More on Case Law: A Brief History …

The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated ~ THE NATURE OF THE JUDICIAL PROCESS BY BENJAMIN N. CARDOZO, LL.D. (1921)

Staffordshire police have employed an Andrew Colley, a HR minion formerly of West Mercia, to perform the role of modern-day witchfinder general of this force’s mass review programme without delegated authority nor even a smidgen of scant knowledge of what he is doing.

The original 17th century witchfinder, Matthew Hopkins, actually claimed to hold the office of Witchfinder General, although that title was never bestowed by Parliament. Andrew Colley, however, deserves the dishonoury title of HR reviews minion-in-chief. Hopkins, after spending his short career of just three years hanging the innocent, met his own demise. The exact way of his end remains a mystery. One account, by William Andrews a 19th Century writer on Essex folklore, argues that Hopkins was accused of being a witch himself. Other sources say he passed away peacefully from consumption.

Only time will tell how history will record what happens to Colley – if anyone can be bothered to record his deeds. Chances are that he will play out an Aesop-like moral tale where victimising the vulnerable, abusing the law and usurping the powers of others, leads to some fitting just deserts.

It is amazing how easily some people employed by police forces fall into the trap of ignorance and fail to read about how the law has evolved over the years in respect of police pension maladministration. As evidence of this, you need only listen to the raving lunacy of NWEF (formerly the national attendance management forum).

When considering maladministration of the police injury benefit regulations it would be hard to find examples of other areas of public sector law which have given rise to so many judicial reviews.

We already publish a live link to the British and Irish Legal Information Institute:

Caselaw Only

All Police Injury Award Case Law – live

Now we have gone a step further and provide our readers with a short summary of each judgement.   We always recommend to read the judgement in full, as a summary rarely does it justice.  You can then play “spot the deliberate mistakes” made by SMPs, police pension authorities, HR administrators and of course those by frequent attender in the High Court, Northumbria police’s solicitor Nicholas Wirz.

We’ve made this point before – it always shocks us when we see the frequency Northumbria finds itself in the High Court. But it is even more shocking to see the widespread ignorance displayed by police injury benefit scheme managers, and to note just how far they are prepared to go to try to justify and defend their maladministration.

Enjoy!

