A Tale Of Two Forces

‘In my judgement, Mr Lock’s submission is correct . . . ‘

— Her Honour Judge Belcher

We have two judicial review cases to report on. One resulted in a decision in favour of the pensioner  and the other did not.

Both cases will have considerable effect on the future behaviour of Police Pension Authorities (‘PPA’) across the country. However, it is becoming increasingly obvious that two or three PPAs are likely to continue attempts to thwart the intentions and purposes of The Police Injury Benefit Regulations 2006, whilst the vast majority remain rightly very cautious about breaking the law. IODPA hopes the lessons learned from these two recent judicial reviews will result in positive improvements in the administration of police injury awards.

For legal reasons, IODPA cannot comment on the merits of the case which was lost, but we can talk about the principles involved, as they apply universally.

In a hearing in the Administrative Court, the Chief Constable of Staffordshire Police was the respondent to an action taken by a former police officer, Colene Boskovic. The claimant argued that a decision by the PPA to refuse agreement to arrange a regulation 32(3) or 32(3) reconsideration was,

 

. . . unlawful on its face for inadequate reasons and/or a failure to address the primary purpose of a Regulation  32(2) reconsideration.

 

The case report of Boskovic is available for scrutiny here.

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2019/05/Boskovic-V-Chief-Constable-Staffordshire-Police.pdf” width=”600″]

 

We should explain that the Regulations make provision for any decision taken by a police pension authority to be reconsidered, provided that both parties, the individual concerned and the police pension authority, agree to a reconsideration process being held.

The concept of reconsideration is a sound one, in that it allows errors of law or fact to be readily and inexpensively revisited and for corrective action to be taken. The concept is a necessary one, for awareness there may have been errors might not surface for some time after a flawed decision was made. The concept is a positive one for disabled pensioners may be unable, for various compelling reasons, to act within the strict time limits which control when a formal appeal to a police medical appeal board must be made.

For many years it seems the reconsideration provision was little used. This may have been because pensioners, and those who represent them, were unaware decisions could be reconsidered, or were unsure how to approach this provision. Another factor undoubtedly has been the all too common practice of forces failing to properly inform officers and former officers of their rights.

We have the 2012 cases of Haworth v. Northumbria Police  Authority and Crudace v. Northumbria Police Authority to thank for illuminating the detail of regulations 32(2) and 32(3) – especially in informing all concerned there is no regulatory time limit on holding a reconsideration. Since 2012 pensioners have turned to the reconsideration provision to correct old errors, much to the dismay of some police pension authorities.

From all the evidence, both statistical and anecdotal, it is easy to conclude many errors remain undiscovered and uncorrected. Putting matters right would be an expensive business impacting on the hard-pressed finances of some forces. It comes as no surprise then that Staffordshire would seek to close off this opportunity.

As with Haworth and Crudace, Colene Boskovic sought agreement from her police pension authority to arrange a reconsideration of a decision. In her case, the decision was that she did not qualify for grant of an injury award. The court heard argument from the respondent which essentially presented the view that a reconsideration could not be held ‘fairly’, due in part to the passage of time – being some 14 years – since the disputed decision was made, and also the unavailability of the original decision-making SMP.

The Chief Constable explained her refusal thus:

I do not agree to a further reference to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude no reconsideration is possible. Dr. Gandham, the selected medical practitioner who made the original decision to not make an injury award is no longer licensed to practice in the United Kingdom, and neither is Dr. Srinivasan upon whose report Dr. Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it

 

The court’s decision in this case appears to bring new elements for a PPA to consider when deciding whether or not to agree to holding a reconsideration. All we can say for now, is that each case is different, and is determined on the individual circumstances and the merit of the arguments presented. Pensioners, and serving officers seeking grant of an injury award need not be disheartened by the outcome in this case. There will be other cases and IODPA is confident that understanding of regulation 32(2) and 32(3) will continue to expand and clarify in favour of disabled individuals.

We can turn now to the more uplifting result of the case brought by our member Angie McLoughlin.

The case report has earlier been published on this web site – https://iodpa.org/2019/04/10/injured-pensioner-wins-court-case-over-back-payment-of-pension/

Angie appealed by way of judicial review the decision by the Chief Constable of West Yorkshire Police to refuse to fully backdate payment of an increased injury pension award.

Angie was severely injured by a burglary suspect and was retired on an injury pension in 1983, which was set at 25% disability. This is categorised in the Regulations as ‘slight disablement’ and attracts the lowest possible level of pension payment. It also meant that Angie was due much less in the way of the one-off gratuity. With only six years service, she qualified for a gratuity of 30% of average yearly pensionable pay, whereas if she had been assessed as very severely disabled she would have been due for an 85% gratuity and a much bigger pension.

Angie became embroiled in lengthy dispute with West Yorkshire Police. There was good reason to suspect that some records had been altered, so as to change what was 75% to 25%.  The issue of fraud has still not been brought to a conclusion. We don’t want to in any way give the appearance of glossing over the huge problems Angie faced in attempting to secure justice, but for reasons of space and focus, we need to leap ahead to 2004 and then to 2019, being the dates of pivotal events.

In 2004, some 21 years after Angie retired, a review was finally held regarding her degree of disablement, though the decision on that review was not produced until 2007. Meanwhile, Angie continued to be paid the lowest possible injury pension, despite the fact she was totally incapable of engaging in paid employment. The 2004 review led on, after much delay and complications, to Angie appealing to a police medical appeal board in 2009. The board assessed her degree of disablement as 88%, thus placing her in the highest of the four bands set out in the Regulations and confirming she suffered ‘very serious disablement.’

In August 2017, the police pension authority – none other than the Chief Constable – agreed to arranging a regulation 32 reconsideration of the original decision that had set her degree of disablement at 25%. Dr Iqbal was tasked with making the reconsideration as the original decision maker was no longer available.

Dr Iqbal concluded in April 2018,

In my opinion, based on the assessment carried out today as well as the evidence to hand, it is my opinion that at the time of the original decision in January 1984, a band 4 degree of disablement was appropriate.

 

The PPA continued to reject its liability to make complete restitution, with arguments over the period to be covered, so the matter was taken to judicial review in 2019, with the issues summarised by the court as,

The Appellant’s case is that Dr Iqbal’s fresh report, being by way of a re- consideration under Regulation 32(2), replaces Dr Anderson’s report of January 1984, and, as a consequence, the payment obligations owed by the Chief Constable are substituted for the payment obligations owing by the Chief Constable arising as a consequence of the previous report.  In other words, the Appellant asserts that the Regulations mandate back payments to cover the period from December 1983 to 2007.  The Respondent’s case is that the payment obligation is affected only from the date of Dr Iqbal’s report, that is from April 2018, and that the Appellant is not entitled to any backdated payments.

 

Angie won her case, and West Yorkshire Police became obliged to pay her all monies claimed, plus interest.

There are themes common to both cases, not least the effects of the passage of time on rights, liabilities and the practicality of securing a fair reconsideration through the application of regulation 32. These are weighty issues and it is likely they will figure again in other cases. IODPA would prefer to focus for now on highlighting and praising the immense courage and determination displayed by Angie and Colene. Pensioners and serving officers across the country owe them both a debt of gratitude. The history of the long-running ‘injury pension war’ as it has been dubbed, shows that it is only when individuals bring matters to court will errant police pension authorities mend their ways.

In the Boskovic case, we see the deputy head of the force’s legal services writing,

As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully.

 

This implies the PPA was concerned about the costs which might result should they lose the case, and thus be liable, through reconsiderations, to make good injury pensions underpaid through years of maladministration and flawed decisions.

However, the judge took the view that it was appropriate for a PPA to take into account the cost of the process of reconsideration when deciding whether to agree to one or not. We can only but wonder at the logic of a PPA balking at spending the few hundreds of pounds a reconsideration would cost, yet happily spend many thousands of pounds of public money on contesting matters brought to judicial review. In the Boskovic case, the PPA may well be feeling the expense was justified, but is sure to find that any financial advantage apparently gained will be short lived.

The lesson from these two cases is that neither of them would need to have been brought if only the authorities involved had acted with decency and respect to its injured officers.

A Tale Of Two Forces

10 thoughts on “A Tale Of Two Forces

  • 2019-06-08 at 6:10 pm
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    What these two cases illustrate all too clearly is the inordinate length of time taken for the process to reach a conclusion. PPAs rely on this to try and wear down the resolve of anyone challenging their decisions. What they can now absolutely rely on is that anyone going through this process is now backed up by the increasing membership of IODPA. They are no longer individuals trying to fight their cases alone.

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  • 2019-06-08 at 4:47 pm
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    Gone are the ex military types who used to run these forces. They looked after the men and women injured on duty through no fault of their own. Policing by its very nature is a dangerous job that results in injury and sadly death at times. Mrs May kicked it off when she was Home Secretary, laying into the Police for crying wolf. (something she later denied saying) Cuts to the budget meant many Police reductions, more cuts meant more reductions, to the point it is only a matter of time before some serious damage is done, with not enough troops to meet and deal with the threat.
    Gone are the days when it was recognised as a deadly serious job, with deadly serious consequences for it’s Officers.
    The job is now done by fewer numbers, with the Government crossing its fingers that it can keep rolling the reduction dice whilst blaming austerity.
    These Regulations were brought in by Parliament who recognised to draw good men and women to such a dangerous job they would have to introduce a safety net for those who were very likely to be killed and injured doing this job.

    Sadly, the job did away with Military types and began recruiting graduates and fast tracking them to the top with very little practical policing under their belts. These scholarly types then began changing the forces make up, and employed bean counters instead of self disciplined “Military types”
    I mean no offence to the scholars, but I always found most were good at the theory, but were lucky to have more practical types to save their backsides in a tight spot. Now these types have reached the top and do the bidding of the likes of the Home Office to make these reductions.
    We saw an example of this practical policing taking place when so called top copper Sir Craig Mackey was feet away when the Islamic terrorist Khalid Masood murdered PC Keith Palmer and drove off, sharpish, having locked the windows of his car. Had he got out of his car he could have assisted PC Palmer in carrying out his dangerous job. Sir Craig survived in the safety of his car, and now makes decisions to carry out the savings IOD reviews make for the Home Office. Other Chief Officers are also available……

    That just tells you about the mindset of some of the graduate entry scheme, not all are bad, but none of them stand up for their injured and killed troops. All of them look for savings by any means. Shame on you.

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  • 2019-06-08 at 4:12 am
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    I used to believe in the statement that said the “British Police were the best in the world for integrity and truth”. I still believe that to be the case for the majority of the rank and file, but having seen and experienced the antics of quite a few very Senior Officers, I believe that is not the case anymore, in fact it’s the opposite!

    When I first joined, these Chiefs were mainly ex military, honest, hard working, with the welfare of there troops at the forefront. However, these decent characters have long been retired and have been replaced with the ‘College’ version’, a version where only one thong matters……….them!

    They don’t give a hoot for their officers, we are just cannon fodder for their desires to climb the greasy pole. Add in the totally political (joke) Commissioners and you see the result, a police service in utter turmoil. Those Chief Officers of the past would stand up for their troops. They believed in the fair contract of “If you put your life on the line, we’ll be there to protect you, if you are hurt”.

    Not the case anymore, I’m sorry to say, it’s cash, cash and more cash! In some respects, modern day police officers need to look inside the job and not out for villians! They are there, defrauding the very people they should be helping. In the old days they wore a striped shirt, mask and carried a bag of swag! Now some wear a Chiefs Police uniform!

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  • 2019-06-07 at 7:55 pm
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    When officers are injured & retired the last thing they want to do is enter onto war grounds of a lengthy battle.
    Set timescales are a must going forward, too many suicides as a result and no one being held to account. It appears the Smps are told by the force not to write certain things in the report or to try and make a mountain out of a molehill on some other injuries they can try and lay blame on.
    Smps need to be independent for a start, after all who’s going to bite the hand that PAYS!

    Good on these for pursuing.
    The word on the Fantastic work that IODPA carry out seems to be spreading.

    Police forces you are disgusting and need holding account for making mentally ill & disabled ex officers jump through hoops.

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  • 2019-06-06 at 5:14 pm
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    It’s incredible that the 2006 regulations, a mere 41 pages long can be subject to so much legal wrangling. It’s something into which PPAs – or more accurately, individual Chief Constables seem prepared to enter with a vengeance.

    At times when they complain of lack of financial resources, they’re happy to throw huge sums of money at legal challenges which end more often than not in defeat at court, or at best a pyrrhic victory. This is done with a callous disregard for their vulnerable pensioners, who are put through huge amounts of stress with far reaching consequences for their mental and physical health.

    If only Chief Constables were consistent and ethical in their implementation of the regulations, instead, the likes of Morgan treat the regulations as something to be flouted with cynical impunity.

    Good people are needed by the police service, those good people will in future be deterred from serving services if they believe that running towards danger could leave them destitute.

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  • 2019-06-06 at 12:54 pm
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    When I take out an insurance policy, open a savings account, buy a new refrigerator, book a holiday, etc., the transactions are always accompanied by a volume of small print covering the ‘terms and conditions’.

    As I understand things, there is a legal obligation to provide much of it, and in any case, commercial enterprises are mindful of being sued if they fail to properly inform customers as to the detail of their rights.

    Not so with police forces, the old police authorities and not so with the new police pension authorities. They seem to be oblivious to the need to tell serving officers the ‘terms and conditions’ of the various pension schemes – including and especially the police injury benefit scheme. I would win any bet placed where I claimed that no serving or retired officer could be found who could say that they were ever given a thorough explanation of their pension rights.

    Is this omission no more than yet another example of what was revealed by now Chief Constable Morgan’s research into the, ‘Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards’, conducted for the College of policing? In his report Morgan identified. ‘. . . a lack of dedicated subject matter experts across the service and [lack of] training opportunities.’

    In other words, the staffs of HR departments and Occupational Health Departments, and their managers and senior officers all lacked understanding and expertise in pension matters.

    Or – does the omission have a more sinister underpinning? It is more than obvious that if you don’t tell ‘customers’ their rights then they won’t be in a good position to know how to seek redress if things go wrong. Worse, they may not even realise they can seek redress at all. In the very worst of instances they will not even know that anything has gone wrong and that they have been denied their rights.

    I’d make another bet, which I am sure I would win. How many injured officers have been told, either at the point of being discharged due to disablement, or later into their retirement, that there existed regulation 32? This is the regulation which allows mistaken decisions made in regard to injury pensions to be reconsidered, and for errors to be corrected. Given the identified lack of training and expertise in forces, there must surely be multiple instances of historic flawed decisions, which remain uncorrected.

    Pocketing my winnings from that bet I would put it all on another firm favourite. I would bet that only a small, favoured, handful of injured disabled officers were told of the existence of regulation 12. This regulation grants a very generous additional tax free lump sum gratuity, to anyone who is permanently totally disabled as a result of duty injury. (For those who are unfamiliar with this regulation – and that will be the vast majority – disablement means the loss of the ability to engage in paid work. How many injury on duty pensioners who are on band four ‘very serious disablement’ have found themselves unemployable because of the damaging effects of their injury?

    It is going to take a lot of effort, and a lot of goodwill on the part of PPA’s before injury on duty pensioners can be confident they know their rights and can rely on the injury pension scheme managers to administer the scheme within the law, and for the benefit of disabled officers and former officers.

    Right now, it looks very much like the managers are running the scheme entirely for their own benefit.

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  • 2019-06-06 at 12:31 pm
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    It is incredible to watch Police chiefs, boards and even the department of Justice behave in a way that would see an ordinary officer jailed if they had committed the fraud and conspiracy that I have seen in my own case. A lot of medical evidence was withheld from the SMP and now can not be found even though it was eluded to in the records disclosed.

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  • 2019-06-06 at 10:59 am
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    30+ years of injustice! How do you put a price on it, eh? Shame on all who caused it! Well done, Angie BUT it was such a long time to finally win! X

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  • 2019-06-05 at 10:08 pm
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    What a tangled web…….. I certainly was never informed of my rights under the regulations. The first time I have been made aware of the regulations with regard to being assaulted on duty was finding this site and my force/service will be speaking to my legal advisor,

    The first four years of my life was completely lost in a fog of hospital appointments, surgery, community psychiatric appointments, gp’s, physiotherapist appointments, occupational health appointments and let’s not forget being so desperate, on so many occasions, that I was contacting Samaritan’s, more times than I can recall.

    Put simply ‘the Forces/services couldn’t give a…………..’ .civilians making decisions about situations they could never imagine about sitting behind their desks.

    If any of my children ever said they wanted to join the police service trying to following in mine and their grandfathers footsteps, I would say ‘don’t do it, you give your all to protecting the public and they will not protect you or look after you’.

    Only if it’s a high profile case will you see shoulder brass, paying lip service , making sure that the press are there with their carefully drafted scripts written by lawyers that in some cases have protected their own pensions at the expense of others who gave their health in the name of public service……..

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  • 2019-06-05 at 9:43 pm
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    The last 15 words of this blog sums up exactly what is happening in a very small but for those affected an increasingly toxic number of PPA’s
    “if only the authorities involved had acted with decency and respect to its injured officers.”
    Decency and respect is something that the likes of Gareth Morgan is sadly lacking in his locker. He is more happy trying to remove and reduce the pensions of those disabled Injured former officers whose only fault was to get injured through no fault of their own whilst doing the job they loved in protection of the public.
    Although he denies it, it’s all about trying to save money as clearly demonstrated in the comments made In the Boskovic case, by the deputy head of the force’s legal services as highlighted in the blog.
    Let’s hope the Supreme Court actually uphold what the legislators wanted to happen in the Regulations, and the likes of Gareth Morgan realises that the public purse is better protected by obeying as well as upholding the law.

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