Month: July 2017

The Truth Of It

The Truth Of It

All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us? ~ Reg: Monty Python’s Life of Brian

In a recent Police Oracle news story concerning Merseyside police taking a former officer’s award away because – quite rightly from his position – he said he wouldn’t fill in any ridiculous questionnaire, a representative of Merseyside reportedly said:

“The only issue determined by the judicial review was whether the former officer’s pension payments should have been suspended”

Injured ex-officer sees pension reinstated after legal fight

Solicitors warn other forces about acting in a similar way. A solicitor has warned forces that attempts to make injured retired officers provide more personal information than required by law for reassessments of their pensions will be challenged. Former Merseyside Police officer Paul McHugh issued judicial…

What an example of spin – right out of the text book of Malcolm Tucker in the BBC sitcom The Thick of It. We wonder if Mr/Mrs Merseyside spokesperson asked three straightforward questions of the people who, within Merseyside, took the injury award away from Mr McHugh.

First: are they certifiably insane? That is, are they — as the Americans put it — crazier than a shithouse rat?

Second, if the unlawful removal wasn’t for not filling in the questionnaire as well as not giving full medical records from birth to the z-team HR minions, messrs Peter Owens and Supernintendo Markay, then why did they take the award away?

Did they randomly wake up one morning and arbitrarily select a victim to suspend an award!

And third: do they have anything to gain, financially, from making these assertions? Merseyside saved a lot of money by reducing people by use of this questionnaire and by not using a SMP.  All these people have grounds to demand a reconsideration.

Our guess is that none of those questions have been asked. And they have not been asked because those are not the sort of question a spokesperson working for the police is allowed to ask any more. Such a poor excuse for a glib individual must take everything at face value these days. They must not exercise their judgement — or, as we would put it, the truth…

Never mind that a sworn officer of the law at a rank of senior manager at executive level with a position to set strategy, standards and policy across a department or organisation, did something so illegal that Supernintendo Markay and Peter Owens couldn’t persuade Merseyside to defend it in the high court, and then got a spokesperson to say the judicial review wasn’t about what it was actually about to save their careers.

Quite worrying isn’t it when the upholders of the law revert to spin to cover up a major wrong?

IODPA hates it when people don’t come clean.  When they don’t mention what is staring them in the face.  When the truth is hidden.

Speaking of spin.  The Internet is such a clever thing.

We’ve found the six year old draft change to the Police Injury Benefit Regulations sat on a virtual shelf gathering dust.  This never became law and was first put forward in 2011.  All of the proposals were dropped and there are interesting conversations between the staff side and the Home Office between what should stand and what should go.  Mostly the Federation was for the proposals.  We might talk about these cosy chats in another blog.

Anyway, here it is:

Item6A,AnnexA

Regulation 33 (failure to attend a medical examination) of the 2006 Regulations becomes Regulation 32 in this proposal.

Remember, all these proposals were dropped.  But the content of this new Regulation 32 is telling:

32.—(1) This regulation applies where a relevant medical question is referred to a medical
authority under regulation 29, 30 or 31 and the person concerned wilfully or negligently fails to—
(a) submit himself to a medical examination;
(b) attend an interview; or
(c) consent to the disclosure of medical records
which the medical authority considers necessary in order to enable him to make his decision.

The real, current and active Regulation 33 makes no reference at all to medical records.  But the proposal makes an explicit reference to it.  In other words the current Regulations do not do what they want it to do.  So they wanted it changed.  They failed.

If this is not an admission that the production of medical records is not required under the current Regs, we don’t know what is.

And why was the 2011 proposed change to the Regulations dropped?  Probably because there is a provision in law that means such sweeping changes could not be applied retrospectively, and that rather defeated their point.

What the debacle of the questionnaire reveals is the untruths that underpin what certain individuals in police forces tell those who are medically retired to get them to acquiesce to unlawful demands.  The HR minion tells a porky; the head of legal services finds a clever lawyer-trick to skirt a way around a “problem”; the chief constable says all is well and right in a world of right and wellness; and the PCC says the chief is the best thing since sliced bread.  The IPCC says any such complaint is nothing to do with them and the cycle circulates infinitely.

The language of those who administer injury awards is therefore a truly transformative grammar.   There are words which, when uttered by a such a person, lose all sense of themselves — such as ‘duty’ and ‘must’ and ‘shall’.