Fisher v Northumbria It will not be permissible for Chief Constables to put forward hypothetical comparators, which bear no relation to the individual circumstances by, for example, referring merely to national wage averages. There must be consideration of the available evidence of what the uninjured officer’s earning capacity was in fact likely to be.  The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available. 2017
Sharp v West Yorkshire Mr Sharp was denied an ill health pension despite the evidence that the stresses of work would “cause a recurrence of his depressive disorder”. That decision was quashed by the High Court.  This gives guidance on the nature of work related stress and the entitlement of those with mental illnesses which have intermittent symptoms to an ill health pension. 2016
Sidwell v  Derbyshire This particular case the claimant was suffering from a psychological condition which on the face of it was not permanently disabling.  The definition of permanent disablement and the three distinct elements which need to be proved under Regulation A12. Although the first is a question of fact, the second and third are a mix of both factual and expert evidence. Whilst  expressing some criticism of the PMAB’s specialist member’s ‘demolition’ of the claimant’s expert evidence, the PMAB had acted within its legitimate remit in preferring its specialist member’s opinion, its reliance not being so contrary to the weight of the evidence as to invalidate its conclusion 2015
Scardfield V Hampshire This case was primarily concerned with the availability of treatment that had not been tried when assessing permanent disablement.  The judge found the Board had erred in law in its interpretation of the words “permanently disabled”.  But that that would have come to the same conclusion in denying the award even had they got this right.  The judge stated  that “permanent” in relation to the Regulations does not mean for life; it means until the date of retirement. Scardfield lost the judicial review on as he had barely scratched the surface of the treatments available 2013
Commissioner of Police v PMAB (Walther 2) After Walther 1, Walther was again refused an injury award by a SMP. He appealed to a PMAB which considered that
the concepts of acceleration and aggravation were not helpful and concluded that the injury on duty had substantially contributed to the permanent disablement. The Met challenged the PMAB at judicial view. The Judge agreed with the PMAB that an approach based on aggravation or acceleration and the extent of any acceleration was not appropriate, because the relevant time for assessing causation of disablement was the time the question was referred to the SMP. Thus, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award
2013
Simpson v Northumbria A further judicial review hearing, before His Honour Justice Supperstone at Leeds High Court in February 2012 held that part of Home Office circular 46/2004, concerning “Review of Injury Pensions once Officers reach 65”, and paragraph 20 of section 5 of the Home Office ‘Guidance on Medical Appeals under the Police Pensions Regulations 1987 and the Police (Injury Benefit) Regulations 2006’ are inconsistent with the Police (Injury Benefits) Regulations 2006 and therefore unlawful. 2012
Crudace v Northumbria Police Authority In Crudace the officer’s degree of disablement had been reduced to 0% on a regulation 37 review on the sole ground that he had reached state pension age and accordinglyhome guidance asserted his uninjured earning capacity would ordinarily be expected to be nil.  The officer had instituted an appeal, but had abandoned it when told by the force solicitor that his case lacked merit and that he was on risk as to costs. Only much later did he request a reconsideration of the decision under reg.32(2).In Crudace the judge if necessary would have quashed the decision not to agree to a reconsideration on the ground that it had been made by an HR manager and there was no evidence that what was then the Police Authority’s power had been delegated to her. The Police Pensions Regulations 2015 permit, without express limitation, delegation of the functions of the PPA, and it is important to ensure that any decision-maker acts with appropriate statutory authority. 2012
Haworth v Northumbria In Haworth it was said that the SMP, and on appeal the PMAB, had fallen into the error noted above of reconsidering causation on a reg.37 review.  In Crudace and Haworth it was held that where a request for reconsideration is made under regulation 32(2) the PPA is under a public law duty to consider the request in the light of the statutory purposes of the provision. Delay, even inordinate delay, since the original decision was made is not in itself a sufficient reason for refusing to consent to a reconsideration without regard to the underlying merits of the challenge.  Reg.32(2) is “in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right”. In other words a reconsideration under reg.32(2) may take place when the time for an appeal or a judicial review has long passed. 2012
Williams v Merseyside Police Authority Performing his front-line policing role without training, exacerbated by with tutoring a probationer, which had caused his symptoms of insomnia, anxiety and deep depression. Simply to decide that Mr Williams’ illness was not caused by proven lack of training, lack of support, bullying or harassment did not decide the question which the Board had to decide. The PMAB did not consider the totality of the evidence before it. The PMAB went on to conclude that it was not related to proven lack of training, lack of support, bullying or harassment. It did not, however, reach any decision as to what workplace exposures it was related to. Had it done so if may well find that workplace exposures (lack of support, bullying, victimisation) rationally has to be viewed as substantial contributors to the psychiatric illness and therefore can be suffered in the execution of duty. 2011
Commissioner of Police v Laws Reg.37 reviews do not provide a mechanism for the correction of errors in the original decision. The Board should have concentrated on whether there had been any “substantial alteration” in the degree of her disability since that had last been reviewed in 2005.  The Court of Appeal accepted that Ms Laws’ law degree can be taken into account in subsequent reviews of her pension rights, the judge said its impact on her pension was “likely to be modest” as unless it has concrete results in terms of actual job prospects (and the degree is not, of course, a professional qualification) its effect on her earning capacity was largely speculative. 2010
Walther v PMAB & Met (Walther 1) A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies,. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Given this significance it was concluded that it was appropriate to consider aggravation, acceleration and the extent of any acceleration in determining entitlement to an award 2010
Doubtfire & Williams v West Mercia Police Authority & Merseyside This case stops the absurdity of a SMP, on deciding the injury award entitlement, saying the duty injury was not permanently disabling – even when this question was answered to the positive for medical retirement. The test concerns the disablement and not the specifics of the diagnosis 2010
Merseyside v Police Medical Appeal Board & Ors (Hudson & McGinty) Two police officers had been granted injury awards on the basis that they had been injured in the execution of their duty. The chief constable denied this and appealed to judicial review. Merseyside lost. McGinty by taking them his dogs exercise on his annual leave he was carrying out the same function as he would have on an ordinary duty day and for the same purposes. What he was doing was an integral part of his functions as a dog handler. He was acting in the execution of his duty.
Hudson suffered suffered numerous drip, drip of a number of nondisciplinary related events over a period of time which led to the depressive illness. An injury caused by having to work without support an officer is entitled to expect can be regarded as an injury received in the execution of duty. That would also be the more so if there was deliberate victimisation of an officer by superiors.
2009
Laws v PMAB [2009 The pensioner’s degree of disablement had been reduced from 85% to 25% on a review. The SMP had undertaken an entirely new assessment of the range of work which the
pensioner was able to perform, and it had been taken into account that she had recently obtained a law degree. There had been no material change in the extent of her symptoms. scope of the review was to determine whether there had been a substantial alteration in the degree of disablement due to the injury on duty since the preceding review, and not to conduct a wholly fresh assessment
2009
Turner v. PMAB (Met) Reaffirmed Pollard. An appeal against a decision by the SMP on a reg.37 review.
That the PMAB had impermissibly reduced the pensioner’s degree of disablement on the ground that only 50% of his hearing loss had been caused by injuries at work. The PMAB was wrong to re open the 2001 causation decision, when they unlawfully concluded that Mr Turner’s injury on duty accounted for only 50% of his overall disability, and not 100% as decided in 2001
2009
Pollard v Police Medical Appeal Board (West Yorkshire)

