“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:
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:
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.