It is not simply that these words can mean different things to different people — it is that when these people such as supernintendo Markay, Owens and Andrew Colley use them they are at best an euphemism and at worst a downright lie.

And from that you have to draw the conclusion that their whole injury award edifice is built upon a perpetually shifting succession of imaginative falsehoods.

If IODPA is unable to do anything else, our readers can be assured we will always speak the truth and like Ockham’s razor, cut through the crazy, complicated  spin and constructions spouted by those who should know better.

 

 

 

Breaking News: The Tyranny Of The Questionnaire Ends

Breaking News:  The Tyranny Of The Questionnaire Ends

Haven Solicitors has successfully won a judicial review against Merseyside Police.   Merseyside decided to give in, this is referred to as ‘conceding the case’ and a consent order has been issued.

We would like to extend our sincere gratitude and appreciation for all of the hard work and dedication provided by Ron & Mark at Haven Solicitors.

Haven’s press release:

PRESS RELEASE 20.07.17

IODPA has been openly critical of Merseyside’s mass review methods since they reviewed 502 injury pensions in 9 months.

Sometimes we are eerily prescient. We said Merseyside  ripped through the review process by bullying vulnerable people to wrongly having to self-justify their own entitlement to their award under the cosh of threats that their award will removed or suspended if the invented questionnaire is not completed.  The Merseyside questionnaire follows the same format as all questionnaires used in mass review fishing expeditions.

You can read the offending questionnaire here: Merseyside Review Of Injury Award Questionnaire

No person with an injury award shall never be forced to acquiesce to such invasion of personal and sensitive data again.

Full Text:

HAVEN SOLICITORS LTD
Right against Might
Commer House
Tadcaster Enterprise Park
Station Rd, LS24 9JF
DD: 01937 837 708
Email:
Merseyside police abandon unlawful suspension of former officer’s police injury pension, reinstate the pension and pay out legal costs.

Merseyside police have abandoned an attempt to force a former police officer to disclose medical records and fill in a capacity questionnaire in advance of a police injury pension review.

The former PC had agreed to be examined by an SMP and give limited disclosure of relevant medical records to the SMP but refused to hand over all his medical records to the Force or fill in a questionnaire about his health for the Force to review in advance of an SMP referral.

He pointed out that the Force had no legal authority to demand copies of any of his medical records or force him to complete a Force questionnaire.

The Mersey Force refused to back down, claiming they had discussed this approach nationally, and had support ( we assume from the National Attendance Management Forum) to do this. The force then suspended the former officer’s entire police injury pension to try to put pressure on him to disclose medical records and fill in their questionnaire.

The former officer, with Police Federation support, also refused to back down. He instructed specialist solicitor, Ron Thompson of Haven Solicitors LTD. Mr Thompson instructed Landmark barristers David Lock QC and Richard Clarke, who promptly drafted Judicial Review proceedings to challenge this unlawful suspension.

The result was that, just before the Chief Constable was due to file his “Defence”, he backed down and lifted the suspension, The Chief Constable will also pay all the former officer’s legal costs, meaning that the episode will not result in any cost to the former officer or the Police Federation.

Ron Thompson commented on the outcome saying:

“This was an unnecessary and totally avoidable dispute. All the Chief Constable’s staff had to do was to read the wording of the Regulations to see that they had no power to force former officers to hand over medical notes or fill in questionnaires, particularly in advance of any decision to make a referral to the SMP.

The lesson from this episode for Forces is that no amount of misguided “advice” from the National Attendance Management Forum can change the meaning of the words of the Regulations.

Any other Force that tries this tactic can expect to be served with the same type of
legal challenge”
[Ends]

 

When Reassess means a Fresh Assessment

When Reassess means a Fresh Assessment

“The difference between the almost right word and the right word is really a large matter. ’tis the difference between the lightning bug and the lightning.”
― Mark TwainThe Wit and Wisdom of Mark Twain

In Staffordshire, some bright spark has had the idea the force could save some brass by conducting what they call regulation 37 reassessments of the degree of disablement of nearly every former officer who is in receipt of an injury pension.

The old saying goes, ‘Where there’s muck there’s brass.’ Staffordshire have got the muck bit right – they are making one heck of a muck in the way they interpret regulation 37. But they are wrong to think that the reviews will produce any savings for the force.