 

Causation can not be revisited in a Regulation 37 review as the medical authority used (SMP or PMAB) cannot change findings of SMP on review once IOD established. The PMAB in purporting to re-open the issue of the causal
link between the duty injury and the disablement the decision-makers had gone outside their powers under regulation 37, which were to re-consider only the degree of
disablement.
2009
Corkindale v West Yorkshire The judge said he had to decide whether Pc Corkindale was permanently disabled within the meaning of the 1997 Police Pension Regulations and therefore entitled to an “ill-health award” under the pension scheme.
A doctor initially decided against her.When she appealed, the Police Medical Appeal Board ruled she could not be said to be permanently disabled because although she could not carry out ordinary duties with West Yorkshire Police, she was fit for service with another force which did not use CS gas. But Mr Justice Underhill overruled the board’s decision. The judge said CS gas was routinely employed in “the great majority of police forces” and therefore its use “plainly forms part of the ordinary duties of an officer in the police service”.
2006
R (Edwards) v Police Medical Board The injury had not been sustained because of being at work, but because of the impact of the notification of transfer. That was received when he was at a conference which he was required to attend, but he attended as a police officer, not in the execution of duty 2005
Northumbria v Clementson & Doyle Northumbria argued the former officers’ problems did not amount to a permanent disability as doctors had only diagnosed a vulnerability and not a current medical condition. At the High Court, Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers as neither had, at the time, a definitive diagnosis under the required medical definitions (WHO ICD10 codes) 2005
McGinley v Schilling Whether a medical referee determining an appeal under Reg H2 Police Pensions Regulations 1987 decides the appeal at the date of the appeal, taking into account up-to-date evidence, or whether he is confined to reviewing the material that was before the selected medical practitioner that earning capacity and degree of disablement are to be determined at the date of the PMAB hearing. The latter was found. The appeal was a re hearing and not simply a review of the contested decision 2005
Merseyside Police v Gidlow The psychological harm suffered by a police officer as a result of a grievance procedure brought against him was not an injury received in the execution of his duty within the meaning of the Police Pensions 2004
R (on the application of Sussex Police Authority) v Cooling A stress-related psychiatric condition developed while an officer was suspended from duty could not be regarded as an injury received in the execution of duty. While suspended the officer could not be on duty 2004
Clinch v Dorset Police The claimant appealed refusal of his application for a police pension following an injury suffered, he claimed had occurred on police duty. He claimed to have suffered depression since he failed to be promoted. He said that they had wrongfully refused to refer his application for medical assessment. The judge ruled that the disabling psychiatric injury deriving from failure to achieve promotion to other duties does not meet the statutory test 2003
South Wales Police Authority v Morgan A case of a police officer’s depression being caused by (1) overwork  exacerbated by stress and anxiety from an investigation into an (2)  injury suffered by his three year old foster son, and (3) financial difficulties experienced during sickness absence and the resultant reduction in pay. In relation to the second and third of those, it was found could not have been injuries received in the execution of duty. On the other hand, the first – stress and depression caused by overwork – gave rise to different considerations and if it were a substantial cause of disablement the disablement could be an injury received in the execution of duty. 2003
South Wales Police Authority v Medical Referee (Dr David Anton) (Crocker) The courts had found that the task in assessing earning capacity was to determine what the person was capable of doing and thus capable of earning.
It was not a question of whether an employer would actually pay that person to do what he or she was capable of. Also Before apportionment can arise, each factor must separately have caused some degree of loss of earning capacity on its own
2003
Jennings v Humberside Police In Jennings the test was whether the injury sustained had caused or substantially contributed to the disablement. A police officer, whose injuries sustained in a road accident while he was on duty had brought forward the symptoms of a pre-existing condition, was not permanently disabled as a result of those injuries for the purposes of the Police Pensions Regulations, and therefore was not entitled to an injury award 2002
Commissioner of Police v Stunt However elastic the notion of “execution of duty” could be, it did not encompass stress-related illness through exposure to disciplinary proceedings. Accordingly, an award was not payable to an officer disabled through his reaction to disciplinary proceedings. 2001
Stewart v Sussex Police Within the meaning of the Police Pension Regulations 1987, a police officer’s “ordinary duties” included operational duties. 2000
Yates v Merseyside Police Authority Police Pension Authority must refer the questions of the Regulations to a medical authority (SMP) unless the claim is “obviously spurious or vexatious”. 1999
R v Kellam ex parte South Wales Police Authority Officer contending that medical injuries were the result of harassment at work after his wife made a complaint about the chief constable – Whether causal connection between injury and service as police officer. Police officers whose depressive illness developed from the accumulated stresses of work qualified for an award. 1999
Dorset ex parte Vaughn The decision of the Selected Medical Practitioner is final
upon the Police Authority unless there has been fraud by the officer. In the absence of fraud the only remedy to challenge the certificate is through a Judicial Review, only if the Police Authority can establish that the SMP misunderstood the law.
1994
More on Case Law: A Brief History …
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6 thoughts on “More on Case Law: A Brief History …

