“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 Twain, The 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 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)
Sometimes, when you do something unlawful, wrong, or just plain cheat, it tends to return and bite you on the arse.
You see Staffordshire, with their blanket review programme are opening up a large can of worms, because of past transgressions.
Band 4 IOD’s given a 100% degree of disablement , but somehow managing to end up in Band 1, after the magic trick called PEAM. Police Earnings Assessment Matrix.
We should at this point note that in the Regulations it states that the ” Decision of the SMP is final ”
This means that nothing should be done after this point. It is a fait accomplit.
But no, they couldn’t help themselves could they, and had to use this lovely little equation.
So I asked Staffs all about their little ruse, and this was their reply.
“Should a Police Officer, so deemed unable to carry on his duties as a Constable, because of his disability retire on an annual salary of £37500, please explain to me how given a Permanent disablement figure of 75% by the SMP, he or she can be placed in the banding level 1?”
Injury award banding is worked out using the following calculations:
Reduced Earning Capacity (REC):
(A-B) x 100 = (£37,500 – £28,389) x 100 = 24%
A £37,500
A = leaving salary B = potential earnings
Loss of earning capacity due to injury related disability:
REC x DDI = 24 x 75 = 18% (Band 1)
100 100
REC = Reduced Earning Capacity
DDI = Disability Due to Injury
For information the bandings are as follows:
Band 1: 25% or less (slight disablement).
Band 2: More than 25% but no more than 50% (minor disablement).
Band 3: More than 50% but no more than 75% (major disablement).
Band 4: More than 75% (very severe disablement).
Given the unlawful methods adopted by your HR department, assuming a permanency of disablement at 100% please illustrate how, given your PEAM system, that he or she can achieve a band 4 level of IOD pension.
Using the above calculations, if the SMP determined that the DDI was 100% using the above figures and calculations, the percentage would be 24% – Band 1.
For an officer to achieve a Band 4, the loss of earning capacity due to injury-related disability percentage would need to equate to 75% or more. For this to be achieved the SMP would need to determine that the officer was not capable of working even part-time hours.
Now we know at the time of this FOI that there were 344 IOD’s in Staffs, the vast majority of which are Band 1, placed here, when quite clearly they should not have been.
To dismiss those that had been erroneously placed in Band 1 seems to me to be discriminatory!
Staffs have said hey will not be using PEAM this time, but I understand that in fact what they mean, is the calculation the SMP, has to do, because of course his decision is final, is merely called something else.
The fact that HR applied the PEAM equation after the SMP’s decision, is what made the original use of PEAM unlawful. So get it done beforehand!
Either way, Staffs have bitten off more than they can chew, and I remain eternally hopeful that ALL the Band 1’s do actually get what they so richly deserve right from the get go on this occasion.
http://www.legislation.gov.uk/ukpga/2006/35
http://www.cps.gov.uk/legal/d_to_g/fraud_act/#a04
I have been following the blog with great interest, in particular the comments in regard to what appear to me to be the implied threats made by the CC of Staffordshire to those officers who have been granted an injury on duty award.
That implied threats were added to the Staffordshire Police website is clearly a cause for concern.
I am particularly interested in the copy and paste reference to the Fraud Act 2006 which has been added at the end of the much talked about questionnaire sent to injured officers.
For those of us not familiar with an injury on duty award I am told that former officers have to jump through hoops, obtain medical evidence from a suitably qualified consultant(s) and present a compelling case to the relevant authority in order for it to be awarded in the first place.
I understand that after it is awarded it can be reviewed but as others have covered the review process I intend to leave that one alone.
I am no legal expert and I am aware that I may well be entering Peter Pan land when I mention the CC of Staffordshire, his appointed representatives and the Fraud Act 2006 s4 all in the same sentence.
Hopefully this will generate some discussion and open peoples eyes to what is now taking place in Staffordshire.