There’s no getting around it.  Staffordshire expects to be able to REASSESS loads of injury awards and see whole swathes of injury pensions reduced rather than do what is required of them under Regulation 37.

Staffordshire has produced a spiffing web page about its plans to rob disabled former officers of their injury pensions. It was written, we think, by a part-time employee in a contracted-out service company based somewhere in the Urals. It barely makes sense and if its intention was to inform then it fails spectacularly.

Take a look at it: https://www.staffordshire.police.uk/ibr

We won’t do a word by word critique of this most confusing bit of flummery as we have our sights on what lays behind it rather than the content itself. However, there will be a small prize for the first person who can tell us what this lump of nutty slack means:

‘The reassessment of the degree of Injury Pensioners’ disablement has been decided by Chief Constable Jane Sawyers . . .’

Eh?

We are confident that we won’t need to present the prize, which is, appropriately a tangled Staffordshire knot made out of old police whistle chains, for the sentence has no discernible meaning whatever.

Mind you, some parts of the Police (Injury Benefit) Regulations 2006 could do with a bit of a tidy up to help improve their clarity, for Staffordshire’s sake. IODPA has no problem in understanding what the Regulations mean, but they can be hard going for HR managers.

For SMPs and for a certain crafty solicitor, whose name we have mentioned from time to time, the Regulations are a playground where meaning can be twisted into unrecognisable shapes.

So, what’s in a word? A turd by any other name would smell just as foul. Why does Staffordshire’s use of the word ‘reassessment’ bother us?

Let’s look at Regulation 37 and see how Staffordshire have got hold of the wrong end of the stick.

They have seized on the heading of the Regulation, which is ‘Reassessment of Injury Pension’ and have not really bothered to think about what the entirety of Regulation 37 says, and what it intends.

Staffordshire have leaped to the disastrously incorrect assumption that Regulation 37 gives a police pension authority permission to conduct a mass reassessment of injury pensions. And not to just look for any alteration in degree of disablement, but to question what are legally final decisions made in the past.

Digging further into the shallow seam of Staffordshire’s less than helpful web site and clicking on the Frequently Asked Questions we spot some corkers.

‘Q:       Where does it say in the Regulations that Injury Benefit can be reassessed?

A:        Regulation 37 of the Police (Injury Benefit) Regulations 2006 enables the Police Pension Authority, at such intervals as may be suitable, to consider whether the degree of the pensioner’s disablement has altered. If after such consideration it is found that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Where is the word ‘reassessed’ in Regulation 37?

‘Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Nope, don’t see it, do you?

Staffordshire see it though, because they approach Regulation 37 with a preconceived misconception that when this Regulation is used, then an injury pension can be reassessed from scratch, just as though it were being done at the time an injury award was granted.

Staffordshire thinks, as another Q and A reveals, that they are allowed to send out an intrusive questionnaire which asks, in a demanding sort of way, for information which has no relevance whatever to the proper, lawful, application of Regulation 37.

Staffordshire thinks, according to its FAQ’s that it can ask IOD pensioners for permission to access their complete medical file from birth.

The web site reveals too that the SMP is going to make some sort of ‘calculation‘ whenever a substantial alteration in degree of disablement is determined to have occurred. Leaving aside our very great concerns that the SMP will drive a giant JCB through the Regulations in his quest to decide whether there has been any alteration, we find ourselves boggling at the thought that any calculation would need to be made.

Come on Staffordshire, buck up and tell your SMP he has no calculations to make. All he has to do is decide there has been a substantial alteration in degree of disablement, and tell HR to tell the payroll people (who are probably working for a contracted outsourced company in Botswana) to pay the injury pension in line with one of the four bands set out and calculated ONCE AND FOR ALL in the Regulations.

While we are at it, let’s also try to educate Staffordshire a bit more about using the correct words whenever they chose to talk about legal matters. There is no such thing as a review or a reassessment of an ‘injury benefit’. There is an injury pension and there are two specific gratuities available for former officers. There is a child’s special allowance and a child’s special gratuity. There is an adult dependant relative’s special pension and there is a death gratuity. There are also other provisions.

Is Staffordshire trying to say that it has a duty, or a right, to reassess any or all of these?

Of course not. They are concerned only with injury pensions paid to former officers. So why not say so?

