The evil that men do lives after them; the good is oft interred with their bones.
— William Shakespeare, Julius Caesar
A while ago, back in 2004, a civil servant, name of John Alexander Gilbert, who was employed within the Home Office as Head of the Police Pensions & Retirement Policy Section put his signature to a document which caused a great deal of trouble, pain and cost.
Trouble and pain to disabled former officers, and cost to police forces – all of which continues to this day.
The document was Home Office circular 46/2004. It offered guidance to Chief Officers of Police. Its full title was The Police Pension Scheme – Police Medical Appeal Boards/Role of Selected Medical Practitioner/British Transport Police Transfers.
There were three Annexes to the document. Annex C was the poisoned chalice from which Chief Constables were invited to drink.
Annex C was a most remarkable document. It contained direct lies and unlawful distorted advice which sorely misdirected some Chief Constables and the doctors tasked with assessing the medical condition of injured former officers. It seems to have been the signal flag announcing the beginning of a dirty campaign intended to reduce or deny injured officers and former officers the pension rights conferred on them by Parliament.
Annex C caused an outcry, with voices raised from several directions, all questioning the lawfulness of the guidance. It took until 2012 for the Home Office to be compelled, at the doors of a court of law, into agreeing to withdraw the guidance.
Disabled former officers suffered for eight long years wherever Chief Officers followed the flawed guidance. Some had their injury pensions drastically reduced and all were thrown into a limbo of financial uncertainty and stress.
However, the suffering did not cease with the document’s withdrawal. Since 2004 injury on duty pensioners have witnessed and have been subjected to a most inventive, sustained and systematic course of aggressive activities devised by HR managers and Chief Constables, all intended to erode and deny pension rights. We don’t propose to analyse here why maladministration blossomed in the wake of Annex C, other than to say it seems to arise from a toxic mix of lack of knowledge and training combined with attitudes contrary to the welfare of disabled former officers.
Annex C has left a disturbing legacy and that is why it may be timely to look again at what was learned about the guidance in the hope that decent and more enlightened HR managers and Chief Constables may better understand the harm which results from maladministration. IODPA remains hopeful that the continuing lessons handed out to wayward forces by the courts will serve to curtail those who deliberately set out to cause harm and will encourage those who wish to manage police injury pensions lawfully and humanely.
We can start our brief lesson on Annex C where Annex C itself starts. It stated:
This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached – others continued to pay benefits at the same rate until the death of the Officer concerned.
That very first paragraph contained two direct lies.
Extensive research showed that no force had ever, ‘automatically reduced degree of disablement benefits to the lowest banding’ at any age or stage of retirement. In truth, no force had ever used an individual’s age or any stage of their retirement to reduce their pensions, whether automatically or otherwise.
The Home Office was invited to provide the names of the forces which it claimed had automatically reduced degree of disablement benefits to the lowest banding at what would have been compulsory retirement age. It was unable to produce any names. It could not, as all forces had revealed – to a former officer who conducted the research mentioned above – that none of them had ever taken such actions.
The ‘recent survey’ referred to was in truth a complete invention. There was no survey. The Home Office was asked to produce any evidence of the survey. It at first claimed that delegates to the National Attendance Management Forum (NAMF) had given their views in a single ‘round the table’ discussion on the topic – which is hardly an example of a survey on which life-changing advice ought to be based. When the agenda and minutes of the meetings of the NAMF were obtained there was nothing even hinting at any such discussion.
Moreover, the NAMF is not attended by representatives from all forces. Nor are any representatives of NARPO present. Police injury on duty pensioners views are entirely unrepresented. The NAMF was a talking ship for HR managers, and other employees of forces, and a platform for a certain Mr Nicholas Wirz to peddle his own warped view of the law. Notably, representatives of the Home Office were usually always present.
The Home Office then changed its story and claimed that the ‘survey’ was the result of several discussions and several NAMF meetings. Again, the agenda and minutes are absent of any reference to any such discussion.
The Home Office claimed in Annex C that there had been ‘consultation’ (with whom, it neglected to mention). Certainly there was no consultation with NARPO, as Deputy CEO Clint Elliot made very clear. (See below – in the full analysis of Annex C)
Annex C went on to disregard the Regulations with a virtuoso display of unsupported assumption. It said:
Once a former officer receiving an injury pension reaches the age of 65 they will have reached their State Pension Age irrespective of whether they are male or female. The force then has the discretion, in the absence of a cogent reason otherwise, to advise the SMP to place the former officer in the lowest band of Degree of Disablement. At such a point the former officer would normally no longer be expected to be earning a salary in the employment market.
The Regulations are not to be administered on assumptions, but on provable facts. One can only wonder at the workings of the mind which could so assuredly make a statement so ridiculous as to be incredible, yet expect Chief Officers to swallow it hook line and sinker. According to the Home Office, at the stroke of midnight on the day before their 65th birthday, all disabled former officers are suddenly and completely divested of all capacity to work and thus earn.
There is a very full and thorough dissection and analysis of Annex C which reveals in detail the extent of the deceit and misdirection it contains.
The reaction to Annex C spoke volumes about the negative and obstructionist attitudes of some Chief Officers and their staff. It had become very clear, very quickly, that the guidance was badly flawed. Chief Officers received objections from various quarters, including injury on duty pensioners and NARPO, which raised serious and well presented concern, which was more than sufficient to allow the Home Office to at least suspend its Annex C guidance whilst the issues were thrashed out.
The Home Office chose instead to bury its head in the sand and pushed all responsibility onto the forces. Of the 43 forces in England and Wales, only some 17 implemented some or all of the actions suggested in the guidance.
In March 2010 Mr Gilbert wrote to all forces and advised them to suspend reviews of degree of disablement, pending the outcome of an unidentified court case.
The case Mr. Gilbert referenced but did not name was that of Belinda Laws, a former Metropolitan Police officer who is in receipt of an injury pension. She successfully challenged the decision of the Police Medical Appeal Board, dated 17 March 2009, to reject her appeal against a decision of the Selected Medical Practitioner, that her degree of disablement for the purposes of her police injury pension should be reduced from 85 per cent to 25 per cent. The case was first heard on 12 November 2009 at the High Court of Justice. The decision was upheld at appeal on 13 October 2010.
The Home Office did nothing. It neither issued revised guidance nor withdrew Annex C.
The case of Simpson was held in February 2012. His Honour Judge Supperstone held that part of the Home Office guidance contained in circular 46/2004 was unlawful, as was similar guidance contained in Part 5 of the Home Office’s longer, more detailed, Guidance on Medical Appeals.
At Paragraph 42 of the decision Mr Justice Supperstone opined:
In my judgement, the appropriate relief to grant in the circumstances of this case is a declaration that the section in the Guidance headed “Review of Injury Pensions Once Officers Reach Age 65” and paragraph 20 of the Guidance on Medical Appeals are inconsistent with the Regulations and unlawful. There is no justification for adopting a different approach to regulation 37(1) in respect of a former officer who reaches the age of 65 than in the case of a review for former officers of a younger age.
The Home Office then finally withdrew Annex C in its entirety.
It advised forces to amend its longer guidance, but left it in circulation. A copy of this guidance can be found here:
In our view, this guidance has always been as flawed as was Annex C. It remains as a festering sore, and we believe it is still used by some SMPs to guide their actions. Space prohibits a full analysis of this guidance, but section 5 of the guidance contains an outstanding example of misdirection. Mr Gilbert writes:
How an injury award is calculated –
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.
In truth, the injury pension is a form of guarantee that, if the individual, for whatever reason, whether through choice or through circumstances, earns no money through working, then the injury pension will provide a minimum level of income.
The way Mr Gilbert presented it, the minimum income guarantee – which is how Schedule 3 of the Police (Injury Benefit) Regulations 2006 describes the injury pension – is a mechanism which restricts the total income, from whatever source, which a injury on duty pension is allowed to earn.
No wonder then that we see HR managers and some SMPs fixated on what pensioners earn. The plain fact is, what an individual earns is of no consequence to the Regulations. IODPA advises its members and all other injury on duty pensioners there is no need, nor any legal requirement, to divulge earnings to a SMP, a HR or Occupational Health employee, or indeed anyone else.
We would like to commend the forces who refrained from being bamboozled by the Home Office for their display of common sense – but we fear their lack of participation in the madness may have been due to inertia and indifference more than to insight and knowledge.
We should remind all concerned that Home Office guidance is not law. It does not have to be followed. Given the history of Annex C and the content of the longer guidance from the same author, anyone who follows Home Office guidance on the administration of pensions is at risk of sailing directly into serious difficulties. It took a lot of work, and courage, and a big stick waved by the courts, to have Annex C withdrawn. Annex C did nothing to bring about fairness, nor did it herald a more cohesive approach to the administration of injury pensions. It made matters much, much worse.
Annex C has gone. Its evil content is its legacy, which lingers on.