Access to justice is a fundamental requirement for the rule of law, by which people have their voice heard, exercise their rights, challenge discrimination, and hold decision makers to account.
The British legal system is often said to be the envy of the World. In the criminal justice system an accused person is assumed to be innocent until proved guilty. The proof of guilt is a high one. Whoever is tasked with deciding guilt is proved must arrive at a finding of guilt beyond all reasonable doubt.
Even when found guilty, a person can usually appeal the decision, providing there are some good grounds for believing the decision was in some way flawed.
These two principles apply to most other forms of hearing, such as disciplinary hearings, employment dismissals, grant of a licence, state benefit decisions and right down to parking fines.
So too with decisions made by a police pension authority and by medical professionals acting for the police pension authority.
Anyone who has been reading the blogs on this site will be under no illusion that police pension authorities and their ‘selected medical practitioners’ (SMPs) have a remarkable talent for making decisions which are unsound and eminently suitable for appeal.
So, how many unsound decisions are being made?
Unfortunately, it is impossible to say with certainty, for decisions made by police pension authorities and their SMPs are not subject to any oversight whatever. Unlike in a court of law there is usually no person present who represents the officer or former officer. Nobody to spot the mistakes, or to make at-the-time objections. Nobody to review the decision once made, to examine it for factual accuracy and legal compliance.
IODPA exists to offer advice and support to any former officer who has concerns over their injury pension and we applaud the good work of all local NARPO’s and the Federation where they are able to guide individuals through the tribulations of ill health retirement or the trauma of a review of degree of disablement.
Worse, where the decisions are being made concern disabled former officers who were injured on duty, the individuals subject of the decisions are, we have good reason to say, almost always totally unaware of the police injury pension regulations and thus have no way of knowing whether the process of decision making, or the decision itself is flawed. What greater disservice could there be to officers injured in the line of duty than to leave them unaware of their pension rights and without any support to help ensure they receive the benefits they are due..
Police Forces themselves universally stay clear of offering any advice or assistance – and we can understand their reasons for doing this, but suspect their reasons are not always grounded in concerns to remain impartial. The best any individual can hope for is a brief few lines mentioning NARPO or the Federation and the availability of appeal to a PMAB.
Despite this sorry situation, some individuals must feel so aggrieved by a decision they decide to appeal.
We should bear in mind that decisions made by a SMP are medical ones. That is, they are nothing more than a medical opinion. In that sense, they can rarely be arrived at beyond all reasonable doubt, for diagnosis is not an exact science. Where the decision contains elements of prognosis we depart rapidly a great distance away from certainty, for prognosis is entirely speculative and uncertain.
A PMAB is composed of a panel of three doctors, one of whom must be a specialist in the field of medicine most relevant to the duty injury or injuries of the appellant. The rationale is that only other doctors can offer an opinion contrary to that of a SMP.
When a disabled former officer arrives at a PMAB hearing they are often as poorly prepared as they were in the earlier stages of life as a disabled person. Only those who have secured assistance from IODPA or from the Federation will have anyone to represent them and to look out for their best interests. Pensioners are at the mercy of the Board, and of the arguably fallible SMP, who will inevitably be at the hearing.
Pensioners will also find that their pension authority is represented by a solicitor, or even a barrister, though sometimes they rely on the cheaper services of a self-styled pensions expert or someone from the force’s HR or Occupational Health Department.
It is a testament to the firmness of purpose of the few pensioners who do have the will and the ability to negotiate the many barriers put in their way to getting justice, that there are any appeals at all. IODPA is all too well aware that for the vast majority of individuals the barriers are too daunting a prospect. They have to accept the decisions made, for their circumstances are such they have no hope whatever of taking matters to appeal. For some, the trauma and stress would do so much harm to their delicate health they fear to seek justice.
So, given that, for now, we don’t know how many decisions made by police pension authorities and SMPs have been flawed, and thus susceptible to challenge, how many PMABs have actually been held in recent times?
A freedom of information request – https://www.whatdotheyknow.com/request/smp_police_medical_appeal_boards – made by a Lily Nightingale, which may or may not be the same Lily Nightingale who is an SMP, has revealed this:
- In 2014 there were 66 appeals heard, of which 23 were upheld, and 43 rejected.
- In 2015 there were 93 appeals heard, of which 24 were upheld and 69 rejected,
- In 2016 there were 119 appeals heard, of which 94 were upheld and 67 rejected.
- In 2017, there were 94 appeals heard, of which 35 were upheld and 59 rejected.
- In the first quarter of 2018 there were 20 appeals heard, of which 10 were upheld and 10 rejected.
From those figures we can calculate some percentages.
- In 2014 65.15% of appeals were rejected
- In 2015 74.19% of appeals were rejected
- In 2016 56.30% of appeals were rejected
- In 2017 62.76% of appeals were rejected
- In 2018 50% of appeals were rejected
- Overall, 63.26% of all appeals were rejected
If we are to search for reasons why more appeals are rejected than succeed, then more research would be needed. We can theorise that one reason may be that doctors are reluctant to disagree with an opinion of a fellow medical professional. Another may be that where appeals were rejected the individual was not represented or poorly represented.
Given that we know decisions made by PMABs do get challenged successfully by way of judicial review or by complaint to the Pensions Ombudsman, we can also consider it is possible the medical people who form the Boards may lack the legal knowledge necessary to ensure they arrive at decisions which are not biased or arrived at by consideration of irrelevant factors, or by dismissing or ignoring relevant factors.
Unlike the criminal justice system, the appeals concerning matters arising from the Police (Injury Benefit) Regulations 2006 are heard by a panel selected by and trained by a for-profit commercial company. The doctors who sit on the PMABs are paid a fee, as are the SMPs who attend and whose decisions are being challenged. Representatives of the police pension authority are likewise paid a fee or are on a salary from their police force.
The appellants, in contrast, have no financial assistance save the few who manage to secure some from the Federation. On those grounds alone, the appeal system is weighted in favour of the police pension authorities, who think nothing of spending public money defending their actions.
Appellants are not accused of any crime, yet they seem to have far fewer rights, and lesser safeguards ensuring fairness, than any common criminal. Far too frequently the system as currently established is effective in denying them their pension rights and blocking any paths to the possibility of redress.
The freedom of information request supplies a list of names, of the SMPs whose decisions were being appealed. Not too much can be read into this, as there are not many doctors willing to debase their profession by taking on SMP work. However, even though the likes of Drs William Cheng, Ralph Sampson, David Bulpitt, Johnathan Broome, and, yes, Lily Nightingale appear frequently on the list of appeals via PMAB, it might be preferable to contemplate which SMPs names are consistently absent from the list.
In a well ordered system there would be no need for appeals. But until there is reform PMABs will remain a stain on the enshrined principles of justice. Until justice can be made freely accessible to vulnerable disabled former officers there is no certainty of justice being found. Until vulnerable disabled former officers can know themselves supported and properly advised and represented throughout all stages of ill health retirement and reviews of degree of disablement then the ill-disposed, the ignorant or misinformed, the lazy and the incompetent who administer the systems within which injustice is allowed to flourish will ensure a steady flow of appeals.
Whilst all those who either do not know they have been victims of injustice and all those who do suspect but are unable to do anything about it will continue to suffer injustice unseen and unheard.