“Alea iacta est” (“The die is cast”) — Julius Caesar on January 10, 49 B.C as he crossed the Rubicon river
November 9th 2017 was a black day. It was the day Staffordshire police, Andrew Colley and Charles Vivian crossed the Rubicon.
The answer will be found in the courts and injustice will be vanquished, as it always is, but still Staffordshire police wants test their ruinous interpretation of the law whilst ignoring the collateral harm it is deliberately causing to those injured in their police service.
Why are we here and why wasn’t this stopped when the wickedness was embryonic? What follows is a timely reminder.
Lionel Shriver’s 2003 novel “We Need to Talk About Kevin” describes how when behaviour worsens, those with the power to do something go on the defensive, convinced there is always a reasonable explanation for why what they could have stopped was done to others.
On the 7 June 2017 at court room in North Shields, employment Judge Buchanan heard how David Curry, a former police officer retired on a pension awarded for disabling brain injury suffered in the line of duty had been pursued since 1998 by his former force. Mr Curry had his injury pension reviewed in 1989, 1991, 1994, 1996, 1998, 2010 and continually from 2016 to 2017. The fact that he was sectioned and admitted into a psychiatric ward wasn’t enough to persuade his former force there had been no change in his capacity to earn.
David’s experience is sadly not an isolated instance. The charity Injury on Duty Pensioners Association (IODPA)1 has gathered a large and growing body of personal accounts by the victims of maladministration. So much is wrong with so many aspects of police injury pension management that the situation is little short of a national scandal, which requires the attention of Police and Crime Commissioners.
Disabled former officers such as Mr Curry can never be free from the police. The new £7.5m Police Federation of England and Wales (PFEW) welfare fund is helping those serving but neglects those already injured and retired. Ill-health retirement is sadly an acrimonious and bureaucratic process and this doesn’t cease once permanence has been proved and the warrant card handed back. Every time the postman drops a letter through a letterbox carries the risk of adversity; a letter from the force causing the injured to relive the trauma of how they left the police.
Through a fluke of mailroom efficiency, often these letters drop on a Saturday when week-day mental health support has closed. No other occupation has such a toe-hold on those leave through medical retirement. They are being treated as though they are cheats or liars. Some, including those with severe mental injury, have been subjected to hours-long aggressive ‘medical inquisitions’ by doctors appointed by their former force throughout their life outside of the police.
When a force wants to review the principles of the Data Protection Act are often forgotten. As are the Access to Medical Reports Act, and General Medical Council and Faculty of Occupational Medicine guidelines. Pensioners are facing unlawful demands for access to their medical records and see reports written by said doctors, which contain gross errors in fact and law, delivered to HR departments without their permission. Pensioners have been threatened with stoppage of their injury pensions if they fail to complete questionnaires demanding sensitive financial and medical information having no relevance whatever to the management of their pensions.
Age can never be a factor. Slavishly following a “policy” is unlawful. It is never justifiable to threaten compliance or consent. A SMP can’t have a predetermined decision based on averages of prognosis for the general population. Causation can not be touched upon It is not about earnings.
All these things happened in Staffordshire on the 9th November 2017.
Those injured and disabled have to contend with pension scheme administrators who have little to no understanding of the Regulations which govern police injury pensions and whose automatic reaction to any enquiry or query concerning mismanagement is to circle the wagons and to deny, delay, obfuscate and obstruct. Complaints are brushed aside, and are labelled as vexatious, or an abuse of the complaints system.
Of major concern is a widespread misapprehension by senior officers and Police and Crime Commissioners that the Regulations permit regular mass reviews of the degree of disablement of injury pensioners. Mass reviews have been held, in some forces areas, causing very great worry and inconvenience to disabled former officers and their families. Mass reviews are unlawful, as decisions made on degree of disablement are intended to be final and only subject to review where the PPA consider that there has been an alteration in the pensioner’s degree of disablement.
There are 43 regional police forces in England and Wales. The picture is mixed, with the majority of forces not conducting reviews, whilst others have actively set about wholesale abuse of the discretionary power to conduct reviews. IODPA has been told by pensioners in these areas that they fear they are caught up in a grotesque game, where a handful of people on a mission are using them to test the boundaries of what they think they can get away with – all with the misplaced and illusory objective of saving money.
IODPA has no objection to lawful reviews, which it insists should be rare events, triggered when the PPA consider that there has been an alteration in the medical condition of any individual. Research conducted on behalf of IODPA produced data on reviews held covering the five year period 2010 – 2015 revealing that 83% of all reviews held resulted in a decision there had been no alteration in degree of disablement, and thus no revision of the amount of injury pension paid. Some 10.29% of reviews resulted in a decrease in pension, whilst 6.82% were increased. Just six forces accounted for the majority of the reviews, conducting 781 out of the total of 806. Merseyside alone conducted a staggering 502 reviews, all of which are believed to have been unlawfully held.
It can be concluded from the research that some forces wasted a great deal of public money conducting unnecessary reviews, which cost around £2500 each, with other, more substantial costs resulting from appeals and legal challenges.
Avon & Somerset has paid one SMP, a Dr Phillip Johnson, £94,500 in twelve months from August 2016 to August 2017. Add this to the £54,600 paid to Johnson from December 2015 to August 2016 and the £146,667 between June 2014 to November 2015, and the sum totals just under three hundred thousand pounds. Given Johnson works as the force medical officer for Dorset police and Avon & Somerset already pays a salary of over £150k per annum to Dr David Bulpitt, the scales of money exchanging hands is staggering.