Firstly some background information about the newly appointed CC of Staffordshire Police
http://m.stokesentinel.co.uk/new-staffordshire-police-chief-constable-gareth-morgan-outlines-vision-for-top-job/story-30398317-detail/story.html
As you can see he was previously employed by Avon and Somerset, interestingly that Force have recently dropped their three year mass review of those officers injured whilst on duty, why?
A local Staffordshire newspaper says of their new CC
New chief constable Gareth Morgan is only too aware of the challenges he faces to keep the public safe against a backdrop of budget cuts and more complex crimes.
The CC goes on to say
“I need to find £10 million in savings in an organisation that has seen £50 million taken out. I have to do that when we are seeing changes in demand”
And when talking about his new Force he says
“There are challenges it needs to address and I have a track record of going in and sorting out priorities and budgets”
The ongoing review of over 200 Injured on duty ex Staffordshire officers is quite obviously his priority. Is it therefore reasonable to ask how much did he save by targeting injured officers in Avon and Somerset and how much does he think he is going to ‘save’ Staffordshire?
Is it also reasonable to ask if Staffordshire recruited him knowing that one of his first acts as Staffordshire CC would be to rubber stamp another mass review of injured on duty officers?
Is it one of his performance targets?
What role, if any, does the local crime commissioner Mathew Ellis have to play in all of this?
I am led to believe that the CC denies that his mass review program is a cost saving exercise, I know what I think, how about you?
Back to the Fraud act and those implied threats.
It would be a reasonable expectation that the CC and his legal team were competent, that they knew what they were doing, that what they were doing and how they were doing it was ethical and legal and that there were no hidden agendas.
It would also be reasonable to expect that when those chosen by the CC to represent him and his high office are questioned about their actions that they answer truthfully and that they do nothing to bring him and his office into disrepute.
I now see that the SP website has been ‘adjusted’ , why?
That said It appears that the reviews continue and that the CC fully supports his representative(s)..
It now seems to me that if it is good for the goose to quote the fraud act it may also be good for the gander!
Apologies for this all being a little disjointed but I am not an expert and I tend to write what I think at a particular time before I forget it!
Please bear with me.
Back to the CC of Staffordshire and his team.
The Fraud Act 2006 S4 CPS guidelines say:
Fraud by abuse of position (Section 4)
The defendant:
* occupies a position in which he was expected to safeguard, or not to act against, the financial interests of another person
* abused that position
* dishonestly
* intending by that abuse to make a gain/cause a loss
The abuse may consist of an omission rather than an act.
Like the other two Section 1 offences, Section 4 is entirely offender focused. It is complete once the Defendant carries out the act that is the abuse of his position. It is immaterial whether or not he is successful in his enterprise and whether or not any gain or loss is actually made.
For completeness the relevant links to the act and the CPS guidelines are at the top of the page.
Please feel free to discuss and let me know where I have gone wrong.
I also feel that I must write something positive at this point, I must admit I struggled a little but I have to say it is pleasing to know that Staffordshire Police have been successfully able to contact all injured on duty officers via their comprehensive and up to date records which they have kept securely at their Staffordshire HQ.
It must reassure all those involved be it data subject, processor, controller or the data commissioner himself that all is well and that there is nothing at all to be concerned about.
Well done Staffordshire.
It will be interesting to see if Staffordshire will take note of the recent Manchester JR activities. Thy seem just as determined to come top of which force can save the most money from robbing IOD pensioners.
Gerald made a good comment here about ALL band 1 pensioners asking themselves if they are in the right banding for their injury on duty, and deciding to be reviewed, (just to check that they weren’t being ‘played’ at retirement, considering what a lot of forces are doing now). THAT and ONLY that are what the regulations are for. SUBSTANTIAL
IODPA is the best thing that has happened for IOD pensioners to see JUSTICE and not be bullied and harrassed which is what has been happening for years now.
Well done for your recent work .
It’s only just beginning .?
