Month: January 2018

The only way is not Essex

The only way is not Essex

What we’ve got here is failure to communicate.
 Cool Hand Luke (1967)

It seems there has been a rush of blood to the heads of certain people in the higher echelons of Essex Police. For reasons as yet unknown to the Police Pension Authority, which is an office vested in none other than the sole personage of the Chief Constable, Steven Kavanagh (pictured), has decided to commence a programme of reviews.


For anyone who has not kept up with ongoing events in the long drawn out and sorry saga of police injury pension maladministration which has blighted the lives of far too many disabled former officers, here is a brief recap.

A ‘review’ is shorthand for what happens when a Police Pension Authority (PPA) exercises a power of discretion conferred on it by Regulation 37 of The Police (Injury Benefit) Regulations 2006. A PPA decides to check whether the degree of disablement of an officer, retired with an injury pension, has altered.

It sounds simple, and it is simple. All a PPA has to do is follow the Regulations and be familiar with the ample case law which provides clarity should explanation be needed. Or, if they fancy a lighter but no less helpful read, HR managers could do no better than study the blogs which IODPA has thoughtfully provided to help educate them.

Yet despite this ready access to information PPAs have consistently managed to muck things up. You would think they were doing it deliberately.

In Essex, it is almost as though everyone who has had a hand in setting up this programme of reviews has been secured in a bubble, kept separate from the rest of the world, so they have no idea whatsoever about recent events.

Events such as the disaster in Avon and Somerset, where much public money was wasted in attempting to hold a review programme, which in our opinion was unlawful.

Events such as the Information Commissioner’s advising that Avon and Somerset and Northumbria had no right to continue to hold excessive historical personal information about retired officers.

Events such as the binding opinion of the Honourable Mr Justice Supperstone in the 2012 case of Simpson v. Northumbria Police Authority and others, where he made it very clear that,

‘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.’

So, what is going on in Essex? What has prompted the idea to review batches of injured pensioners? And why has nobody – absolutely nobody – in management had the common sense and nous to look at the regulations and case law to see why their plan is likely to spectacularly fail.

It is indeed a failure to communicate on an epic scale.

More than a failure of communication, it is a failure of awareness, a failure of reason, a failure of professional competence, a failure of decency, a failure of knowledge and a total failure to treat disabled former officers with respect and consideration. There is so much wrong with what Essex is doing that in the space of this blog it won’t be possible to cover all aspects. We can, however, focus on a few elements which demand special attention due to their sheer crassness.

Let’s look at the letter and questionnaire which Kevin Kirby, Head of Pension Governance & Compliance has sent to the first of the injury pensioners who have been selected to undergo a ‘review’. Just who does he think he is, and just who does he think he is talking to?

He writes,

‘We will require a full update on your medical status since your retirement which requires you giving consent for release of your GP records.’

No, you can’t do that Mr Kirby. A review must only determine if there has been any alteration in the specific disabling effect of the recorded duty injury or injuries. One’s ‘medical status’ does not come into it. And neither does the record of a pensioner’s health since retirement.

He writes,

‘Please observe that the pension authority has full powers under the above regulations to undertake this review. It requires openness and transparency concerning your requirement to provide the pension authority with your consent and accurate information.’

Wrong again Mr Kirby. What are you talking about? The PPA has ‘full powers’? What do you think the PPA is – the dictator of some backward country bogged down in the Middle Ages? The only, very limited, power a PPA has, under regulation 37, is to ‘consider whether the degree of the pensioner’s disablement has altered.’ Where is the individual consideration in your sending out of letters and questionnaires to multiple recipients, all of whom are in the highest bands and thus represent the best prospect for the PPA to make reductions?

You can’t have your SMP make any assessment until you have carefully considered, in each individual case, whether a suitable interval has passed which will give good reason for the PPA to think a review is appropriate. You have not done that. Instead, you have gone straight to a process which is obviously intended to allow an unspecified someone to decide whether there has been an alteration in degree of disablement, largely on evidence of employment and earnings.

We do not think you have an inkling what degree of disablement is, or how any alteration is to be determined. Here is a clue for you. It is a medical matter, not a financial matter.

IODPA suspects that pensioners will be all too familiar with the authoritarian tone of a man who thinks he is in a position to order people to do his bidding. Pensioners, however, will know that he has no such authority. He has no power whatsoever to require anything of any private citizen, which is what all former officers are. He can ‘draw attention’ to the police pension regulations as much as he likes but even the most detailed reading of the regulations will not reveal anything which confers on a PPA the power to ‘require’ a single thing from any injury pensioner.

