Our investigative columnist has spent minutes in the labyrinth of long-forgotten archives and has discovered a contract that seems to rather undermine Staffordshire’s new found eagerness to recommence reviews. Click here to download: Staffordshire-Police-Injury-Awards-Agreement
A promise made not to review.
It seems to be saying that, as at 01/01/2008, anyone under state retirement age (SRA) and anyone over state retirement shall “retain their existing injury award band“. The former until SRA and the latter for life.
In a benevolent wave of a wonky wand, apparently everyone is “entitled to at least a Band 1 injury award for life“. Which is nice given that it would be unlawful not to provide the injury award for life.
Home Office Circular 46/2004 couldn’t and didn’t change the legislation that defines a review under Regulation 37(1) of the Police (Injury) Benefit Regulations. The statute and the discretional duty of the Regulation is the same now as it was then.
So why, do we ask, are those same people who signed this contract back in 2008, now eligible to be reviewed in the present day? And how can the arbitrary cut-off of August 2008 be defended as sound? One rule for one, and another rule for others never sits well with equality law.
Those with a band two award and above, in their fifties and so below SRA when their contract was signed, now face the traumatic shattering of their expectation to never be reviewed . Some of this exact same cohort are now under the self-imposed age of 72 years and concurrently above state retirement age.
They basically had a promise that they will never be reviewed. Ever. The guff about cogent reason and the nonsense on steroids about a review just because someone reaches SRA, read today in 2017, is contrary to case law.
Mr Justice Supperstone in the Simpson judicial review in 2013 made it clear that:
there is no justification for adopting a different approach to regulation 37(1) in respect of a former officer who reaches the age of 65 than in the case of a review for former officers of a younger age.
It was clearly known in 2008 that the 46/2004 circular was unlawful otherwise this Staffordshire contract would not have come into effect. Staffordshire allowed it to come into being for it’s own self-preservation and as a means to get former officers to agree to the unagreeable. What better way to reduce someone unlawfully when there is no invented cogent reasons stopping them, than to get that someone to sign a contract to agree that it’s OK to do it without the necessary substantial change to the medical condition demanded by the Regulations.
Oh, how quickly their positive duty evaporates when it means defending a court claim.
On the other side, it was an well-intentioned (albeit misguided) attempt by local NARPO and Federation to protect those retired with injury awards as best they could, all before the illegality of an automatic reduction at SRA and unlawfully invented so-called cogent reasons was judged by the Pension Ombudsman and in the High Court as being a travesty, and that actually the protection wasn’t needed.
But what the agreement now does is raise two major issues and several corollaries.
The first is Estoppel and the basis of reasonable expectation: Staffordshire is now asserting something contrary to what it has implied by a previous action or statement by them.
The second is direct age discrimination that those with an injury award are to be treated differently depending on the abstract variable of whether they were retired before or after the 1st August 2008. Those with ‘the pledge‘ have to be treated the same as those without ‘the pledge‘, given those without are by default younger.
In other words, Estoppel stops those signatories from ever being reviewed and direct discrimination prevents anyone retired post this agreement from being treated differently.
Oh, what a tangled web Staffordshire weave.