Staffordshire police, your blanket reviews are unlawful. If you insist on proceeding with this you will lose and waste lots of money. Take notice of this and learn from the same mistakes that other forces have made.
Any Staffordshire IOD’s who receive a questionnaire, send it back with a note stating you can shove it right up the senders arse. They are an unlawful instrument, Merseyside Police have recently backed down from using them when threatened with a judicial review.
The Staffordshire NARPO branch, you are quite frankly a total disgrace. You are clearly a divisive organisation that has no interest in representing some of your members, those who sustained injuries from policing. You need to take a long hard look at yourselves, others are looking at you and think that you aren’t fit for purpose.
Dear Chief Constable,
I think it’s time you had some good legal advice from someone that understands the regulations.
Threatening retired IOD’s with the fraud act is absolutely despicable, your blanket review is unlawful.
Please just stop for a few moments and think what you are doing to these men and women that were injured whilst carrying out their duties as police officers. The stress for them must be enormous, some of them will have mental health problems, I hope you don’t push anyone of them over the edge with this.
Oh dear, Oh dear, Staffs must already regretting the opening of an industrial size can of worms. The stench is all pervasive.
Either they heed what has recently happened in Merseyside or continue to steam on in ignorance. “Never mind the icebergs, full steam ahead”
All of the band 1 IOD’s should now seriously consider the use of the ridiculous, unfair and discredited PEAM system used to ensure that everyone ends up in band 1. Yes everyone, even someone on band 1 who is 100% disabled, how can that be?
What have band 1’s got to lose? answer “nothing”, they cant take your pension away even though the bullying idiots threatened to do just that. I think there are a lot of IOD’s out there who are owed a shed load of money because they were wrongly banded.
All power to your elbows Staffs IOD’s, stick with us and fight, just like the playground bullies that they are they will give up and go away.
To Staffs Police I say this, don’t listen to NAMF or whatever they call themselves this week, take some real legal advice from someone knows the regulations. Oh and while I’m in the mood for giving you some advice, “when you find yourself in a hole, stop digging.
This is typical of a Force going off half cocked, they think that they are above the law and can do whatever they want without punitive measures against law abiding individuals who through no fault of their own have been granted an injury on Duty pension. I suggest that Staffs look very carefully at the recent capitulation by Merseyside in relation to the unlawfulness of completion of a questionnaire and request for medical records. There are no Regulations allowing this too be carried out, end of story Staffs and many other forces who have done likewise. Take Note.
https://www.google.co.uk/amp/s/amp.theguardian.com/uk-news/2017/jul/20/official-figures-show-biggest-rise-crime-in-a-decade
Think on this..
Crime is rising and Staffordshire have a new CC in post, excellent , he will want to make his mark and get to know his new force.
He will want to use his experience from Avon & Somerset and his time spent at Quantico to address many important issues, this press release appears to back up this assumption:
http://m.stokesentinel.co.uk/staffordshire-police-s-new-chief-constable-gareth-morgan-takes-up-his-role/story-30394385-detail/story.html#comments
He has the backing of Mathew Ellis https://www.staffordshire-pcc.gov.uk/
All good, excellent opportunity for the new Chief to make a positive contribution one would think?
Hold on, what has he done…
As one of his first acts as CC he has confirmed that a blanket review of officers retired due to injuries sustained whilst on duty will go ahead, he has also sent out questionairs to those ex officers containing threats which are repeated on the Staffs Police web site!
Helpfully the questionaire finishes by quoting the 2006 fraud act, whats that all about?
I will leave it to the reader to decide where the new CC,s priorities lie and to research where he is getting his information and guidance from.
It may not reassure his new employer that one of his first actions is to rubber stamp the mass review program, to state that he is following the ‘legal’ process and to allow his HR dept to blatantly lie (on his behalf) when questioned.
Oh, its not a cost saving exercise by the way and it will be done indiscriminately in alphabetical order with no other criteria being applied😂
According to what I read on this and other blogs it is also not legal!