Staffordshire thinks Regulation 37 invariably results in a reassessment.  But hold on, what is a reassessment?  A dictionary definition of performing a reassessment of something is to evaluate it again, or reappraise it, especially if its value has changed or new information has altered your understanding of it.

A fine definition you might think.  The trouble is an evaluation or a reappraisal of any injury award from the start is illegal.  Some people may think this is nitpicking – what’s in a word, you may ask.

The world inhabited by those with an injury award is a very literal existence.  Words are our framework of meaning.  Given the way the administration of injury awards has always seen flawed meaning imposed on the Regulations by those who administer injury pensons, it is no wonder we in IODPA get all jittery when we see Staffordshire throwing around the word ‘reassessment’.

The Simpson judicial review judgement is there for Staffordshire to see, and it explains things neatly. However, if pension administrators have difficulty in understanding Regulation 37 there is little hope they will understand a court judgement.

‘The statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first. A further quantum decision on the present degree of disablement is only permissible if the police authority, acting by the SMP, have first decided that there is a substantial alteration in the former officer’s degree of disablement.’

Only after substantial change is identified by the SMP, can the SMP move from the first test to the second test.  In the second test an assessment is not a “reassessment”.  The assessment mentioned by  the Honourable Justice Supperstone is a comparative exercise only – the degree of disablement now, as altered by the substantial improvement or worsening, compared to the degree of disablement as decided the last time the question was considered.

The Court of Appeal in Metropolitan Police Authority v Laws and the PMAB[2010] EWCA Civ 1099, made it clear, for the likes of Staffordshire HR,  that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

If Mr Justice Supperstone chose his words carefully, and we can be very sure he did – an assessment was stated, and not a reassessment.

The verb reassess means to consider something again, especially if new factors have come to light since you first assessed the issue.  A review under Regulation 37 cannot consider something again. The last decision is final and earlier decisions are closed.  There are no new factors allowable in a review, only a comparative exercise from the last decision (whether the original decision or review) to the present.

Only after the first test of substantial change can the degree of disablement be revisited and even then the Fisher judicial review now strongly enforces the requirement for there to be presented the depth of reasoning which is applied to uninjured earning capacity.

An IOD pensioner can’t go to the SMP under a Regulation 37 review and say the decision 20 years ago was wrong and they want their degree of disablement “reassessed”.  That is obviously wrong.

And it will be equally wrong should Staffordshire embark on its unlawful mass review programme and add another layer of illegality by revisiting what are final decisions.

The local Staffordshire NARPO branch have publicly said all the facts are known and Staffordshire Police should be allowed to continue with the mass review program.  Those that understand the Regulations have more than anecdotal evidence that Staffordshire Police has a history in the dubious ways some original decisions do not reflect the degree of disablement actually given by the medical authority – the final band is magically reduced as the SMP’s report is then hijacked by a HR minion.

Perhaps Staffordshire Police should include a FAQ explaining how to go about a Regulation 32 reconsideration when the lawfulness of the past decision needs to be “reassessed”.

Reading this Judicial Review may give Gareth Morgan and Andrew Colley some clues …

Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012)

You are here: BAILII Databases England and Wales High Court (Administrative Court) Decisions Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1225.html Cite as: [2012] EWHC 1225 (Admin)

 

Polemic on the Poll Results

Polemic on the Poll Results

“The fact that man knows right from wrong proves his intellectual superiority to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot.”
― Mark TwainWhat Is Man?

We asked the question in a previous post whether a person who is disabled in relation to earning capacity and then succumbs to a persistence vegetative state should have his life further questioned by a police pension authority?

The question was asked without real context.  We deliberately didn’t explain what the Regulations allow and we purposely left some cross-over with the possible answers; we wanted people to answer with what they instinctively thought was right.

This human touch is sorely lacking in those who administer injury awards. All too often HR managers and SMPs entirely neglect to consider the effects of their actions on others. A few of them seem to be be completely devoid of any moral compass.

For example, Staffordshire thinks financial constraints are a legitimate reason to review and a questionnaire is the way to vet whether the expense of sending someone in front of a SMP is worth the £2000+ expense payable to the doctor for his arguably pre-determined work to reduce the person’s award.

