Month: October 2019

A man who works evil against another works it really against himself, and bad advice is worst for the one who devised it.

— Hesiod  (Greek poet, generally thought to have been active between 750 and 650 BC.)

We all receive advice as we progress through life.  Parents, teachers, doctors, financial advisers, police officers, lifestyle coaches, diet experts and many others – they all hand out advice. By all accounts, much of it is then promptly ignored.

Perhaps that reaction can be explained by an instinctive understanding that it can be difficult to spot bad advice, especially when it comes from an authoritative source. Essentially, advice is seen as not to be followed blindly, but to serve only as someone’s point of view, before making up your own mind what to do or not do.

With that in mind, this blog is about some seemingly professional advice issued as ‘guidance’ by Northumbria Police to the doctor or doctors who are tasked to make certain decisions in regard to so-called ‘reviews’ of the degree of disablement of former officers of Northumbria Police. 

The guidance is reproduced in full, below –

We should explain, for new readers, that officers who are injured on duty and as a result become disabled to a degree which prevents them continuing to perform the full range of ordinary duties of a police officer are retired, with an injury pension. The old phrase used for this involuntary retirement was that the individual was ‘cast from the force’. 

The amount of injury pension paid is tied, in part, to the ‘degree of disablement’ which is the extent to which an individual’s capacity to do paid work has been eroded by the disablement.

It is accepted there is a possibility the degree of disablement present at the point of retirement may alter at some later stage. The injury pension Regulations allow, therefore, for a police pension authority to consider, ‘at such intervals as may be suitable’ whether an individual’s degree of disablement has altered. If it has altered substantially, then the amount of pension paid can be revised. This process, of medical assessment and decision is commonly known as a ‘review’.

The Regulations require that the scheme manager, who holds the office of Police Pension Authority (‘PPA’), shall select a ‘duly qualified medical practitioner’ to decide whether there has been any alteration, and if there has been, decide the extent of the alteration. This doctor is known commonly as the Selected Medical Practitioner, or the SMP. The guidance issued by Northumbria Police is to those doctors. 

We understand the guidance has been widely circulated and has not been confined to only Northumbria’s SMPs. Thus, its influence, and potential impact, has spread far and wide, across many of the 43 police forces in England and Wales.

Can guidance from such an authoritative, seemingly professional source, be trusted? We suggest not. Northumbria has a long history of misunderstanding the Regulations. We need hardly remind ourselves of the disgraceful actions of Northumbria’s resident SMP, Dr Broome in reducing, at the stoke of his pen, the pensions of some 70 disabled pensioners.

We believe that Dr Broome, who describes himself as a ‘consultant occupational physician’ was undoubtedly guided in his actions by Northumbria’s resident solicitor, Mr Wirz.

An appeal, by way of judicial review, was made by several of the affected pensioners. They won their case. Here is what the court report has to say:

Dr Broome, the SMP, dealt with all 70 cases on the same day – 20th February 2009. In each case he reduced the degree of disablement to Band 1. In Mr Crudace’s case his reasons were expressed in a letter of that date which reads:

I am advised that the Pensioner has reached State Retirement Age and therefore, in accordance with the Regulations, the Pensioner “no longer has an earning capacity for the purposes of the Police Injury Benefit Regulations”.  Northumbria Police has also determined that there is no “cogent reason” why the Pensioner should not, therefore, be considered to have 0% loss of earnings capacity and as a consequence of their injury, and should be placed in the 0-25% Degree of Disablement banding. I confirm that the above recommendations are consistent with the Regulations and I attach a revised Statement of Injury

Dr Broome should have weighed more carefully whatever guidance was directed his way. For his part, and in our humble opinion, solicitor Wirz would have in turn relied on guidance issued by none other than the Home Office.

That guidance, contained in Home Office circular 46/2004, which one would think should  have been beyond critical appraisal given its source, was declared to be unlawful later and the Home Office withdrew significant parts of it.

It is worth nothing that both Dr Broome and Mr Wirz have had several other unsuccessful ventures in the appeal courts.  Indeed, it is hard to find any record of a successful outcome in the law courts for these two.

Yet they both continue to be employed by Northumbria Police, despite all the above.
The rub is, Dr Broome, being paid by Northumbria Police, can hardly be classed as impartial. He who pays the piper calls the tune.

It is all very well that Northumbria’s Chief Constable and the local Police and Crime Commissioner are content to have Dr Broome and Mr Wirz on the books. Perhaps their shortcomings are compensated for by excellence in other aspects of their duties. However, when bad advice is more than likely circulated by Northumbria to other forces – forces who may be blissfully unaware of the track records of Mr Wirz and Dr Broome. These forces may be tempted to take the guidance as sound, valid and watertight, and might recommend it to their own SMPs.