To the new CC I would say you really need to look in the mirror and ask yourself if what you are doing is both ethically and legally the right thing to do?
Is it the most important issue you have to address, commiting your staff to unnecessary hours of admin and the public to expenditure which could be better spent elsewhere?
And please please be honest, tell us about your hidden agenda’..
I would also respectfully ask you to use your new position to find out how Staffs have carried out past reviews and how they have awarded injury on duty awards. It may give you some cause for concern!
You may have opened a door which cannot be closed and may ultimately prove to be your legacy to the people of Staffordshire!
Staffordshire. I suggest that you contact your other little gang members in Merseyside. Maybe use their legal advisers in future, as they have now seen sense. Hope you’re next. Take that whatever way you like.
How despicably low to target people who have been injured in order to keep the public in this country safe.
Their narrow minded arrogance has them interpreting the regulations with blinkers on and wasting the tax payers money AGAIN!
The same names keep cropping up in these reviews, they keep trying, they keep failing, that makes no sense at all.
Victimisation and persecution is what it is.
Another well written and presented blog, factual correct!! Staffs police will do well to read and take notice of the excellent explanation.
In terms of Jane, well thank you for creating this mess, enjoy your lump sum and retirement and let’s hope that you’re golden pot is never reassessed and removed at the stroke of a pen.
CC Morgan – well what can we say, you have come from a previous force Avon and Somerset whom started reviews of 3 years ago to which suspension was commenced on all these some 3-4 weeks ago. Why do you continue on a flightpath of fantasy – full converse and aware of the injury regs – you send out questionnaire’s to injured officers with the threat that if you don’t fill them in the pension will be reduced or even get stopped.
Staffs NARPO – you too are very cosy in bed with the PPA – when will you defend the rights of injured officers and protect their pensions rather than looking after oneself.
And finally – please stop wasting tax payers money adopting underhand methods and putting peoples lives at risk with threats of reductions of pensions. So staffs you are not above the law – so be decease in the unlawful process of these blanket reviews.
Anyone breaching regulations should be punished, to deter others.
Regulations are there to give Police the confidence to do their job and to keep recruitment flowing.
Dear Staffs police firstly have you got a fall guy/girl in place for when this reassessment/review process goes belly up and costs the Force Thousands of tax payers money.
Secondly are you that thick that you really believe you can get away with doing this reassessment/review to save money.
Thirdly have you got the funds to pay out when your bizarre and no doubt illegal calculations used to reduce the initial banding gets found out?
Fourthly does that new Chief know what he is doing because we know he is a tad arrogant and will try to carry on regardless costing more by the day in appeals and court cases. Mr Morgan know your place! A phrase often shouted down the corridors in his previous Force.
Well IODPA know their place and that is to stand up to bullies and arrogant Hr muppets who actually think they can get the better of former officers that have been ” INJURED ON DUTY” how will the public see this initiative.
You are the lowest of the low to attack injured officers as for NARPO and the Feds. Bloody well man up you cowards and stop selling your colleagues and injured colleagues at the DOWN THE BLOODY RIVER.
Grow some balls and stand up to the force.
I think Jane should reassess the quality of her legal advice.
I think that Jane should ask the IT Department to allow the Internet WebMarshal system to grant access to the following Wikipedia site:
https://en.wikipedia.org/wiki/Ethical_decision
I think that Jane should avoid speed reading, as it can be very costly. However, in good spirit, I’ll do the right thing. Here’s the important bit of the article:
‘An ethical decision is one that engenders trust, and thus indicates responsibility, fairness and caring. Ethical decision-making requires a review of different options, eliminating those with an unethical standpoint, and then choosing the best ethical alternative.’
I am confident that Jane has the capacity to reassess her decision making processes.
If not, I hope that a Judge can assist and restore our faith in the law, ethics and simply doing what is right and proper.