Month: December 2018

The Firefighters’ Pension Scheme 2015 and the Police Pension Scheme 2015

IODPA Admin newsflash
The Firefighters’ Pension Scheme 2015 and the Police Pension Scheme 2015

The Firefighters’ Pension Scheme 2015 saw thousands of younger firefighters compulsorily transferred into a scheme where they have to work until 60, pay more and work for longer only to receive a pension that is greatly reduced in value. Firefighters younger than age 45 on 1 April 2012 were unfairly penalised as they were forced into a worse scheme whereas older firefighters were allowed to remain in their original scheme.

Sound familiar? The Police Pension Scheme 2015 was introduced by the Government which changed the pensions of many serving officers that had previously been in the Police Pension Scheme 1987 or the New Police Pension Scheme 2006.

The PPS 1987 was a two thirds final pension scheme where the officer had to complete 30 years to qualify, whilst the NPPS 2006 was a half final pension scheme whereby the officer had to complete 35 years. The PPS 2015 is a Care Average Revalued Earnings (‘CARE’), whereby officers accrue annual increments to their pension pot based on 1/55.3 of their annual salary. The normal retirement age under the PPS 2015 is 60. Needless to say that each subsequent pension scheme costs more to contribute to with less final rewards.

Ordinarily, new pension provisions cannot be introduced for existing members that would be worse, but the Government introduced new primary legislation to circumvent this restriction. As with the fire service, there was a complex set of rules as which serving officers should remain on their existing pension plans and those who should be moved across to the new scheme. Tapered protection was provided to those with more service, whilst those with less service had no choice.

The Police Federation sought legal advice, and here is a summary of the conclusion, the full text of which can be found here –

All possible challenges have been considered including:

Public law as primary legislation was used to introduce the CARE scheme judicial review was not available.

European law and  Human Rights law (in several recent cases the European Court of Human Rights has not been swayed by arguments that those on the public service have had to bear the brunt of economic reform)

Discrimination. (The key challenge here considered was whether these pension changes would be age discrimination: however, the law states that age discrimination can be justified as a proportionate means to a legitimate end, and it is likely to be considered as such in this instance).

At this time, we will therefore not be challenging the introduction of the Police Pension Scheme 2015. However, we will continue to monitor how the scheme operates in practice and we maintain an open mind should circumstances change that give rise to a potential successful legal challenge.

 

The Fire Brigades Union (FBU) however took their own legal advice, and following pension claims from over 6,000 firefighters, the FBU launched a significant age discrimination legal challenge against the government. A number of employment claims were made, but the crux of the matter hinged on the two following points –

  • Whether the Government could discriminate (by introducing the transitional protection) as long as they have a “legitimate aim”, and
  • Whether that discrimination was a proportionate means of achieving a “legitimate aim”.

Disappointingly, the original Employment Tribunal found in favour of the government and against firefighters. The FBU lost both points and the ET concluded that the introduction of the new pension scheme was a social policy aim of the Government, affecting all public service employees, and European law allows member States a wide discretion when deciding their social policy objectives.

However, a similar Employment Tribunal, at around the same time, but affecting judges, found in favour of the judges.

The FBU appealed the finding against the firefighters. The government also appealed the finding that was in favour of the 210 judges. Both cases were tied together in a new joint Employment Appeal Tribunal.

The EAT was held between 11th and the 14th December 2017 at which point, judgement was reserved. The decision was handed down on 29th January 2018 whereby the EAT overturned the original decision of the ET in favour of the FBU.

The case was then heard in the Court of Appeal between 5th and the 9th November 2018 following a further challenge by the Government, again combining both cases.

The court has determined that there is only one possible answer to the question as to whether the government was pursuing a ‘legitimate aim’ when it introduced the transitional protections. On the evidence produced by the government, the answer is, “No”.

Because the FBU won on this first question, the court determined it did not need to go into the second question.

The government has asked for permission to appeal to the Supreme Court. This is not an automatic right and they would need permission either from the Court of Appeal or from the Supreme Court to do so. To get permission they would need to show that there is an arguable point of law of general public importance.

The court also ruled that the other side (government) should pay the FBU legal costs, which is an additional victory.

The case itself hinges not on whether the Government can introduce such a scheme, but the transitional arrangements for members of existing schemes. If the current ruling is not overturned it is likely that the FBU members would demand to be put back on their original pension schemes.

So, what is the relevance of this on police pensions and injury pensions?

Firstly, there are many thousands of officers that have been affected in a similar manner by having to transfer to the PPS 2015. For some, this means working for an extra 10 years, paying higher pension contributions and eventually leaving with a much smaller pension.

It also affects those retiring today under the PPS 2015 with an ill-health pension as they are calculated across two schemes with a lower pension as a result. In addition those transferring from the PPS 1987 are finding that the SMP’s are having to consider whether to place the pensioner in a lower or upper/enhanced tier which didn’t exist in their original scheme. Again, this may result a lower ill-health pension.

As injury pensions are partly calculated using ‘other’ pensions received, this too would affect the value of injury awards, which in turn may have to be re-calculated.

After the ruling, Alex Duncan , the National Secretary of the Police Federation made the following statement –

This remains a complicated issue, with no certainty over how the government will choose to address the ruling.

Today’s announcement seems like good news, but we need to digest the full judgement and of course we will continue to keep our position under review.

We will keep you updated of any further developments.

Some interesting times ahead!

Staffordshire Police Put The Brakes On

IODPA Admin newsflash, Regulation 33, Review
Staffordshire Police Put The Brakes On

Whoa!!!

— [Anonymous] command to stop or slow down, usually horse or vehicle

We have breaking news…

Staffordshire’s Chief Constable, Mr Morgan, has thrown the gears of his review truck into reverse.

A few weeks ago Mr Morgan took the extraordinary step of deciding that failure by IOD pensioners to allow access to their medical records amounted to a failure to attend a medical interview or examination. His stance was that full access to medical records was a necessary step in any medical examination or interview.

Seventeen of our members had received letters just four weeks prior to Christmas from Mr Morgan advising that because they had refused access to their medical records he would be reducing their injury pensions and the reductions would be backdated, indicating that they would also claw back the money from the affected pensioners.

Mr Morgan’s decision was robustly challenged by Ron Thompson and Mark Botham of Haven Solicitors, and Mark Lake of Cartwright King Solicitors, acting on behalf of the IOD pensioners concerned.

Pensioners have now heard from Mr Morgan’s solicitors that he, in his role as Police Pension Authority (‘PPA’), accepts that the letters notifying pensioners of his decision to reduce their pensions,

. . . did not sufficiently explain the reasons for the decisions. Further, the decisions should not in the circumstances have had retrospective effect.

 

Our solicitors have been told that Mr Morgan,

. . . proposes to provide each of the proposed Claimants with further decision letters, containing a fuller explanation of the reasons for the decision taken in each case…

 

Meanwhile no reductions in injury pensions will be made at this time.

IODPA can not comment in detail on the issue as the legal arguments will be continuing, and may be heading for the Administrative Court should the PPA wish to see his interpretation of regulation 33 tested.

However, we can say that all of the IOD pensioners affected by Mr Morgan’s threats to reduce their injury pensions can now have a peaceful Christmas without the extreme fear that any future decision by CC Morgan will not allow him to backdate any pension payments.

Staffordshire – The Story To Date

IODPA Admin Regulation 33, Regulation 37, Review, smp
Staffordshire – The Story To Date

All the things I really like to do are either illegal, immoral, or fattening.

— Alexander Woollcott (1887-1943)

 

Elsewhere on our web site are numerous comments concerning the action taken by Staffordshire Police in reducing the pension payments due to a group of disabled former officers. The comments make clear the feelings engendered in reaction to this dramatic turn of events.

IODPA has refrained from making comment as the issue is undoubtedly going to be subject to prompt legal challenge.

However, we can give an account of what has happened so far.

Officers who are injured on duty to such an extent they can no longer perform the ordinary duties of a constable can be required to retire. They can be awarded a one-off gratuity payment plus a pension, payable for life, as compensation for no-fault injury.

The compensation scheme is governed by The Police (Injury Benefit) Regulations 2006, which is secondary legislation made by a Minister of State under provision of The Police Pensions Act 1976.

The Regulations, specifically regulation 37, allow the question of degree of disablement to be considered from time to time, as appropriate, for it is recognised that the disabling effects of duty injuries may worsen or lessen. If there has been a substantial alteration, then the amount of pension paid can be revised accordingly.

On 26th April 2017 Staffordshire Police commenced a programme intended to review the degrees of disablement of the over 300 former officers who are in receipt of an injury pension.

The programme quickly ran into difficulties as pensioners raised issues questioning the legality of the programme, both in concept and in detail.

A major issue was the insistence of Staffordshire Police that it be allowed full unrestricted access to individual’s medical records, from birth, and to personal financial information.

A number of pensioners refused to give permission, on the grounds that their personal data enjoyed detailed protection under data protection law and that there is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the force or to any doctor employed by the force.

A further concern expressed by some pensioners was that they had no confidence Staffordshire Police was capable of conducting the review process lawfully. The content of various policy and process documents created by Staffordshire Police concerning the review programme arguably contained misinformation and misrepresentation of law.

A number of reviews were held, and the doctor tasked by Staffordshire Police to decide whether there had been any alteration in degree of disablement reported that, in some instances, due to the absence of permission to access medical records, he could not make a decision. The doctor later withdrew himself from any further involvement in the review process.

In December 2017 Staffordshire Police published a letter which sought to apportion all blame on the difficulties being experienced to, ‘a small number of individuals’.

It emerged that in the majority of instances where pensioners had refused unrestricted access to their medical records no decision was made on alteration of degree of disablement, despite it being a requirement of the relevant regulation (regulation 30) that the appointed doctor is referred the question ‘for decision’.

Each of the individuals concerned had attended an appointment arranged by the force with the force’s doctor. They answered all questions which were put to them, and allowed themselves to be medically examined where this was requested. Some provided medical evidence showing there had been no alteration in their degree of disablement. in some cases, the pensioners were recalled within months to attend a second medical examination. Again, they fully complied.

On 26th November 2018, we reported that seventeen pensioners had had their pensions reduced.

This is the letter that was sent out to those who had refused permission for unrestricted access to their medical records. We reproduce a redacted copy of one of those letters here.

 

The letters announce that Staffordshire Police has turned to regulation 33, which it relies on as giving authority to reduce the injury pensions of those who had refused permission for unrestricted access to their medical and access to financial records.

It is worth reproducing regulation 33 here:

Refusal to be medically examined

  1. If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

 

The letter indicates that Staffordshire Police has taken the view that it was not enough for the individuals concerned to have submitted themselves to such medical examination as had been arranged for them with the force’s doctor, and to have allowed themselves to be interviewed by the doctor.  Staffordshire Police appears to believe regulation 30 covers access to personal medical and financial information. Staffordshire Police thus claims there has been either a wilful or negligent refusal.

Consequently, a decision has been made by the force to reduce the pensions of the individuals concerned.

Moreover, the reductions are to be back-dated to the time when they saw the force’s doctor.

The letter is essentially identical to each individual. Each letter fails to give any reason or insight into how the decision to reduce the pensions was taken, or on what evidence.

IODPA understands that solicitors have been instructed in challenging this extraordinary action by Staffordshire Police.

We will provide updates as the situation evolves.