They would be wrong to do so.

The motives of Mr Wirz remain known only to him, but glimpses of his thinking can be caught from reading the guidance. It can be read on two levels – the visible and the unstated. For those who have knowledge of the history of police injury pension maladministration, the unstated theme of the guidance is obvious. It is, in our view, a cynical attempt to manipulate SMPs into applying the regulations in an unlawful manner.

We don’t propose to present a detailed critique of the Northumbria guidance, for that would take up too much space. Instead we suggest to any other force, and any other SMPs who might be tempted to adopt this guidance, that they would do well to treat it with circumspection and a healthy level of suspicion. 

It may though be helpful to sample the guidance at its start, in the middle, and at its end. A sample is all that is needed to demonstrate just how badly flawed is the entire guidance, and how any SMP or police pension authority who chose to rely on it could expect the certainty of successful legal challenge.

It is laughably ironic that the guidance warns, at the outset, that SMPs should not rely on Home Office guidance. The very guidance which Dr Broome and Northumbria Police failed to identify as flawed and unlawful back in 2009.

Although the Home Office withdrew parts of the guidance (46/2004 circular) they left virtually intact and in circulation a hugely more detailed and lengthy guidance which was composed by the same person. 

So, Northumbria is right to warn SMPs conducting reviews that,

. . . case law confirms that the approach to this issue contained in historic Home Office Guidance should not be relied upon.

But Northumbria is being partisan by omitting to caution that case law equally confirms that, given its track record, the approach to most issues of injury pension law by Northumbria police pension authority should not be relied upon.

Further into the guidance, speaking about reviews, it advises,

The SMP must establish, relying on admissible evidence, whether the pensioner remains disabled, and if so, whether the disablement caused by the qualifying medical condition is permanent.

This is not at all what ‘case law confirms’. The SMP is required to accept the previously-decided degree of disablement, and with that as the starting point, must then determine whether there has been any alteration from that level. 

We note the guidance neglects to cite the ‘case law’ it relies upon. We can put the matter straight by quoting from the case report of  Haworth and Northumbria Police Authority [2012] EWHC 1225 (Admin).

At paragraph 24, we see the court’s opinion:

Upon any such review the starting point on disablement has to be taken as that reached by any previous review as a matter of substance and a new review cannot lawfully seek to re-open questions on disablement, and in particular on causation, already determined by earlier decisions of the material medical authority.

Given that this was a judicial review case involving Northumbria, it seems all the more suspect that its Guidance to SMPs is so much at variance with the decision of a court and that it relies on unidentified legal authority here.

Moving to the bottom of the guidance it can be seen that SMPs are being advised directly to divest themselves of a legal duty in certain circumstances.

Those circumstances are currently the subject of an ongoing legal case involving Staffordshire’s police pension authority, so we can’t comment in detail. Suffice to say that the issues revolve around the data protection rights of private citizens and the limits of authority of a Police Pension Authority in making decisions concerning degree of disablement.

We can point out though that the Police (Injury Benefit) Regulations 2006 place a duty on the SMP to make a decision. Regulation 30 states, very clearly a police pension authority. ‘. . . shall refer for decision to a duly qualified medical practitioner selected by them . . .’ certain decisions.

The Northumbria guidance, in complete contradiction, says this:

As SMP you should avoid attempting to make a determination in the absence of information which you, in your professional judgement, consider necessary in order to complete the determination.

It is IODPA’s informed understanding that a SMP must make a decision. The regulations offer no option where the SMP can decline to decide. There is a duty on the SMP to make a decision. If there is no evidence, for whatever reason, of substantial alteration in degree of disablement, then the decision of the SMP can only be, and should only be to declare there is no evidence of alteration.

The importance of Northumbria’s guidance on this point is that, if a SMP declines to make a decision, claiming certain information is not available, then an aggressive police pension authority might be tempted to claim the pensioner had wilfully or negligently refused to be medically examined. Thus allowing the police pension authority to turn to regulation 33 and make the decision itself.

That is the very crux of the litigation which is currently engulfing Staffordshire police pension authority.

Whilst that case is ongoing IODPA cautions all SMPs to be very careful in respect of the totality of the guidance issued by Northumbria. The guidance is adversarial in tone, emanates from a source with a record of losses at judicial review and is most probably penned by an individual who has an axe to grind.

We have said it before and we repeat it again. Forces need to ensure they, and their SMPs conduct reviews rigorously within the regulations, utterly fairly, without bias, and with the welfare of the disabled former officer firmly in mind in all that they do.