In one force3, pensioners were selected for review by what was essentially an automated lottery, with no evidence whatever to believe their degree of disablement had altered. In one force a civilian member of staff was given free access to the medical records of police injury pensioners. It seems this force allowed, even encouraged attempts to reduce injury pension payments. The civilian’s job description2 commenced thus:
‘Job Purpose. To manage the investigation and process of police and support staff retirement on the grounds of ill health. To ensure maximum savings to the force budget through the robust investigation of injury award applications, injury award reviews, medical appeals and reviewing permanently disabled officers who have been retained in service.’
It seems this force has wrongly tied what should be the administration of injury pensions within the content, scope and purposes of the Regulations to the management of the force budget. Disabled pensioners are to be subjected to ‘investigation’ rather than be treated with respect and consideration.
The fact of the unlawful reviews is cause enough for concern, but there is a widespread and justified belief among pensioners that the reviews are motivated solely by a misplaced desire to save money from hard-pressed police budgets.
There is also uneasiness regarding the unhelpful attitudes of HR staff, the some doctors, and senior officers, some of whom are politely aggressive, or arrogantly dismissive of pensioners’ concerns.
It is unacceptable that that the rights of injured on duty pensioners should be trampled on by the failures of those responsible for the legitimate management of the scheme. Retired disabled officers deserve better. Attitudes need to change.
When a police officer is injured on duty, to such an extent they can no longer perform the ordinary duties of a constable they can be compulsorily medically retired. Injury can be physical or mental, or a combination of both. The retiring officer can be awarded a one-off gratuity and an injury pension, which is payable for life. The test for qualification for the award is whether the person concerned is disabled, whether the disablement is likely to be permanent and whether the disablement is the result of an injury received in the execution of duty.
The injury on duty pension scheme is governed by the Police (Injury Benefit) Regulations 2006. The explanatory memorandum3 to that legislation makes it clear that injury awards, ‘. . . are in effect compensation for work-related injuries.’
In making provision for injured officers to receive a pension, successive Governments have consistently acknowledged that entitlement to a police injury pension is a key element of the remuneration of police officers to enable them to undertake their role with confidence. Officers need to know that if they have to be retired due to disabling injury they will not suffer financial detriment. Currently, that certainty is slipping away, and if this trend continues, then morale of serving officers will suffer.
If there was no injury pension scheme, it is reasoned that Chief Officers would inevitably find themselves subjected to litigation, with allegations of negligence, and claims for compensation for injury. Given that there are currently over 12,000 former officers retired with an injury on duty, the potential cost of litigation should there have been no injury award scheme could well have run into thousands of millions.
No amount of pension can ease the difficulties retiring injured officers face. The consequential mental trauma of injury can be severe. There is the loss of an occupation which for many officers is seen as a vocation more than a means of earning a living. There is the loss of the comradeship, and loss of the sense of belonging, of being engaged in a worthwhile enterprise with noble aims and purpose. With the shock of injury and retirement comes the need to construct a new life. Some disabled former officers manage the transition with minimal difficulty. They find a new job or a new career. They adapt to the restrictions the disablement brings.
However, for many, especially those with very severe disablement, IODPA is well aware that transition to life outside the police can be a lengthy and distressing experience. Despite positive changes in attitudes by employers, encouraged by anti-discrimination legislation, disabled former officers, especially those with a mental injury, may well find themselves to be unemployable.
The Regulations governing police injury pensions are not concerned with these problems. They address only the one issue, that of providing a minimum income guarantee in retirement, and on that issue they are adequate for purpose. An injury pension scheme is only effective where it is properly managed. The Regulations are not hard to understand. Yet they are being woefully misunderstood by some who have responsibility for managing the police injury pension scheme.
In November 2013 the College of Policing arranged a review of forces’ management of ill health Retirements, injury on duty awards and police medical appeal boards4. Amongst other conclusions, the resulting report found that:
‘Many forces are struggling due to the lack of expertise within their organisations.’
‘The structure of some force HR facilities do not support the management of the process. When managed by shared service pools rather than through specific dedicated individuals, personnel are unable to build up experience in dealing with these case.’
‘The above issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.’
We have to look back to 2006 to see the origins of this sad state of affairs. Due to a change in tax legislation, and to preserve the tax-free status of injury awards they were separated from the general police pension schemes. The injury pension scheme became a non-contributory scheme, and award payments now stand to be met from the budget of each force.
This immediately brought about a focus on the cost of meeting existing injury pension payments. Some chief officers sought to reduce what was seen as a burden on scarce resources by manipulating the review provision.
Then the Police Reform and Social Responsibility Act 2011 abolished police authorities, which had hitherto held the legal obligation to administer the police injury award scheme. In practice, authorities had delegated the administration to Chief Constables, but they continued to provide an important oversight. The 2011 Act created the office of police pension authority and vested it in the sole personages of each Chief Constable.
There seems to be a built-in conflict of interest in having Chief Constables, who must dutifully manage their budgets, having to attempt to set aside all considerations of cost when acting as the police pension authority. The Police (Injury Benefit) Regulations 2006 do not say that a pension can be reviewed because a Chief Constable is concerned about the cost of paying it. Some Chief Constables have failed to make the necessary separation of their duties, to their great shame and to the detriment of disabled, and often vulnerable, former officers.
In Lionel Shriver’s novel, it was too late to save Kevin and those he massacred. The opportunity to make things right had passed. It is not too late for disabled former officers like David. IODPA suggests that Police and Crime Commissioners urgently should look closely at the human and financial cost of these issues and help ensure that police injury pensions are managed within the law.
2 See: http://iodpa.org/wp-content/uploads/2016/04/000.JDQ-Medical-Retirement-Officer.pdf
3 See: https://www.whatdotheyknow.com/request/injury_on_duty_reviews_the_next#outgoing-510456
4 See http://www.legislation.gov.uk/uksi/2006/932/pdfs/uksiem_20060932_en.pdf
5 See: College of Policing Review of Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards