Month: October 2018

The Staffordshire Saga

IODPA Admin Chief Constable, Regulation 37, Review
The Staffordshire Saga

Never let the truth get in the way of a good story.

― Mark Twain

 

Staffordshire Police is one of less than a small handful of forces which remain determined to abuse the ‘review’ provision contained within The Police (Injury Benefit) Regulations 2006.

Chief Constable Morgan, fresh from his experiences with attempting to run a mass review programme of injury pensions in Avon and Somerset, has committed Staffordshire to a similar enterprise.

Mr Morgan’s story in Avon and Somerset, which he has repeated in Staffordshire, is that there is a duty to review the degree of disablement of all former officers who are in receipt of an injury on duty pension. In an open letter dated 21st December 2017 CC Morgan writes,

On 26 April 2017 Staffordshire (sic) Police began a pension review of retired Injured on Duty (IOD) officers in accordance with Reg. 37 (1) of the Police (Injury Benefit) Regulations 2006 which places a duty upon the Police Pension Authority (the Chief Constable) to review whether the degree of the pensioners’ disablement has altered.

 

There is a duty, which is subject to a discretionary process before being acted upon, which allows a Police Pension Authority (‘PPA’) to,

. . .  consider whether the degree of the pensioner’s disablement has altered . . .

 

A PPA must, for each individual, first determine whether it is appropriate to consider whether their degree of disablement has altered. It must first identify a suitable interval has passed since the time of the last final decision was made on degree of disablement. In some instances, there may never be a suitable interval.

Let’s  put this as simply as possible. Unless a PPA can show, with a record of its reasoning process, that there has passed a suitable interval then a PPA is not entitled to make any consideration on degree of disablement.

This aspect of the Regulations was settled way back in 2003, in the case of Crocker. The court opined,

I regard the review provision as the key.  There is no need to speculate.  As and when circumstances dictate, the pension is reviewed.  The doctors, the Medical Referee, and Selected Medical Practitioner can, and here did, indicate when they thought that that should happen.  Such a power is wholly inconsistent with a need to forecast the future and then to test the calculation of the forecast against the actual out turn on a number of occasions.  The means by review of correcting the pension when circumstances change obviates the need not just to speculate, but to speculate and review as well.

 

That determination is not hard to understand, but in plainer English, the court decided that doctors, medical referees (now PMAB’s) and SMPs should not speculate about when any alteration in an individual’s degree of disablement might occur. A PPA should not use those speculations as reason to conduct a ‘review’.

Moreover, the court decided that any ‘review’ should be a reaction to a perceived change in circumstances of an individual.

Staffordshire Police, and others, should note well the deliberate use of the singular pronoun in regulation 37, which identifies – ‘the pensioner’. Not, ‘all pensioner’s degrees of disablement’ or even, ‘pensioner’s degrees of disablement‘.

When the Regulations speak of the singular person they intend a singular consideration, not a mass consideration.

The PPA should therefore conduct a full review only after having considered that the degree of the pensioner’s disablement has altered.

We have to comment too, that a ‘consideration’ is a very different concept to a ‘review’. In fact, the word ‘review’ does not appear anywhere in the Regulations.

What Staffordshire Police mistakenly reads into the Regulations is a carte blanche duty to intrude into the lives of disabled former officers. They think that they can demand a range of sensitive medical and financial information to which they have no legal right. They think that they can task their HR or Occupational Health departments to collude with the doctor hired by the force to conduct medical assessments and examination with a view to influencing what should be an independent medical decision by the SMP.

Staffordshire Police set about their plans to conduct a mass review programme in the manner of a surgeon removing a leg to treat an ingrowing toenail.

The truth is, all Staffordshire Police are entitled to do is to make a polite enquiry of only those pensioners where there my be a strong indication of alteration. Their duty is discharged entirely once they get the answer that there has been no alteration.

We can for the moment leave aside well-founded suspicions that wherever a force has decided to hold mass reviews the decision to do so has been based entirely on an expectation of saving money.

Such expectations have proved to be illusory.

The facts are that over a ten year period, up to 2015, across the country, when most forces were conducting reviews, the vast majority resulted in a decision there had been no alteration in degree of disablement.

Even if Staffordshire Police’s intentions were entirely based on an altruistic desire to comply with the basic concept that a police pension authority needs to ensure the correct level of pension continues to be paid, should circumstances alter, then conducting a mass review is not the way to go about it.

So, what has happened so far? What progress has been made since Mr Morgan’s announcement in April 2017?

A recent Freedom of Information request has revealed some interesting facts.

A company called IMASS/Medigold was contracted to provide a doctor or doctors to conduct the medical aspects of the reviews. This company’s doctor commenced his work with Staffordshire in February 2018.

A doctor assessed 26 injury on duty pensioners. He made a decision there had been no alteration in degree of disablement in 6 cases. In the remaining 20 cases he decided he could not make any decision. No former officers were decided to have experienced any alteration in degree of disablement.

There is no option in the Regulations for a SMP to discharge his task by not deciding. Once a PPA has commenced a consideration it must ensure a decision is made. Staffordshire PPA is in breach of its duty in respect of those 20 pensioners who have no finality.