The procedures laid down in the Regulations have to be applied with individual assessment in each case at each stage. This is being ignored in certain forces, and we need look no further for examples than at Knowles & Wirz of Northumbria and Andrew Colly & DCC Baker & Staffordshire.

Any action has to be justified; and it is not sufficient to ask oneself whether the underlying procedure is legal. In respect of the review of degree of disablement there is a ‘shall’ in the Regulations which ignorant or ill-intentioned managers interpret as giving them carte blanche to review whoever they wish, whenever they wish, as often as they wish. Their lack of moral compass allows them to forget that the so-called ‘duty to review’ is strictly limited and contains a wide power of discretion.

In our earlier blog we gave the example of a poor man placed in a coma. Interestingly, 89% of respondents to our survey think it best to leave the man alone.  Only 8% think that it is appropriate to review and reduce the man’s injury award.  No person voted to remove the injury award.

We think it is the sadly indoctrinated view of the majority involved with, and in receipt of, an injury award that reviews only exist to reduce people.  As a charity one of our aims is to dispel this myth. We don’t think it right that those with an injury award have to live their lives in the shadows, frightened of attracting the gaze of the PPA and always prepared for the manilla envelope to drop in their doormat announcing a review.

Such statistics as do exist – and it needs to be noted that they had to be obtained by lengthy Freedom Of Information requests from forces – show that over the last five years, when reviews have been held, then 83% result in a decision of no alteration in degree of disablement. Some 6.2% produced an increase in pension payment, whilst 10.29% saw the pensioners concerned reduced in banding.

The fear of reviews has much to do with the intrusiveness and uncertainty of the process itself, together with a well deserved and natural suspicion that in some forces the entire process is unlawfully constructed and is indeed intended to manipulate a reduction in payment.

We in IODPA think there are too many reviews, and too many of them are pointless and should never have been held. We are not against lawful reviews, but we are firmly against mass reviews and would want to see scheme managers realise they must exercise discretion in deciding whether a review is appropriate.

Turning again to our survey, why didn’t anyone vote for the award to be taken away in its entirety? Was it considered to be morally wrong or did all the participants have in mind that there are very particular and extremely rare circumstances where an injury pension can be ceased?  Regulation 43 tells us that ‘. . . a pension or allowance shall be payable for life’ yet we know that some forces have threatened pensioners with suspension or even cessation of their injury pension.

In some instances these threats have been carried through – at least only for so long as it takes our legal representatives to explain to the PPA concerned the error of their ways.

We have witnessed SMPs who concocted entirely unlawful rationale that an individual should never have been granted an injury award in the first place. We have seen HR managers issue wholesale threats to pensioners that there injury pension could be reduced or suspended if they fail to complete a questionnaire. We have gasped in disbelief when a PPA has issued similar threats to pensioners who had the temerity to refuse to allow unrestricted access to their sensitive medical records.

It is no small wonder then that IOD pensioners generally worry so much about the security of their injury pension income.

Of late, there has been a new addition to the inventive fancies of HR managers who would like to have the power to reduce or cease injury pensions in circumstances which are not allowed by the Regulations. Where in the Regulations does it say someone with a duty injury can have their pension reduced to the minimum when another injury overtakes the disablement?  The person is still unable to earn. We’ve made this point before; does the person become 200% disabled?

To find why we are even asking this question you need to look to NWEF’s and Northumbria’s legal advisor, Nicholas Wirz.  In his training guidance to SMPs he tells them this:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil

The “disease alone” could be replaced by anything according to Wirz: a persistent vegetative state, cancer, even aggravated natural degeneration.  Where does this stop?  For Wirz, he’d rather force an ill 70 year into spending his twilight years appealing the reprehensible Wirz-influenced medical decision to make him or her a band one.

We will talk about case law in a minute.  But ask yourself why the administration of police injury awards is so riddled with high court judgements.  It is because the PPAs, Wirz and NWEF keep trying to disadvantage retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty.

By discussing whether an award should be reduced or removed because someone has become severely unwell on another matter is asking the wrong question.  A question that need not be asked and is only asked because Wirz is influencing the SMPs to enact it.  The truth of it is the person being targeted has been injured and had their career taken away – the righteous man or woman acting as a PPA would let them live their life without further hardship.

But there is case law on this matter.  There are three judicial reviews which we need to look at to see how the Regulations have been interpreted by the courts on this matter.  The trouble is they aren’t clear.

