An abuse of any given power is a display of ignorance to the moral values of the position.
Essex police pension authority has recently announced the intention, in respect of former officers in receipt of an injury on duty pension,‘ . . . to review the percentage of earnings capability in relation to the injury award regulations.’
That is how it is announced in the minutes of the meeting of the Essex Police Pension Board held on 28th November 2017.
For the benefit of anyone who has only lately come across IODPA and these blogs, we had better explain what the Chief Constable of Essex Police has determined to attempt.
The Chief Constable holds, in addition to his office of constable, the office of police pension authority (PPA). Amongst other responsibilities a PPA is required to ensure the Police (Injury Benefit) Regulations 2006 are properly applied and administered. These are the regulations, the law, which govern police injury on duty pensions. An important provision in these regulations is the PPA should ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.
This provision is in regulation 37 of the Police (Injury Benefit) Regulations 2006. It is the so-called ‘review’ provision. Essex PPA would like to use this regulation now, having not used it much, if at all, since 2010. However, we have grave concerns that Essex PPA is approaching things not only in an unlawful manner, but also in a way which will undoubtedly bring much distress and upset to some very severely disabled former officers.
What the statistics say
Essex has some 250 or so former officers retired due to injury on duty. They each receive a pension, the amount of which is partly determined by their degree of disablement. An individual’s disablement may alter over time – it may worsen, or it may improve.
However, data obtained by the IODPA shows that the vast majority of pensioners do not experience any substantial alteration over the years of their retirement. The task of a PPA is therefore to make a sensible, humane arrangement which will allow it to discharge its obligation to ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.
On the basis of the minutes mentioned above, there is some confusion and lack of clarity about what degree of disablement is, or what is required of the PPA should degree of disablement alter.
The minutes display an unfortunate indifference to the precise meaning of the regulations. There is no such thing as ‘percentage of earnings capability’. No mention in the regulations, nor in case law. We have to assume the PPA means to refer to a review of the degree of disablement of former officers in receipt of an injury pension, but if the PPA can’t even name it, preferring to use some meaningless replacement phrase, then it does not bode well for the way any ‘reviews’ will be conducted.
We said above, that a PPA is required to see that the Police (Injury Benefit) Regulations 2006 are properly applied and administered. Well, sadly, the wheel has fallen off that particular bike before the reviews have even really begun. In a response to a Freedom of Information Act request, which asked Essex Police the question, ‘What is the selection criteria for identifying pensioners required for review?’ they replied, that is was,
‘Based on longevity cost to Pension Authority to determine first tranche.’
We have to pause again here to seek meaning. We think Essex is saying that pensioners will be selected to have their degree of disablement reviewed by picking out those who are younger than the median age of the total group of injury on duty pensioners, and thus liable to be paid their pensions for longer or those pensioners who receive the higher amount of injury pension, or some equation including both criteria.
That was pretty much what Avon and Somerset did, when that force set out on its costly and fruitless review programme a couple or more years ago. Essex is thus following an example which has been proved to be unlawful and doomed to failure.
Selecting individuals for a review of their degree of disablement on the basis of their age, or their level of pension payment is not lawful. It is discriminatory.
What is vitally important to note here is that Essex PPA makes it transparently obvious, beyond all possibility of reasonable doubt, that it is motivated to conduct reviews only by consideration of the ongoing cost of funding injury pensions.
That is why IODPA has to comment that the PPA is acting contrary to the intent and purposes of the regulations. The PPA seems to have lost sight of what the purpose of a review is, as intended by the regulations.
A review is intended to be a rare event, only undertaken when there is good reason to believe that an individual pensioner has experienced a substantial alteration in degree of disablement. Reviews should not be applied to a selected group of injury on duty pensioners as a means of discovering whether there has been an alteration in degree of disablement. A review is not intended to be a mechanism for a PPA to try to save money.
The Regulations
A PPA is required by regulations 37 of the Police (Injury Benefit) Regulations to do no more than, ‘. . . at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered.’
In making that consideration a PPA is not empowered, or entitled to require any individual to supply personal financial or medical information. Nor can anyone ‘process’ any of the information held by the force, or any other agency or person for the purpose of making the consideration, without the express informed consent of the individual concerned. The Data Protection Act makes it very clear that information held can only be processed for the purpose for which it was first obtained and any further processing for a different purpose is not lawful without express informed consent from the individual concerned.
Instead of making a simple enquiry of pensioners, from time to time, we have a force which has applied an intrusive and potentially deeply distressing instrument in an attempt to use regulation 37. Moreover, it seems the prime intention of the PPA is not to ensure the correct level of pension continues to be paid, but to save money.
Police injury pensions stand to be paid from the police force budget. Chief Constables have a duty to be prudent with the public purse. Chief Constables are under pressure to reduce costs, to trim their budgets, but that does not empower them to raid the injury on duty pensions paid to disabled former officers.
It would be proper for a Chief Constable seeking savings, to do what was practicable to lessen the chances of officers becoming injured and disabled, or to make provision for the best care and treatment being available to any officers injured on duty, so they could avoid being retired on an injury pension. It is most certainly not proper, nor lawful, for a Chief Constable, acting as PPA, to seek to review the most costly injury pensions with what can only be an intention to see some of them reduced.
Conformation this is a driving objective behind the proposed reviews is found in a further response from Essex Police to a Freedom of Information Act request. When asked, ‘Can you confirm if all pensioners in each band will be reviewed?
Essex replied,
‘Since no reviews have been conducted since 2011 the suitable period for review as determined by the smp at previous review has elapsed. It is therefore envisaged reviews will be conducted for all pensioners in band 4, 3 and 2.’
Once more, we need to decode. Essex seem to be making a causal link between lapsed recommendations made by medical practitioners employed by the force some time ago as to when a review might be appropriate in individual cases, and the fact of Essex now commencing reviews. In plain language, they say, ‘We failed to make any considerations as to whether the degree of disablement of any of our injury on duty pensioners had altered, so now we have to play catch-up.’
As with the flawed and unlawful motive for holding the reviews – to save money – here Essex reveal a concerning abuse of the intent of the regulations, allied with a truly shocking exhibition of disability discrimination. Essex say they won’t be reviewing pensioners who are on band one. These are the pensioners who are paid the least amount of pension, and whose pensions can not be reduced, but could only be increased.
IODPA has had an indication that Essex PPA is willing to rethink its approach, and we will be reporting on this in a future blog. We will be following events as they unfold and will be ready to assist any injury on duty pensioners whose pension rights are under threat. We think Essex ought to call a halt to its proposed reviews and sit down with people who can explain the regulations to its HR managers and other staff. It is not in the best interests of Essex police, or of the disabled former officers who receive an injury on duty pension, to allow unlawful application of regulation 37 to proceed as currently proposed.
So it seem that Essex wish to go down a path that Northumbria police, Merseyside, Staffordshire and Notts just a few to mention have taken. Let’s be clear that it’s not the SMP that decides what a suitable period. It’s the PPA and that Statory duty is one of ‘discretion’. So if PPA decide that there is no substantial alteration NO REVIEW. The process starts where the PPA are considering which means they can look at the evidence and say closed book no review. The SMP makes medical decisions and then presents it back to PPA who then act on that decisions. Also there is no requirement to provide medical records and if you do consider then only provide what’s relevant since the time of awards or the last review. Any sensitive information should be redacted or removed from the disclosure. Finally what about the Band 1s. ? The reason is due to cost obviously
It has been said many times on these blogs and comments that Chief Constables and their minions don’t understand the regulations and other laws surrounding these reviews. I beg to disagree, I believe that they fully understand them but they chose to see how far they can go in bending those regulations and breaking other various laws. After all the regulations seem fairly simple to understand, they only become complicated when those Chiefs and their henchmen twist each word to mean something completely different to the original meaning.
In simplistic terms the regulations were put in place to protect Police Officers, and not to play word games with.
It looks as if the alleged breakdown of communication (?) between a Force Chief Constable (The one held totally responsible for PPA matters) and his minions (who seem to be doing his job for him but in their own way!) such as HR departments and agencies who provide SMP’s to ‘review’ cases where, legally, there shall have been a substantial improvement or deterioration of the condition of the IoD Pensioner involved identified is not going to be put right any time soon.
If Mr Kirby could send out such an ( ‘unauthorised’?) document, regarding there being a review intended, that was threatening / bullying (which are now legally listed as crimes) to an IoD Pensioner without first passing it by Chief Constable Kavanagh to verify it’s legality and suitability BEFORE IT WAS SENT is a very serious matter. This should surely call for Mr Kirby to be dismissed!
IODPA is undertaking to correct all this malfeasance and getting things put right for each and every targeted IoD Pensioner.
(Malfeasance definition, the performance by a public official of an act that is legally unjustified, harmful, or contrary to law; wrongdoing (used especially of an act in violation of a public trust).
I thank God daily for IODPA and the help it gives to IOD pensioners in these trying times.
KAVANAGH is another lemming being led by the prospect of savings by the NWEF/NAMF and their complicit cronies, lets hope they all fall off the cliff edge and that their respective landings are as hard as they try to fraudulently impose upon the pensioners affected.
Good work IODPA.
This is a clear case of both Direct Age Discrimination and Direct Disability Discrimination, for which there are no defences in law.
Chief Constable Kavanagh’s guilt is unquestionable.
Chief Constable Kavanagh has not only failed in his public duty to protect injured pensioners, but he has deliberately and unlawfully targeted these pensioners, victimising them based upon the severity of their disabilities and their age.
The sole purpose of Chief Constable Kavanagh’s victimisation being financial gain.
Mr Kavanagh, you should resign in shame, but before doing so you should dismiss Mr Kirby for gross misconduct.
Essex Chief Constable has taken a small step away from disaster. It remains to be seen whether he was motivated by self preservation or by a genuine concern about the abhorrent actions of this Kevin Kirby person, who surely should not be allowed to continue in his post in HR.
It seems to be the case that Kirby is merely the latest example of a HR manager with sorely inadequate knowledge of how the police injury pension scheme should be managed.
Will the Chief Constable now try to achieve his proposed mass review by using a different approach? I would like to think he might be advised that he, as police pension authority, has to have good reason to go through the process – for each individual IOD pensioner – of considering whether their degree of disablement has altered.
Given that it will take only one pensioner to bring a judicial review case against the police pension authority, the Chief Constable is on dangerous ground unless he can be completely sure his HR department is able to apply regulation 37 lawfully.
He would be well advised to tell his HR people that regulation 37 does most certainly not confer permission for a police pension authority to conduct mass reviews.
Behind he initial apology as previously stated is the fact that the forces are going about these reviews in the wrong way. Who is advising them to do it like this. When will it stop and they conduct the reviews as per the regulations.
Don’t these forces consult or communicate with each other, they’re spending so much money on SMPs etc and saving bugger all, persecuting former officers who have sacrificed their health and well being, and in some cases a lot more, serving their forces and the public.
How much longer are these Chief Constables, acting as Police Pension Authorities, going to be allowed to keep breaking the law by reviewing IOD pensioners unlawfully? These people are supposed to be the heads of their respective Police Forces and yet they’re unable, or unwilling most likely, to adhere to the law! It is disgusting and makes me regret the years I spent as a Police Officer. These people are so very quick to put serving Officers on discipline charges for the most minor offence and yet these Senior Officers break the law without a second thought. Maybe, these Senior Officers should get back out onto the street and deal with the criminals, drunks and trouble makers for a lengthy period. Perhaps, if they got seriously injured they would realise how drastically their lives and lives of their families change! Then, to be dealt with in such an unlawful and despicable way by the Force in which they served would reveal the ongoing cruelty that other IOD pensioners are being subjected to.
Every single retiree called for review should immediately start proceedings for discrimination.
In fact band 1,s not called should as well for being left out.
Shame on all of the PPA’s who are failing to follow the regulations. They are there for a purpose and that is to look after those police officers whose only failing was to be injured whilst upholding the law of the land. They put themselves into danger, many protecting the vulnerable in society, and this is how you decide to treat them. Your budgets may be one thing but the iod,s pension is another and they are entitled to there correct payment without finding illegal ways to reduce them to help your budget. Go find cuts elsewhere but leave these sick, disabled brave people alone.
A huge thank you and well done to IODPA for once again pulling these charlatans up and exposing them for what they really are, we all owe you a great debt of gratitude.
Once again, we read about forces dragging their most injured and most vulnerable former officers in for review.
Does this make Mr Kavanagh’s previous letter to IODPA just a token effort in a bid to silence them?
Is he even aware of how his former officers were chosen?
After all, Essex Narpo have already written in one of their letters, that Mr Kirby has stated band fours will be a thing of the past.
By the looks of it, he has already set about achieving his goal.
This sorry saga has come about purely by pressures to save money being forced on forces by the Gocernment. The fact that they, like Staffordshire & others who had not done so for a number of years, but are now doing so, is abundantly clear. Welfare of the poor IOD pensioner, is very much absent.
Other forces have been serverely criticised for their uncaring approach to reviews of former officers, whose only ‘crime’, was to be hurt whilst on duty as a police officer. However, Essex took this to new high of apparent blatent ‘hate’, (or is it jealousy), of IOD pensioners, if the comments apparently made by the Head of HR are correct.
I hope that the response by the Essex Chief Constable is sincere and that it is not just a smoke screen whilst the force reconsiders how they can still save money from IOD pensioners, but without such negative publicity.
Why am I concerned about the sincerity of the response? Well, there has been no mention of any disciplinary action, or even that a word of advice has been given to the perpetrators, including Mr. Kirby. If this had been a police officer who had told such blatent untruths, manipulated the regulations to suit his aims, then he/she would be in very big trouble & probably facing the sack. However, this doesn’t seem to be the case with the Head of HR, so is it sincere? Only time will tell!
I know one fact however and that is whilst we await the next chapter of this sorry saga, IODPA and it’s members will be watching Essex Police very carefully. You might like note note that Essex Police!
Another well thought out and informative blog. It could not be made any clearer – the Police Injury Pension Regs were only ever intended for the protection of injured police officers. They must be read as a whole, not as some forces are trying to do, by picking out individual words and phrases which they think suits their purpose. Nothing in the regs gives forces the power to aggressively ‘review’ a pensioner’s degree of disablement. If the legislators had intended this to be the case, then they would have included a section in the original draft.
Essex and other forces attempting to pursue a similar course would do well to get some proper informed legal advice before wasting public finances on their unlawful endeavours
On the ‘face of it’ the PPA (CC Essex) letter appears to make the right noises, but it remains to see if it correlates with actions taken….
Perhaps IODPA should offer a consultancy service; msy save PPA’s money in the long run???
Thank you for a fine report, I was medically dis charged over 30 years ago , if one of these managers wishes to walk in my shoes for just a day they would certainly revise their decision on this matter. There is not one aspect of my life that has not been affected. It is merely a cost cutting exercise and an absolute disgrace, they should hang their heads in shame , I was injured doing my job, on the sharp end, I can honestly say I still miss my job today.