Surely, common sense should prevail in these circumstances. A PPA has only one realistic option, which is to record the SMP’s ‘no decision’ as a decision there has been no alteration. It is inhuman to leave pensioners up in the air with the uncertainty a failure to decide engenders.

Other evidence of what has resulted from reviews is contained in a Progress Report dated 22nd March 2018.

 

It states a total of 45 injury on duty pensioners had been reviewed, or were in the process of being reviewed. Of them, 13 were decided to have no alteration in degree of disablement. In 4 cases, the pension was reduced due to a decision there had been a substantial improvement in degree of disablement. Of the remaining 28 pensioners there was no news.

Each review will have cost at least £500 to £600 and if there are appeals and court cases resulting from unlawful application of the regulations the experience of Avon and Somerset will be repeated in Staffordshire. When Mr Morgan was DCC in Avon and Somerset he saw a bill which ran into hundreds of thousands of pounds.

IODPA finds it hard to understand why Staffordshire police pension authority is happy to waste so much public money in conducting ‘reviews’ as currently constructed, when it is open to it to devise a process which will allow it to comply with regulation 37 at minimal cost, and without visiting anxiety and real harm on vulnerable disabled former officers.

Staffordshire Police tell a good story, but just like those of Mark Twain, it is complete fiction. And not even slightly amusing.

Tully – Revisited

IODPA Admin caselaw
Tully – Revisited

Neither are we impressed by the so-called floodgates argument advanced by the respondent. We consider this to be an irrelevant factor to our considerations.

― His Honour Judge D Morris

 

IODPA membership continues to grow. Membership is open to all former officers who are in receipt of an injury pension. We also are very happy to include serving officers who are at any stage of retirement because of ill health through injury.

Injury on duty pensioners and serving officers are turning to IODPA for one reason only – they need support and advice to deal with ongoing attacks on their pension rights.

It is a sad fact that some forces have shifted their money-saving focus in respect of pensions. They now try to deny ill or injured serving officers their pension rights. We hear of officers who are signed off sick, then reduced to half pay, or even no pay. The intention is, we fear, to pressure them into resigning. Which means they do not qualify for an enhanced ordinary pension. We hear of lengthy and essentially pointless processes designed to force ill officers back to work – with ‘reasonable adjustments’ made to working conditions which turn out to be completely unreasonable and in many cases actually further damage the individual’s health.

We can perhaps highlight some of these abuses in future blogs, but for now we want to look back to 2006 and at the appeal case brought by Phillip Tully, a former North Wales Police officer.

This case is important for it illustrates two aspects which remain relevant today.

Firstly, it exposes the lengths some forces go to in the ironic and self-defeating costly pursuit of saving pensions money. Secondly, it reveals the misplaced and utterly inappropriate attitude towards their duties and responsibilities of, in this case, the North Wales police pension scheme managers. Those attitudes remain entrenched in some other forces to this day.

Mr Tully served from 1991 to 2001. He ceased to serve due to physical disability. However, for reasons which the appeal case does not make clear North Wales Police did not offer to assess him for a deferred pension, or Mr Tully did not apply for one.

On 19th March 2005 Mr Tully applied for early payment of pension on grounds of permanent disability. A deferred pension is payable under regulation B5 of the Police Pensions Regulations 1987.

North Wales Police received the letter on the 14th March.

As is so often the situation, North Wales then proceeded very slowly. Mr Tully was required to see two doctors appointed by the force, and some eleven months after his application the pension authority indicated he qualified for a deferred pension.

However, the pension authority decided that it would become payable not from the date of Mr Tully’s retirement in 2001, nor from the date of his application for a deferred pension in 2005, but from the 16th February 2006, when a Dr Entwistle decided Mr Tully was permanently disabled from performing the ordinary duties of a police officer.

We need not go into the detail of the legal arguments advanced by North Wales, as it is sufficient to say the court found no merit in them. Mr Tully won his appeal.

The court decided,

First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.

Here is a copy of the court ruling –

 

Mr Tully won his appeal. The Court decided his deferred pension should be paid from the 1st October 2001, the date of his retirement.

The first lesson from this case then is that former officers, and those about to retire due to disabling ill health or injury need to seek professional advice so as to be fully made aware of their pension rights and entitlements. It is never wise to rely on a police force having sufficiently well qualified and knowledgeable staff who will always ‘do the right thing’ and act within the Regulations. Even with the best of intentions, HR and Occupational Health staff make far too many mistakes.

The second lesson concerns the darkness which lays behind some decisions made by pension scheme managers. It seems that North Wales Police thought it appropriate to try to convince the court that Mr Tully’s appeal should be rejected because a successful appeal would bring forth a flood of other former officers who had been paid their pensions from an incorrect start date.

We have at the head of this blog quoted the Court’s response to this distasteful argument.

IODPA’s response is to remind police pension authorities they have a duty to administer the pension regulations in a way which is compatible with the intentions of Parliament. The various pension entitlements were put in place in recognition that police work can be dangerous, and wearing. The  Metropolitan Police introduced the very first pension scheme in 1829.  Benefits were provided on disablement for London officers “worn out by length of service”.

Not much has changed in that respect. Officers earn their pensions and it is not for misguided scheme managers to frustrate the intentions of Parliament by devising endless variations of ways to deny them their pension rights.