The 2003 case of South Wales v Anton (Crocker) is the first.  This case concerned an original decision for an award that SWP didn’t like.

Paragraphs 53, 54 and 55 are the pertinent ones.Mr Justice Ouseley says:

So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement

The judge is saying that another injury may have some effect on the person’s capacity to earn.  We all agree on this.  An injury award should not compensate for injuries not received on-duty. If there is a mix of on duty injury and other injury, then the amount of disablement caused by the on duty needs to be determined.

However, it becomes more complex where an on duty injury exacerbates or aggravates a pre-existing condition. This is commonly referred to as the straw which broke the camel’s back. An officer may be fit for duty despite the pre-existing condition, and it is only when injured on duty that they become disabled.

Mr Justice Ouseley touches on the duty injury aggravating an non-duty injury:

The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury.

So for example a person with a dodgy cervical spine injury, that is mainly asymptomatic and intermittent and does not affect his capacity to earn and is still a fully operational police officer, receives a duty injury that aggravates it.

In this example Mr Justice Ouseley says apportionment for the aggravation and acceleration is not appropriate

  1. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.

Let us return to the poor individual in the persistent vegetative state.  We are only  talking about this because Wirz has taken the above judgement and twisted it to mean that if a person becomes further disabled through the trials and tribulations which life throws at a person then then the unfortunate soul should not be compensated for the injuries received on duty – even though the injury on duty still exists

The Ouseley judgement does not speak of this.  Wirz has picked up the baton and lobbed it into a field of nettles.  It is an invented concept of Wirz that he feels he wants to test upon disabled and vulnerable former officers.

The Walther judicial reviews (there were two of them) also touch on the matter of apportionment and acceleration.

In Walther v The Police Medical Appeal Board & Anor [2010]  Mr Justice Irwin declared that:

  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, it seems to me. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

Just because a non duty injury or condition has been accelerated, without it being substantial, it matters not and in any case common sense reigns.  The trouble we have is that Wirz has no common sense and the moralistic determinations of some SMPs are zero.  With a predetermined desire to reduce, they will go to whatever lengths to justify apportionment.  Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth  is their favoured way of introducing apportionment.  In effect this is a alwyer’s trick to carry out the unlawful act of revisiting causation.

The second Walther judicial review Met v The Police Medical Appeal Board [2013] was instigated by the Met in 2013 who attempted to remove the award granted to David Walther by the PMAB tasked to revisit the question after the 2010 judgement won by Mr Walther.

The judge this time, Mr Justice Collins, said this:

Only if there will be no loss of earning capacity resulting from the injury when the officer is medically retired will it be likely to be the case that there was no substantial contribution.

In the end Justice Collin’s agreed with the PMAB and David Walther kept his injury award.

But, rather contradictory, instead of the decade stated in the first case by Mr Justice Irwin, 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.

But the interesting point is what Justice Collins said about Regulation 37. The basis for Collins J’s view was that he considered regulation 37, which provides for reassessment of injury pensions where there has been substantial alteration in the degree of disablement, enabled there to be a later assessment as to whether an underlying condition had overtaken any disablement resulting from the injury.

Specifically he is referring to David Walther’s problem of degenerative disc changes of the L4/5 and L5/S1 discs and prominent disc bulges at T12/4, L4/5 and L5/S1.  All these were explicitly listed when Mr Walther was retired.  It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review.  This would be contrary to the Laws and Pollard cases.

Of course, the existence of Regulation 37 helps everyone when the duty to review is used correctly. It is a provision which can be sparingly used, with plentiful discretion, to help ensure the correct level of injury pension is paid. It forbids all need for speculation about what might occur in the future. An injury pension is granted at a rate commensurate with what has occurred in the past and what disablement the individual exhibits in the here and now.

It says nothing whatever about the extra-regulatory wage comparison exercises practices by some PPAs which remain the aspect of reviews which create the most persistent and most aggressive forms of abuse of the Regulations.

Another area of particular difficulty arising from the second Walther decision may be the Judge’s interpretation of regulation 37, central to his reasoning overall, that it permits a reduction for David Walther’s injury award once a period of simple acceleration has passed. Collins J did not refer in his judgement to the decision of the Court of Appeal in Metropolitan Police Authority v Laws and the PMAB.  We will never know how a review would affect Mr Walther as the Met do not review unless a person asks to be reviewed.