The questionnaire runs to six pages. IODPA will return to this most ill-intentioned document in full later. But for now, be amazed at how misguided the man is who thinks it is his business, his right, to ask you for details of your earnings, and then, astoundingly, requires you to sign consent to let him have HM Revenue hand over all details of your tax position, earnings and employment – since the date you retired.

To bolster up his empty demands for information, Mr Kirby then sees fit to issue what is an all too familiar nasty, and equally empty threat. He provides an Appendix A with his letter in which he seeks to tie his demands for information with a blatant but totally erroneous indication that failure to comply with all of his requirements will result in your pension being dropped to band one.

So, let’s round this up. We know that we are wasting our breath in trying to shock Mr Kirby into realising that he is just so very wrong in so many respects. He will, like all his colleagues across the country who have trodden this rocky road, go automatically into full defensive intransigent position at the first signs of any questioning of his plans. The only thing which will move Mr Kirby is when the PPA and SMP are ‘required’ to attend as respondents in a judicial review. And as sure as eggs are eggs that’s where Mr Kirby is taking his PPA and SMP.

Instead of trying to educate those who are deaf to reason and blind to accurate information, let’s close this by advising all injury on duty pensioners in Essex to file away Mr Kirby’s letter, questionnaire, and Appendix A for future reference. On no account complete the questionnaire. On no account give signed permission for the PPA to obtain medical or financial information.

Karen

Karen

Karen’s story

On 23rd January 2004, at about 8.00 pm, Karen’s life changed forever.

Karen, a police constable, aged just thirty eight, was attacked whilst attempting to arrest a male for robbery. The suspect resisted arrest; he fought with Karen, reigning several blows down on her head.

The struggle continued for some time. Karen made attempts to call for assistance via her personal radio but was unable to make the transmission due to the punches being thrown at her.

Eventually, there was a lull in the fighting where Karen was able to make the urgent call to her colleagues.

The male suspect, knowing that help was on its way, then made his final bid for freedom by catching hold of Karen’s hair and slammed her head against the wall. He was able to make off, leaving Karen crumpled in a heap on the ground.

Within a couple of minutes, Karen’s work colleagues arrived at the scene and immediately administered first aid to Karen. She was conveyed to hospital by ambulance, where she was admitted to the Intensive Care Unit, where she remained for three days.

Karen never went back to work following this incident.

Retirement

Karen’s injuries led to her early retirement from the police service on medical grounds. She had just eleven years service.

Karen was awarded an ill health retirement as well as an injury award and she attempted to move on with her life.

Life was never the same again for Karen or her family. Karen had changed beyond all recognition. As well as her physical head injuries, she was also diagnosed with PTSD.

Sadly, her former force has been a constant presence and Karen has undergone a number of (Regulation 37(1)) reviews since she was first awarded an injury pension in 2004, namely in 2006, 2009, 2011 and 2016.

In 2016, Karen’s former police force again reviewed her injury award and reduced her to a zero percent (which is still a band one).

The reason why she was reduced?  The Selected Medical Practitioner (SMP) stated that her head injuries were due to a childhood injury.

Contacting IODPA

Karen contacted IODPA via email and asked for help. She was unaware that SMPs are not permitted to go beyond previous reviews nor are they permitted to go back and look at her original ill health retirement decision. A review is a comparative exercise (as per the Belinda Laws v Metropolitan Police & PMAB). Karen was last reviewed in 2011, so the SMP should have been looking at evidence between 2011 and the review date in 2016.

The only question that the SMP should have answered was “Has there been substantial alteration in her degree of disablement?”

IODPA knew that Karen was out of time to formerly appeal the decision and that there was another route to right this potential wrong, which is by using the mechanism of a Regulation 32(2).

The team at IODPA first of all, reassured Karen that there was hope for her and we immediately signposted her to one of our trusted, expert solicitors. We helped her with her funding application, which enabled her to engage the solicitor.

Karen then joined the IODPA support network, where she was able to chat with others who had been through the same process. She was warmly welcomed and received good advice from her peers. Knowing that others had been through the traumatic process and had come out the other side, was comforting.

Karen found the strength to appeal her case, and we are pleased to report that she did indeed win. Her original banding was restored and all monies back paid.

Karen has told us “If it wasn’t for the support of IODPA, I would never have had the courage to take it all the way. I thought I had gone past my twenty eight days to appeal the decision, not knowing that this Regulation called a 32(2) existed. It was the best email I have written in years. Thank you.”