared to stand up to them.

    There always is.

  • 2017-03-14 at 6:43 pm

    I’ve been incredibly naive over the years since claiming an injury pension, I’ve always worked under the notion that the DWP were the ones to watch, they were the ones looking at ways of not paying what you were entitled to, and I was right, numerous medicals, appeals, tribunals (which took 5 minutes to find in my favour), ‘off the record’ chats telling me as much have been testament to that, and truth be told it’s left me battered, physically, mentally and emotionally, so much so I have little fight left in me these days.
    But the Police Pensions Authority etc ? no ! never, they had my back and would be fair and just, that I was quite certain of.

    As I say, I’ve been incredibly naive over the years since claiming an injury pension.

  • 2017-03-14 at 2:57 pm

    It has been my misfortune in life, to have had to look in to the eyes of some very callous, dangerous people. In very varied environments. I won’t stereotype them, because they are were all different, all unique. They all thought differently and you could them them apart in their appearance.

    The common denominator between them, through the traits that they exhibit, was that they were prepared to treat other people, animals; and the world, in such a vile, cold, cruel, way. They were ready to inflict pain and suffering on the innocent and vulnerable. Yet, they seemed to be able to function, even thrive in their in their own world and the people and ‘things’ that inhabit it.

    Bad enough to have to reach reach the conclusion that such a situation exists, to attempt to adapt to it, amidst a constant angst about how we; and they, got to this point.

    Even worse, is that blood chilling moment when you realise that those same wicked characteristics, are veiled behind the eyes of some people that we work with. People who are supposed to be part of our team, their to support us. People entrusted with our health, wellbeing, career development and happiness.

    I will never stop wondering what both cohorts get from it. What is it that drives the desire to trample over others?

    One thing is for certain. This disgrace of injuring the injured, has to be confronted and stopped. Too many people are getting hurt in the ego frenzy. This is a step in the right direction and will be the first of many.

    When I look you in the eyes, don’t say that you weren’t given due notice.

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