  • 2017-07-03 at 12:51 pm
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    Let us hope that Staffordshire Police will catch on fast that they are totally out of order with their banding and SMP decisions. I sincerely hope that the IOD pensioners involved will request 32/2’s on their cases. Then, hopefully, Northumbria will get the message too.

    It’s disgusting to think that an IOD pensioner has to go through High Court to get justice and corrections in their IOD pensions. The rules and regulations are simple to follow.




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  • 2017-06-30 at 2:25 pm
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    So…. 31 JRs and counting – How many more legal decisions do these misguided and ill informed HRs need to refer to, to understand that they cannot act in contravention of the Regs? But what do they care – it’s only public money they are wasting and it seems that no matter how badly they mess up, even after they have had plenty of opportunity to educate themselves, they still manage to hang on to their jobs. There should be a criminal offence of wilfully wasting public funds.




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  • 2017-06-30 at 6:01 am
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    The Staffs way of calculating IOD Bandings, is UNLAWFUL, Pure and Simole, & it has proven to be so.
    The SMP’s decision is FINAL.
    So, WTF don’t they understand by the word FINAL?
    They CANNOT demonstrate how a Band 4 IOD, declared so by the SMP can end up on anything other than a Band 1!!
    EVERY SINGLE STAFFS OFFICER, certainly those on Band 1, should apply for a 32-2 reconsideration.
    What’s to Lose?




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  • 2017-06-29 at 4:27 pm
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    A very helpful guide to the caselaw- Staffs HR would do well to read the full legal versions. If they did then perhaps there wouldn’t be so many Band 1 IODs and more consist IODs in the other 3 bandings. Its quite clear and perverse the system that Staffs use to calculate the injured officer will end up in band1. Its all about saving money and this unlawful and fraudulent process will costs Staffs more of tax payers money just like Avon and Somerset.




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  • 2017-06-29 at 2:00 pm
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    Caselaw. There is no doubt in the area of mass review programmes Case Law, is, and more than likely always will be our friend.
    AS tried riding roughshod over it, and that came to a sticky end, and now Staffs, with Gareth Morgan at the helm will make the same mistake. There is however a particular problem for Morgan, Coley et al, & that is their historic use of the Police Earnings Assessment Matrix, that has placed the majority of their IOD’s in Band 1 or 2.
    It remains to be seen whether any of these will be called, and as Coley has already confirmed PEAM, won’t be utilised, what little equation they’ve conjured up, to use after the ” decision of the SMP is final ” bit!
    Hey Ho. Plonkers




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  • 2017-06-29 at 9:27 am
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    Great summary and extremely helpful as I have my IOD appointment tomorrow x




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