And here lies the problem.  The two Walther cases do conflict somewhat even though David Walther won both. Nicholas Wirz, without regard to what is right or just or reasonable, is trying to populate the void that now exists by using the contradiction to reduce injury awards.

Even though both Walther cases involved the original decision and applied to someone with co-existing duty and non-duty injuries at the time of the award, Wirz seemingly wants SMPs to apportion everyone and to use Regulation 37 to do it.

IODPA is certain that a further judicial review will clarify the issue for once and for all but we again return to the example of the man in our question of PTSD and a coma after a car accident.

The question on the legality walks in parallel with what is morally right – the spirit of the law is phrase often quoted.  IODPA is a much-needed counter to people like Wirz and part of its role is to shout out quite clearly that legal questions with a moral content are usually easy to answer if the person invoking the questions does so with a just mind.

The law itself is no more than a codified expression of moral standards. It arises and lives as a demonstration of the combined moral core of the people. The law should not be a plaything for the likes of Wirz, Colley and Baker. IODPA has the will and the means to see that they, and others who try to bend the scope and intention of the Regulations into unrecognisable shapes will always be challenged, and will always be made to mend their ways.

IODPA Grand Prize Draw

IODPA Grand Prize Draw

Our Grand Prize Draw October 2017 is now officially open and we are inviting our supporters to participate to be in with the chance of winning a multitude of brilliant prizes!

IODPA Grand Prize Draw Book of 5 Tickets

We’re excited at some of the prizes that we’ve now managed to secure, some of which are listed below.

As we progress with our charitable purpose of providing assistance to retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty, we need your support more than ever to ensure that we can continue to support the rights of injured officers.

Every £2 book of 5 tickets sold helps to make a real and lasting difference so enter our Grand Prize Draw today!

Our fully functional internet shop has 900 books on offer. PayPal and credit cards are accepted.  Anyone can register as a customer at the shopping cart.  Members can use their membership login to access the shop.

Access the shop by the above link or navigate to it on the main menu

Good luck!

Breaking News: Cheng’s Company Wound Up

Breaking News: Cheng’s Company Wound Up

On 28th June 2017, Companies House web-site posted a document Appointment of voluntary liquidator detailing the impending winding-up of Dr William Cheng’s business; Partners Occupational Medical Services Limited. This document shows that the Liquidator was appointed on 6th June 2017.

Cheng Partners occ health service application-pdf

This will have critical implications for Northumbria, Durham and Cleveland Constabularies, who had awarded a contract to Cheng’s (now liquidating) Company totalling £576,000

Once a Company is liquidated it would be unlawful for it to continue to trade in any way.

A further document Special Resolution to Wind up [the Company] is currently being processed by Companies House and will be published on-line within 5 working days (of 28/06/17).

The Unmasking of Cheng’s OHS Partners

 

 

 

A Question of What’s Right. Please Participate

A Question of What’s Right.  Please Participate

Then there was a man, smart as Satan, who, lacking some perception of human dignity and knowing all too well every aspect of human weakness and wickedness, used his special knowledge to warp men, to buy men, to bribe and threaten and seduce until he found himself in a position of great power ― John SteinbeckEast of Eden

There is a runaway trolley barrelling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one person on the side track. You have two options:

  1. Do nothing, and the trolley kills the five people on the main track.
  2. Pull the lever, diverting the trolley onto the side track where it will kill one person.

Which is the most ethical choice? Above is a demonstration of what we asking of you here.

Notwithstanding that the Regulations do not allow such a perversion of its application we need your help to decide whether, those who pull the levers of power in the land of injury awards (such as Wirz, Cheng, Broome etc), are true psychotics.

You may think the question that follows is an abomination.  That it is asked to make a point rather than to elicit an answer.  Unfortunately this is a fallacy.  Northumbria police are enacting variations on their theory of all injury awards shall be undone.  Under the mask of they have to “test” the law.

So let us rephrase the question…

There is a pedestrian who is a retired injured police officer with SEVERE PTSD with absolutely no capacity to earn. Unable to cope with life he has retreated into his mind. In a shocking moment with his headphones on he is mowed down by A car after the driver failed to notice the traffic lights had changed. He survived but is damned to spend the rest of his days hospitalised in a persistent vegetative state.